Covenants, Representations and Warranties. 3.1 The Borrower ratifies, confirms and reaffirms, without condition, all the terms and conditions of the Agreement and the other Loan Documents and agrees that it continues to be bound by the terms and conditions thereof as amended by this Amendment; and, the Borrower further confirms and affirms that it has no defense, set off or counterclaim against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, and, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect in accordance with its terms. 3.2 The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment. 3.3 The Borrower represents and warrants to the Bank that: (a) This Amendment has been duly executed and delivered by the Borrower and constitutes the legal, valid and binding obligations of the Borrower enforceable in accordance with its terms; (b) The execution and delivery of this Amendment by the Borrower and the performance and observance by the Borrower of the provisions hereof, do not violate or conflict with the organizational agreements of the Borrower or any law applicable to the Borrower or result in a breach of any provision of or constitute a default under any other agreement, instrument or document binding upon or enforceable against the Borrower; (c) The representations and warranties set forth within Article III of the Agreement continue to be true and correct in all material respects as of the date of this Amendment except those changes resulting from the passage of time; and (d) No material adverse change has occurred in the business, operations, consolidated financial condition or prospects of the Borrower since the date of the most recent annual financial statement delivered to the Bank, and no Event of Default or condition which, with the passage of time, the giving of notice or both, could become an Event of Default has occurred and is continuing. 3.4 The Borrower shall execute or cause to be executed and deliver to the Bank all other documents, instruments and agreements deemed necessary or appropriate by the Bank in connection herewith.
Appears in 6 contracts
Samples: Credit Agreement (Sterling Construction Co Inc), Credit Agreement (Sterling Construction Co Inc), Credit Agreement (Sterling Construction Co Inc)
Covenants, Representations and Warranties. 3.1 The Borrower ratifies, confirms and reaffirms, without condition, all the terms and conditions (a) Conveyance of the Agreement Assets shall be with full substitution and subrogation of DDD, its successors and assigns, in and to all covenants and warranties heretofore given or made in respect of the rights, properties, and assets conveyed and transferred hereby, or any part thereof. The Partnership agrees to execute such further instruments and other Loan Documents and agrees that it continues documents as may be reasonably necessary to more fully convey to DDD the Assets conveyed or intended to be bound conveyed hereby.
(b) The Partnership warrants to DDD and its successors and assigns title to the Assets against claims and demands of all persons whomsoever may claim the same or any part thereof by, through and under the Partnership, but not otherwise.
(c) The Partnership represents the following to DDD:
(i) The Partnership owns the Assets and has the full power and right to sell and convey the same to DDD free of any lien, claim or encumbrance by, through or under the Partnership;
(ii) The Partnership has complied, in all material respects, with the provisions and requirements of all orders, regulations and rules issued or promulgated by governmental authorities having jurisdiction with respect to the terms Assets and conditions thereof as amended by this Amendmenthas filed for and obtained all governmental certificates, permits and other authorizations necessary for current operation of the Assets other than permits, consents and authorizations required for the sale and transfer of the Assets to DDD which shall be the responsibility of DDD; and,
(iii) The leases comprising the Borrower further confirms and affirms that it has no defense, set off or counterclaim against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, and, except as specifically amended by this Amendment, the Agreement shall remain Assets are in full force and effect in accordance with its termseffect.
3.2 (d) All ad valorem taxes regarding the Assets (i) for the years 1997 and before shall be borne and paid by the Partnership and (iii) for the years 1998 and thereafter shall be borne and paid by DDD.
(e) The Borrower ratifiesPartnership represents and warrants to DDD that the Partnership has incurred no liability, confirms and reaffirms without conditioncontingent or otherwise, all liens and security interests granted for brokers' or finders' fees relating to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended transactions contemplated by this Amendment.
3.3 The Borrower Agreement for which DDD shall have any responsibility whatsoever. DDD represents and warrants to the Bank that:Partnership that DDD has incurred no liability, contingent or otherwise, for brokers' or finders' fees relating to the transactions contemplated by this Agreement for which the Partnership shall have any responsibility whatsoever.
(a) This Amendment has been duly executed and delivered by the Borrower and constitutes the legal, valid and binding obligations of the Borrower enforceable in accordance with its terms;
(bf) The execution Partnership represents and delivery of this Amendment by the Borrower warrants that each and the performance and observance by the Borrower of the provisions hereof, do not violate or conflict with the organizational agreements of the Borrower or any law applicable to the Borrower or result in a breach of any provision of or constitute a default under any other agreement, instrument or document binding upon or enforceable against the Borrower;
(c) The representations and warranties set forth within Article III of the Agreement continue to be true and correct in all material respects as of the date of this Amendment except those changes resulting from the passage of time; and
(d) No material adverse change has occurred every partner in the businessPartnership is an accredited investor as defined in Rule 501 under the Securities Act of 1933, operations, consolidated financial condition or prospects of the Borrower since the date of the most recent annual financial statement delivered to the Bank, and no Event of Default or condition which, with the passage of time, the giving of notice or both, could become an Event of Default has occurred and is continuingas amended.
3.4 The Borrower shall execute or cause to be executed and deliver to the Bank all other documents, instruments and agreements deemed necessary or appropriate by the Bank in connection herewith.
Appears in 4 contracts
Samples: Asset Purchase Agreement (Seitel Inc), Asset Purchase Agreement (Seitel Inc), Asset Purchase Agreement (Seitel Inc)
Covenants, Representations and Warranties. 3.1 The Borrower ratifies, confirms and reaffirms, without condition, all In connection with the terms and conditions of the Agreement and the other Loan Documents and agrees that it continues to be bound by the terms and conditions thereof as amended transactions contemplated by this Amendment; andAgreement, and knowing that the Pledgee is and shall be relying hereon, the Borrower further confirms and affirms that it has no defensePledgor hereby covenants, set off or counterclaim against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, and, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect in accordance with its terms.
3.2 The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower represents and warrants to the Bank that:
(a) This Amendment the Pledged Stock has been and will be duly and validly issued, is and will be fully paid and non-assessable, and is and will be owned by the Pledgor free and clear of any and all restrictions, pledges, liens, encumbrances or other security interests of any kind, save and except for the pledge to the Pledgee pursuant to this Agreement;
(b) there are and will be no options, warrants or other rights in respect of the sale, transfer or other disposition of any of the Pledged Stock by the Pledgor, and the Pledgor has the absolute right to pledge the Pledged Stock hereunder without the necessity of any consent of any Person;
(c) neither the execution or delivery of this Agreement, nor the consummation of the transactions contemplated hereby, nor the compliance with or performance of this Agreement by the Pledgor, conflicts with or will result in the breach or violation of or a default under the terms, conditions or provisions of (i) any mortgage, security agreement, indenture, evidence of indebtedness, loan or financing agreement, or other agreement or instrument to which the Pledgor is a party or by which the Pledgor is bound, or (ii) any provision of law, any order of any court or administrative agency, or any rule or regulation applicable to the Pledgor or Borrower;
(d) this Agreement has been duly executed and delivered by the Borrower Pledgor, and constitutes the legal, valid and binding obligations obligation of the Borrower Pledgor, enforceable against the Pledgor in accordance with its terms;
(be) The execution and delivery of this Amendment by there are no actions, suits or proceedings pending or threatened against or affecting the Borrower and the performance and observance by the Borrower of the provisions hereof, do not violate Pledgor that involve or conflict with the organizational agreements of the Borrower or any law applicable relate to the Borrower or result in a breach of any provision of or constitute a default under any other agreement, instrument or document binding upon or enforceable against the Borrower;
(c) The representations and warranties set forth within Article III of the Agreement continue to be true and correct in all material respects as of the date of this Amendment except those changes resulting from the passage of timePledged Stock; and
(df) No material adverse change has occurred upon execution of this Agreement by Pledgor, the Pledgee shall have the senior security interest in the business, operations, consolidated financial condition or prospects of the Borrower since the date of the most recent annual financial statement delivered to the Bank, and no Event of Default or condition which, with the passage of time, the giving of notice or both, could become an Event of Default has occurred and is continuingPledged Stock.
3.4 The Borrower shall execute or cause to be executed and deliver to the Bank all other documents, instruments and agreements deemed necessary or appropriate by the Bank in connection herewith.
Appears in 3 contracts
Samples: Stock Pledge Agreement (China Yongxin Pharmaceuticals Inc.), Stock Pledge Agreement (China Yongxin Pharmaceuticals Inc.), Stock Pledge Agreement (China Yongxin Pharmaceuticals Inc.)
Covenants, Representations and Warranties. 3.1 The Borrower ratifies(a) . In order to induce Buyer to enter into this Agreement and purchase the Premises, confirms Seller makes the following covenants, agreements, representations and reaffirms, without conditionwarranties, all of which shall survive the terms Closing and conditions the purchase and sale of the Premises:
(1) Seller has obtained all necessary authorizations and consents to enable it to execute and deliver this Agreement and to consummate the other Loan Documents transaction contemplated hereby, including without limitation all authorizations and agrees that it continues consents required to be bound by obtained from governmental authorities during the terms course of, and conditions thereof as amended by this Amendment; andupon completion of, construction of the Borrower further confirms Improvements.
(2) Seller holds fee simple title to the Premises, free of all liens, assessments and affirms that it encumbrances except for the Permitted Exceptions, and liens and encumbrances which will be paid and discharged or otherwise released at or prior to the Closing. Seller has no defenseknowledge of any condition or state of facts which would preclude, set off limit or counterclaim against restrict the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rightsbusiness operations contemplated, and, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect in accordance with its terms.
3.2 The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement terms of the Lease, to be conducted by Tenant at the Premises.
(3) Except for construction warranties with respect to the Improvements, there are no service or maintenance contracts affecting the Premises to which Buyer will be bound upon Closing.
(4) The Premises and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note proposed use thereof by Tenant and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower represents and warrants to the Bank that:
(a) This Amendment has been duly executed and delivered by the Borrower and constitutes the legal, valid and binding obligations of the Borrower enforceable in accordance with its terms;
(b) The execution and delivery of this Amendment by the Borrower and the performance and observance by the Borrower of the provisions hereof, condition thereof do not violate violate, in any material respect, any applicable deed restrictions, zoning or conflict with the organizational agreements of the Borrower subdivision regulations, urban redevelopment plans, local, state or federal environmental law or regulation or any law building code or fire code applicable to the Borrower or result Premises ("Applicable Laws and Restrictions"), and are not designated by any governmental agency to be in a breach flood plain area. Seller has, on or before the Effective Date, provided written notice to Buyer of any provision continuing, alleged or potential violations of or constitute a default under any other agreement, instrument or document binding upon or enforceable against the Borrower;Applicable Laws and Restrictions known to Seller.
(c5) The representations and warranties set forth within Article III As of the Agreement continue to be true and correct in all material respects as of the date of this Amendment except those changes resulting from the passage of time; and
Closing Date (di) No material adverse change has occurred in the business, operations, consolidated financial condition or prospects of the Borrower since the date of the most recent annual financial statement delivered to the Bank, and there shall exist no Event of Default or condition event which, with the passage of time, the giving of notice or the passage of time or both, could become would constitute an Event of Default has occurred under the Lease; (ii) Tenant shall not have any defense, set-off or counterclaim in respect of its obligations under the Lease arising as a result of Seller's actions or activities, or those of Seller's employees, agents or contractors; and is continuing(iii) all leasing commissions and fees with respect to the Lease, if any, have been paid in full by Seller or Tenant.
3.4 The Borrower (6) There is no pending or, to Seller's knowledge, threatened litigation or other proceeding affecting the title to or the use or operation of the Premises.
(7) Seller is not a "foreign person" within the meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended, and Seller shall execute certify its taxpayer identification number at Closing.
(8) To Seller's knowledge, there are no federal, state, county or cause municipal plans to be executed and deliver restrict or change access from any highway or road to the Bank Premises.
(9) The Premises are a separate parcel for real estate tax assessment purposes.
(10) All of the financial data regarding the construction, ownership and operation of the Premises that Seller has provided to Buyer is true, complete and correct.
(11) To the best of Seller's knowledge the Improvements have been constructed in accordance with (i) the Plans and (ii) applicable building codes, laws and regulations in a good, substantial and workmanlike manner.
(12) No Hazardous Materials are, will be, or to the best of Seller's knowledge, have been, stored, treated, disposed of or incorporated into, on or around the Premises in violation of any applicable statutes, ordinances or regulations; the Premises are in material compliance with all applicable environmental, health and safety requirements; any business currently or, to the best of Seller's knowledge, heretofore operated on the Premises has disposed of its waste in accordance with all applicable statutes, ordinances and regulations; and Seller has no notice of any pending or, to the best of Seller's knowledge, threatened action or proceeding arising out of the condition of the Premises or any alleged violation of environmental, health or safety statutes, ordinances or regulations.
(13) Seller specifically acknowledges and understands that where Seller knows of any fact(s) materially affecting the value or desirability of the Premises, whether said fact(s) is/are readily observable or not, Seller hereby assumes and accepts a duty to disclose said fact(s) to Buyer. Seller warrants that, other documentsthan as may be disclosed in the foregoing representations and warranties, instruments Seller has no knowledge of any other fact(s) materially affecting the value or desirability of the Premises whether or not said fact(s) is/are readily observable. All of the representations, warranties and agreements deemed necessary or appropriate by of Seller set forth herein and elsewhere in this Agreement shall be true upon the Bank execution of this Agreement and shall be reaffirmed and repeated in connection herewithwriting at and as of the Closing Date, but not subsequent to the Closing Date, and shall survive the Closing Date.
Appears in 2 contracts
Samples: Real Estate Purchase and Sale Contract (CNL Retirement Properties Inc), Real Estate Purchase and Sale Contract (CNL Retirement Properties Inc)
Covenants, Representations and Warranties. 3.1 (a) The Borrower ratifies, confirms and reaffirms, without condition, all the terms and conditions of the Agreement and the other Loan Documents and agrees that it continues to be bound by the terms and conditions thereof as amended by this Amendment; and, the Borrower further confirms and affirms that it has no defense, set off or counterclaim against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, and, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect in accordance with its terms.
3.2 The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower represents and warrants to the Bank Company covenants that:
(ai) This Amendment has been duly executed it shall maintain a listing for all the issued ADSs on the NASDAQ, including all Exchange ADSs issued and delivered on the exercise of the Exchange Rights attaching to the Bonds;
(ii) it shall not terminate or cancel, or take any action which is likely to lead to the termination or cancellation of, the ADSs, or, unless and to the extent an adjustment to the Exercise is made pursuant to Condition 6.3.10(ii) of the Terms and Conditions or pursuant to the Deposit Agreement in the circumstances referred to in Condition 6.3.1 or 6.3.2 of the Terms and Conditions, change or modify the number of Ordinary Shares represented by each ADS;
(iii) it shall not modify or amend the Deposit Agreement in a manner which is adverse to Holders;
(iv) it shall, in the event that the ADSs are terminated or cancelled, cause the Ordinary Shares to be listed on the NASDAQ or the New York Stock Exchange, such listing to take effect immediately upon termination or cancellation of the ADSs;
(v) it shall not make any reduction of its ordinary share capital or any uncalled liability in respect thereof or of any share premium account or capital redemption reserve fund except (i) pursuant to the terms of issue of the relevant share capital, (ii) by means of a purchase or redemption of share capital of the Company which does not constitute a Capital Distribution, (iii) where the reduction results in (or would, but for the fact that the adjustment would be less than one per cent. of the Exchange Price then in effect, result in) an adjustment to the Exchange Price or (iv) as permitted by law;
(vi) it shall not in any way modify the rights attaching to the Ordinary Shares with respect to voting, dividends or liquidation nor issue any other class of ordinary or common equity share capital carrying any rights which are more favorable than such rights attaching to the Ordinary Shares provided that nothing in this Section 8(a)(vi) shall prevent (i) the issue of equity share capital to employees (including directors) and other potential plan participants and beneficiaries, whether of the Company or any of its Subsidiaries or associated companies by virtue of their office or employment or other relationship with the Company or its Subsidiaries pursuant to any scheme or plan (not being a plan in which substantially all the shareholders of the Company are entitled to participate) now in existence or which may in the future be duly adopted by the Borrower Company or (ii) any consolidation or sub-division of the Ordinary Shares or the conversion of any stock into ADSs or (iii) any modification of such rights attaching to the Ordinary Shares which is not, in the opinion of a leading investment bank (acting as an expert) selected by the Bond Issuer, and constitutes approved in writing by the legalTrustee, valid materially prejudicial to the interests of the Holders or (iv) without prejudice to any rule of law or legislation, the conversion of ADSs into, or the issue of any ADSs in, uncertificated form (or the conversion of ADSs in uncertificated form into certificated form) or the amendment of the articles of association of the Company to enable title to securities of the Company (including ADSs) to be evidenced and binding transferred without a written instrument or any other alteration to the articles of association of the Company made in connection with the matters described in this paragraph or which is supplemental or incidental to any of the foregoing (including any amendment made to enable or facilitate procedures relating to such matters and any amendment dealing with the rights and obligations of holders of securities (including ADSs) dealt with under such procedures) or (v) any issue of equity share capital where the Borrower enforceable issue of such equity share capital results (or would, but for the fact that the adjustment would be less than one per cent. of the Exchange Price then in effect, result) in an adjustment to the Exchange Price or (vi) the Exchange Rights attached to the Bonds being exercised;
(vii) it shall not issue or pay up any securities, in either case by way of capitalization of profits or reserves, other than (i) by the issue of fully paid Ordinary Shares on a capitalization of profits or reserves, (ii) by the issue of Ordinary Shares paid up in full out of profits or reserves in accordance with applicable law and issued wholly, ignoring fractional entitlements, instead of the whole or part of a cash dividend or (iii) by the issue of fully paid equity share capital (other than Ordinary Shares) to the holders of equity share capital of the same class and other holders of shares in the capital of the Company which by their terms entitle the holders thereof to receive equity share capital (other than Ordinary Shares) on a capitalization of profits or reserves, unless in any such case the same gives rise (or would, but for the fact that the adjustment would be less than one per cent. of the Exchange Price then in effect, give rise) to an adjustment to the Exchange Price; and
(viii) no securities (whether issued by the Company or any of its terms;Subsidiaries or procured by the Company or any of its Subsidiaries to be issued) issued without rights to convert into or exchange or subscribe for Ordinary Shares or ADSs shall subsequently include such rights exercisable at a consideration per Ordinary Share which is less than 95 per cent. of the Current Market Price (as defined in the Terms and Conditions) at the close of business on the last Trading Day (as defined in the Terms and Conditions) preceding the date of the public announcement of the proposed inclusion of such rights unless the same gives rise (or would but for the fact that the adjustment would be less than one per cent. of the Exchange Price then in effect, give rise) to an adjustment to the Exchange Price and that at no time shall there be in issue Ordinary Shares of differing nominal values.
(b) The execution representations, warranties and delivery of this Amendment agreements given by the Borrower Company in Section 5.10 of the Subscription Agreement are incorporated herein and the performance and observance repeated by the Borrower of the provisions hereof, do not violate or conflict with the organizational agreements of the Borrower or any law applicable to the Borrower or result in a breach of any provision of or constitute a default under any other agreement, instrument or document binding upon or enforceable against the Borrower;
(c) The representations and warranties set forth within Article III of the Agreement continue to be true and correct in all material respects as of the date of this Amendment except those changes resulting from the passage of time; and
(d) No material adverse change has occurred in the business, operations, consolidated financial condition or prospects of the Borrower since the date of the most recent annual financial statement delivered to the Bank, and no Event of Default or condition which, with the passage of time, the giving of notice or both, could become an Event of Default has occurred and is continuingCompany hereunder.
3.4 The Borrower shall execute or cause to be executed and deliver to the Bank all other documents, instruments and agreements deemed necessary or appropriate by the Bank in connection herewith.
Appears in 2 contracts
Samples: Registration Rights Agreement (Melco Crown Entertainment LTD), Registration Rights Agreement (Melco PBL Entertainment (Macau) LTD)
Covenants, Representations and Warranties. 3.1 The Borrower ratifiesLFB SA makes the following representations and warranties, confirms which shall survive the execution and reaffirmsdelivery of this Agreement, without condition, all the terms and conditions of the Agreement and the other Loan Documents and agrees that it continues the following shall be continuing covenants so long as any LFB Obligations or Affiliate Obligations remain unsatisfied and that they relate to be bound the facts as they exist on the date hereof until the LFB Obligations and Affiliate Obligations are satisfied in full:
a) LFB SA has the full right, power and authority to enter into and perform this Agreement, all necessary action, whether corporate or otherwise, has been taken by the terms and conditions thereof as amended by LFB SA to authorize LFB SA’s execution of this Amendment; and, the Borrower further confirms and affirms that it has no defense, set off or counterclaim against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting to engage in the Bank's rights, and, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect in accordance with its terms.
3.2 The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if anytransactions evidenced hereby, and such liens this Agreement is binding upon and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower represents and warrants to the Bank that:
(a) This Amendment has been duly executed and delivered by the Borrower and constitutes the legal, valid and binding obligations of the Borrower enforceable against LFB SA in accordance with its terms;
(b) The the execution and delivery of this Amendment by the Borrower Agreement is not, and the performance and observance hereof will not be, in contravention of, or in conflict with, (i) any agreement, indenture or undertaking to which LFB SA is a party or by the Borrower of the provisions hereof, do not violate or conflict with the organizational agreements of the Borrower which LFB SA or any law applicable to the Borrower of LFB SA’s property is, or result in a breach may be bound or affected, or (ii) any, writ, injunction, decree or demand of any provision of court or constitute a default under any other agreement, instrument or document binding upon or enforceable against the Borrowergovernmental authority;
(c) The representations and warranties set forth within Article III of the Agreement continue there is no litigation or other proceeding pending or threatened against LFB SA which could have a material adverse affect upon LFB SA’s ability to be true and correct in all material respects as of the date of this Amendment except those changes resulting from the passage of timeperform its obligations hereunder; and
(d) No material adverse change has occurred in LFB SA hereby acknowledges and represents that it expects to derive significant commercial benefits from the business, operations, consolidated financial condition or prospects of transactions evidenced by the Borrower since the date of the most recent annual financial statement delivered to the Bank, and no Event of Default or condition which, with the passage of time, the giving of notice or both, could become an Event of Default has occurred Agreements and is continuingmaking this Agreement in order to induce GTC to enter into the Agreements so as to allow LFB SA to obtain such anticipated benefits.
3.4 The Borrower shall execute or cause to be executed and deliver to the Bank all other documents, instruments and agreements deemed necessary or appropriate by the Bank in connection herewith.
Appears in 2 contracts
Samples: Keepwell Agreement, Keepwell Agreement (GTC Biotherapeutics Inc)
Covenants, Representations and Warranties. 3.1 The Borrower ratifies(a) Each party hereby represents and warrants to the other party that (i) it is duly organized or incorporated, confirms as the case may be, and reaffirms, without condition, all validly existing as an entity under the terms and conditions laws of the Agreement and the other Loan Documents and agrees that jurisdiction in which it continues to be bound by the terms and conditions thereof as amended by this Amendment; andis incorporated, the Borrower further confirms and affirms that chartered or organized, (ii) it has no defensethe requisite power and authority to enter into and perform this Agreement, set off and (iii) this Agreement has been duly authorized by all necessary action, has been duly executed by one or counterclaim more duly authorized officers and is the valid and binding agreement of such party enforceable against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, and, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect such party in accordance with its terms.
3.2 (b) The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower Seller further represents and warrants to the Bank Issuer that:
(ai) This Amendment has been duly executed and delivered by immediately prior to the Borrower and constitutes the legal, valid and binding obligations sale of the Borrower enforceable in accordance with its termsLoan Obligations to the Issuer, the Seller shall own the Loan Obligations, shall have good and marketable title thereto, free and clear of any pledge, lien, security interest, charge, claim, equity, or encumbrance of any kind, and upon the delivery or transfer of the Loan Obligations to the Issuer as contemplated herein, the Issuer shall receive good and marketable title to the Loan Obligations, free and clear of any pledge, lien, security interest, charge, claim, equity or encumbrance of any kind;
(bii) The execution the Seller acquired its ownership in the Loan Obligations in good faith without notice of any adverse claim, and upon the delivery or transfer of the Loan Obligations to the Issuer as contemplated herein, the Issuer shall acquire ownership in the Loan Obligations in good faith without notice of any adverse claim;
(iii) the Seller has not assigned, pledged or otherwise encumbered any interest in the Loan Obligations (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released);
(iv) none of the execution, delivery or performance by the Seller of this Amendment by the Borrower and the performance and observance by the Borrower of the provisions hereofAgreement shall (x) conflict with, do not violate or conflict with the organizational agreements of the Borrower or any law applicable to the Borrower or result in a any breach of any provision of or constitute a default (or an event which, with the giving of notice or passage of time, or both, would constitute a default) under, any term or provision of the organizational documents of the Seller, or any material indenture, agreement, order, decree or other material instrument to which the Seller is party or by which the Seller is bound which materially adversely affects the Seller’s ability to perform its obligations hereunder or (y) violate any provision of any law, rule or regulation applicable to the Seller of any regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Seller or its properties which has a material adverse effect;
(v) no consent, license, approval or authorization from, or registration or qualification with, any governmental body, agency or authority, nor any consent, approval, waiver or notification of any creditor or lessor is required in connection with the execution, delivery and performance by the Seller of this Agreement the failure of which to obtain would have a material adverse effect except such as have been obtained and are in full force and effect;
(vi) it has adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations. It is generally able to pay, and as of the date hereof is paying, its debts as they come due. It has not become or is not presently, financially insolvent nor will it be made insolvent by virtue of its execution of or performance under any of the provisions of this Agreement within the meaning of the bankruptcy laws or the insolvency laws of any jurisdiction. It has not entered into this Agreement or the transactions effectuated hereby in contemplation of insolvency or with intent to hinder, delay or defraud any creditor;
(vii) no proceedings are pending or, to its knowledge, threatened against it before any federal, state or other agreementgovernmental agency, instrument authority, administrative or document binding regulatory body, arbitrator, court or other tribunal, foreign or domestic, which, singularly or in the aggregate, could materially and adversely affect the ability of the Seller to perform any of its obligations under this Agreement; and
(viii) the consideration received by it upon or enforceable against the Borrower;sale of the Loan Obligations owned by it constitutes fair consideration and reasonably equivalent value for such Loan Obligations.
(c) The the Seller further represents and warrants to the Issuer that:
(i) the Underlying Instruments with respect to each Loan Obligation do not prohibit the Issuer from granting a security interest in and assigning and pledging such Loan Obligation to the Trustee;
(ii) the information set forth with respect to the Loan Obligations in Schedule A of the Indenture is true and correct;
(iii) none of the Loan Obligations will cause the Issuer to have payments subject to foreign or United States withholding tax;
(iv) with respect to each Loan Obligation, except as set forth in the Exception Schedule, the representations and warranties set forth within Article III of the Agreement continue to be in Schedule 1(a) are true and correct in all material respects as of the date of this Amendment except those changes resulting from the passage of timecorrect; and
(dv) No material adverse change the Seller has occurred in the business, operations, consolidated financial condition or prospects of the Borrower since the date of the most recent annual financial statement delivered to the BankIssuer or its designee (A) the original of any note (or a copy of such note together with a lost note affidavit and indemnity), certificate or other instrument, if any, constituting or evidencing such Loan Obligation together with an assignment in blank and no Event all other assignment documents reasonably necessary to evidence the transfer of Default the Loan Obligation including, where applicable, UCC assignments and any other Underlying Instrument and copies of any other documents related to the Loan Obligation in the Seller’s possession, including copies of any related mortgage loan documents if the Loan Obligation is a Mortgage Loan, related to such Loan Obligation the delivery of which is necessary to perfect the security interest of the Trustee in such Loan Obligation and (B) copies of the Underlying Instruments.
(d) For purposes of the representations and warranties set forth in Schedule 1(a), the phrases “to the knowledge of the Seller” or condition which“to the Seller’s knowledge” shall mean, except where otherwise expressly set forth in a particular representation and warranty, the actual state of knowledge of the Seller or any servicer acting on its behalf regarding the matters referred to, in each case: (i) at the time of the Seller’s origination or acquisition of the particular Loan Obligation, after the Seller having conducted such inquiry and due diligence into such matters as would be customarily performed by a prudent institutional commercial or multifamily, as applicable, mortgage lender; and (ii) subsequent to such origination, the Seller having utilized monitoring practices that would be utilized by a prudent institutional commercial or multifamily, as applicable, mortgage lender and having made prudent inquiry as to the knowledge of the servicer servicing such Loan Obligation on its behalf. Also, for purposes of such representations and warranties, the phrases “to the actual knowledge of the Seller” or “to the Seller’s actual knowledge” shall mean, except where otherwise expressly set forth below, the actual state of knowledge of the Seller or any servicer acting on its behalf without any express or implied obligation to make inquiry. All information contained in documents which are part of or required to be part of a Collateral File shall be deemed to be within the knowledge and the actual knowledge of the Seller. Wherever there is a reference to receipt by, or possession of, the Seller of any information or documents, or to any action taken by the Seller or not taken by the Seller, such reference shall include the receipt or possession of such information or documents by, or the taking of such action or the failure to take such action by, the Seller or any servicer acting on its behalf.
(e) If the Seller receives written notice of a breach of a representation or a warranty pursuant to this Agreement relating to any Loan Obligation, then the Seller shall (1) not later than 90 days from receipt of such notice or discovery by the Seller, cure such breach (to the extent such breach is capable of being cured), (2) subject to the consent of a majority of the holders of each Class of Notes (excluding any Note held by the Seller or any of its affiliates), make a Cash payment to the Issuer in an amount that the Loan Obligation Manager, on behalf of the Issuer, determines is sufficient to compensate the Issuer for such breach of representation or warranty (such payment, a “Loss Value Payment”), which Loss Value Payment will be deemed to cure such breach of representation or warranty, or (3) if such breach cannot be cured within such 90-day period, repurchase the affected Loan Obligation not later than the end of such 90-day period at the Repurchase Price (as defined in Section 16.3(c) of the Indenture)
(f) The Seller hereby acknowledges and consents to the collateral assignment by the Issuer of this Agreement and all right, title and interest thereto to the Trustee, for the benefit of the Noteholders, as required in Sections 15.1(f)(i) and (ii) of the Indenture.
(g) The Seller hereby covenants and agrees that it shall perform any provisions of the Indenture made expressly applicable to the Seller by the Indenture, as required by Section 15.1(f)(i) of the Indenture.
(h) The Seller hereby covenants and agrees that all of the representations, covenants and agreements made by or otherwise entered into by it in this Agreement shall also be for the benefit of the Trustee and the Noteholders, as required by Section 15.1(f)(ii) of the Indenture and agrees that enforcement of any rights hereunder by the Trustee shall have the same force and effect as if the right or remedy had been enforced or executed by the Issuer but that such rights and remedies shall not be any greater than the rights and remedies of the Issuer under Section 4(e) above.
(i) On or prior to the Closing Date, the Seller shall deliver the Underlying Instruments to the Issuer or, at the direction of the Issuer, to the Trustee, with respect to each Loan Obligation sold to the passage Issuer hereunder. The Seller hereby covenants and agrees, as required by Section 15.1(f)(iii) of timethe Indenture, the giving of notice or both, could become an Event of Default has occurred and is continuing.
3.4 The Borrower that it shall execute or cause to be executed and deliver to the Bank Trustee duplicate original copies of all notices, statements, communications and instruments delivered or required to be delivered to the Issuer by each party pursuant to this Agreement.
(j) The Seller hereby covenants and agrees, as required by Section 15.1(f)(iv) of the Indenture, that it shall not enter into any agreement amending, modifying or terminating this Agreement (other documentsthan in respect of an amendment or modification to cure any inconsistency, instruments ambiguity or manifest error), without notifying the Rating Agencies.
(k) Seller hereby covenants, that at all times (1) Seller will qualify as a REIT for federal income tax purposes and agreements deemed necessary the Issuer will qualify as a Qualified REIT Subsidiary (or appropriate by other disregarded entity) of Seller for federal income tax purposes, (2) based on an Opinion of Counsel, the Bank Issuer will be treated as a Qualified REIT Subsidiary (or other disregarded entity) of a REIT other than Seller, or (3) based on an Opinion of Counsel, the Issuer will be treated as a foreign corporation that will not be treated as engaged in connection herewitha trade or business in the United States for U.S. federal income tax purposes.
Appears in 2 contracts
Samples: Loan Obligation Purchase Agreement (Arbor Realty Trust Inc), Loan Obligation Purchase Agreement (Arbor Realty Trust Inc)
Covenants, Representations and Warranties. 3.1 Upon the issuance of any Stock, the Pledgor shall deliver or cause to be delivered the original stock certificates and all other instruments or documents evidencing such Stock (the “Stock Certificates”), together with appropriate stock powers, endorsements and other appropriate instruments of assignment endorsed in blank. The Borrower ratifies, confirms Pledgor warrants to the Bank that: (a) Pledgor is the legal and reaffirms, without condition, all the terms and conditions beneficial owner of the Agreement Units and owns the Units free of all claims and liens other Loan Documents than the security interest granted hereunder; (b) Pledgor suffers under no legal incapacity; (c) Pledgor has the full right, power and agrees that it continues authority to be deliver, pledge, assign and transfer the Units to the Bank as provided herein; (d ) this pledge will not violate the proscriptions or require the consent, license, filing, report, permit, exemption, regulation or approval, of any governmental authority or other person or entity or violate any provision of law or any agreement, judgment, decree, order, instrument or indenture to which the Pledgor is a party or by which he or his assets are bound or result in the imposition of any lien on any of his assets; (e) all shares of the Units are fully paid and non-assessable and to Pledgor’s knowledge have been duly and validly issued; (f) to Pledgor’s knowledge, the Collateral has not been materially altered and all signatures thereon are genuine; (g) to Pledgor’s knowledge, there presently exists no state of facts which give rise (or which with notice or lapse of time or both would give rise) to any defenses, set offs, or counterclaims to the Pledgor’s obligations hereunder; (h) to Pledgor’s knowledge there exists no default by the terms KRGLP or Kite Realty under the Collateral; (i) to Pledgor’s knowledge, no insolvency proceedings have been instituted with respect to KRGLP or Kite Realty; (j) to Pledgor’s knowledge there has not occurred any event which with notice or lapse of time or both would constitute a default on the part of KRGLP or Kite Realty under the Collateral; (k) the Pledgor has executed no release, discharge, satisfaction or cancellation of any of the obligations evidenced by the Collateral; (l) the Pledgor has executed no release of any portion of the security described in the Collateral; (m) the Pledgor has executed no instrument of any kind assigning the Collateral or the liability of KRGLP or Kite Realty thereon, or with respect thereto, which remains in effect; (n) the Pledgor has done no act which impairs the validity of or the security of this Pledge Agreement; (o) Pledgor has delivered to Bank a true and conditions thereof as amended by this Amendment; andcomplete copy of the Partnership Agreement, the Borrower further confirms and affirms that it has no defensewhich Partnership Agreement, set off or counterclaim against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rightsto Pledgor’s knowledge, and, except as specifically amended by this Amendment, the Agreement shall remain is currently in full force and effect and has not been amended or modified, except as disclosed to Bank in accordance with its terms.
3.2 The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the writing; (p) Pledgor’s execution of this Pledge Agreement and the other Loan Documentsassignment effected hereby, if anyto Pledgor’s knowledge, does not and such liens and security interests shall continue to secure will not violate the indebtedness and obligations proscriptions or require the consent, license, filing, report, permit, exemption, regulation or approval of the Borrower to the Bank any governmental authority or violate any provision of law or violate or cause a breach of or default under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower represents and warrants to the Bank that:
(a) This Amendment has been duly executed and delivered by the Borrower and constitutes the legal, valid and binding obligations of the Borrower enforceable in accordance with its terms;
(b) The execution and delivery of this Amendment by the Borrower and the performance and observance by the Borrower of the provisions hereof, do not violate or conflict with the organizational agreements of the Borrower Partnership Agreement or any law applicable agreement, judgment, decree, order, mortgage, deed of trust, instrument or indenture to which Pledgor is a party, or by which he or his assets is/are bound, or, except as provided for herein, result in the Borrower imposition of any lien on the Collateral; and (q) there is no action, suit or proceeding pending or, to Pledgor’s knowledge, threatened against the Pledgor which might result in a breach of any provision of or constitute a default under any other agreement, instrument or document binding upon or enforceable against the Borrower;
(c) The representations and warranties set forth within Article III of the Agreement continue to be true and correct in all material respects as of the date of this Amendment except those changes resulting from the passage of time; and
(d) No material adverse change has occurred in the business, operations, consolidated financial condition or prospects of the Borrower since the date of the most recent annual financial statement delivered to the Bank, and no Event of Default or condition which, with the passage of time, the giving of notice or both, could become an Event of Default has occurred and is continuingPledgor.
3.4 The Borrower shall execute or cause to be executed and deliver to the Bank all other documents, instruments and agreements deemed necessary or appropriate by the Bank in connection herewith.
Appears in 2 contracts
Samples: Collateral Pledge Agreement (Kite Alvin E JR), Collateral Pledge Agreement (Kite John A)
Covenants, Representations and Warranties. 3.1 4.1 The Borrower ratifies, confirms and reaffirms, without condition, all the terms and conditions of the Agreement and the other Loan Documents and agrees that it continues to be bound by the terms and conditions thereof as amended by this Amendment; and, the Borrower further confirms commits and affirms that it has no defense, set off or counterclaim against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, and, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect in accordance with its terms.
3.2 4.2 The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 4.3 The Borrower represents and warrants to the Bank that:
(a) This Amendment has been duly executed and delivered by the Borrower and constitutes the legal, valid and binding obligations of the Borrower enforceable in accordance with its terms;
(b) The execution and delivery of this Amendment by the Borrower and the performance and observance by of the Borrower of the provisions hereof, do not violate or conflict with the organizational agreements of the Borrower or any law applicable to the Borrower or result in a breach of any provision of or constitute a default under any other agreement, instrument or document binding upon or enforceable against the Borrower;:
(c) The representations and warranties set forth within Article III of the Agreement continue to be true and correct in all material respects as of the date of this the Amendment except those changes resulting from the passage of time; and
(d) No material adverse change has occurred in the business, operations, consolidated financial condition or prospects of the Borrower since the date of the most recent annual financial statement delivered to the Bank, and no Event of Default or condition which, with the passage of time, the giving of notice or both, could become an Event of Default has occurred and is continuing.
3.4 4.4 The Borrower shall execute or cause to be executed and deliver to the Bank all other documents, instruments and agreements deemed necessary or appropriate by the Bank in connection herewith.
Appears in 2 contracts
Samples: Credit Agreement (Steel City Products Inc), Credit Agreement (Oakhurst Co Inc)
Covenants, Representations and Warranties. 3.1 The Borrower and Guarantors (as applicable to itself) hereby:
8.1 ratifies, confirms and reaffirms, without condition, all the terms and conditions of the Agreement and the other Loan Documents and agrees that it continues to be bound by the terms and conditions thereof Loan Agreement, as amended by this Amendment; and, and all other Loan Documents are valid, binding and in full force and effect as of the Borrower further confirms date of this Amendment, and affirms enforceable in accordance with their terms.
8.2 agrees that it has no defense, set off set-off, counterclaim or counterclaim challenge against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting payment of any sums owed or owing under the Bank's rights, and, except as specifically amended by this Amendment, Loan Documents or the Agreement shall remain in full force and effect in accordance with its termsenforcement of any of the terms of the Loan Documents.
3.2 The Borrower 8.3 ratifies, confirms and reaffirms without conditioncontinues all liens, all liens security interests, pledges, rights and remedies granted to Bank in the Loan Documents and agrees that such liens, security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests pledges shall continue to secure the indebtedness and obligations all of the Borrower to the Bank Obligations under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower Documents as amended by this Amendment.
3.3 The Borrower 8.4 represents and warrants to that all representations and warranties in the Bank that:
(a) This Amendment has been duly executed Loan Documents are true and delivered by the Borrower and constitutes the legal, valid and binding obligations complete as of the Borrower enforceable date of this Amendment.
8.5 agrees that its failure to comply with or perform any of its covenants or agreements in accordance with its terms;this Amendment will constitute an Event of Default under the Loan Documents.
8.6 represents and warrants that no condition or event exists after taking into account the terms of this Amendment which would constitute an Event of Default (b) The or will, upon the giving of notice or the passage of time, or both constitute an Event of Default).
8.7 represents and warrants that the execution and delivery of this Amendment by the Borrower and the performance Guarantors and observance all documents and agreements to be executed and delivered pursuant to this Amendment:
(a) have been duly authorized by the all requisite corporate, company and/or partnership action of Borrower of the provisions hereofand Guarantors, do as applicable;
(b) will not violate or conflict with the organizational agreements of the Borrower or any law applicable to the Borrower or result in a breach of any provision of of, or constitute a default under any other agreement, instrument (or document binding upon or enforceable against the Borrower;
(c) The representations and warranties set forth within Article III of the Agreement continue to be true and correct in all material respects as of the date of this Amendment except those changes resulting from the passage of time; and
(d) No material adverse change has occurred in the business, operations, consolidated financial condition or prospects of the Borrower since the date of the most recent annual financial statement delivered to the Bank, and no Event of Default or condition which, with the passage of time, time or the giving of notice or both, could become an Event will constitute a default) under, any of Default has occurred and the terms, conditions, or provisions of any applicable statute, law, rule, regulation or ordinance or any Borrower’s or Guarantor’s Governing Documents or any indenture, mortgage, loan or credit agreement or instrument to which any Borrower or Guarantor is continuinga party or by which such may be bound or affected, or any judgment or order of any court or governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign; and
(c) will not result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the property or assets of any Borrower or Guarantor under the terms or provisions of any such agreement or instrument, except liens in favor of Bank.
3.4 The Borrower shall execute or cause to be executed and deliver to the Bank all other documents, instruments and agreements deemed necessary or appropriate by the Bank in connection herewith.
Appears in 2 contracts
Samples: Loan and Security Agreement (Intest Corp), Loan and Security Agreement (Intest Corp)
Covenants, Representations and Warranties. 3.1 The Borrower ratifies, confirms and reaffirms, without condition, all 18.1 Covenants by Both Parties throughout the terms and conditions Term of the Agreement and the other Loan Documents and agrees this Agreement:
(a) Each Party covenants that it continues will use its reasonable best efforts to be bound by the terms obtain and conditions thereof as amended by this Amendment; and, the Borrower further confirms and affirms that it has no defense, set off or counterclaim against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, and, except as specifically amended by this Amendment, the Agreement shall remain maintain in full force and effect in accordance all necessary licenses, permits and other authorizations required by Law to carry out its duties and obligations under this Agreement. Each Party shall cooperate with the other to provide such letters, [**] = Portions of this exhibit have been omitted pursuant to a confidential treatment request. An unredacted version of this exhibit has been filed separately with the Commission. documentation and other information on a timely basis as the other Party may reasonably require to fulfill its reporting and other obligations under Laws to applicable regulatory authorities. Except for such amounts as are expressly required to be paid by a Party to the other under this Agreement, each Party shall be solely responsible for any costs incurred by it to comply with its termsobligations under Laws. Each Party shall conduct its activities hereunder in an ethical and professional manner.
3.2 The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower represents and warrants to the Bank that:
(a) This Amendment has been duly executed and delivered by the Borrower and constitutes the legal, valid and binding obligations of the Borrower enforceable in accordance with its terms;
(b) The execution Each Party hereby covenants that each of its employees and delivery other Third Parties performing any work under the any Development Plan and otherwise in accordance with this Agreement shall have entered into a written invention assignment agreement requiring that each such Third Party assign to such Party all right, title and interest in and to any intellectual property conceived of this Amendment and/or reduced to practice by the Borrower and the performance and observance by the Borrower of the provisions hereofsuch Third Party or its employees, do not violate consultants or conflict agents in connection with the organizational agreements of the Borrower or any law applicable to the Borrower or result in a breach of any provision of or constitute a default activities under any other agreement, instrument or document binding upon or enforceable against the Borrower;Development Plans and otherwise in accordance with this Agreement.
(c) The representations Each Party hereby covenants that it has not and warranties set forth within Article III shall not knowingly misappropriate or otherwise misuse, nor shall it knowingly permit any of the Agreement continue its employees, consultants or agents to be true misappropriate or otherwise misuse, any intellectual property of any Third Party in its conduct in accordance with any Development Plan and correct in all material respects as of the date of this Amendment except those changes resulting from the passage of time; andAgreement.
(d) No material adverse change has occurred Each Party covenants that it shall cooperate with the other and provide such assistance and resources as the other Party may reasonably request in the business, operations, consolidated financial condition or prospects connection with performance of the Borrower since obligations under this Agreement.
(e) Each Party covenants that it shall not, without the date prior written consent of the most recent annual financial statement delivered other Party, acquire, directly or indirectly, any securities of the other Party or any right or options to acquire any such securities, or issue any public announcements naming the Bank, and no Event other Party without the prior written consent of Default or condition which, with the passage of time, the giving of notice or both, could become an Event of Default has occurred and is continuingsuch Party.
3.4 The Borrower shall execute (f) Each Party covenants that it will immediately notify the other in writing if any debarment proceedings have commenced against a Party or cause to be executed and deliver to the Bank all other documentsany employees of consultants of a Party, instruments and agreements deemed necessary or appropriate if an employee or consultant of a Party is debarred by the Bank in connection herewithFDA.
Appears in 2 contracts
Samples: Exclusive License Agreement (Supernus Pharmaceuticals Inc), Exclusive License Agreement (Supernus Pharmaceuticals Inc)
Covenants, Representations and Warranties. 3.1 The Borrower ratifies, confirms Corporation hereby represents and reaffirms, without condition, all warrants that (a) it is authorized to create and issue the terms Warrants; (b) this Warrant Certificate is a valid and conditions enforceable obligation of the Agreement Corporation, enforceable against it in accordance with the provisions of this Warrant Certificate; and the other Loan Documents (c) all necessary Toronto Stock Exchange and NYSE MKT LLC (“NYSE MKT”) approvals have been obtained. The Corporation hereby covenants and agrees that (i) it continues will cause the Common Shares from time to time subscribed for and purchased in the manner provided in this Warrant Certificate and the certificate or certificates representing such Common Shares to be bound by issued; (ii) at all times prior to the terms Expiry Time, it will reserve and conditions thereof there will remain unissued a sufficient number of Common Shares to satisfy the right of purchase provided for in this Warrant Certificate; (iii) all Common Shares issued upon exercise of the right to purchase provided for herein shall, upon payment of the Exercise Price therefor, be issued as amended by fully paid and non-assessable shares, and be free from any and all taxes, liens and charges relating thereto; (iv) it shall make all requisite filings under all applicable securities laws and the respective regulations made thereunder including those necessary to remain a reporting issuer not in default of any requirement of such acts and regulations; and (v) it shall preserve and maintain its corporate existence and all licenses and permits that are material to the proper conduct of its business. The Corporation hereby further covenants and agrees that all Common Shares issuable upon exercise of this Amendment; andWarrant shall be approved for listing (subject to issue or notice of issue) on the Toronto Stock Exchange, the Borrower further confirms NYSE MKT and affirms that it has no defense, set off on such other stock exchanges or counterclaim against over- the-counter markets on which the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, and, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect in accordance with its termsCommon Shares are listed from time to time.
3.2 The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower represents and warrants to the Bank that:
(a) This Amendment has been duly executed and delivered by the Borrower and constitutes the legal, valid and binding obligations of the Borrower enforceable in accordance with its terms;
(b) The execution and delivery of this Amendment by the Borrower and the performance and observance by the Borrower of the provisions hereof, do not violate or conflict with the organizational agreements of the Borrower or any law applicable to the Borrower or result in a breach of any provision of or constitute a default under any other agreement, instrument or document binding upon or enforceable against the Borrower;
(c) The representations and warranties set forth within Article III of the Agreement continue to be true and correct in all material respects as of the date of this Amendment except those changes resulting from the passage of time; and
(d) No material adverse change has occurred in the business, operations, consolidated financial condition or prospects of the Borrower since the date of the most recent annual financial statement delivered to the Bank, and no Event of Default or condition which, with the passage of time, the giving of notice or both, could become an Event of Default has occurred and is continuing.
3.4 The Borrower shall execute or cause to be executed and deliver to the Bank all other documents, instruments and agreements deemed necessary or appropriate by the Bank in connection herewith.
Appears in 2 contracts
Samples: Membership Interest Purchase Agreement (Klondex Mines LTD), Membership Interest Purchase Agreement (Klondex Mines LTD)
Covenants, Representations and Warranties. 3.1 The Borrower ratifiesIn order to induce Lessor to enter into this Lease, confirms Lessee covenants, represents, warrants and reaffirms, without condition, all the terms and conditions agrees as of the Agreement date of this Master Lease and for the other Loan Documents entire Term of each and agrees that it continues to be bound by the terms and conditions thereof as amended by this Amendment; and, the Borrower further confirms and affirms that it has no defense, set off or counterclaim against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, and, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect in accordance with its terms.
3.2 The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank every Schedule entered into pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower represents and warrants to the Bank thathereto:
(a) This Amendment has been duly executed All Financial Statements heretofore and delivered by hereafter furnished to Lessor present fairly in all material respects the Borrower financial condition of Lessee on the dates thereof and constitutes the legalresults of Lessee’s operations for the periods then ended, valid and binding obligations of the Borrower enforceable were prepared in accordance with GAAP. There are no liabilities of Lessee, fixed or contingent, which are material and are not reflected in the Financial Statements or the notes thereto, other than liabilities arising in the ordinary course of business since the date of the most recent Financial Statement. The Financial Statements do not contain any untrue statement of a material fact or omit a material fact necessary to make the statements contained herein or therein not misleading. Lessee shall at all times keep its terms;books and records in accordance with GAAP. Lessor shall have access to the segment information for Lessee included in the public filings of the financial information filed by the Parent in accordance with Applicable Laws of the U.S. Securities and Exchange Commission. Lessee shall deliver, within thirty (30) days of issue, to Lessor its un-audited, internally generated, quarterly financial statements which are intended for internal use only.
(b) The execution and delivery There has been no change in the business, assets, liabilities, business prospects, property, or condition (financial or otherwise) of this Amendment by Lessee (or, To the Borrower and Best of Lessee’s Knowledge, Parent) which would have a material adverse effect on the performance and observance by business, property, or financial condition of Lessee since the Borrower date of the provisions hereof, do not violate or conflict with the organizational agreements of the Borrower or any law applicable to the Borrower or result in a breach of any provision of or constitute a default under any other agreement, instrument or document binding upon or enforceable against the Borrower;most recent Financial Statements.
(c) The representations All information supplied to Lessor by Lessee (or on behalf of Lessee at Lessee’s direction) with respect to any assets or other properties of Lessee (whether prior to or subsequent to execution of this Lease), is and warranties set forth within Article III of the Agreement continue to shall be true and correct in all material respects as of the date of this Amendment except those changes resulting from the passage of time; andrespects.
(d) No To the Best of Lessee’s Knowledge, all information supplied to Lessor by Lessee (or on behalf of Lessee at Lessee’s direction) with respect to any assets or other properties of Parent (whether prior to or subsequent to execution of this Lease), is and shall be true and correct in all material respects.
(e) Lessee, in the conduct of all of its business affairs, has complied and will continue to comply in all material respects with the requirements of all Applicable Laws, including all Environmental Laws, the noncompliance with which would have a material adverse change has occurred in effect on the business, operations, consolidated property or financial condition of Lessee and the ability of Lessee to perform under the Lease Documents. There have been no citations, notices, or prospects orders of noncompliance (that have not been complied with or withdrawn) issued to Lessee under any Applicable Law which would have a material adverse effect on the business, property, or financial condition of Lessee. Lessee has, and is in good standing with respect to, all governmental consents, approvals, authorizations, permits, certificates, inspections and franchises necessary to continue and to conduct in all material respects such entity’s business as heretofore conducted (or proposed to be conducted) by it and to own or lease and operate in all material respects its properties as now owned or leased by it.
(f) Lessee represents and warrants that none of (i) the ownership, leasing or operation of the Borrower since Equipment, (ii) the date sale or use of electricity, steam or other outputs therefrom or (iii) the consummation of any transaction under this Lease or any of the most recent annual financial statement delivered other Lease Documents will cause Lessee to become subject to regulation under (A) the Public Utility Holding Company Act of 1935, as amended from time to time (“PUHCA”) as a “public-utility company,” a “holding company,” or an “affiliate” or “subsidiary company” of a “holding company” or of a “public utility holding company,” as those terms are used in PUHCA, or (B) the Federal Power Act, other than regulation with respect to which the Federal Energy Regulatory Commission, or any successor agency or commission thereto, may grant a waiver or pre-approval in an order authorizing Lessee to sell power.
(g) Lessee has satisfied all judgments and Lessee is not in default in any material respect with respect to any judgment, writ, injunction, decree, rule, or regulation of any court, arbitrator, Governmental Authority, commission, board, bureau, agency, or instrumentality, domestic or foreign.
(h) There are no actions, suits, investigations or proceedings (“Litigation”) pending or, to the Bankknowledge of Lessee, threatened against or affecting Lessee or the properties of Lessee before any court or Governmental Authority, commission, board, bureau, agency or instrumentality, domestic or foreign, which, if determined adversely to Lessee, could have a materially adverse effect on the financial condition, properties or operations of Lessee or the ability of Lessee to perform hereunder, under any other the Lease Document. Lessee shall promptly notify Lessor in writing of the occurrence of any such Litigation after execution of the Master Lease.
(i) To the Best of Lessee’s Knowledge, there is no Litigation pending or threatened against or affecting Parent or the properties of Parent before any court or Governmental Authority, commission, board, bureau, agency or instrumentality, domestic or foreign, which, if determined adversely to Parent, could have a material adverse effect on the financial condition, properties or operations of Parent or Lessee or the ability of Lessee to perform hereunder, under any other the Lease Document. Lessee shall promptly notify Lessor in writing of the occurrence of any such Litigation after execution of the Master Lease, but only in the event that Lessee acquires knowledge or notice or becomes aware of any such Litigation with respect to Parent or Parent’s properties and such knowledge, notice or awareness meets the definition of the term “To the Best of Lessee’s Knowledge” 8.1(b) above.
(j) Lessee possesses all material licenses, permits, franchises, patents, copyrights, trademarks and trade names or rights thereto, including all Permits and Related Rights, to conduct its business substantially as now conducted and as presently proposed to be conducted, and no Event Lessee is not in violation of Default or condition which, any valid rights of others with respect to any of the passage of time, the giving of notice or both, could become an Event of Default has occurred and is continuingforegoing.
3.4 The Borrower shall execute (k) Lessee has filed or cause caused to be executed filed all tax returns which are required to be filed by it pursuant to all applicable federal, state and deliver local laws, regulations or orders. Lessee has paid, or made provision for the payment of, all Taxes which have or may have become due pursuant to said returns or otherwise or pursuant to any assessment received by Lessee or Parent. The charges, accruals, and reserves in respect of income taxes on the Bank all other documentsbooks of Lessee is adequate. Lessee knows of no proposed material Tax assessment against it and no extension of time for the assessment of federal, instruments and agreements deemed necessary state or appropriate by local Taxes of Lessee is in effect or has been required or applied for, except as disclosed in the Bank in connection herewithFinancial Statements.
Appears in 2 contracts
Samples: Master Lease Agreement, Master Lease Agreement (Regency Energy Partners LP)
Covenants, Representations and Warranties. 3.1 The Borrower ratifies(a) Each party hereby represents and warrants to the other party that (i) it is duly organized or incorporated, confirms as the case may be, and reaffirms, without condition, all validly existing as an entity under the terms and conditions laws of the Agreement and the other Loan Documents and agrees that jurisdiction in which it continues to be bound by the terms and conditions thereof as amended by this Amendment; andis incorporated, the Borrower further confirms and affirms that chartered or organized, (ii) it has no defensethe requisite power and authority to enter into and perform this Agreement, set off and (iii) this Agreement has been duly authorized by all necessary action, has been duly executed by one or counterclaim more duly authorized officers and is the valid and binding agreement of such party enforceable against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, and, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect such party in accordance with its terms.
3.2 (b) The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower Seller further represents and warrants to the Bank Issuer that:
(ai) This Amendment has been duly executed and delivered by immediately prior to the Borrower and constitutes the legal, valid and binding obligations sale of the Borrower enforceable in accordance with its termsLoan Obligations to the Issuer, the Seller shall own the Loan Obligations, shall have good and marketable title thereto, free and clear of any pledge, lien, security interest, charge, claim, equity, or encumbrance of any kind, and upon the delivery or transfer of the Loan Obligations to the Issuer as contemplated herein, the Issuer shall receive good and marketable title to the Loan Obligations, free and clear of any pledge, lien, security interest, charge, claim, equity or encumbrance of any kind;
(bii) The execution the Seller acquired its ownership in the Loan Obligations in good faith without notice of any adverse claim, and upon the delivery or transfer of the Loan Obligations to the Issuer as contemplated herein, the Issuer shall acquire ownership in the Loan Obligations in good faith without notice of any adverse claim;
(iii) the Seller has not assigned, pledged or otherwise encumbered any interest in the Loan Obligations (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released);
(iv) none of the execution, delivery or performance by the Seller of this Amendment by the Borrower and the performance and observance by the Borrower of the provisions hereofAgreement shall (x) conflict with, do not violate or conflict with the organizational agreements of the Borrower or any law applicable to the Borrower or result in a any breach of any provision of or constitute a default (or an event which, with the giving of notice or passage of time, or both, would constitute a default) under, any term or provision of the organizational documents of the Seller, or any material indenture, agreement, order, decree or other material instrument to which the Seller is party or by which the Seller is bound which materially adversely affects the Seller’s ability to perform its obligations hereunder or (y) violate any provision of any law, rule or regulation applicable to the Seller of any regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Seller or its properties which has a material adverse effect;
(v) no consent, license, approval or authorization from, or registration or qualification with, any governmental body, agency or authority, nor any consent, approval, waiver or notification of any creditor or lessor is required in connection with the execution, delivery and performance by the Seller of this Agreement the failure of which to obtain would have a material adverse effect except such as have been obtained and are in full force and effect;
(vi) it has adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations. It is generally able to pay, and as of the date hereof is paying, its debts as they come due. It has not become or is not presently, financially insolvent nor will it be made insolvent by virtue of its execution of or performance under any of the provisions of this Agreement within the meaning of the bankruptcy laws or the insolvency laws of any jurisdiction. It has not entered into this Agreement or the transactions effectuated hereby in contemplation of insolvency or with intent to hinder, delay or defraud any creditor;
(vii) no proceedings are pending or, to its knowledge, threatened against it before any federal, state or other agreementgovernmental agency, instrument authority, administrative or document binding regulatory body, arbitrator, court or other tribunal, foreign or domestic, which, singularly or in the aggregate, could materially and adversely affect the ability of the Seller to perform any of its obligations under this Agreement; and
(viii) the consideration received by it upon or enforceable against the Borrower;sale of the Loan Obligations owned by it constitutes fair consideration and reasonably equivalent value for such Loan Obligations.
(c) The the Seller further represents and warrants to the Issuer that:
(i) the Underlying Instruments with respect to each Loan Obligation do not prohibit the Issuer from granting a security interest in and assigning and pledging such Loan Obligation to the Trustee;
(ii) the information set forth with respect to the Loan Obligations in Schedule A of the Indenture is true and correct;
(iii) none of the Loan Obligations will cause the Issuer to have payments subject to foreign or United States withholding tax;
(iv) with respect to each Loan Obligation, except as set forth in the Exception Schedule, the representations and warranties set forth within Article III of the Agreement continue to be in Schedule 1(a) are true and correct in all material respects as of the date of this Amendment except those changes resulting from the passage of timecorrect; and
(dv) No material adverse change the Seller has occurred in the business, operations, consolidated financial condition or prospects of the Borrower since the date of the most recent annual financial statement delivered to the BankIssuer or its designee (A) the original of any note (or a copy of such note together with a lost note affidavit and indemnity), certificate or other instrument, if any, constituting or evidencing such Loan Obligation together with an assignment in blank and no Event all other assignment documents reasonably necessary to evidence the transfer of Default the Loan Obligation including, where applicable, UCC assignments and any other Underlying Instrument and copies of any other documents related to the Loan Obligation in the Seller’s possession, including copies of any related mortgage loan documents if the Loan Obligation is a Mortgage Loan, related to such Loan Obligation the delivery of which is necessary to perfect the security interest of the Trustee in such Loan Obligation and (B) copies of the Underlying Instruments.
(d) For purposes of the representations and warranties set forth in Schedule 1(a), the phrases “to the knowledge of the Seller” or condition which“to the Seller’s knowledge” shall mean, except where otherwise expressly set forth in a particular representation and warranty, the actual state of knowledge of the Seller or any servicer acting on its behalf regarding the matters referred to, in each case: (i) at the time of the Seller’s origination or acquisition of the particular Loan Obligation, after the Seller having conducted such inquiry and due diligence into such matters as would be customarily performed by a prudent institutional commercial or multifamily, as applicable, mortgage lender; and (ii) subsequent to such origination, the Seller having utilized monitoring practices that would be utilized by a prudent institutional commercial or multifamily, as applicable, mortgage lender and having made prudent inquiry as to the knowledge of the servicer servicing such Loan Obligation on its behalf. Also, for purposes of such representations and warranties, the phrases “to the actual knowledge of the Seller” or “to the Seller’s actual knowledge” shall mean, except where otherwise expressly set forth below, the actual state of knowledge of the Seller or any servicer acting on its behalf without any express or implied obligation to make inquiry. All information contained in documents which are part of or required to be part of a Collateral File shall be deemed to be within the knowledge and the actual knowledge of the Seller. Wherever there is a reference to receipt by, or possession of, the Seller of any information or documents, or to any action taken by the Seller or not taken by the Seller, such reference shall include the receipt or possession of such information or documents by, or the taking of such action or the failure to take such action by, the Seller or any servicer acting on its behalf.
(e) If the Seller receives written notice of a breach of a representation or a warranty pursuant to this Agreement relating to any Loan Obligation, then the Seller shall (1) not later than 90 days from receipt of such notice or discovery by the Seller, cure such breach (to the extent such breach is capable of being cured), (2) subject to the consent of a majority of the holders of each Class of Notes (excluding any Note held by the Seller or any of its affiliates), make a Cash payment to the Issuer in an amount that the Loan Obligation Manager, on behalf of the Issuer, determines is sufficient to compensate the Issuer for such breach of representation or warranty (such payment, a “Loss Value Payment”), which Loss Value Payment will be deemed to cure such breach of representation or warranty, or (3) if such breach cannot be cured within such 90-day period, repurchase the affected Loan Obligation not later than the end of such 90-day period at the Repurchase Price (as defined in Section 16.3(c) of the Indenture)
(f) The Seller hereby acknowledges and consents to the collateral assignment by the Issuer of this Agreement and all right, title and interest thereto to the Trustee, for the benefit of the Noteholders, as required in Sections 15.1(f)(i) and (ii) of the Indenture.
(g) The Seller hereby covenants and agrees that it shall perform any provisions of the Indenture made expressly applicable to the Seller by the Indenture, as required by Section 15.1(f)(i) of the Indenture.
(h) The Seller hereby covenants and agrees that all of the representations, covenants and agreements made by or otherwise entered into by it in this Agreement shall also be for the benefit of the Trustee and the Noteholders, as required by Section 15.1(f)(ii) of the Indenture and agrees that enforcement of any rights hereunder by the Trustee shall have the same force and effect as if the right or remedy had been enforced or executed by the Issuer but that such rights and remedies shall not be any greater than the rights and remedies of the Issuer under Section 4(e) above.
(i) On or prior to the Closing Date, the Seller shall deliver the Underlying Instruments to the Issuer or, at the direction of the Issuer, to the Trustee, with respect to each Loan Obligation sold to the passage Issuer hereunder. The Seller hereby covenants and agrees, as required by Section 15.1(f)(iii) of timethe Indenture, the giving of notice or both, could become an Event of Default has occurred and is continuing.
3.4 The Borrower that it shall execute or cause to be executed and deliver to the Bank Trustee duplicate original copies of all notices, statements, communications and instruments delivered or required to be delivered to the Issuer by each party pursuant to this Agreement.
(j) The Seller hereby covenants and agrees, as required by Section 15.1(f)(iv) of the Indenture, that it shall not enter into any agreement amending, modifying or terminating this Agreement (other than in respect of an amendment or modification to cure any inconsistency, ambiguity or manifest error), without notifying the Rating Agencies.
(k) Seller hereby covenants, that at all times (1) Seller will qualify as a REIT for federal income tax purposes and the Issuer will qualify as a Qualified REIT Subsidiary (or other disregarded entity) of Seller for federal income tax purposes, (2) based on an Opinion of Counsel, the Issuer will be treated as a Qualified REIT Subsidiary (or other disregarded entity) of a REIT other than Seller, or (3) based on an Opinion of Counsel, the Issuer will be treated as a foreign corporation that will not be treated as engaged in a trade or business in the United States for U.S. federal income tax purposes.
(l) Except for the agreed-upon procedures report obtained from a nationally recognized accounting firm for due diligence services with respect to certain information regarding the Loan Obligations to be conveyed to the Issuer (such report, the “Accountants’ Due Diligence Report”), the Seller has not obtained and shall not obtain any “third party due diligence report” (as defined in Rule 15Ga-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) in connection with the securitization transaction contemplated by the recitals hereto.
(m) The Purchaser (A) prepared or caused to be prepared a report on Form ABS-15G (the “Form 15G”) containing the findings and conclusions of the Accountants’ Due Diligence Report and meeting all other documentsrequirements of that Rule 15Ga-2 under the Exchange Act, instruments any other rules and agreements deemed necessary or appropriate regulations of the Securities and Exchange Commission and the Exchange Act; (B) provided a copy of the final draft of the Form 15G to the Placement Agent at least seven Business Days before the first sale of any Notes; and (C) furnished the Form 15G to the Securities and Exchange Commission on XXXXX at least five Business Days before the first sale of any Notes as required by Rule 15Ga-2 under the Bank in connection herewithExchange Act.
Appears in 2 contracts
Samples: Loan Obligation Purchase Agreement (Arbor Realty Trust Inc), Loan Obligation Purchase Agreement (Arbor Realty Trust Inc)
Covenants, Representations and Warranties. 3.1 The Borrower ratifiesSupplier covenants, confirms represents and reaffirmswarrants that (a) Supplier will comply with all applicable federal and provincial laws, rules, regulations, codes and ordinances, including but not limited to security, health and safety, in the performance of the Order; (b) all Services shall be completed in a professional, workmanlike manner, with the degree of skill and care that is required by current, good and sound professional procedures; (c) Services shall be completed in accordance with applicable specifications and shall be correct and appropriate for the purposes contemplated in the Order and in this Agreement; (d) the performance of Services and delivery of Goods under this Agreement will not conflict with, or be prohibited in any way, by any other agreement or statutory restriction to which Supplier is bound; (e) all Goods provided will be new and will not be used or refurbished and shall be fit and sufficient for the purpose intended; and shall be merchantable; (f) all Goods delivered shall be free from defects in materials and workmanship and shall conform to all applicable specifications; (g) any Goods furnished hereunder which are subject to occupational health and safety legislation or equivalent legislation, and the rules and regulations thereunder, will conform to all applicable standards and requirements set forth in such legislation and the rules and regulations thereunder; (h) any Goods and Services are not restricted in any way by patents, copyrights, trade secrets, or any other rights of third parties; and (i) where applicable, Supplier shall comply with the requirements of any applicable employment standards legislation, including, without conditionlimitation, The Labour Standards Act (Saskatchewan), in producing the Goods or performing the Services hereunder. Supplier further warrants to Mosaic that at delivery of any Goods, such Goods will be free of any liens or encumbrances. If there are any such liens or encumbrances, Supplier shall cause such liens or encumbrances to be discharged promptly at Supplier’s sole cost and expense upon notification from Mosaic of their existence. These covenants, representations and warranties are in addition to those implied by or available at law to Mosaic and shall exist notwithstanding the acceptance and/or inspection by Mosaic of all the terms and conditions or part of the Agreement Goods or Services. If Mosaic identifies a warranty problem with any Goods, Mosaic will notify Supplier of such problem and will return the other Loan Documents and agrees that it continues Goods to be bound by Supplier, at Supplier's expense. Within five (5) business days of receipt of the terms and conditions thereof as amended by this Amendment; andreturned Goods, the Borrower further confirms and affirms that it has no defenseSupplier shall, set off at Mosaic’s option, either repair or counterclaim against replace such Goods, or credit Mosaic’s account for the same. The Agreement Replacement and this Amendment repaired Goods shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, and, except as specifically amended warranted by this Amendment, the Agreement shall remain in full force and effect in accordance with its termsSupplier.
3.2 The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower represents and warrants to the Bank that:
(a) This Amendment has been duly executed and delivered by the Borrower and constitutes the legal, valid and binding obligations of the Borrower enforceable in accordance with its terms;
(b) The execution and delivery of this Amendment by the Borrower and the performance and observance by the Borrower of the provisions hereof, do not violate or conflict with the organizational agreements of the Borrower or any law applicable to the Borrower or result in a breach of any provision of or constitute a default under any other agreement, instrument or document binding upon or enforceable against the Borrower;
(c) The representations and warranties set forth within Article III of the Agreement continue to be true and correct in all material respects as of the date of this Amendment except those changes resulting from the passage of time; and
(d) No material adverse change has occurred in the business, operations, consolidated financial condition or prospects of the Borrower since the date of the most recent annual financial statement delivered to the Bank, and no Event of Default or condition which, with the passage of time, the giving of notice or both, could become an Event of Default has occurred and is continuing.
3.4 The Borrower shall execute or cause to be executed and deliver to the Bank all other documents, instruments and agreements deemed necessary or appropriate by the Bank in connection herewith.
Appears in 2 contracts
Samples: Purchase Order Terms and Conditions, Purchase Order Agreement
Covenants, Representations and Warranties. 3.1 The Borrower ratifies, confirms and reaffirms, without condition, all In connection with the terms and conditions of the Agreement and the other Loan Documents and agrees that it continues to be bound by the terms and conditions thereof as amended transactions contemplated by this Amendment; andAgreement, and knowing that the Pledgee is and shall be relying hereon, the Borrower further confirms and affirms that it has no defensePledgor hereby covenants, set off or counterclaim against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, and, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect in accordance with its terms.
3.2 The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower represents and warrants to the Bank that:
(a) This Amendment the Pledged Stock have been and will be duly and validly issued, are and will be fully paid and non-assessable, and are and will be owned by the Pledgor free and clear of any and all restrictions, pledges, liens, encumbrances or other security interests of any kind, save and except for the pledge to the Pledgee pursuant to this Agreement;
(b) there are and will be no options, warrants or other rights in respect of the sale, transfer or other disposition of any of the Pledged Stock by the Pledgor, and the Pledgor has the absolute right to pledge the Pledged Stock hereunder without the necessity of any consent of any Person;
(c) neither the execution or delivery of this Agreement, nor the consummation of the transactions contemplated hereby, nor the compliance with or performance of this Agreement by the Pledgor, conflicts with or will result in the breach or violation of or a default under the terms, conditions or provisions of (i) any mortgage, security agreement, indenture, evidence of indebtedness, loan or financing agreement, or other agreement or instrument to which the Pledgor is a party or by which the Pledgor is bound, or (ii) any provision of law, any order of any court or administrative agency, or any rule or regulation applicable to the Pledgor;
(d) this Agreement has been duly executed and delivered by the Borrower Pledgor, and constitutes the legal, valid and binding obligations obligation of the Borrower Pledgor, enforceable against the Pledgor in accordance with its terms;
(b) The execution and delivery of this Amendment by the Borrower and the performance and observance by the Borrower of the provisions hereof, do not violate or conflict with the organizational agreements of the Borrower or any law applicable to the Borrower or result in a breach of any provision of or constitute a default under any other agreement, instrument or document binding upon or enforceable against the Borrower;
(c) The representations and warranties set forth within Article III of the Agreement continue to be true and correct in all material respects as of the date of this Amendment except those changes resulting from the passage of time; and
(de) No material adverse change has occurred in there are no actions, suits or proceedings pending or threatened against or affecting the business, operations, consolidated financial condition Pledgor that involve or prospects of the Borrower since the date of the most recent annual financial statement delivered relate to the Bank, and no Event of Default or condition which, with the passage of time, the giving of notice or both, could become an Event of Default has occurred and is continuingPledged Collateral.
3.4 The Borrower shall execute or cause to be executed and deliver to the Bank all other documents, instruments and agreements deemed necessary or appropriate by the Bank in connection herewith.
Appears in 2 contracts
Samples: Stock Pledge Agreement (Commercial Consolidators Corp), Stock Pledge Agreement (Commercial Consolidators Corp)
Covenants, Representations and Warranties. 3.1 The Borrower ratifies(a) Each party to this Agreement hereby represents and warrants to the other party that (i) it is duly organized or incorporated, confirms as the case may be, and reaffirms, without condition, all validly existing as an entity under the terms and conditions laws of the Agreement and the other Loan Documents and agrees that jurisdiction in which it continues to be bound by the terms and conditions thereof as amended by this Amendment; andis incorporated, the Borrower further confirms and affirms that chartered or organized, (ii) it has no defensethe requisite power and authority to enter into and perform this Agreement, set off and (iii) this Agreement has been duly authorized by all necessary action, has been duly executed by one or counterclaim more duly authorized officers and is the valid and binding agreement of such party enforceable against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, and, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect such party in accordance with its terms.
3.2 (b) The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower Seller further represents and warrants to the Bank Issuer as of the Closing Date and as of each Subsequent Seller Transfer Date, as applicable, that:
(ai) This Amendment has been duly executed and delivered by immediately prior to the Borrower and constitutes the legal, valid and binding obligations sale of the Borrower enforceable in accordance with its termsapplicable Mortgage Assets to the Issuer, the Seller shall own such Mortgage Assets, shall have good and marketable title thereto, free and clear of any pledge, lien, security interest, charge, claim, equity, or encumbrance of any kind, and upon the delivery or transfer of such Mortgage Assets to the Issuer as contemplated herein, the Issuer shall receive good and marketable title to such Mortgage Assets, free and clear of any pledge, lien, security interest, charge, claim, equity or encumbrance of any kind;
(bii) The execution the Seller acquired its ownership in such Mortgage Assets in good faith without notice of any adverse claim, and upon the delivery or transfer of such Mortgage Assets to the Issuer as contemplated herein, the Issuer shall acquire ownership in such Mortgage Assets in good faith without notice of any adverse claim;
(iii) the Seller has not assigned, pledged or otherwise encumbered any interest in such Mortgage Assets (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released);
(iv) none of the execution, delivery or performance by the Seller of this Amendment by the Borrower and the performance and observance by the Borrower of the provisions hereofAgreement shall (x) conflict with, do not violate or conflict with the organizational agreements of the Borrower or any law applicable to the Borrower or result in a any breach of any provision of or constitute a default (or an event which, with the giving of notice or passage of time, or both, would constitute a default) under, any term or provision of the organizational documents of the Seller, or any material indenture, agreement, order, decree or other material instrument to which the Seller is party or by which the Seller is bound which materially adversely affects the Seller’s ability to perform its obligations hereunder or (y) violate any provision of any law, rule or regulation applicable to the Seller of any regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Seller or its properties which has a material adverse effect;
(v) no consent, license, approval or authorization from, or registration or qualification with, any governmental body, agency or authority, nor any consent, approval, waiver or notification of any creditor or lessor is required in connection with the execution, delivery and performance by the Seller of this Agreement the failure of which to obtain would have a material adverse effect except such as have been obtained and are in full force and effect;
(vi) it has adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations. It is generally able to pay, and as of the date hereof is paying, its debts as they come due. It has not become or is not presently, financially insolvent nor will it be made insolvent by virtue of its execution of or performance under any of the provisions of this Agreement within the meaning of the bankruptcy laws or the insolvency laws of any jurisdiction. It has not entered into this Agreement or the transactions effectuated hereby in contemplation of insolvency or with intent to hinder, delay or defraud any creditor;
(vii) no proceedings are pending or, to its knowledge, threatened against it before any federal, state or other agreementgovernmental agency, instrument authority, administrative or document binding regulatory body, arbitrator, court or other tribunal, foreign or domestic, which, singularly or in the aggregate, could reasonably be expected to materially and adversely affect the ability of the Seller to perform any of its obligations under this Agreement; and
(viii) the consideration received by it upon or enforceable against the Borrower;sale of such Mortgage Assets owned by it constitutes fair consideration and reasonably equivalent value for such Mortgage Assets.
(c) The Seller further represents and warrants to the Issuer as of the Closing Date and as of each Subsequent Seller Transfer Date, as applicable, that:
(i) the Asset Documents with respect to each such Mortgage Asset do not prohibit the Issuer from granting a security interest in and assigning and pledging such Mortgage Asset to the Trustee;
(ii) none of such Mortgage Assets will cause the Issuer to have payments subject to foreign or United States withholding tax;
(iii) with respect to each Initial Mortgage Asset, except as set forth in the Exception Schedule, and with respect to any Reinvestment Assets, except as set forth in the applicable Subsequent Transfer Instrument, the representations and warranties set forth within Article III of the Agreement continue to be in Exhibit B are true and correct in all material respects as of the date of this Amendment except those changes resulting from the passage of timerespects; and
(div) No material adverse change the Seller has occurred in the business, operations, consolidated financial condition or prospects of the Borrower since the date of the most recent annual financial statement delivered to the BankIssuer or its designee (A) the original of any Mortgage Note (or a copy of such Mortgage Note together with a lost note affidavit and indemnity), participation certificate, certificate or other instrument, if any, constituting or evidencing such Mortgage Asset (and, in the case of a Pari Passu Participation, the note evidencing the related Pari Passu Participated Mortgage Loan) together with an assignment in blank and all other assignment documents reasonably necessary to evidence the transfer of the Mortgage Asset (and, in the case of a Pari Passu Participation, the related Pari Passu Participated Mortgage Loan, subject to the rights and obligations of the related Companion Participation Holder) including, where applicable, UCC assignments and any other Asset Documents and copies of any other documents related to the Mortgage Asset (and, in the case of a Pari Passu Participation, the related Mortgage Loan, subject to the rights and obligations of the related Companion Participation Holder) in the Seller’s possession, the delivery of which is necessary to perfect the security interest of the Trustee in such Mortgage Asset and (B) copies of the Asset Documents.
(d) For purposes of the representations and warranties set forth in Exhibit B, the phrases “to the knowledge of the Seller” or “to the Seller’s knowledge” shall mean, except where otherwise expressly set forth in a particular representation and warranty, the actual state of knowledge of the Seller or any servicer acting on its behalf regarding the matters referred to, in each case: (i) at the time of the Seller’s origination or acquisition of the particular Mortgage Asset, after the Seller having conducted such inquiry and due diligence into such matters as would be customarily performed by a prudent institutional commercial or multifamily, as applicable, mortgage lender; and (ii) subsequent to such origination, the Seller having utilized monitoring practices that would be utilized by a prudent commercial or multifamily, as applicable, mortgage lender and having made prudent inquiry as to the knowledge of the servicer servicing such Mortgage Asset on its behalf. Also, for purposes of such representations and warranties, the phrases “to the actual knowledge of the Seller” or “to the Seller’s actual knowledge” shall mean, except where otherwise expressly set forth below, the actual state of knowledge of the Seller or any servicer acting on its behalf without any express or implied obligation to make inquiry. All information contained in documents which are part of or required to be part of a Mortgage Asset File shall be deemed to be within the knowledge and the actual knowledge of the Seller. Wherever there is a reference to receipt by, or possession of, the Seller of any information or documents, or to any action taken by the Seller or not taken by the Seller, such reference shall include the receipt or possession of such information or documents by, or the taking of such action or the failure to take such action by, the Seller or any servicer acting on its behalf.
(e) The Seller shall not later than ninety (90) days from discovery by the Seller or receipt of written notice from any party to the Indenture of (i) its breach of a representation or a warranty pursuant to this Agreement that materially and adversely affects the ownership interests of the Issuer (or the Trustee as its assignee) in a Mortgage Asset, the interests of the Noteholders or the value of a Mortgage Asset (a “Material Breach”), or (ii) any Material Document Defect relating to any Mortgage Asset or Reinvestment Asset, (1) cure such Material Breach or Material Document Defect; provided that if such Material Breach or Material Document Defect cannot be cured within such 90-day period, the Seller shall repurchase the affected Mortgage Asset not later than the end of such 90-day period at the Repurchase Price; provided, however, that if the Seller certifies to the Issuer and the Trustee in writing that (x) any such Material Breach or Material Document Defect, as the case may be, is capable of being cured in all material respects but not within the initial 90-day period and (y) the Seller has commenced and is diligently proceeding with the cure of such Material Breach or Material Document Defect, as the case may be, then the Seller shall have an additional 90-day period to complete such cure or, failing such, to repurchase the affected Mortgage Asset or the related Mortgaged Property; provided, further, that if any such Material Document Defect is still not cured in all material respects after the initial 90-day period and any such additional 90-day period solely due to the failure of the Seller to have received the recorded or filed document, then the Seller shall be entitled to continue to defer its cure and repurchase obligations in respect of such Material Document Defect so long as the Seller certifies to the Trustee every 30 days thereafter that such Material Document Defect is still in effect solely because of its failure to have received the recorded or filed document and that the Seller is diligently pursuing the cure of such Material Document Defect (specifying the actions being taken) except that no Event such deferral of Default cure or condition whichrepurchase may continue beyond the date that is 18 months following the Closing Date or the Subsequent Seller Transfer Date, as the case may be, or (2) subject to the consent of a majority of the holders of each Class of Notes (excluding any Note held by the Seller or any of its affiliates), the Seller shall make a cash payment to the Issuer in an amount that the Special Servicer on behalf of the Issuer determines is sufficient to compensate the Issuer for such breach of representation or warranty or defect (such payment, a “Loss Value Payment”), which Loss Value Payment will be deemed to cure such Material Breach or Material Document Defect. Such repurchase or cure obligation by the Seller shall be the Issuer’s sole remedy for any Material Breach or Material Document Defect pursuant to this Agreement with respect to any Mortgage Asset sold to the Issuer by the Seller.
(f) The Seller hereby acknowledges and consents to the collateral assignment by the Issuer of this Agreement and all right, title and interest thereto to the Trustee, for the benefit of the Secured Parties, as required in Sections 15.1(f)(i) and (ii) of the Indenture.
(g) The Seller hereby covenants and agrees that it shall perform any provisions of the Indenture made expressly applicable to the Seller by the Indenture, as required by Section 15.1(f)(i) of the Indenture.
(h) The Seller hereby covenants and agrees that all of the representations, covenants and agreements made by or otherwise entered into by it in this Agreement shall also be for the benefit of the Secured Parties, as required by Section 15.1(f)(ii) of the Indenture and agrees that enforcement of any rights hereunder by the Trustee, the Note Administrator, the Servicer, or the Special Servicer, as the case may be, shall have the same force and effect as if the right or remedy had been enforced or executed by the Issuer but that such rights and remedies shall not be any greater than the rights and remedies of the Issuer under Section 4(e) above.
(i) On or prior to the Closing Date, or each Subsequent Seller Transfer Date, as applicable, the Seller shall deliver the Asset Documents to the Issuer or, at the direction of the Issuer, to the Custodian, with respect to each Mortgage Asset sold to the passage Issuer hereunder or under the applicable Subsequent Transfer Instrument. The Seller hereby covenants and agrees, as required by Section 15.1(f)(iii) of timethe Indenture, the giving of notice or both, could become an Event of Default has occurred and is continuing.
3.4 The Borrower that it shall execute or cause to be executed and deliver to the Bank Trustee duplicate original copies of all notices, statements, communications and instruments delivered or required to be delivered to the Issuer by each party pursuant to this Agreement.
(j) The Seller hereby covenants and agrees, as required by Section 15.1(f)(iv) of the Indenture, that it shall not enter into any agreement amending, modifying or terminating this Agreement (other documentsthan in respect of an amendment or modification to cure any inconsistency, instruments ambiguity or manifest error, in each case, so long as such amendment or modification does not affect in any material respects the interests of any Secured Party), without notifying the Rating Agencies through the 17g-5 Website as set forth in the Indenture.
(k) ACRE and agreements deemed necessary the Issuer hereby covenant, that at all times (1) ACRE will qualify as a REIT for federal income tax purposes and the Issuer will qualify as a Qualified REIT Subsidiary or appropriate by other disregarded entity of ACRE for federal income tax purposes, or (2) based on an Opinion of Counsel, the Bank Issuer will be treated as a Qualified REIT Subsidiary or other disregarded entity of a REIT other than ACRE, or (3) based on an Opinion of Counsel, the Issuer will be treated as a foreign corporation that is not engaged in connection herewitha trade or business in the United States for U.S. federal income tax purposes (which Opinion may be conditioned on compliance with certain restrictions on the investment or other activities of the Issuer and/or the Servicer on behalf of the Issuer).
Appears in 1 contract
Samples: Mortgage Asset Purchase Agreement (Ares Commercial Real Estate Corp)
Covenants, Representations and Warranties. 3.1 The Borrower ratifies, confirms and reaffirms, without condition, all the terms and conditions of the Agreement and the other Loan Documents and agrees that it continues to be bound by the terms and conditions thereof as amended by this Amendment; and, the Borrower further confirms and affirms that it has no defense, set off or counterclaim against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, and, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect in accordance with its terms.
3.2 The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower represents and warrants to the Bank that:
(a) This Amendment has been duly executed and delivered by the Borrower and constitutes the legal, valid and binding obligations of the Borrower enforceable in accordance with its terms;
(b) The execution and delivery of this Amendment by the Borrower and the performance and observance by the Borrower of the provisions hereof, do not violate or conflict with the organizational agreements of the Borrower or any law applicable to the Borrower or result in a breach of any provision of or constitute a default under any other agreement, instrument or document binding upon or enforceable against the Borrower;
(c) The representations and warranties set forth within Article III of the Agreement continue to be true and correct in all material respects as of the date of this Amendment except those changes resulting from the passage of time; and
(d) No material adverse change has occurred in the business, operations, consolidated financial condition or prospects of the Borrower since the date of the most recent annual financial statement delivered to the Bank, and no Event of Default or condition which, with the passage of time, the giving of notice or both, could become an Event of Default has occurred and is continuing.
3.4 The Borrower shall execute or cause to be executed and deliver delivered to the Bank all other documents, instruments and agreements deemed necessary or appropriate by the Bank in connection herewith.
Appears in 1 contract
Covenants, Representations and Warranties. 3.1 The Borrower ratifies, confirms (a) Seller represents and reaffirms, without condition, all the terms and conditions warrants to Purchaser that as of the date hereof, and as of the Closing Date and at all times while this Agreement is in effect:
(i) Seller is duly formed, validly existing and in good standing under the laws and regulations of the state of Seller’s formation and is duly licensed, qualified, and in good standing in every state where such licensing or qualification is necessary for the transaction of Seller’s business. Seller has the power to own and hold the assets it purports to own and hold, to carry on its business as now being conducted and proposed to be conducted, and to execute, deliver, and perform its obligations under this Agreement and the other Loan Documents and agrees that it continues to be bound by the terms and conditions thereof as amended by this Amendment; anddocuments contemplated herein (collectively, the Borrower further confirms and affirms that it has no defense, set off or counterclaim against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, and, except as specifically amended by this Amendment, “Transaction Documents”).
(ii) the Agreement shall remain in full force and effect in accordance with its terms.
3.2 The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower represents and warrants to the Bank that:
(a) This Amendment has been duly executed and delivered by the Borrower Seller, for good and valuable consideration. This Agreement and, upon execution, each other Transaction Document constitutes the legal, valid and binding obligations of the Borrower Seller, enforceable against Seller in accordance with its terms;their respective terms subject to bankruptcy, insolvency, and other limitations on creditors’ rights generally and to equitable principles.
(biii) The none of the execution and delivery of this Amendment the Transaction Documents, the consummation by Seller of the transactions contemplated by the Borrower Transaction Documents (or any of them), nor compliance by Seller with the terms, conditions and the performance and observance by the Borrower provisions of the provisions hereof, do not violate Transaction Documents (or any of them) will conflict with the organizational agreements of the Borrower or any law applicable to the Borrower or result in a breach of any provision of the terms, conditions or provisions of (1) the organizational documents of Seller, (2) any contractual obligation to which Seller is now a party or by which it is otherwise bound or to which the assets of Seller are subject or constitute a default thereunder, or result thereunder in the creation or imposition of any lien upon any of the assets of Seller, other than pursuant to the Transaction Documents, (3) any judgment or order, writ, injunction, decree or demand of any court applicable to Seller, or (4) any applicable requirement of law, in the case of clauses (1)-(4) above, to the extent that such conflict or breach would have a material adverse effect upon Seller’s ability to perform its obligations hereunder. Seller has all necessary licenses, permits and other consents from governmental authorities necessary to acquire, own and sell the Mortgage Loans and for the performance of its obligations under the Transaction Documents.
(iv) there is no action, suit, proceeding, investigation, or arbitration pending or, to the best knowledge of Seller, threatened against Seller or any of its assets which may have an adverse effect on the validity of the Transaction Documents or the Mortgage Loans or any action taken or to be taken in connection with the obligations of Seller under any of the Transaction Documents. Seller is in compliance in all material respects with all requirements of law applicable to Seller.
(v) Seller has not dealt with any broker, investment banker, agent, or other agreementPerson who may be entitled to any commission or compensation in connection with the sale of Mortgage Loans pursuant to any of the Transaction Documents.
(vi) Neither Seller nor any Person owning more than a 10% direct or indirect ownership interest in Seller is a “Prohibited Person” (as such term is defined in the September 24, instrument 2001 Executive Order Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or document binding Support Terrorism) or a Person currently identified on the Specially Designated Nationals and Blocked Persons List maintained by the Office of Foreign Assets Control of the United States Department of the Treasury (“OFAC”) and/or on any other similar list maintained by OFAC pursuant to any authorizing statute, executive order or regulation and Seller and each Person owning a direct or indirect ownership interest in Seller is in full compliance with all applicable orders, rules, regulations and recommendations of OFAC.
(vii) immediately prior to the sale of the Mortgage Loans to the Purchaser, the Seller shall own the Mortgage Loans, shall have good and marketable title thereto, free and clear of any pledge, lien, security interest, charge, claim, equity, or encumbrance of any kind, and upon the delivery or enforceable against transfer of the BorrowerMortgage Loans to the Purchaser as contemplated herein, the Purchaser shall receive good and marketable title to the Mortgage Loans, free and clear of any pledge, lien, security interest, charge, claim, equity or encumbrance of any kind;
(cviii) The representations the Seller acquired its ownership in the Mortgage Loans in good faith without notice of any adverse claim, and warranties upon the delivery or transfer of the Mortgage Loans to the Purchaser as contemplated herein, the Purchaser shall acquire ownership in the Mortgage Loans in good faith without notice of any adverse claim; and
(ix) the Seller has not assigned, pledged or otherwise encumbered any interest in the Mortgage Loans (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released).
(b) the Seller further represents and warrants to the Purchaser that:
(i) the Loan Documents do not prohibit the Seller from transferring the Mortgage Loans to Purchaser;
(ii) the information set forth within Article III of the Agreement continue with respect to be each Mortgage Loan in Exhibit A hereto is true and correct in all material respects as respects;
(iii) ownership of the date of this Amendment except those changes resulting from Mortgage Loans will not cause the passage of timePurchaser to have payments subject to foreign or United States withholding tax;
(iv) with respect to each Mortgage Loan, the representations and warranties set forth in Schedule 1(a) are true and correct in all material respects; and
(dv) No material adverse change the Seller has occurred in the business, operations, consolidated financial condition or prospects of the Borrower since the date of the most recent annual financial statement delivered to the BankPurchaser or its designee (A) the original of any Underlying Note (or, for any Underlying Note which is lost, a copy of such Note together with a lost note affidavit and no Event indemnity), certificate or other instrument, if any, constituting or evidencing each Mortgage Loan together with an assignment in blank and all other assignment documents reasonably necessary to evidence the transfer of Default or condition whichsuch Mortgage Loan including, with where applicable, UCC assignments and any other Loan Document and copies of any other documents related to such Mortgage Loan in the passage Seller’s possession and (B) copies of timethe Loan Documents.
(c) For purposes of the representations and warranties set forth in Schedule 1(a), the giving phrases “to the knowledge of notice the Seller” or both“to the Seller’s knowledge” shall mean, could become an Event except where otherwise expressly set forth in a particular representation and warranty, the actual state of Default has occurred knowledge of the Seller or any servicer acting on its behalf regarding the matters referred to, in each case: (i) at the time of the Seller’s origination or acquisition of the Mortgage Loan, after the Seller having conducted such inquiry and due diligence into such matters as would be customarily performed by a prudent institutional commercial or multifamily, as applicable, mortgage lender; and (ii) subsequent to such origination, the Seller having utilized monitoring practices that would be utilized by a prudent commercial or multifamily, as applicable, mortgage lender and having made prudent inquiry as to the knowledge of the servicer servicing such Mortgage Loans on its behalf. Also, for purposes of such representations and warranties, the phrases “to the actual knowledge of the Seller” or “to the Seller’s actual knowledge” shall mean, except where otherwise expressly set forth below, the actual state of knowledge of the Seller or any servicer acting on its behalf without any express or implied obligation to make inquiry. All information contained in documents which are part of or required to be part of a Loan File shall be deemed to be within the knowledge and the actual knowledge of the Seller. Wherever there is continuinga reference to receipt by, or possession of, the Seller of any information or documents, or to any action taken by the Seller or not taken by the Seller, such reference shall include the receipt or possession of such information or documents by, or the taking of such action or the failure to take such action by, the Seller or any servicer acting on its behalf.
3.4 The Borrower (d) If the Seller receives written notice of a breach of a representation or a warranty pursuant to this Agreement relating to any Mortgage Loan, then the Seller shall execute (1) not later than 90 days from receipt of such notice cure such breach, or cause to (2) if such breach cannot be executed and deliver cured within such 90-day period, repurchase the related Mortgage Loan not later than the end of such 90-day period at the Repurchase Price.
(e) On or prior to the Bank all other documentsClosing Date, instruments and agreements deemed necessary or appropriate by the Bank in connection herewithSeller shall deliver the Loan Documents to the Purchaser or, at the direction of the Purchaser, to the Custodian.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (LoanCore Realty Trust, Inc.)
Covenants, Representations and Warranties. 3.1 The Each of Borrower ratifiesand Guarantor covenants, confirms represents and reaffirmswarrants that:
a. Borrower and Guarantor are each corporations, without conditionduly organized, all validly existing and in good standing in their states of incorporation.
b. Each of Borrower and Guarantor has the requisite power and authority to own its properties and assets and to carry on that business that is now being conducted.
c. Each of Borrower and Guarantor are fully authorized and permitted to enter this Standstill Agreement and to perform the terms hereof, none of which conflicts with any provision of any law, rule or regulation applicable to Borrower or Guarantor.
d. This Standstill Agreement is a valid and conditions binding legal obligation of the Agreement Borrower and the other Loan Documents Guarantor and agrees that it continues to be bound by the terms and conditions thereof as amended by this Amendment; and, the Borrower further confirms and affirms that it has no defense, set off or counterclaim against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, and, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect is enforceable in accordance with its terms.
3.2 e. The agreements of the Banks contained herein (i) do not in any respect relieve Borrower ratifiesor Guarantor from their respective obligations to comply with each and every term, confirms agreement and reaffirms without condition, all liens condition applicable to it under its agreements with the Banks and security interests granted the Agent and (ii) shall not be construed in any respect to prohibit or limit the exercise of any remedies that are or may become available to the Bank pursuant Banks or the Agent, otherwise than as expressly provided for herein; and
f. The agreements of the Banks hereunder shall not in any respect prevent the Obligations of Borrower or Guarantor under the Credit Agreement, Guaranty or related documents from being and becoming due and payable in full to such extent as may be provided in any such agreement.
g. Except as provided in the Trade Agreement, Borrower shall not pay any Existing Trade Debt prior to January 15, 2000; provided, however, Borrower shall be permitted to make up to $5,200,000 in aggregate payments to the Agreement Convenience Class Claimants (sometimes hereinafter, individually the "Claimant") upon the following terms and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower represents and warrants to the Bank thatconditions:
(ai) This Amendment has been duly executed and delivered by No such payment to any Claimant shall exceed the Borrower and constitutes lesser of (x) the legal, valid and binding obligations amount of the Borrower enforceable in accordance with its terms;
Existing Trade Debt owed to such Claimant, or (by) The execution and delivery of this Amendment by the Borrower and the performance and observance by the Borrower of the provisions hereof, do not violate or conflict with the organizational agreements of the Borrower or any law applicable to the Borrower or result in a breach of any provision of or constitute a default under any other agreement, instrument or document binding upon or enforceable against the Borrower;
(c) The representations and warranties set forth within Article III of the Agreement continue to be true and correct in all material respects as of the date of this Amendment except those changes resulting from the passage of time$100,000; and
(dii) No material adverse change has occurred in the business, operations, consolidated financial condition or prospects Each such payment shall effect a full and final satisfaction of the Borrower since the date Existing Trade Debt claim of the most recent annual financial statement delivered to the Bank, and no Event of Default or condition which, with the passage of time, the giving of notice or both, could become an Event of Default has occurred and is continuingsuch Claimant.
3.4 The Borrower shall execute or cause to be executed and deliver to the Bank all other documents, instruments and agreements deemed necessary or appropriate by the Bank in connection herewith.
Appears in 1 contract
Samples: Standstill and Forbearance Agreement (Party City Corp)
Covenants, Representations and Warranties. 3.1 The Borrower ratifies(a) Each party to this Agreement hereby represents and warrants to the other party that (i) it is duly organized or incorporated, confirms as the case may be, and reaffirms, without condition, all validly existing as an entity under the terms and conditions laws of the Agreement and the other Loan Documents and agrees that jurisdiction in which it continues to be bound by the terms and conditions thereof as amended by this Amendment; andis incorporated, the Borrower further confirms and affirms that chartered or organized, (ii) it has no defensethe requisite power and authority to enter into and perform this Agreement, set off and (iii) this Agreement has been duly authorized by all necessary action, has been duly executed by one or counterclaim more duly authorized officers and is the valid and binding agreement of such party enforceable against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, and, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect such party in accordance with its terms.
3.2 (b) The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower Seller further represents and warrants to the Bank Issuer (i) with respect to the Closing Date Mortgage Assets, as of the Closing Date, and (ii) with respect to the Companion Participations and portions thereof sold hereunder on any Subsequent Seller Transfer Date, as of such Subsequent Seller Transfer Date, that:
(ai) This Amendment has been duly executed and delivered by immediately prior to the Borrower and constitutes the legal, valid and binding obligations sale of the Borrower enforceable in accordance with its termsMortgage Assets to the Issuer, the Seller shall own the Mortgage Assets, shall have good and marketable title thereto, free and clear of any pledge, lien, security interest, charge, claim, equity, or encumbrance of any kind, and upon the delivery or transfer of the Mortgage Assets to the Issuer as contemplated herein, the Issuer shall receive good and marketable title to the Mortgage Assets, free and clear of any pledge, lien, security interest, charge, claim, equity or encumbrance of any kind;
(bii) The execution the Seller acquired its ownership in the Mortgage Assets in good faith without notice of any adverse claim, and upon the delivery or transfer of the Mortgage Assets to the Issuer as contemplated herein, the Issuer shall acquire ownership in the Mortgage Assets in good faith without notice of any adverse claim;
(iii) the Seller has not assigned, pledged or otherwise encumbered any interest in the Mortgage Assets (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released);
(iv) none of the execution, delivery or performance by the Seller of this Amendment by the Borrower and the performance and observance by the Borrower of the provisions hereofAgreement shall (x) conflict with, do not violate or conflict with the organizational agreements of the Borrower or any law applicable to the Borrower or result in a any breach of any provision of or constitute a default (or an event which, with the giving of notice or passage of time, or both, would constitute a default) under, any term or provision of the organizational documents of the Seller, or any material indenture, agreement, order, decree or other material instrument to which the Seller is party or by which the Seller is bound which materially adversely affects the Seller’s ability to perform its obligations hereunder or (y) violate any provision of any law, rule or regulation applicable to the Seller of any regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Seller or its properties which has a material adverse effect;
(v) no consent, license, approval or authorization from, or registration or qualification with, any governmental body, agency or authority, nor any consent, approval, waiver or notification of any creditor or lessor is required in connection with the execution, delivery and performance by the Seller of this Agreement the failure of which to obtain would have a material adverse effect except such as have been obtained and are in full force and effect;
(vi) it has adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations. It is generally able to pay, and as of the date hereof is paying, its debts as they come due. It has not become or is not presently, financially insolvent nor will it be made insolvent by virtue of its execution of or performance under any of the provisions of this Agreement within the meaning of the bankruptcy laws or the insolvency laws of any jurisdiction. It has not entered into this Agreement or the transactions effectuated hereby in contemplation of insolvency or with intent to hinder, delay or defraud any creditor;
(vii) no proceedings are pending or, to its knowledge, threatened against it before any federal, state or other agreementgovernmental agency, instrument authority, administrative or document binding regulatory body, arbitrator, court or other tribunal, foreign or domestic, which, singularly or in the aggregate, could materially and adversely affect the ability of the Seller to perform any of its obligations under this Agreement; and
(viii) the consideration received by it upon or enforceable against the Borrower;sale of the Mortgage Assets owned by it constitutes fair consideration and reasonably equivalent value for such Mortgage Assets.
(c) The Seller further represents and warrants to the Issuer (i) with respect to the Closing Date Mortgage Assets, as of the Closing Date and (ii) with respect to the Companion Participations or portions thereof sold hereunder on any Subsequent Seller Transfer Date, as of such Subsequent Seller Transfer Date, that:
(i) the Asset Documents with respect to each Mortgage Asset do not prohibit the Issuer from granting a security interest in and assigning and pledging such Mortgage Asset to the Trustee;
(ii) none of the Mortgage Assets will cause the Issuer to have payments subject to foreign or United States withholding tax;
(iii) (A) with respect to each Closing Date Mortgage Asset , except as set forth in the Exception Schedule and (B) with respect to each Companion Participation, except as set forth in the Subsequent Transfer Instrument, the representations and warranties set forth within Article III of the Agreement continue to be in Exhibit B are true and correct in all material respects as respects;
(iv) the Seller has delivered to the Issuer or its designee the documents required to be delivered with respect to each Mortgage Asset set forth in the definition of “Mortgage Asset File” in the date of this Amendment except those changes resulting from the passage of timeIndenture; and
(v) if applicable, the Participation Custodian has received, or will receive, in accordance with the timing required under the Participation Custodial Agreement, the documents required to be delivered with respect to each Participated Mortgage Loan set forth in the definition of “Participated Loan File” in the Participation Custodial Agreement.
(d) No material adverse change has occurred in the business, operations, consolidated financial condition or prospects For purposes of the Borrower since representations and warranties set forth in Exhibit B, the date phrases “to the knowledge of the most recent annual financial statement Seller” or “to the Seller’s knowledge” shall mean, except where otherwise expressly set forth in a particular representation and warranty, the actual state of knowledge of the Seller or any servicer acting on its behalf regarding the matters referred to, in each case: (i) at the time of the Seller’s origination or acquisition of the particular Mortgage Asset , after the Seller having conducted such inquiry and due diligence into such matters as would be customarily performed by a prudent institutional commercial or multifamily, as applicable, mortgage lender; and (ii) subsequent to such origination, the Seller having utilized monitoring practices that would be utilized by a prudent commercial or multifamily, as applicable, mortgage lender and having made prudent inquiry as to the knowledge of the servicer servicing such Mortgage Asset on its behalf. Also, for purposes of such representations and warranties, the phrases “to the actual knowledge of the Seller” or “to the Seller’s actual knowledge” shall mean, except where otherwise expressly set forth below, the actual state of knowledge of the Seller or any servicer acting on its behalf without any express or implied obligation to make inquiry. All information contained in documents which are part of or required to be part of a Mortgage Asset File shall be deemed to be within the knowledge and the actual knowledge of the Seller. Wherever there is a reference to receipt by, or possession of, the Seller of any information or documents, or to any action taken by the Seller or not taken by the Seller, such reference shall include the receipt or possession of such information or documents by, or the taking of such action or the failure to take such action by, the Seller or any servicer acting on its behalf.
(e) The Seller shall, not later than ninety (90) days from discovery by the Seller or receipt of written notice from any party to the Indenture of (i) its breach of a representation or a warranty pursuant to this Agreement that materially and adversely affects the ownership interests of the Issuer (or the Trustee as its assignee) in a Mortgage Asset or the value of a Mortgage Asset or the interests of the Noteholders therein (a “Material Breach”), or (ii) any Material Document Defect relating to any Mortgage Asset, (1) cure such Material Breach or Material Document Defect, provided, that, if such Material Breach or Material Document Defect cannot be cured within such 90-day period (any such 90-day period, the “Initial Resolution Period”), the Seller shall repurchase the affected Mortgage Asset not later than the end of such Initial Resolution Period at the Repurchase Price; provided, however, that if the Seller certifies to the Issuer and the Trustee in writing that (x) any such Material Breach or Material Document Defect, as the case may be, is capable of being cured in all material respects but not within the Initial Resolution Period and (y) the Seller has commenced and is diligently proceeding with the cure of such Material Breach or Material Document Defect, as the case may be, then the Seller shall have an additional 90-day period to complete such cure or, failing such, to repurchase the affected Mortgage Asset (or the related Mortgaged Property); provided, further, that, if any such Material Document Defect is still not cured in all material respects after the Initial Resolution Period and any such additional 90-day period solely due to the failure of the Seller to have received the recorded or filed document, then the Seller shall be entitled to continue to defer its cure and repurchase obligations in respect of such Material Document Defect so long as the Seller certifies to the Trustee every 30 days thereafter that such Material Document Defect is still in effect solely because of its failure to have received the recorded or filed document and that the Seller is diligently pursuing the cure of such Material Document Defect (specifying the actions being taken); and provided, further, notwithstanding anything to the contrary, the Seller shall not be entitled to continue to defer its cure and repurchase obligations in respect of any Material Document Defect for more than 18 month after beginning of the Initial Resolution Period with respect to such Material Document Defect, or (2) subject to the consent of a Majority of the Holders of each Class of Notes (excluding any Note held by the Seller or any of its affiliates), the Seller shall make a cash payment to the Issuer in an amount that the Special Servicer on behalf of the Issuer determines is sufficient to compensate the Issuer for such breach of representation or warranty or defect (such payment, a “Loss Value Payment”), which Loss Value Payment will be deemed to cure such Material Breach or Material Document Defect. Such repurchase, cure or Loss Value Payment obligation by the Seller and Holdco’s guarantee of such obligations pursuant to Section 13 shall be the Issuer’s sole remedy for any Material Breach or Material Document Defect pursuant to this Agreement with respect to any Mortgage Asset sold to the Issuer by the Seller.
(f) Each Seller Party hereby acknowledges and consents to the collateral assignment by the Issuer of this Agreement and all right, title and interest thereto to the Trustee, for the benefit of the Secured Parties, as required in Sections 15.1(f)(i) and (ii) of the Indenture.
(g) The Seller hereby covenants and agrees that it shall perform any provisions of the Indenture made expressly applicable to the Seller by the Indenture, as required by Section 15.1(f)(i) of the Indenture.
(h) Each Seller Party hereby covenants and agrees that all of the representations, covenants and agreements made by or otherwise entered into by it in this Agreement shall also be for the benefit of the Secured Parties, as required by Section 15.1(f)(ii) of the Indenture and agrees that enforcement of any rights hereunder by the Trustee, the Note Administrator, the Servicer, or the Special Servicer, as the case may be, shall have the same force and effect as if the right or remedy had been enforced or executed by the Issuer but that such rights and remedies shall not be any greater than the rights and remedies of the Issuer under Section 4(e) above.
(i) On or prior to the Closing Date or each Subsequent Seller Transfer Date, as applicable, the Seller shall deliver the Asset Documents to the Issuer or, at the direction of the Issuer, to the Custodian, with respect to each Mortgage Asset sold to the Issuer hereunder. The Seller hereby covenants and agrees, as required by Section 15.1(f)(iii) of the Indenture, that it shall deliver to the Trustee duplicate original copies of all notices, statements, communications and instruments delivered or required to be delivered to the BankIssuer by each party pursuant to this Agreement.
(j) Each Seller Party hereby covenants and agrees, as required by Section 15.1(f)(iv) of the Indenture, that it shall not enter into any agreement amending, modifying or terminating this Agreement (other than in respect of an amendment or modification to cure any inconsistency, ambiguity or manifest error, in each case, so long as such amendment or modification does not affect in any material respects the interests of any Secured Party), without notifying the Rating Agency through the 17g-5 Website as set forth in the Indenture.
(k) TRTX and no Event the Issuer hereby covenant, that at all times (1) TRTX will qualify as a REIT for federal income tax purposes and the Issuer will qualify as a Qualified REIT Subsidiary or other disregarded entity of Default TRTX for federal income tax purposes, or condition which(2) based on an Opinion of Counsel, the Issuer will be treated as a Qualified REIT Subsidiary or other disregarded entity of a REIT other than TRTX, or (3) based on an Opinion of Counsel, the Issuer will be treated as a foreign corporation that is not engaged in a trade or business within the United States for U.S. federal income tax purposes (which Opinion may be conditioned on compliance with certain restrictions on the investment or other activities of the Issuer and/or the Servicer on behalf of the Issuer).
(l) Except for the agreed-upon procedures report obtained from the accounting firm engaged to provide procedures involving a comparison of information in loan files for the Mortgage Assets to information on a data tape relating to the Mortgage Assets (the “Accountants’ Due Diligence Report”), the Seller Parties have not obtained (and, through and including the Closing Date, will not obtain) any “third party due diligence report” (as defined in Rule 15Ga-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) in connection with the passage of timetransactions contemplated herein and the Offering Memorandum and, except for the accountants with respect to the Accountants’ Due Diligence Report, the giving Seller Parties have not employed (and, through and including the Closing Date, will not employ) any third party to engage in any activity that constitutes “due diligence services” within the meaning of notice or both, could become an Event Rule 17g-10 under the Exchange Act in connection with the transactions contemplated herein and in the Offering Memorandum. The Placement Agents are third-party beneficiaries of Default has occurred and is continuingthe provisions set forth in this Section 4(l).
3.4 (m) The Borrower shall execute Issuer (A) prepared or cause caused to be executed prepared one or more reports on Form ABS-15G (each, a “Form 15G”) containing the findings and deliver conclusions of the Accountants’ Due Diligence Report and meeting all other requirements of that Form 15G, Rule 15Ga-2 under the Exchange Act, any other rules and regulations of the Securities and Exchange Commission and the Exchange Act; (B) provided a copy of the final draft of the Form 15G to the Bank all other documents, instruments Placement Agents at least six business days before the first sale of any certificates; and agreements deemed necessary or appropriate (C) furnished each such Form 15G to the Securities and Exchange Commission on XXXXX at least five business days before the first sale of any certificates as required by Rule 15Ga-2 under the Bank in connection herewithExchange Act.
Appears in 1 contract
Samples: Mortgage Asset Purchase Agreement (TPG RE Finance Trust, Inc.)
Covenants, Representations and Warranties. 3.1 The Borrower ratifiesXxxxx Xxx Xxxxx hereby severally covenants, confirms represents, and reaffirmswarrants to XXX and the Other Xxxxx Family Members as follows:
(a) Xxxxx Xxx Xxxxx is correctly described and named in this Agreement.
(b) Before executing this Agreement, without condition, all the terms and conditions Xxxxx Xxx Xxxxx became fully informed of the terms, contents, provisions, and effect of this Agreement and the other Loan Documents attached exhibits.
(c) The signatory to this Agreement signing on behalf of Xxxxx Xxx Xxxxx is fully authorized and agrees that it continues legally competent to be bound by execute this Agreement as the terms legal, valid, and conditions thereof as amended by this Amendment; andbinding act and deed of Xxxxx Xxx Xxxxx, and is a duly authorized representative of such Party.
(d) This Agreement is fully and forever binding on, and enforceable against, each of the Borrower further confirms and affirms that it has no defense, set off or counterclaim against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, and, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect Xxxxx Xxx Xxxxx Releasing Parties in accordance with its terms.
3.2 The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower represents and warrants to the Bank that:
(a) This Amendment has been duly executed and delivered by the Borrower and constitutes the legal, valid and binding obligations of the Borrower enforceable in accordance with its terms;
(be) The execution and delivery of this Amendment Agreement and any other documents, agreements, or instruments executed or delivered by the Borrower Xxxxx Xxx Xxxxx pursuant hereto and the performance and observance by the Borrower consummation of the provisions hereof, do transactions herein or therein contemplated does not violate or conflict with the organizational agreements of the Borrower or any law applicable to the Borrower or result in a breach of any provision of the terms or provisions of, or constitute a default under under, any material agreement or instrument to which Xxxxx Xxx Xxxxx is a party or any provision of law, statute, rule, or regulation applicable to Xxxxx Xxx Xxxxx or any judicial or administrative order or decree by which Xxxxx Xxx Xxxxx is bound.
(f) The Xxxxx Xxx Xxxxx Releasing Parties own the Released Claims claimed by or attributable to them, and they are free and clear of any and all claims, liens, or other encumbrances of any kind or nature, of any other agreementperson, instrument and there is no other person who could or document binding upon should have asserted such claims or enforceable against the Borrower;joined in any settlement or compromise of such claims.
(cg) The representations Xxxxx Xxx Xxxxx Releasing Parties have not assigned, pledged, or in any other manner sold, transferred, or hypothecated the Released Claims.
(h) In entering into and warranties set forth within Article III signing this Agreement, Xxxxx Xxx Xxxxx has had the benefit of the advice of attorneys of her own choosing, and enters into this Agreement continue freely by her own choosing and judgment, and without duress or other influence.
(i) Xxxxx Xxx Xxxxx agrees that the negotiations and execution of this Agreement have been at arm's length and that she is not relying on any purported duty to be true and correct in all material respects as her from any of the date of this Amendment except those changes resulting from XXX Released Parties or the passage of time; and
(d) No material adverse change has occurred Other Xxxxx Family Members Released Parties in the businessany manner whatsoever, operations, consolidated financial condition or prospects of the Borrower since the date of the most recent annual financial statement delivered to the Bank, and no Event of Default or condition which, with the passage of time, the giving of notice or both, could become an Event of Default has occurred and is continuing.
3.4 The Borrower shall execute or cause to be executed and deliver to the Bank all other documents, instruments and agreements deemed necessary or appropriate by the Bank in connection herewithwith this Agreement.
Appears in 1 contract
Samples: Compromise Settlement Agreement (Independent Research Agency for Life Insurance Inc)
Covenants, Representations and Warranties. 3.1 The Borrower ratifies, confirms and reaffirms, without condition, all the terms and conditions of the Agreement and the other Loan Documents and agrees that it continues 7.1 Knight hereby covenants to be bound by the terms and conditions thereof as amended by this Amendment; and, the Borrower further confirms and affirms that it has no defense, set off or counterclaim against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, and, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect in accordance with its terms.
3.2 The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower represents and warrants to the Bank Advaxis that:
(a) This Amendment has been duly executed it shall use commercially reasonable efforts to perform its obligations hereunder in a professional and delivered by the Borrower competent manner and constitutes the legal, valid and binding obligations of the Borrower enforceable in accordance with its termsthe terms of this Agreement; and
(b) it warrants that all activities, services, and any goods rendered shall be provided in compliance with the applicable laws of the Territory.
(c) Knight, during the term of this Agreement, shall neither use nor have commercialized the Product other than in accordance with this Agreement.
7.2 Advaxis represents and warrants that:
(a) all Product that it shall manufacture, store, ship or distribute to Knight shall be manufactured, stored, shipped or distributed in compliance with all applicable laws and specifications as approved by Health Canada;
(b) The execution it is free to enter into this Agreement; and, it has, and delivery of this Amendment by will continue to have, the Borrower legal power, authority and the performance and observance by the Borrower of the provisions hereof, do not violate or conflict with the organizational agreements of the Borrower or any law applicable right to the Borrower or result in a breach of any provision of or constitute a default under any other agreement, instrument or document binding upon or enforceable against the Borrowerperform its obligations hereunder;
(c) The representations it has the full and warranties set forth within Article III unfettered right to grant to Knight all of the Agreement continue rights granted to be true it hereunder;
(d) all the intellectual property licensed hereunder is valid and correct in enforceable and is owned or validly licensed by Advaxis;
(e) it has obtained all consents necessary to grant the rights to Knight hereunder;
(f) it has provided or will provide Knight with all Intellectual Property Rights necessary for Knight to perform its obligations under this Agreement;
(g) it has informed Knight about all material respects as information in its possession or control concerning the safety and efficacy of the date of this Amendment except those changes resulting from Products, and any material side effects, injury, toxicity or sensitivity reactions and incidents associated with all uses, studies, investigations or tests involving the passage of timeProducts (animal or human) throughout the world; and
(dh) No material adverse change All clinical data used to support approval followed good clinical practices and all manufactured Product followed a validated good manufacturing process.
7.3 Each of Advaxis and Knight represents and warrants to the other that it has occurred in the businessfull right and authority to enter into this Agreement and to perform its obligations hereunder.
7.4 In performing their respective obligations hereunder, operations, consolidated financial condition or prospects the Parties acknowledge that their corporate policies require that each Party’s business be conducted within the letter and spirit of the Borrower since law. By signing this Agreement, each Party agrees to conduct the date of business contemplated herein in a manner which is consistent with all applicable laws, including without limitation the most recent annual financial statement delivered to the BankU.S. Foreign Corrupt Practices Act (or similar foreign laws as may be applicable) and good business ethics. Specifically, each Party agrees that it has not, and no Event of Default or condition whichcovenants that it, its affiliates, and its and its affiliates’ directors, employees, officers, and anyone acting on its behalf, will not, in connection with the passage performance of timethis Agreement, directly or indirectly, make, promise, authorize, ratify or offer to make, or take any action in furtherance of, any payment or transfer of anything of value for the giving purpose of notice influencing, inducing or bothrewarding any act, could become omission or decision to secure an Event improper advantage; or improperly assisting it in obtaining or retaining business for it or the other Party, or in any way with the purpose or effect of Default has occurred and is continuingpublic or commercial bribery.
3.4 The Borrower shall execute or cause to be executed and deliver to the Bank all other documents7.5 EXCEPT AS EXPRESSLY PROVIDED HEREIN, instruments and agreements deemed necessary or appropriate by the Bank in connection herewithADVAXIS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE PRODUCT.
Appears in 1 contract
Samples: License Agreement (Advaxis, Inc.)
Covenants, Representations and Warranties. 3.1 4.1 The Borrower ratifies, confirms and reaffirms, without condition, all the terms and conditions of the Agreement and the other Loan Documents and agrees that it continues to be bound by the terms and conditions thereof as amended by this Amendment; and, the Borrower further confirms and affirms that it has no defense, set off or counterclaim against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's Banks rights, and, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect in accordance with its terms.
3.2 4.2 The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 4.3 The Borrower represents and warrants to the Bank that:
(a) This Amendment has been duly executed and delivered by the Borrower and constitutes the legal, valid and binding obligations of the Borrower enforceable in accordance with its terms;
(b) The execution and delivery of this Amendment by the Borrower and the performance and observance by the Borrower of the provisions hereof, do not violate or conflict with the organizational agreements of the Borrower or any law applicable to the Borrower or result in a breach of any provision of or constitute a default under any other agreement, instrument or document binding upon or enforceable against the Borrower;
(c) The representations and warranties set forth within Article III of the Agreement continue to be true and correct in all material respects as of the date of this Amendment except those changes resulting from the passage of time; and
(d) No material adverse change has occurred in the business, operations, consolidated financial condition or prospects of the Borrower since the date dates of the most recent annual financial statement delivered to the Bank, and no Event of Default or condition which, with the passage of time, the giving of notice or both, could become an Event of Default has occurred and is continuing.
3.4 4.4 The Borrower shall execute or cause to be executed and deliver to the Bank all other documents, instruments and agreements deemed necessary or appropriate by the Bank in connection herewith.
Appears in 1 contract
Covenants, Representations and Warranties. 3.1 The Borrower ratifies(a) Each party hereby represents and warrants to the other party that (i) it is duly organized or incorporated, confirms as the case may be, and reaffirms, without condition, all validly existing as an entity under the terms and conditions laws of the Agreement and the other Loan Documents and agrees that jurisdiction in which it continues to be bound by the terms and conditions thereof as amended by this Amendment; andis incorporated, the Borrower further confirms and affirms that chartered or organized, (ii) it has no defensethe requisite power and authority to enter into and perform this Agreement, set off and (iii) this Agreement has been duly authorized by all necessary action, has been duly executed by one or counterclaim more duly authorized officers and is the valid and binding agreement of such party enforceable against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, and, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect such party in accordance with its terms.
3.2 (b) The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower Seller further represents and warrants to the Bank Issuer that:
(ai) This Amendment has been duly executed and delivered by immediately prior to the Borrower and constitutes the legal, valid and binding obligations sale of the Borrower enforceable in accordance with its termsLoan Obligations to the Issuer, the Seller shall own the Loan Obligations, shall have good and marketable title thereto, free and clear of any pledge, lien, security interest, charge, claim, equity, or encumbrance of any kind, and upon the delivery or transfer of the Loan Obligations to the Issuer as contemplated herein, the Issuer shall receive good and marketable title to the Loan Obligations, free and clear of any pledge, lien, security interest, charge, claim, equity or encumbrance of any kind;
(bii) The execution the Seller acquired its ownership in the Loan Obligations in good faith without notice of any adverse claim, and upon the delivery or transfer of the Loan Obligations to the Issuer as contemplated herein, the Issuer shall acquire ownership in the Loan Obligations in good faith without notice of any adverse claim;
(iii) the Seller has not assigned, pledged or otherwise encumbered any interest in the Loan Obligations (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released);
(iv) none of the execution, delivery or performance by the Seller of this Amendment by the Borrower and the performance and observance by the Borrower of the provisions hereofAgreement shall (x) conflict with, do not violate or conflict with the organizational agreements of the Borrower or any law applicable to the Borrower or result in a any breach of any provision of or constitute a default (or an event which, with the giving of notice or passage of time, or both, would constitute a default) under, any term or provision of the organizational documents of the Seller, or any material indenture, agreement, order, decree or other material instrument to which the Seller is party or by which the Seller is bound which materially adversely affects the Seller’s ability to perform its obligations hereunder or (y) violate any provision of any law, rule or regulation applicable to the Seller of any regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Seller or its properties which has a material adverse effect;
(v) no consent, license, approval or authorization from, or registration or qualification with, any governmental body, agency or authority, nor any consent, approval, waiver or notification of any creditor or lessor is required in connection with the execution, delivery and performance by the Seller of this Agreement the failure of which to obtain would have a material adverse effect except such as have been obtained and are in full force and effect;
(vi) it has adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations. It is generally able to pay, and as of the date hereof is paying, its debts as they come due. It has not become or is not presently, financially insolvent nor will it be made insolvent by virtue of its execution of or performance under any of the provisions of this Agreement within the meaning of the bankruptcy laws or the insolvency laws of any jurisdiction. It has not entered into this Agreement or the transactions effectuated hereby in contemplation of insolvency or with intent to hinder, delay or defraud any creditor;
(vii) no proceedings are pending or, to its knowledge, threatened against it before any federal, state or other agreementgovernmental agency, instrument authority, administrative or document binding regulatory body, arbitrator, court or other tribunal, foreign or domestic, which, singularly or in the aggregate, could materially and adversely affect the ability of the Seller to perform any of its obligations under this Agreement; and
(viii) the consideration received by it upon or enforceable against the Borrower;sale of the Loan Obligations owned by it constitutes fair consideration and reasonably equivalent value for such Loan Obligations.
(c) The the Seller further represents and warrants to the Issuer that:
(i) the Underlying Instruments with respect to each Loan Obligation do not prohibit the Issuer from granting a security interest in and assigning and pledging such Loan Obligation to the Trustee;
(ii) the information set forth with respect to the Loan Obligations in Schedule A of the Indenture is true and correct;
(iii) none of the Loan Obligations will cause the Issuer to have payments subject to foreign or United States withholding tax;
(iv) with respect to each Loan Obligation, except as set forth in the Exception Schedule, the representations and warranties set forth within Article III of the Agreement continue to be in Schedule 1 are true and correct in all material respects as of the date of this Amendment except those changes resulting from the passage of timecorrect; and
(dv) No material adverse change the Seller has occurred in the business, operations, consolidated financial condition or prospects of the Borrower since the date of the most recent annual financial statement delivered to the BankIssuer or its designee (A) the original of any note (or a copy of such note together with a lost note affidavit and indemnity), certificate or other instrument, if any, constituting or evidencing such Loan Obligation together with an assignment in blank and no Event all other assignment documents reasonably necessary to evidence the transfer of Default the Loan Obligation including, where applicable, UCC assignments and any other Underlying Instrument and copies of any other documents related to the Loan Obligation in the Seller’s possession, including copies of any related mortgage loan documents if the Loan Obligation is a Mortgage Loan, related to such Loan Obligation the delivery of which is necessary to perfect the security interest of the Trustee in such Loan Obligation and (B) copies of the Underlying Instruments.
(d) For purposes of the representations and warranties set forth in Schedule 1, the phrases “to the knowledge of the Seller” or condition which“to the Seller’s knowledge” shall mean, except where otherwise expressly set forth in a particular representation and warranty, the actual state of knowledge of the Seller or any servicer acting on its behalf regarding the matters referred to, in each case: (i) at the time of the Seller’s origination or acquisition of the particular Loan Obligation, after the Seller having conducted such inquiry and due diligence into such matters as would be customarily performed by a prudent institutional commercial or multifamily, as applicable, mortgage lender; and (ii) subsequent to such origination, the Seller having utilized monitoring practices that would be utilized by a prudent institutional commercial or multifamily, as applicable, mortgage lender and having made prudent inquiry as to the knowledge of the servicer servicing such Loan Obligation on its behalf. Also, for purposes of such representations and warranties, the phrases “to the actual knowledge of the Seller” or “to the Seller’s actual knowledge” shall mean, except where otherwise expressly set forth below, the actual state of knowledge of the Seller or any servicer acting on its behalf without any express or implied obligation to make inquiry. All information contained in documents which are part of or required to be part of a Collateral File shall be deemed to be within the knowledge and the actual knowledge of the Seller. Wherever there is a reference to receipt by, or possession of, the Seller of any information or documents, or to any action taken by the Seller or not taken by the Seller, such reference shall include the receipt or possession of such information or documents by, or the taking of such action or the failure to take such action by, the Seller or any servicer acting on its behalf.
(e) If the Seller receives written notice of a breach of a representation or a warranty pursuant to this Agreement relating to any Loan Obligation, which breach materially and adversely affects the value of such Loan Obligation, the value of the related Mortgaged Property or the interests of the Trustee or any Noteholder therein, then the Seller shall (1) not later than 90 days from receipt of such notice or discovery by the Seller, cure such breach (to the extent such breach is capable of being cured), (2) subject to the consent of a Majority of each Class of Notes (excluding any Note held by the Seller or any of its affiliates), make a Cash payment to the Issuer in an amount that the Loan Obligation Manager, on behalf of the Issuer, subject to the consent of a Majority of each Class of Notes (excluding any Note held by the Seller or any of its affiliates), determines is sufficient to compensate the Issuer for such breach of representation or warranty (such payment, a “Loss Value Payment”), which Loss Value Payment will be deemed to cure such breach of representation or warranty, or (3) if such breach cannot be cured within such 90-day period, repurchase the affected Loan Obligation not later than the end of such 90-day period at the Repurchase Price (as defined in Section 16.3(c) of the Indenture)
(f) The Seller hereby acknowledges and consents to the collateral assignment by the Issuer of this Agreement and all right, title and interest thereto to the Trustee, for the benefit of the Noteholders, as required in Sections 15.1(f)(i) and (ii) of the Indenture.
(g) The Seller hereby covenants and agrees that it shall perform any provisions of the Indenture made expressly applicable to the Seller by the Indenture, as required by Section 15.1(f)(i) of the Indenture.
(h) The Seller hereby covenants and agrees that all of the representations, covenants and agreements made by or otherwise entered into by it in this Agreement shall also be for the benefit of the Trustee and the Noteholders, as required by Section 15.1(f)(ii) of the Indenture and agrees that enforcement of any rights hereunder by the Trustee shall have the same force and effect as if the right or remedy had been enforced or executed by the Issuer but that such rights and remedies shall not be any greater than the rights and remedies of the Issuer under Section 4(e) above.
(i) On or prior to the Closing Date, the Seller shall deliver the Underlying Instruments to the Issuer or, at the direction of the Issuer, to the Trustee, with respect to each Loan Obligation sold to the passage Issuer hereunder. The Seller hereby covenants and agrees, as required by Section 15.1(f)(iii) of timethe Indenture, the giving of notice or both, could become an Event of Default has occurred and is continuing.
3.4 The Borrower that it shall execute or cause to be executed and deliver to the Bank Trustee duplicate original copies of all notices, statements, communications and instruments delivered or required to be delivered to the Issuer by each party pursuant to this Agreement.
(j) The Seller hereby covenants and agrees, as required by Section 15.1(f)(iv) of the Indenture, that it shall not enter into any agreement amending, modifying or terminating this Agreement (other than in respect of an amendment or modification to cure any inconsistency, ambiguity or manifest error), without notifying the Rating Agencies.
(k) The Seller hereby covenants, that at all times (1) Seller will qualify as a REIT for federal income tax purposes and the Issuer will qualify as a Qualified REIT Subsidiary (or other disregarded entity) of Seller for federal income tax purposes, (2) based on an Opinion of Counsel, the Issuer will be treated as a Qualified REIT Subsidiary (or other disregarded entity) of a REIT other than Seller, or (3) based on an Opinion of Counsel, the Issuer will be treated as a foreign corporation that will not be treated as engaged in a trade or business in the United States for U.S. federal income tax purposes.
(l) Except for the agreed-upon procedures report obtained from a nationally recognized accounting firm for due diligence services with respect to certain information regarding the Loan Obligations to be conveyed to the Issuer (such report, the “Accountants’ Due Diligence Report”), the Seller has not obtained and shall not obtain any “third party due diligence report” (as defined in Rule 15Ga-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) in connection with the securitization transaction contemplated by the recitals hereto.
(m) The Purchaser (A) prepared or caused to be prepared a report on Form ABS-15G (the “Form 15G”) containing the findings and conclusions of the Accountants’ Due Diligence Report and meeting all other documentsrequirements of that Rule 15Ga-2 under the Exchange Act, instruments any other rules and agreements deemed necessary or appropriate regulations of the Securities and Exchange Commission and the Exchange Act; (B) provided a copy of the final draft of the Form 15G to the Placement Agent at least seven Business Days before the first sale of any Notes; and (C) furnished the Form 15G to the Securities and Exchange Commission on Electronic Data Gathering, Analysis and Retrieval System (XXXXX) at least five Business Days before the first sale of any Notes as required by Rule 15Ga-2 under the Bank in connection herewithExchange Act.
Appears in 1 contract
Samples: Loan Obligation Purchase Agreement (Arbor Realty Trust Inc)
Covenants, Representations and Warranties. 3.1 The Borrower ratifies, confirms and reaffirms, without condition, all the terms and conditions of the Agreement Issuer and ----------------------------------------------------------- the other Loan Documents and agrees that it continues to be bound by Master Servicer. -------------------
3.1 Upon the terms and conditions thereof as amended by this Amendment; and, the Borrower further confirms and affirms that it has no defense, set off or counterclaim against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, and, except as specifically amended by effectiveness of this Amendment, the Agreement Issuer and the Master Servicer each hereby reaffirms all covenants, representations and warranties made by it in the Indenture and agrees that all such covenants, representations and warranties shall remain in full force and effect in accordance with its termsbe deemed to have been re-made as of the Amendment Effective Date.
3.2 The Borrower ratifiesAs of the Amendment Effective Date, confirms and reaffirms without condition, all liens and security interests granted to each of the Bank pursuant to the Agreement Issuer and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower Master Servicer represents and warrants to the Bank Lenders and the Agent that:
(a) This the representations and warranties made by it in the Indenture are true and correct with the same effect as if made on and as of the Amendment Effective Date (except to the extent such representations and warranties expressly refer to an earlier date, in which case they were true and correct as of such earlier date);
(b) after giving effect to the amendments and waivers contained herein, no Unmatured Event of Termination or Event of Termination exists or will result from the execution of this Amendment;
(c) no event or circumstance has occurred since October 18, 2002 that has resulted, or could reasonably be expected to result in a Material Adverse Change;
(d) each of the Indenture and this Amendment has been duly executed authorized by proper corporate proceedings of the Issuer and delivered by the Borrower Master Servicer and constitutes the legal, valid and binding obligations obligation of the Borrower Issuer and the Master Servicer enforceable against the Issuer and the Master Servicer in accordance with its terms;
(b) The execution , except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors' rights generally and delivery general principles of this Amendment by equity which may limit the Borrower and the performance and observance by the Borrower availability of the provisions hereof, do not violate or conflict with the organizational agreements of the Borrower or any law applicable to the Borrower or result in a breach of any provision of or constitute a default under any other agreement, instrument or document binding upon or enforceable against the Borrower;
(c) The representations and warranties set forth within Article III of the Agreement continue to be true and correct in all material respects as of the date of this Amendment except those changes resulting from the passage of timeequitable remedies; and
(de) No material adverse change has occurred in this Amendment does not affect the business, operations, consolidated financial condition or prospects enforceability of the Borrower since Indenture against the date Issuer or the Master Servicer, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors' rights generally and general principles of equity which may limit the most recent annual financial statement delivered to the Bank, and no Event availability of Default or condition which, with the passage of time, the giving of notice or both, could become an Event of Default has occurred and is continuingequitable remedies.
3.4 The Borrower shall execute or cause to be executed and deliver to the Bank all other documents, instruments and agreements deemed necessary or appropriate by the Bank in connection herewith.
Appears in 1 contract
Covenants, Representations and Warranties. 3.1 The Borrower ratifies, confirms and reaffirms, without condition, all the terms and conditions 12.1. Each of the Agreement Shareholders hereby agree, represent and warrant to the other Loan Documents and agrees that it continues to be bound by the terms and conditions thereof as amended by this Amendment; and, the Borrower further confirms and affirms that it has no defense, set off or counterclaim against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, and, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect in accordance with its terms.
3.2 The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower represents and warrants to the Bank that:
(ai) This Amendment except in relation to FAMÍLIA GONÇALVES, it is a legal entity duly incorporated under the laws of the jurisdiction of its incorporation, and it is duly organized and validly subsisting under such laws and is qualified to carry on business in the jurisdictions in which it carries on business;
(ii) it has full power and authority to carry on its business and to enter into this Agreement and any agreement or instrument referred to or provided for by this Agreement and to carry out and perform all of its obligations and duties hereunder and/or thereunder;
(iii) it has duly obtained all corporate and regulatory authorizations for the execution, delivery and performance of this Agreement and any agreement or instrument referred to or provided for by this Agreement and such execution, delivery and performance and the consummation of the transaction provided for herein and/or therein (i) will not conflict with or result in a breach of any covenants or agreements contained in any indenture, agreement or other instrument whatsoever to which it is a party or by which it is bound; and (ii) does not contravene any applicable laws;
(iv) this Agreement has been duly executed and delivered by the Borrower it and constitutes the legalis valid, valid binding and binding obligations of the Borrower enforceable against it in accordance with its terms;
(b) The execution and delivery of this Amendment by the Borrower and the performance and observance by the Borrower of the provisions hereof, do not violate or conflict with the organizational agreements of the Borrower or any law applicable to the Borrower or result in a breach of any provision of or constitute a default under any other agreement, instrument or document binding upon or enforceable against the Borrower;
(c) The representations and warranties set forth within Article III of the Agreement continue to be true and correct in all material respects as of the date of this Amendment except those changes resulting from the passage of time; and
(dv) No material adverse change it is not insolvent, has occurred not proposed a compromising arrangement to its creditors generally, has not had any petition for a receiving order in bankruptcy filed against it, has not made a voluntary assignment in bankruptcy, has not taken any proceedings with respect to a compromise or arrangement, has not taken any proceeding to have itself declared bankrupt.
12.2. The Shareholders acknowledge and agree that its covenants, representations and warranties shall survive for as long as this Agreement is in effect.
13.1. Each Shareholder shall vote or cause to be voted its Control Block Shares in such a way as to fully implement the businessterms and conditions of this Agreement.
13.2. In the event of any conflict between the provisions of this Agreement and the By-Laws, operations, consolidated financial condition the provisions of this Agreement shall predominate to the extent permitted by the applicable law and by the New Market Listing Rules. Each Shareholder agrees to vote or prospects to cause to be voted the Control Block Shares owned by it as necessary so as to cause the By-Laws to be amended to resolve any such conflict in favor of the Borrower since provisions of this Agreement, as long as it does not contravene the date provisions of the most recent annual financial statement delivered to the Bank, and no Event of Default or condition which, with the passage of time, the giving of notice or both, could become an Event of Default has occurred and is continuingNew Market Listing Rules.
3.4 13.3. The Borrower Company, by its execution hereof, hereby acknowledges that it has actual notice of the terms of this Agreement, agrees hereto and hereby covenants with each of the Shareholders that it will at all times, during the continuance hereof, be governed by this Agreement in carrying out its business and affairs and accordingly shall give or cause to be given such notice, execute or cause to be executed such deeds, transfers and deliver documents and do or cause to be done all such relevant acts, as may from time to time be necessary or conducive to the Bank all other documents, instruments carrying out of the terms and agreements deemed necessary or appropriate by the Bank in connection herewithintent hereof.
Appears in 1 contract
Samples: Shareholders Agreement
Covenants, Representations and Warranties. 3.1 The Borrower ratifies, confirms hereby makes the following covenants representations and reaffirms, without condition, warranties in favour of the Bank: That the Borrower has the power to enter into and perform this Agreement and to borrow hereunder and has taken all necessary action to authorize the borrowing of the facility upon the terms and conditions of the this Agreement and to authorize the other Loan Documents execution, delivery and agrees that it continues to be bound by the terms and conditions thereof as amended by performance of this Amendment; and, the Borrower further confirms and affirms that it has no defense, set off or counterclaim against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, and, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect in accordance with its terms.
3.2 The Borrower ratifies. That all consents, confirms licenses, approvals, or authorizations of any governmental authority, bureau or agency required in connection with the execution, delivery, performance validity or enforceability of this Agreement have been obtained and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower represents and warrants to the Bank that:
(a) This Amendment has been duly executed and delivered by the Borrower and constitutes the legal, are valid and binding obligations of subsisting. That all the Borrower enforceable in accordance with its terms;
(b) The execution and delivery of this Amendment by the Borrower and the performance and observance by the Borrower of the provisions hereof, do not violate or conflict with the organizational agreements of the Borrower or any law applicable information relating to the Borrower or result in a breach of any provision of or constitute a default under any other agreement, instrument or document binding upon or enforceable against otherwise relevant to the Borrower;
(c) The representations and warranties set forth within Article III of matters contemplated by this Agreement which has been supplied to the Agreement continue to be Bank by the Borrower is true and correct in all material respects as and contains no material omission. That the Borrower shall not mortgage, pledge or subject to any lien or encumbrance any of the date of this Amendment except those changes resulting from Borrower’s properties and assets now owned without either securing the passage of time; and
(d) No material adverse change has occurred in the business, operations, consolidated financial condition Bank's outstandings on a pari-passu basis or prospects of the Borrower since the date of the most recent annual financial statement delivered giving other security acceptable to the Bank, and no Event of Default or condition which, with . That the passage of time, the giving of notice or both, could become an Event of Default has occurred and is continuing.
3.4 The Borrower shall execute or cause to be executed and promptly upon becoming aware of them, deliver to the Bank all other documentsdetails of any litigation, instruments arbitration or administrative proceedings which are current, threatened or pending and agreements deemed necessary or appropriate by which might, if adversely determined, have a material adverse effect in relation to the Borrower. That the Borrower shall provide the Bank with a copy of its audited Balance Sheet and Profit and Loss Account within 120 days of the end of each financial year. That the Borrower shall provide the Bank quarterly with a copy of its management accounts and any other information, which may be reasonably required from time to time with regard to the Borrower’s business affairs. That the Borrower shall not enter into any merger or consolidation, or sell or lease all or a substantial part of the Borrower’s assets without obtaining the Bank’s prior written consent. That the Borrower shall maintain a ratio of current assets to current liabilities of not less than 1 to 1 both as determined in connection herewithaccordance with generally accepted principles of good accounting practice, and applied on a basis consistent with that of prior years, except that for the purpose of this covenant, current liabilities shall include the portion of any term loans which will be due for repayment during the course of the next twelve months. That the Borrower warrants that acceptance of the Facility and the drawing of any part thereof does not and will not constitute an event of default under of an existing law or regulation. That the Borrower warrants that it is not in default under any agreement to which it is party, which would have a material adverse effect on the Borrower’s business or financial condition. That the Borrower undertakes to provide the Bank with further security if at any time the value of the security provided is not commensurate with the facility amount or in the alternative agree for the Bank to reduce the facility amount That the Borrower undertakes to continue to improve on its business relationship with the Bank through the operation of its current account with the Bank.
Appears in 1 contract
Samples: Term Loan Agreement
Covenants, Representations and Warranties. 3.1 The Borrower ratifies, confirms and reaffirms, without condition, all In connection with the terms and conditions of the Agreement and the other Loan Documents and agrees that it continues to be bound by the terms and conditions thereof as amended transactions contemplated by this Amendment; andAgreement, and knowing that the Pledgee is and shall be relying hereon, the Borrower further confirms and affirms that it has no defensePledgor hereby covenants, set off or counterclaim against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, and, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect in accordance with its terms.
3.2 The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower represents and warrants to the Bank that:
(a) This Amendment the Pledged Securities has been and will be duly and validly issued, is and will be fully paid and non-assessable, and is and will be owned by the Pledgor free and clear of any and all restrictions, pledges, liens, encumbrances or other security interests of any kind, save and except for the pledge to the Pledgee pursuant to this Agreement;
(b) there are and will be no options, warrants or other rights in respect of the sale, transfer or other disposition of any of the Pledged Securities by the Pledgor, and the Pledgor has the absolute right to pledge the Pledged Securities hereunder without the necessity of any consent of any Person;
(c) neither the execution or delivery of this Agreement, nor the consummation of the transactions contemplated hereby, nor the compliance with or performance of this Agreement by the Pledgor, conflicts with or will result in the breach or violation of or a default under the terms, conditions or provisions of (i) any mortgage, security agreement, indenture, evidence of indebtedness, loan or financing agreement, or other agreement or instrument to which the Pledgor is a party or by which the Pledgor is bound, or (ii) any provision of law, any order of any court or administrative agency, or any rule or regulation applicable to the Pledgor;
(d) this Agreement has been duly executed and delivered by the Borrower Pledgor, and constitutes the legal, valid and binding obligations obligation of the Borrower Pledgor, enforceable against the Pledgor in accordance with its terms;
(be) The execution and delivery of this Amendment by there are no actions, suits or proceedings pending or threatened against or affecting the Borrower and the performance and observance by the Borrower of the provisions hereof, do not violate Pledgor that involve or conflict with the organizational agreements of the Borrower or any law applicable relate to the Borrower or result in a breach of any provision of or constitute a default under any other agreement, instrument or document binding upon or enforceable against the Borrower;
(c) The representations and warranties set forth within Article III of the Agreement continue to be true and correct in all material respects as of the date of this Amendment except those changes resulting from the passage of timePledged Securities; and
(df) No material adverse change has occurred upon execution of this Agreement by Pledgor, the Pledgee shall have the senior security interest in the business, operations, consolidated financial condition or prospects of the Borrower since the date of the most recent annual financial statement delivered to the Bank, and no Event of Default or condition which, with the passage of time, the giving of notice or both, could become an Event of Default has occurred and is continuingPledged Securities.
3.4 The Borrower shall execute or cause to be executed and deliver to the Bank all other documents, instruments and agreements deemed necessary or appropriate by the Bank in connection herewith.
Appears in 1 contract
Samples: Stock Pledge Agreement (Generex Biotechnology Corp)
Covenants, Representations and Warranties. 3.1 The Borrower ratifies(a) Each party hereby represents and warrants to the other party that (i) it is duly organized or incorporated, confirms as the case may be, and reaffirms, without condition, all validly existing as an entity under the terms and conditions laws of the Agreement and the other Loan Documents and agrees that jurisdiction in which it continues to be bound by the terms and conditions thereof as amended by this Amendment; andis incorporated, the Borrower further confirms and affirms that chartered or organized, (ii) it has no defensethe requisite power and authority to enter into and perform this Agreement, set off and (iii) this Agreement has been duly authorized by all necessary action, has been duly executed by one or counterclaim more duly authorized officers and is the valid and binding agreement of such party enforceable against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, and, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect such party in accordance with its terms.
3.2 (b) The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower Seller further represents and warrants to the Bank Issuer that:
(ai) This Amendment has been duly executed and delivered by immediately prior to the Borrower and constitutes the legal, valid and binding obligations sale of the Borrower enforceable in accordance with its termsLoan Obligations to the Issuer, the Seller shall own the Loan Obligations, shall have good and marketable title thereto, free and clear of any pledge, lien, security interest, charge, claim, equity, or encumbrance of any kind, and upon the delivery or transfer of the Loan Obligations to the Issuer as contemplated herein, the Issuer shall receive good and marketable title to the Loan Obligations, free and clear of any pledge, lien, security interest, charge, claim, equity or encumbrance of any kind;
(bii) The execution the Seller acquired its ownership in the Loan Obligations in good faith without notice of any adverse claim, and upon the delivery or transfer of the Loan Obligations to the Issuer as contemplated herein, the Issuer shall acquire ownership in the Loan Obligations in good faith without notice of any adverse claim;
(iii) the Seller has not assigned, pledged or otherwise encumbered any interest in the Loan Obligations (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released);
(iv) none of the execution, delivery or performance by the Seller of this Amendment by the Borrower and the performance and observance by the Borrower of the provisions hereofAgreement shall (x) conflict with, do not violate or conflict with the organizational agreements of the Borrower or any law applicable to the Borrower or result in a any breach of any provision of or constitute a default (or an event which, with the giving of notice or passage of time, or both, would constitute a default) under, any term or provision of the organizational documents of the Seller, or any material indenture, agreement, order, decree or other material instrument to which the Seller is party or by which the Seller is bound which materially adversely affects the Seller’s ability to perform its obligations hereunder or (y) violate any provision of any law, rule or regulation applicable to the Seller of any regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Seller or its properties which has a material adverse effect;
(v) no consent, license, approval or authorization from, or registration or qualification with, any governmental body, agency or authority, nor any consent, approval, waiver or notification of any creditor or lessor is required in connection with the execution, delivery and performance by the Seller of this Agreement the failure of which to obtain would have a material adverse effect except such as have been obtained and are in full force and effect;
(vi) it has adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations. It is generally able to pay, and as of the date hereof is paying, its debts as they come due. It has not become or is not presently, financially insolvent nor will it be made insolvent by virtue of its execution of or performance under any of the provisions of this Agreement within the meaning of the bankruptcy laws or the insolvency laws of any jurisdiction. It has not entered into this Agreement or the transactions effectuated hereby in contemplation of insolvency or with intent to hinder, delay or defraud any creditor;
(vii) no proceedings are pending or, to its knowledge, threatened against it before any federal, state or other agreementgovernmental agency, instrument authority, administrative or document binding regulatory body, arbitrator, court or other tribunal, foreign or domestic, which, singularly or in the aggregate, could materially and adversely affect the ability of the Seller to perform any of its obligations under this Agreement; and
(viii) the consideration received by it upon or enforceable against the Borrower;sale of the Loan Obligations owned by it constitutes fair consideration and reasonably equivalent value for such Loan Obligations.
(c) The the Seller further represents and warrants to the Issuer that:
(i) the Underlying Instruments with respect to each Loan Obligation do not prohibit the Issuer from granting a security interest in and assigning and pledging such Loan Obligation to the Trustee;
(ii) the information set forth with respect to the Loan Obligations in Schedule A of the Indenture is true and correct;
(iii) none of the Loan Obligations will cause the Issuer to have payments subject to foreign or United States withholding tax;
(iv) with respect to each Loan Obligation, except as set forth in the Exception Schedule, the representations and warranties set forth within Article III of the Agreement continue to be in Schedule 1(a) are true and correct in all material respects as of the date of this Amendment except those changes resulting from the passage of timecorrect; and
(dv) No material adverse change the Seller has occurred in the business, operations, consolidated financial condition or prospects of the Borrower since the date of the most recent annual financial statement delivered to the BankIssuer or its designee (A) the original of any note (or a copy of such note together with a lost note affidavit and indemnity), certificate or other instrument, if any, constituting or evidencing such Loan Obligation together with an assignment in blank and no Event all other assignment documents reasonably necessary to evidence the transfer of Default the Loan Obligation including, where applicable, UCC assignments and any other Underlying Instrument and copies of any other documents related to the Loan Obligation in the Seller’s possession, including copies of any related mortgage loan documents if the Loan Obligation is a Mortgage Loan, related to such Loan Obligation the delivery of which is necessary to perfect the security interest of the Trustee in such Loan Obligation and (B) copies of the Underlying Instruments.
(d) For purposes of the representations and warranties set forth in Schedule 1(a), the phrases “to the knowledge of the Seller” or condition which“to the Seller’s knowledge” shall mean, except where otherwise expressly set forth in a particular representation and warranty, the actual state of knowledge of the Seller or any servicer acting on its behalf regarding the matters referred to, in each case: (i) at the time of the Seller’s origination or acquisition of the particular Loan Obligation, after the Seller having conducted such inquiry and due diligence into such matters as would be customarily performed by a prudent institutional commercial or multifamily, as applicable, mortgage lender; and (ii) subsequent to such origination, the Seller having utilized monitoring practices that would be utilized by a prudent commercial or multifamily, as applicable, mortgage lender and having made prudent inquiry as to the knowledge of the servicer servicing such Loan Obligation on its behalf. Also, for purposes of such representations and warranties, the phrases “to the actual knowledge of the Seller” or “to the Seller’s actual knowledge” shall mean, except where otherwise expressly set forth below, the actual state of knowledge of the Seller or any servicer acting on its behalf without any express or implied obligation to make inquiry. All information contained in documents which are part of or required to be part of a Collateral File shall be deemed to be within the knowledge and the actual knowledge of the Seller. Wherever there is a reference to receipt by, or possession of, the Seller of any information or documents, or to any action taken by the Seller or not taken by the Seller, such reference shall include the receipt or possession of such information or documents by, or the taking of such action or the failure to take such action by, the Seller or any servicer acting on its behalf.
(e) If the Seller receives written notice of a breach of a representation or a warranty pursuant to this Agreement relating to any Loan Obligation, then the Seller shall (1) not later than 90 days from receipt of such notice cure such breach, (2) subject to the consent of a majority of the holders of each Class of Notes (excluding any Note held by the Seller or any of its affiliates), make a cash payment to the Issuer in an amount that the Loan Obligation Manager on behalf of the Issuer determines is sufficient to compensate the Issuer for such breach of representation or warranty (such payment, a “Loss Value Payment”), which Loss Value Payment will be deemed to cure sure breach of representation or warranty or (3) if such breach cannot be cured within such 90-day period, repurchase the affected Loan Obligation not later than the end of such 90-day period at the Repurchase Price (as defined in Section 16.3(c) of the Indenture)
(f) The Seller hereby acknowledges and consents to the collateral assignment by the Issuer of this Agreement and all right, title and interest thereto to the Trustee, for the benefit of the Secured Parties, as required in Sections 15.1(f)(i) and (ii) of the Indenture.
(g) The Seller hereby covenants and agrees that it shall perform any provisions of the Indenture made expressly applicable to the Seller by the Indenture, as required by Section 15.1(f)(i) of the Indenture.
(h) The Seller hereby covenants and agrees that all of the representations, covenants and agreements made by or otherwise entered into by it in this Agreement shall also be for the benefit of the Secured Parties, as required by Section 15.1(f)(ii) of the Indenture and agrees that enforcement of any rights hereunder by the Trustee shall have the same force and effect as if the right or remedy had been enforced or executed by the Issuer but that such rights and remedies shall not be any greater than the rights and remedies of the Issuer under Section 4(e) above.
(i) On or prior to the Closing Date, the Seller shall deliver the Underlying Instruments to the Issuer or, at the direction of the Issuer, to the Trustee, with respect to each Loan Obligation sold to the passage Issuer hereunder. The Seller hereby covenants and agrees, as required by Section 15.1(f)(iii) of timethe Indenture, the giving of notice or both, could become an Event of Default has occurred and is continuing.
3.4 The Borrower that it shall execute or cause to be executed and deliver to the Bank Trustee duplicate original copies of all notices, statements, communications and instruments delivered or required to be delivered to the Issuer by each party pursuant to this Agreement.
(j) The Seller hereby covenants and agrees, as required by Section 15.1(f)(iv) of the Indenture, that it shall not enter into any agreement amending, modifying or terminating this Agreement (other documentsthan in respect of an amendment or modification to cure any inconsistency, instruments ambiguity or manifest error, in each case, so long as such amendment or modification does not affect in any material respects the interests of any Secured Party), without notifying the Rating Agency n.
(k) Seller hereby covenants, that at all times (1) Seller will qualify as a REIT for federal income tax purposes and agreements deemed necessary the Issuer will qualify as a Qualified REIT Subsidiary (or appropriate by other disregarded entity) of Seller for federal income tax purposes, or (2) based on an Opinion of Counsel, the Bank Issuer will be treated as a Qualified REIT Subsidiary (or other disregarded entity) of a REIT other than Seller, or (3) based on an Opinion of Counsel, the Issuer will be treated as a foreign corporation that will not be treated as engaged in connection herewitha trade or business in the United States for U.S. federal income tax purposes.
Appears in 1 contract
Samples: Loan Obligation Purchase Agreement (Arbor Realty Trust Inc)
Covenants, Representations and Warranties. 3.1 The Borrower ratifies, confirms and reaffirms, without condition, all In connection with the terms and conditions of the Agreement and the other Loan Documents and agrees that it continues to be bound by the terms and conditions thereof as amended transactions contemplated by this Amendment; andAgreement, and knowing that the Pledgees are and shall be relying hereon, the Borrower further confirms Pledgors hereby covenant, represent and affirms that it has no defense, set off or counterclaim against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, and, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect in accordance with its terms.
3.2 The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower represents and warrants to the Bank warrant that:
(a) This Amendment the Shares have been validly issued and are fully paid and nonassessable, are owned by the Pledgors free and clear of any and all Liens (as defined in the Securities Purchase Agreement) of any kind (other than the pledge to the Pledgees pursuant to this Agreement), and constitute, on the date hereof, 55.55% of the issued and outstanding common stock of the Company;
(b) this Agreement has been duly authorized, executed and delivered by the Borrower Pledgors, and constitutes the legal, valid and binding obligations obligation of the Borrower Pledgors, enforceable against the Pledgors in accordance with its terms;
(bc) The neither the execution and or delivery of this Amendment Agreement, nor the consummation of the transactions contemplated hereby, nor the compliance with or performance of this Agreement by the Borrower and Pledgors, conflicts with or will result in the performance and observance breach or violation of or a default under the terms of (i) any note, indenture, other evidence of indebtedness, mortgage, security agreement or other agreement, instrument, obligation or undertaking to which the Pledgors are a party or by which the Borrower Pledgors are bound, or (ii) any provision of the provisions hereoflaw, do not violate any order of any court or conflict with the organizational agreements of the Borrower administrative agency, or any law rule or regulation applicable to the Borrower Pledgors; and there are no actions, suits or result in a breach proceedings pending or threatened against or affecting either of any provision of the Pledgors that involve or constitute a default under any other agreement, instrument or document binding upon or enforceable against relate to the BorrowerShares;
(cd) The representations and warranties set forth within Article III the Pledgors have not taken (and, during the effectiveness of this Agreement, will not take) any action to assign, transfer, encumber or place a Lien on any of the Agreement continue Securities or any interest therein, other than pursuant to be true this Agreement;
(e) each Pledgor is the direct and correct in all material respects as beneficial owner of each of their respective Shares;
(f) there are no pending or, to the best of each Pledgor's knowledge, threatened actions or proceedings before any court, judicial body, administrative agency or arbitrator which may materially adversely affect the Shares or the ownership interest of the date Pledgor’s therein;
(g) none of the Shares have been issued or transferred in violation of the securities registration, securities disclosure or similar laws of any jurisdiction to which such issuance or transfer may be subject;
(h) the pledge and assignment of the Shares and the grant of a security interest under this Amendment except those changes resulting from Agreement vest in the passage Pledgees all rights of timeeach Pledgor in the Shares as contemplated by this Agreement; and
(di) No material adverse change has occurred in the business, operations, consolidated financial condition Pledgors have made no other representations or prospects warranties with respect to the nature or value of the Borrower since the date of the most recent annual financial statement delivered to the Bank, and no Event of Default Shares or condition which, with the passage of time, the giving of notice or both, could become an Event of Default has occurred and is continuingany other Securities.
3.4 The Borrower shall execute or cause to be executed and deliver to the Bank all other documents, instruments and agreements deemed necessary or appropriate by the Bank in connection herewith.
Appears in 1 contract
Covenants, Representations and Warranties. 3.1 The Borrower ratifiesPledgor covenants, confirms ----------------------------------------- represents and reaffirmswarrants to Secured Party, without conditionwith the understanding that Secured Party is relying on such representations and warranties, all that:
(a) the Collateral is the sole and separate Property of Pledgor, and Pledgor has title to the Collateral and is the legal and beneficial owner of the Collateral, free from any liens, security interests, assignments, encumbrances or claims of any kind, other than the security interest created by this Agreement and, subject to the provisions of the Subordination Agreement (as defined in the Term Loan Agreement), and the Subordinated Indebtedness Liens (as defined in the Term Loan Agreement);
(b) Except for the Subordinated Indebtedness Lien, so long as it is subject to the terms and conditions of the Subordination Agreement, Pledgor will not assign, pledge, encumber or otherwise transfer in any way, so long as this Agreement and shall remain in effect, the other Loan Documents and agrees that whole or any part of the Collateral;
(c) Except for the Subordinated Indebtedness Liens, so long as it continues is subject to be bound by the terms and conditions thereof as amended by this Amendment; andof the Subordination Agreement, Pledgor will not permit or suffer to exist any lien, security interest, encumbrance or claim of any kind upon the Borrower further confirms and affirms that it has no defense, set off or counterclaim against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, andCollateral, except as specifically amended by this Amendment, the Agreement shall remain those in full force and effect in accordance with its terms.
3.2 The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations favor of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower represents and warrants to the Bank that:
(a) This Amendment has been duly executed and delivered by the Borrower and constitutes the legal, valid and binding obligations of the Borrower enforceable in accordance with its termsSecured Party;
(bd) Pledgor shall deliver to Secured Party and Secured Party shall retain physical possession of all stock certificates and other instruments and documents representing or evidencing any of the Collateral, which stock certificates shall be duly endorsed for transfer to Secured Party;
(e) Pledgor will not amend or waive or consent to any amendment or waiver of the instruments or documents constituting the Collateral or make any compromise, adjustment, settlement or termination in connection therewith, and Pledgor will preserve and enforce all of its rights under the corporate governance documents establishing the rights of holders of shares of stock of the class held by Pledgor, unless failure to do so would not adversely affect the Collateral;
(f) Pledgor will accept no payments, distributions or dividends on the Collateral, Pledgor will hold any such payment, distribution or dividend received by Pledgor in trust for Secured Party and not commingle it with its general funds, and Pledgor will immediately remit to Secured Party any payment, distribution or dividend received by it;
(g) The execution and delivery of this Amendment by the Borrower Agreement, and the performance and observance by the Borrower of the provisions hereofits terms, do will not violate or conflict with the organizational agreements of the Borrower or any law applicable to the Borrower or result in a breach of any provision violation of or constitute a default under the terms of any other agreement, instrument or document binding upon other instrument, license, judgment, order, statute, ordinance or enforceable against other governmental rule or regulation, applicable to Pledgor or the BorrowerCollateral;
(ch) Upon its execution and delivery, this Agreement shall create an enforceable and valid lien upon and security interest in the Collateral;
(i) Pledgor has full power and authority to enter into this Agreement and, if Pledgor is other than a natural person, the person executing this Agreement on behalf of Pledgor have been duly authorized to act on behalf of Pledgor in the execution thereof;
(j) The representations and warranties set forth within Article III capitalization of the Agreement continue Issuing Corporation consists of ten thousand (10,000) authorized and issued shares of common stock and upon the merger of Issuing Corporation into Company will convert into ten thousand (10,000) shares of common stock of Company; the capitalization of Company consists of five thousand six hundred (5,600) authorized and issued shares of common stock and except for the warrants described in Schedule 2(j), there are no agreements in effect which require or obligate Issuing Corporation or Company to be true issue any additional shares of stock of Issuing Corporation or Company and correct in all material respects as there are no outstanding warrants, options of the date other rights to purchase any shares of this Amendment except those changes resulting from the passage stock of time; andIssuing Corporation;
(dk) No material adverse change has occurred Other than Pledgor and the other stockholders of Issuing Corporation listed in Schedule 2(k), there are no persons who assert any type of ownership interest or control (whether by virtue of voting rights or otherwise) whatsoever in Issuing Corporation; and other than Issuing Corporation, there are no other persons who assert any type of ownership interest in Company.
(1) Other than this Agreement and the businesspledge agreement creating the Subordinated Indebtedness Liens on the Collateral, operations, consolidated financial condition there is no agreement which imposes any conditions or prospects of restrictions on the Borrower since the date of the most recent annual financial statement delivered to the BankShares, and Pledgor shall take no Event action to impose any such restrictions prior to full satisfaction of Default or condition which, with all of Borrowers' Obligations under the passage of time, the giving of notice or both, could become an Event of Default has occurred and is continuing.
3.4 The Borrower shall execute or cause to be executed and deliver to the Bank all other documents, instruments and agreements deemed necessary or appropriate by the Bank in connection herewith.Credit Facilities Documents;
Appears in 1 contract
Samples: Stock Pledge and Security Agreement (CPS Systems Inc)
Covenants, Representations and Warranties. 3.1 The Borrower ratifies, confirms and reaffirms, without condition, all the terms and conditions of the Agreement and the other Loan Documents and agrees that it continues to be bound by the terms and conditions thereof as amended by this Amendment; and, the Borrower further confirms and affirms that it has no defense, set off or counterclaim against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, and, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect in accordance with its terms.
3.2 The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower represents and warrants to the Bank thatLender as follows:
(a) This Amendment has been duly executed and delivered Except as may otherwise be imposed or required by any Official Body, there are no restrictions on the Borrower and constitutes the legal, valid and binding obligations pledge or transfer of any of the Borrower enforceable in accordance with its terms;Pledged Shares, other than restrictions referenced on the face of any certificates evidencing the Pledged Shares.
(b) The execution and delivery of this Amendment by Borrower is the Borrower and the performance and observance by the Borrower legal owner of the provisions hereofPledged Shares, do not violate or conflict with which are registered in the organizational agreements name of the Borrower or any law applicable to the Borrower or result in a breach of any provision of or constitute a default under any other agreement, instrument or document binding upon or enforceable against the Borrower;.
(c) The representations Except as may otherwise be imposed or required by any Official Body, the Pledged Shares are free and warranties set forth within Article III clear of any security interests, pledges, liens, encumbrances, charges, agreements, claims or other arrangements or restrictions of any kind, except as referenced in Section 2(a) above; and the Borrower will not incur, create, assume or permit to exist any pledge, security interest, lien, charge or other encumbrance of any nature whatsoever on any of the Agreement continue Pledged Shares or assign, pledge or otherwise encumber any right to be true and correct receive income from the Pledged Shares, other than in all material respects as favor of the date of this Amendment except those changes resulting from the passage of time; andLender.
(d) No material adverse change Except as may otherwise be imposed or required by any Official Body, the Borrower has occurred the right to transfer the Pledged Shares free of any encumbrances and, except as otherwise provided in the businessLoan Agreement, operationsthe Borrower will defend the Borrower’s title to the Pledged Shares against the claims of all persons, consolidated financial condition and any registration with, or prospects consent or approval of, or other action by, any federal, state or other governmental authority or regulatory body which was or is necessary for the validity of the Borrower since the date pledge of and grant of the most recent annual financial statement delivered security interest in the Pledged Shares has been obtained.
(e) The pledge of and grant of the security interest in the Pledged Shares is effective to vest in the Lender a valid and perfected first priority security interest, superior to the Bankrights of any other Person (except as may otherwise be determined by any Official Body), in and no Event of Default or condition which, with the passage of time, the giving of notice or both, could become an Event of Default has occurred and is continuing.
3.4 The Borrower shall execute or cause to be executed and deliver to the Bank all other documents, instruments and agreements deemed necessary or appropriate by the Bank in connection herewithPledged Shares as set forth herein.
Appears in 1 contract
Samples: Stock Pledge Agreement (Oak Ridge Financial Services, Inc.)
Covenants, Representations and Warranties. 3.1 The Borrower ratifies(a) Each party hereby represents and warrants to the other party that (i) it is duly organized or incorporated, confirms as the case may be, and reaffirms, without condition, all validly existing as an entity under the terms and conditions laws of the Agreement and the other Loan Documents and agrees that jurisdiction in which it continues to be bound by the terms and conditions thereof as amended by this Amendment; andis incorporated, the Borrower further confirms and affirms that chartered or organized, (ii) it has no defensethe requisite power and authority to enter into and perform this Agreement, set off and (iii) this Agreement has been duly authorized by all necessary action, has been duly executed by one or counterclaim more duly authorized officers and is the valid and binding agreement of such party enforceable against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, and, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect such party in accordance with its terms.
3.2 (b) The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower Seller further represents and warrants to the Bank Issuer that:
(ai) This Amendment has been duly executed and delivered by immediately prior to the Borrower and constitutes the legal, valid and binding obligations sale of the Borrower enforceable in accordance with its termsMortgage Assets to the Issuer, the Seller shall own the Mortgage Assets, shall have good and marketable title thereto, free and clear of any pledge, lien, security interest, charge, claim, equity, or encumbrance of any kind, and upon the delivery or transfer of the Mortgage Assets to the Issuer as contemplated herein, the Issuer shall receive good and marketable title to the Mortgage Assets, free and clear of any pledge, lien, security interest, charge, claim, equity or encumbrance of any kind;
(bii) The execution the Seller acquired its ownership in the Mortgage Assets in good faith without notice of any adverse claim, and upon the delivery or transfer of the Mortgage Assets to the Issuer as contemplated herein, the Issuer shall acquire ownership in the Mortgage Assets in good faith without notice of any adverse claim;
(iii) the Seller has not assigned, pledged or otherwise encumbered any interest in the Mortgage Assets (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released);
(iv) none of the execution, delivery or performance by the Seller of this Amendment by the Borrower and the performance and observance by the Borrower of the provisions hereofAgreement shall (x) conflict with, do not violate or conflict with the organizational agreements of the Borrower or any law applicable to the Borrower or result in a any breach of any provision of or constitute a default (or an event which, with the giving of notice or passage of time, or both, would constitute a default) under, any term or provision of the organizational documents of the Seller, or any material indenture, agreement, order, decree or other material instrument to which the Seller is party or by which the Seller is bound which materially adversely affects the Seller’s ability to perform its obligations hereunder or (y) violate any provision of any law, rule or regulation applicable to the Seller of any regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Seller or its properties which has a material adverse effect;
(v) no consent, license, approval or authorization from, or registration or qualification with, any governmental body, agency or authority, nor any consent, approval, waiver or notification of any creditor or lessor is required in connection with the execution, delivery and performance by the Seller of this Agreement the failure of which to obtain would have a material adverse effect except such as have been obtained and are in full force and effect;
(vi) it has adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations. It is generally able to pay, and as of the date hereof is paying, its debts as they come due. It has not become or is not presently, financially insolvent nor will it be made insolvent by virtue of its execution of or performance under any of the provisions of this Agreement within the meaning of the bankruptcy laws or the insolvency laws of any jurisdiction. It has not entered into this Agreement or the transactions effectuated hereby in contemplation of insolvency or with intent to hinder, delay or defraud any creditor;
(vii) no proceedings are pending or, to its knowledge, threatened against it before any federal, state or other agreementgovernmental agency, instrument authority, administrative or document binding regulatory body, arbitrator, court or other tribunal, foreign or domestic, which, singularly or in the aggregate, could materially and adversely affect the ability of the Seller to perform any of its obligations under this Agreement; and
(viii) the consideration received by it upon or enforceable against the Borrower;sale of the Mortgage Assets owned by it constitutes fair consideration and reasonably equivalent value for such Mortgage Assets.
(c) The the Seller further represents and warrants to the Issuer that:
(i) the Underlying Instruments with respect to each Mortgage Asset do not prohibit the Issuer from granting a security interest in and assigning and pledging such Mortgage Asset to the Trustee;
(ii) the information set forth with respect to the Mortgage Assets in Schedule A of the Indenture is true and correct;
(iii) none of the Mortgage Assets will cause the Issuer to have payments subject to foreign or United States withholding tax;
(iv) with respect to each Mortgage Asset, except as set forth in the Exception Schedule, the representations and warranties set forth within Article III of the Agreement continue to be in Schedule 1 are true and correct in all material respects as of the date of this Amendment except those changes resulting from the passage of timecorrect; and
(dv) No material adverse change the Seller has occurred in the business, operations, consolidated financial condition or prospects of the Borrower since the date of the most recent annual financial statement delivered to the BankIssuer or its designee (A) the original of any note (or a copy of such note together with a lost note affidavit and indemnity), certificate or other instrument, if any, constituting or evidencing such Mortgage Asset together with an assignment in blank and no Event all other assignment documents reasonably necessary to evidence the transfer of Default the Mortgage Asset including, where applicable, UCC assignments and any other Underlying Instrument and copies of any other documents related to the Mortgage Asset in the Seller’s possession, including copies of any related mortgage loan documents if the Mortgage Asset is a Mortgage Loan, related to such Mortgage Asset the delivery of which is necessary to perfect the security interest of the Trustee in such Mortgage Asset and (B) copies of the Underlying Instruments.
(d) For purposes of the representations and warranties set forth in Schedule 1, the phrases “to the knowledge of the Seller” or condition which“to the Seller’s knowledge” shall mean, except where otherwise expressly set forth in a particular representation and warranty, the actual state of knowledge of the Seller or any servicer acting on its behalf regarding the matters referred to, in each case: (i) at the time of the Seller’s origination or acquisition of the particular Mortgage Asset, after the Seller having conducted such inquiry and due diligence into such matters as would be customarily performed by a prudent institutional commercial or multifamily, as applicable, mortgage lender; and (ii) subsequent to such origination, the Seller having utilized monitoring practices that would be utilized by a prudent institutional commercial or multifamily, as applicable, mortgage lender and having made prudent inquiry as to the knowledge of the servicer servicing such Mortgage Asset on its behalf. Also, for purposes of such representations and warranties, the phrases “to the actual knowledge of the Seller” or “to the Seller’s actual knowledge” shall mean, except where otherwise expressly set forth below, the actual state of knowledge of the Seller or any servicer acting on its behalf without any express or implied obligation to make inquiry. All information contained in documents which are part of or required to be part of a Collateral File shall be deemed to be within the knowledge and the actual knowledge of the Seller. Wherever there is a reference to receipt by, or possession of, the Seller of any information or documents, or to any action taken by the Seller or not taken by the Seller, such reference shall include the receipt or possession of such information or documents by, or the taking of such action or the failure to take such action by, the Seller or any servicer acting on its behalf.
(e) If the Seller receives written notice of a breach of a representation or a warranty pursuant to this Agreement relating to any Mortgage Asset, which breach materially and adversely affects the value of such Mortgage Asset, the value of the related Mortgaged Property or the interests of the Trustee or any Noteholder therein, then the Seller shall (1) not later than 90 days from receipt of such notice or discovery by the Seller, cure such breach (to the extent such breach is capable of being cured), (2) subject to the consent of a Majority of each Class of Notes (excluding any Note held by the Seller or any of its affiliates), make a Cash payment to the Issuer in an amount that the Collateral Manager, on behalf of the Issuer, subject to the consent of a Majority of each Class of Notes (excluding any Note held by the Seller or any of its affiliates), determines is sufficient to compensate the Issuer for such breach of representation or warranty (such payment, a “Loss Value Payment”), which Loss Value Payment will be deemed to cure such breach of representation or warranty, or (3) if such breach cannot be cured within such 90-day period, repurchase the affected Mortgage Asset not later than the end of such 90-day period at the Repurchase Price (as defined in Section 16.3(c) of the Indenture)
(f) The Seller hereby acknowledges and consents to the collateral assignment by the Issuer of this Agreement and all right, title and interest thereto to the Trustee, for the benefit of the Noteholders, as required in Sections 15.1(f)(i) and (ii) of the Indenture.
(g) The Seller hereby covenants and agrees that it shall perform any provisions of the Indenture made expressly applicable to the Seller by the Indenture, as required by Section 15.1(f)(i) of the Indenture.
(h) The Seller hereby covenants and agrees that all of the representations, covenants and agreements made by or otherwise entered into by it in this Agreement shall also be for the benefit of the Trustee and the Noteholders, as required by Section 15.1(f)(ii) of the Indenture and agrees that enforcement of any rights hereunder by the Trustee shall have the same force and effect as if the right or remedy had been enforced or executed by the Issuer but that such rights and remedies shall not be any greater than the rights and remedies of the Issuer under Section 4(e) above.
(i) On or prior to the Closing Date, the Seller shall deliver the Underlying Instruments to the Issuer or, at the direction of the Issuer, to the Trustee, with respect to each Mortgage Asset sold to the passage Issuer hereunder. The Seller hereby covenants and agrees, as required by Section 15.1(f)(iii) of timethe Indenture, the giving of notice or both, could become an Event of Default has occurred and is continuing.
3.4 The Borrower that it shall execute or cause to be executed and deliver to the Bank Trustee duplicate original copies of all notices, statements, communications and instruments delivered or required to be delivered to the Issuer by each party pursuant to this Agreement.
(j) The Seller hereby covenants and agrees, as required by Section 15.1(f)(iv) of the Indenture, that it shall not enter into any agreement amending, modifying or terminating this Agreement (other than in respect of an amendment or modification to cure any inconsistency, ambiguity or manifest error), without notifying the Rating Agencies.
(k) The Seller hereby covenants, that at all times (1) Seller will qualify as a REIT for federal income tax purposes and the Issuer will qualify as a Qualified REIT Subsidiary (or other disregarded entity) of Seller for federal income tax purposes, (2) based on an Opinion of Counsel, the Issuer will be treated as a Qualified REIT Subsidiary (or other disregarded entity) of a REIT other than Seller, or (3) based on an Opinion of Counsel, the Issuer will be treated as a foreign corporation that will not be treated as engaged in a trade or business in the United States for U.S. federal income tax purposes.
(l) Except for the agreed-upon procedures report obtained from a nationally recognized accounting firm for due diligence services with respect to certain information regarding the Mortgage Assets to be conveyed to the Issuer (such report, the “Accountants’ Due Diligence Report”), the Seller has not obtained and shall not obtain any “third party due diligence report” (as defined in Rule 15Ga-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) in connection with the securitization transaction contemplated by the recitals hereto.
(m) The Purchaser (A) prepared or caused to be prepared a report on Form ABS-15G (the “Form 15G”) containing the findings and conclusions of the Accountants’ Due Diligence Report and meeting all other documentsrequirements of that Rule 15Ga-2 under the Exchange Act, instruments any other rules and agreements deemed necessary or appropriate regulations of the Securities and Exchange Commission and the Exchange Act; (B) provided a copy of the final draft of the Form 15G to the Placement Agent at least seven Business Days before the first sale of any Notes; and (C) furnished the Form 15G to the Securities and Exchange Commission on Electronic Data Gathering, Analysis and Retrieval System (XXXXX) at least five Business Days before the first sale of any Notes as required by Rule 15Ga-2 under the Bank in connection herewithExchange Act.
Appears in 1 contract
Samples: Mortgage Asset Purchase Agreement (Arbor Realty Trust Inc)
Covenants, Representations and Warranties. 3.1 3.1. The Borrower ratifiesCo-Investor hereby represents and warrants to each other Investor that, confirms and reaffirmsexcept as set forth in this Agreement, without condition, all the terms and conditions of the Agreement and the other Loan Documents and agrees that it continues has not entered into or agreed to be bound by the terms and conditions thereof as amended by this Amendment; and, the Borrower further confirms and affirms that it has no defense, set off any other arrangements or counterclaim against the same. The Agreement and this Amendment shall be construed as complementing each agreements of any kind with any other and as augmenting and not restricting the Bank's rights, and, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect in accordance party with its terms.
3.2 The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted respect to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documentsany Securities, including, but not limited to, all loans made by the Bank arrangements or agreements with respect to the Borrower as amended by this Amendmentacquisition, disposition or voting of any Securities or any interest therein.
3.3 3.2. The Borrower Founder hereby represents and warrants that (i) the only securities issued by the Co-Investor are ordinary shares which are held by several shareholders, (ii) he has been granted by such shareholders a call option pursuant to which he has the right to purchase from such shareholders all the shares the latter hold in the Co-Investor, at any time after the three year anniversary hereof and (iii) he will entirely exercise such call option and, as a consequence, become the sole shareholder of the Co-Investor, as soon as the call option will be exercisable. In the event that the Founder does not become the sole shareholder of the Co-Investor at the end of the above mentioned three-year period or, in the event that the Founder ceases to be the sole shareholder of the Co-Investor at any time thereafter, the Institutional Investors shall have the right, upon fifteen (15) days’ prior notice, to purchase from the Co-Investor all the Securities then owned by the Co-Investor, at a price equal to the Bank that:
lesser of: (a) This Amendment has been duly executed and delivered the subscription price paid by the Borrower Co-Investor for such Securities and constitutes the legal, valid and binding obligations of the Borrower enforceable in accordance with its terms;
(b) The execution and delivery the purchase price as determined in good faith by an appraiser chosen by Warburg Pincus, that shall be a member of this Amendment by the Borrower and the performance and observance by the Borrower of the provisions hereof, do not violate or conflict with the organizational agreements of the Borrower or any law applicable to the Borrower or result in a breach of any provision of or constitute a default under any other agreement, instrument or document binding upon or enforceable against the Borrower;
(c) The representations and warranties set forth within Article III of the Agreement continue to be true and correct in all material respects as of the date of this Amendment except those changes resulting from the passage of time; and
(d) No material adverse change has occurred in the business, operations, consolidated financial condition or prospects of the Borrower since the date of the most recent annual financial statement delivered to the Bank, and no Event of Default or condition which, with the passage of time, the giving of notice or both, could become an Event of Default has occurred and is continuingnationally recognized investment banking firm.
3.4 The Borrower shall execute or cause to be executed and deliver to the Bank all other documents, instruments and agreements deemed necessary or appropriate by the Bank in connection herewith.
Appears in 1 contract
Covenants, Representations and Warranties. 3.1 The Borrower ratifies, confirms and reaffirms, without condition, all In connection with the terms and conditions of the Agreement and the other Loan Documents and agrees that it continues to be bound by the terms and conditions thereof as amended transactions contemplated by this Amendment; andAgreement, and knowing that the Pledgee is and shall be relying hereon, the Borrower further confirms and affirms that it has no defensePledgor hereby covenants, set off or counterclaim against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, and, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect in accordance with its terms.
3.2 The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower represents and warrants to the Bank that:
(a) This Amendment the Pledged Stock have been and will be duly and validly issued, are and will be fully paid and non-assessable, and are and will be owned by the Pledgor free and clear of any and all restrictions, pledges, liens, encumbrances or other security interests of any kind, save and except for the pledge to the Pledgee pursuant to this Agreement;
(b) there are and will be no options, warrants or other rights in respect of the sale, transfer or other disposition of any of the Pledged Stock by the Pledgors, and the Pledgors have the absolute right to pledge the Pledged Stock hereunder without the necessity of any consent of any Person;
(c) neither the execution or delivery of this Agreement, nor the consummation of the transactions contemplated hereby, nor the compliance with or performance of this Agreement by the Pledgors, conflicts with or will result in the breach or violation of or a default under the terms, conditions or provisions of (i) any mortgage, security agreement, indenture, evidence of indebtedness, loan or financing agreement, or other agreement or instrument to which the Pledgors are a party or by which the Pledgor is bound, or (ii) any provision of law, any order of any court or administrative agency, or any rule or regulation applicable to the Pledgors;
(d) this Agreement has been duly executed and delivered by the Borrower Pledgors, and constitutes the legal, valid and binding obligations obligation of the Borrower Pledgor, enforceable against the Pledgors in accordance with its terms;
(b) The execution and delivery of this Amendment by the Borrower and the performance and observance by the Borrower of the provisions hereof, do not violate or conflict with the organizational agreements of the Borrower or any law applicable to the Borrower or result in a breach of any provision of or constitute a default under any other agreement, instrument or document binding upon or enforceable against the Borrower;
(c) The representations and warranties set forth within Article III of the Agreement continue to be true and correct in all material respects as of the date of this Amendment except those changes resulting from the passage of time; and
(de) No material adverse change has occurred in there are no actions, suits or proceedings pending or threatened against or affecting the business, operations, consolidated financial condition Pledgors that involve or prospects of the Borrower since the date of the most recent annual financial statement delivered relate to the Bank, and no Event of Default or condition which, with the passage of time, the giving of notice or both, could become an Event of Default has occurred and is continuingPledged Collateral.
3.4 The Borrower shall execute or cause to be executed and deliver to the Bank all other documents, instruments and agreements deemed necessary or appropriate by the Bank in connection herewith.
Appears in 1 contract
Samples: Stock Pledge Agreement (Xstream Beverage Network, Inc.)
Covenants, Representations and Warranties. 3.1 The As an inducement to Lender to make the Loan, Bxxxxxxx makes the following representations, warranties and covenants:
(a) There is no significant material fact or condition relating to the financial condition of Borrower ratifiesor the Property which has not been disclosed to Lender.
(b) No Deed of Trust, confirms and reaffirms, without condition, all the terms and conditions Security Agreement or other security instrument covering any portion of the Agreement Property has been executed, no Financing Statement filed, and no lien, security interest, mechanic’s lien or materialmen’s lien, has attached to or been perfected against any of the Property other Loan Documents and agrees that it continues than the liens contemplated hereby.
(c) During the term of the Loan, Borrower will maintain or cause to be bound by the terms and conditions thereof as amended by this Amendment; andmaintained policies of insurance, the Borrower further confirms and affirms each with a standard mortgagee’s clause, with loss payable to Lender, providing that it has no defensecancellation, set off reduction in amount or counterclaim against the same. The Agreement and this Amendment material change in coverage shall be construed as complementing each other effective until at least ten (10) days after receipt by Lender and as augmenting and not restricting the Bank's rightsBorrower of written notice thereof, and, except as specifically amended issued by this Amendment, the Agreement shall remain in full force and effect in accordance such insurers with its terms.
3.2 The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations types of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, coverage (including, but not limited to, all loans made by fire and extended coverage, vandalism and commercial general liability insurance with broad form contractual liability coverage) and in such amounts as may be satisfactory to Lender. Borrower covenants and agrees to deliver to Lender the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower represents and warrants to the Bank that:
(a) This Amendment has been duly executed and delivered by the Borrower and constitutes the legal, valid and binding obligations of the Borrower enforceable in accordance with its terms;
(b) The execution and delivery of this Amendment by the Borrower and the performance and observance by the Borrower of the provisions hereof, do not violate original or conflict with the organizational agreements of the Borrower or any law applicable to the Borrower or result in a breach certificates of any provision and all policies or renewal policies required hereunder, bearing the notations evidencing the payment of or constitute a default under any other agreement, instrument or document binding upon or enforceable against the Borrower;
(c) The representations and warranties set forth within Article III of the Agreement continue to be true and correct in all material respects as of the date of this Amendment except those changes resulting from the passage of time; andpremiums.
(d) No Until final payment to Lender of the Note, Borrower will permit Lender or its agents at any time and from time to time to enter upon the Property for purposes of inspection. Inspection by Lxxxxx, or its agents, is for the sole purpose of protecting the security of Lender.
(e) Borrower will not permit the Property to become subject to any liens or encumbrances other than those herein referenced.
(f) Borrower will promptly notify Lender of any material adverse change has occurred changes in the business, operations, consolidated financial condition facts or prospects of the circumstances represented or warranted by Borrower since the date of the most recent annual financial statement delivered to the Bank, and no Event of Default or condition which, with the passage of time, the giving of notice or both, could become an Event of Default has occurred and is continuingin this Agreement.
3.4 The Borrower shall execute or cause to be executed and deliver to the Bank all other documents, instruments and agreements deemed necessary or appropriate by the Bank in connection herewith.
Appears in 1 contract
Covenants, Representations and Warranties. 3.1 4.1 The Borrower ratifies, confirms and reaffirms, without condition, all the terms and conditions of the Agreement and the other Loan Documents and agrees that it continues to be bound by the terms and conditions thereof as amended by this Amendment; and, the Borrower further confirms and affirms that it has no defense, set off or counterclaim against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, and, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect in accordance with its terms.
3.2 4.2 The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 4.3 The Borrower represents and warrants to the Bank that:
(a) This Amendment has been duly executed and delivered by the Borrower and constitutes the legal, valid and binding obligations of the Borrower enforceable in accordance with its terms;
(b) The execution and delivery of this Amendment by the Borrower and the performance and observance by the Borrower of the provisions hereof, do not violate or conflict with the organizational agreements of the Borrower or any law applicable to the Borrower or result in a breach of any provision of or constitute a default under any other agreement, instrument or document binding upon or enforceable against the Borrower;
(c) The representations and warranties set forth within Article III of the Agreement continue to be true and correct in all material respects as of the date of this Amendment except those changes resulting from the passage of time; and
(d) No material adverse change has occurred in the business, operations, consolidated financial condition or prospects of the Borrower since the date of the most recent annual financial statement delivered to the Bank, and no Event of Default or condition which, with the passage of time, the giving of notice or both, could become an Event of Default has occurred and is continuing.
3.4 4.4 The Borrower shall execute or cause to be executed and deliver to the Bank all other documents, instruments and agreements deemed necessary or appropriate by the Bank in connection herewith.
Appears in 1 contract
Covenants, Representations and Warranties. 3.1 The Borrower ratifies(a). In order to induce Buyer to enter into this Agreement and purchase the Premises, confirms Seller makes the following covenants, agreements, representations and reaffirms, without conditionwarranties, all of which shall survive the terms Closing and conditions the purchase and sale of the Premises:
(1) Seller has obtained all necessary authorizations and consents to enable it to execute and deliver this Agreement and to consummate the other Loan Documents transaction contemplated hereby, including without limitation all authorizations and agrees that it continues consents required to be bound by obtained from governmental authorities during the terms course of, and conditions thereof as amended by this Amendment; andupon completion of, construction of the Borrower further confirms Improvements.
(2) Seller holds fee simple title to the Premises, free of all liens, assessments and affirms that it encumbrances except for the Permitted Exceptions, and liens and encumbrances which will be paid and discharged or otherwise released at or prior to the Closing. Seller has no defenseknowledge of any condition or state of facts which would preclude, set off limit or counterclaim against restrict the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rightsbusiness operations contemplated, and, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect in accordance with its terms.
3.2 The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement terms of the Lease, to be conducted by Tenant at the Premises.
(3) Except for construction warranties with respect to the Improvements, there are no service or maintenance contracts affecting the Premises to which Buyer will be bound upon Closing.
(4) The Premises and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note proposed use thereof by Tenant and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower represents and warrants to the Bank that:
(a) This Amendment has been duly executed and delivered by the Borrower and constitutes the legal, valid and binding obligations of the Borrower enforceable in accordance with its terms;
(b) The execution and delivery of this Amendment by the Borrower and the performance and observance by the Borrower of the provisions hereof, condition thereof do not violate violate, in any material respect, any applicable deed restrictions, zoning or conflict with the organizational agreements of the Borrower subdivision regulations, urban redevelopment plans, local, state or federal environmental law or regulation or any law building code or fire code applicable to the Borrower or result Premises ("Applicable Laws and Restrictions"), and are not designated by any governmental agency to be in a breach flood plain area. Seller has, on or before the Effective Date, provided written notice to Buyer of any provision continuing, alleged or potential violations of or constitute a default under any other agreement, instrument or document binding upon or enforceable against the Borrower;Applicable Laws and Restrictions known to Seller.
(c5) The representations and warranties set forth within Article III As of the Agreement continue to be true and correct in all material respects as of the date of this Amendment except those changes resulting from the passage of time; and
Closing Date (di) No material adverse change has occurred in the business, operations, consolidated financial condition or prospects of the Borrower since the date of the most recent annual financial statement delivered to the Bank, and there shall exist no Event of Default or condition event which, with the passage of time, the giving of notice or the passage of time or both, could become would constitute an Event of Default has occurred under the Lease; (ii) Tenant shall not have any defense, set-off or counterclaim in respect of its obligations under the Lease arising as a result of Seller's actions or activities, or those of Seller's employees, agents or contractors; and is continuing(iii) all leasing commissions and fees with respect to the Lease, if any, have been paid in full by Seller or Tenant.
3.4 The Borrower (6) There is no pending or, to Seller's knowledge, threatened litigation or other proceeding affecting the title to or the use or operation of the Premises.
(7) Seller is not a "foreign person" within the meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended, and Seller shall execute certify its taxpayer identification number at Closing.
(8) To Seller's knowledge, there are no federal, state, county or cause municipal plans to be executed and deliver restrict or change access from any highway or road to the Bank Premises.
(9) The Premises are a separate parcel for real estate tax assessment purposes.
(10) All of the financial data regarding the construction, ownership and operation of the Premises that Seller has provided to Buyer is true, complete and correct.
(11) To the best of Seller's knowledge the Improvements have been constructed in accordance with (i) the Plans and (ii) applicable building codes, laws and regulations in a good, substantial and workmanlike manner.
(12) No Hazardous Materials are, will be, or to the best of Seller's knowledge, have been, stored, treated, disposed of or incorporated into, on or around the Premises in violation of any applicable statutes, ordinances or regulations; the Premises are in material compliance with all applicable environmental, health and safety requirements; any business currently or, to the best of Seller's knowledge, heretofore operated on the Premises has disposed of its waste in accordance with all applicable statutes, ordinances and regulations; and Seller has no notice of any pending or, to the best of Seller's knowledge, threatened action or proceeding arising out of the condition of the Premises or any alleged violation of environmental, health or safety statutes, ordinances or regulations.
(13) Seller specifically acknowledges and understands that where Seller knows of any fact(s) materially affecting the value or desirability of the Premises, whether said fact(s) is/are readily observable or not, Seller hereby assumes and accepts a duty to disclose said fact(s) to Buyer. Seller warrants that, other documentsthan as may be disclosed in the foregoing representations and warranties, instruments Seller has no knowledge of any other fact(s) materially affecting the value or desirability of the Premises whether or not said fact(s) is/are readily observable. All of the representations, warranties and agreements deemed necessary or appropriate by of Seller set forth herein and elsewhere in this Agreement shall be true upon the Bank execution of this Agreement and shall be reaffirmed and repeated in connection herewithwriting at and as of the Closing Date, but not subsequent to the Closing Date, and shall survive the Closing Date.
Appears in 1 contract
Samples: Real Estate Purchase and Sale Contract (American Retirement Corp)
Covenants, Representations and Warranties. 3.1 The Borrower ratifiesMortgage Banker hereby covenants, confirms represents and reaffirmswarrants as of the date hereof that:
(i) the Mortgage Banker is and will at all times be duly licensed, registered or qualified and holds and will hold all necessary licenses, permits, approvals, consents, certificates, registrations and authorizations whether governmental, regulatory or otherwise (including, without conditionlimitation, all licenses, permits, approvals, consents, certificates, registrations and authorizations required under the Mortgage Brokerages, Lenders and Administrators Act, 2006 in all jurisdictions in which it owns, licenses or operates its assets or carries on activities, to enable (i) its activities to be carried on as now conducted or as proposed to be conducted pursuant to the terms hereof, and conditions (ii) to originate, syndicate, service and administer mortgages, all as contemplated hereby, except to the extent that the lack thereof or the failure to hold same does not or would not have a material adverse effect on the ability of the Mortgage Banker to conduct any of the foregoing activities, and all such licenses, permits, approvals, consents, certificates, registrations and authorizations are valid and subsisting and in good standing in all material respects;
(ii) the Mortgage Banker has conducted and is conducting and will conduct its activities in compliance with all applicable laws, rules and regulations of each jurisdiction in which its activities are carried on except to the extent any non-compliance does not or would not have a material adverse effect on the ability of the Mortgage Banker to conduct such activities or on the transactions contemplated hereby;
(iii) the execution and delivery of this Agreement and the fulfilment of the terms hereof by the Mortgage Banker (i) to the knowledge of the Mortgage Banker, do not and will not result in a breach of, and do not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach by the Mortgage Banker of any applicable laws of Canada or of any province or any by-law or ordinance of any city, municipality or regional district, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Mortgage Banker, and (ii) do not and will not conflict with, or constitute a default under, any of the terms, conditions or provisions of the constating documents or by-laws of the Mortgage Banker or any resolution passed or consented to by the directors, shareholders, partners or general partners of any of them, or any license, permit, or other Loan Documents governmental authorization issued or granted to the Mortgage Banker or any indenture, agreement or other instrument to which the Mortgage Banker is a party or by which the Mortgage Banker is bound;
(iv) the Mortgage Banker has been duly incorporated and agrees that it continues duly organized and is validly existing and in good standing under the laws of its jurisdiction of incorporation, and the Mortgage Banker has all requisite power and authority to carry on its activities as now conducted and as presently proposed to be bound conducted;
(v) there is no action, suit, proceeding or inquiry pending or threatened against or affecting the Mortgage Banker before any court or tribunal, or any federal, provincial, municipal or other governmental department, commission, board, bureau agency or instrumentality, domestic or foreign, which may in any way materially adversely affect the ability of the Mortgage Banker to consummate the transactions contemplated by, and to carry out its duties in accordance with, this Agreement or materially adversely affecting the Corporation;
(vi) the Mortgage Banker's servicing practices have not been subject to any review, investigation, censure or order by any governmental or regulatory body, agency, board or commission; and
(vii) this Agreement has been duly authorized, executed and delivered by the terms and conditions thereof as amended by this Amendment; Mortgage Banker and, assuming due authorization, execution and delivery by the Borrower further confirms other parties hereto, is a legal, valid and affirms that it has no defense, set off or counterclaim binding obligation of the Mortgage Banker and is enforceable against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, and, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect Mortgage Banker in accordance with its terms.
3.2 The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted subject to the Bank pursuant effect of applicable bankruptcy, reorganization, insolvency, receivership and other similar laws affecting creditors' rights generally as from time to the Agreement and the other Loan Documents, if anytime in effect, and general principles of equity (regardless of whether such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower represents and warrants to the Bank that:
(a) This Amendment has been duly executed and delivered by the Borrower and constitutes the legal, valid and binding obligations of the Borrower enforceable in accordance with its terms;
(b) The execution and delivery of this Amendment by the Borrower and the performance and observance by the Borrower of the provisions hereof, do not violate or conflict with the organizational agreements of the Borrower or any law applicable to the Borrower or result enforceability is considered in a breach of any provision of proceeding in equity or constitute a default under any other agreement, instrument or document binding upon or enforceable against the Borrower;
(c) The representations and warranties set forth within Article III of the Agreement continue to be true and correct in all material respects as of the date of this Amendment except those changes resulting from the passage of time; and
(d) No material adverse change has occurred in the business, operations, consolidated financial condition or prospects of the Borrower since the date of the most recent annual financial statement delivered to the Bank, and no Event of Default or condition which, with the passage of time, the giving of notice or both, could become an Event of Default has occurred and is continuingat law).
3.4 The Borrower shall execute or cause to be executed and deliver to the Bank all other documents, instruments and agreements deemed necessary or appropriate by the Bank in connection herewith.
Appears in 1 contract
Samples: Mortgage Banking Agreement
Covenants, Representations and Warranties. 3.1 The Borrower ratifies2.1 PMRS will neither appoint any sub agency or subcontractor nor assign any rights or liabilities of this Agreement to any third party without the prior written consent of CTx. PMRS shall ensure that each of its Affiliates and third party sub agencies and subcontractors comply with all obligations imposed on PMRS under this Agreement. Any breach of any such obligations by any such Affiliate, confirms sub agency or subcontractor shall be deemed a breach by PMRS of its obligations under this Agreement, and reaffirmsPMRS shall be responsible and liable for any breach of any such obligations by any such Affiliate, without condition, sub agency or subcontractor.
2.2 All the employees/officers working under this Agreement for PMRS shall be the employees/officers of PMRS and CTx shall have no liability towards or other obligations to them.
2.3 PMRS shall be responsible for all acts and omissions on the terms part of its employees and conditions of the Agreement and the other Loan Documents and agrees that it continues officers. Any compensation to be bound paid to any person for any damage caused by any such acts and/or omissions on the terms part of any of PMRS’s employees and conditions thereof as amended by this Amendment; and, the Borrower further confirms and affirms that it has no defense, set off or counterclaim against the same. The Agreement and this Amendment officers shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, and, except as specifically amended borne by this Amendment, the Agreement shall remain in full force and effect in accordance with its termsPMRS.
3.2 The Borrower ratifies2.4 PMRS shall be responsible for all of its employees’ benefits, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, including but not limited to, all loans made by the Bank to the Borrower as amended by this Amendmentinjury, accident, compensation payments and benefits.
3.3 The Borrower 2.5 Each party represents and warrants that (i) it has the full right and authority to enter into this Agreement and that it is not aware of any impediment that would inhibit its ability to perform its obligations under this Agreement; and (ii) it is a corporation duly organized, validly existing and in good standing under the laws of its incorporating jurisdiction, and it has all requisite power and authority to enter into this Agreement.
2.6 PMRS represents and warrants to CTx that the Bank that:
product supplied under this Agreement shall (ai) This Amendment has been duly executed and delivered be manufactured in compliance with cGMP; (ii) meet all of the specifications for the product as mutually agreed upon by the Borrower parties in writing, including, without limitation, any specifications related to packaging and constitutes shipping when delivered as defined in the legal, valid project contract; (iii) be delivered free of all liens and binding obligations encumbrances; and (iv) not be adulterated or misbranded within the meaning of the Borrower enforceable US Federal Food, Drug and Cosmetic Act.
2.7 PMRS further represents and warrants to CTx that PMRS (i) has and shall maintain at all relevant times the appropriate registrations, licenses and any other governmental authorizations required to enable it to lawfully and properly perform the Services under this Agreement; (ii) shall perform all of its obligations under this Agreement in a professional and workmanlike manner and in accordance with its terms;generally accepted standards of the pharmaceutical manufacturing industry, this Agreement, the applicable Project Contract, any quality agreement entered into by and between the parties, and Company’s SOPs to the extent not inconsistent with this Agreement, the applicable Project Contract or such quality agreement, cGMPs and other applicable laws and regulations and CTx’ specifications.
2.8 Each party also represents and warrants that (bi) The execution and delivery none of the Services or any part of this Amendment Agreement is or will be inconsistent with any obligation such party may have to others and (ii) none of its officers, directors, employees or Affiliates, sub agencies or subcontractors performing Services hereunder are listed by any U.S. federal agency as being suspended, debarred, excluded or otherwise ineligible to participate in federal procurement or non-procurement programs, and PMRS is not aware of any reason for why any of its officers, directors, employees, Affiliates, sub agencies or subcontractors performing Services hereunder might be listed by any U.S. federal agency as being suspended, debarred, excluded or otherwise ineligible to participate in federal procurement or non-procurement programs. PMRS will immediately inform CTx if any of its officers, directors, employees, Affiliates, sub agencies or subcontractors performing Services hereunder becomes listed by any U.S. Federal agency as being suspended, debarred, excluded or otherwise ineligible to participate in federal procurement or non-procurement programs or PMRS becomes aware of a reason for why one of its officers, directors, employees, Affiliates, sub agencies or subcontractors performing Services under this Agreement might be listed by any U.S. federal agency as being suspended, debarred, excluded or otherwise ineligible to participate in federal procurement or non-procurement programs.
2.9 For the Borrower and purposes of this Agreement, “cGMP” means current practices with respect to the performance and observance manufacturing, testing, packaging, storage and/or shipment of product required by (as amended from time to time) the Borrower provisions of the provisions hereofUS. Code of Federal Regulations, do not violate or conflict with the organizational agreements of the Borrower or any law Title 21, Parts 210 and 211 and all applicable to the Borrower or result in a breach of any provision of or constitute a default under any other agreementrules, instrument or document binding upon or enforceable against the Borrower;
(c) The representations regulations, orders and warranties set forth within Article III of the Agreement continue to be true and correct in all material respects as of the date of this Amendment except those changes resulting from the passage of time; and
(d) No material adverse change has occurred in the business, operations, consolidated financial condition or prospects of the Borrower since the date of the most recent annual financial statement delivered to the Bank, and no Event of Default or condition which, with the passage of time, the giving of notice or both, could become an Event of Default has occurred and is continuingguidance published thereunder.
3.4 The Borrower shall execute or cause to be executed and deliver to the Bank all other documents, instruments and agreements deemed necessary or appropriate by the Bank in connection herewith.
Appears in 1 contract
Covenants, Representations and Warranties. 3.1 The Borrower ratifiesVendor covenants, confirms and reaffirms, without condition, all the terms and conditions of the Agreement and the other Loan Documents and agrees that it continues to be bound by the terms and conditions thereof as amended by this Amendment; and, the Borrower further confirms and affirms that it has no defense, set off or counterclaim against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, and, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect in accordance with its terms.
3.2 The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower represents and warrants to the Bank thatPurchaser that now and at Closing:
(a) This Amendment has been duly executed the Vendor is the registered and delivered by the Borrower and constitutes the legal, valid and binding obligations beneficial owner of the Borrower enforceable in accordance with its termsShares and have a good and marketable title to the Shares free and clear of all mortgages, liens, charges, security interests, adverse claims, charges, encumbrances and demands whatsoever;
(b) The the Shares have been duly and validly allotted, issued and delivered to the Vendor and are issued and outstanding as fully paid and non-assessable;
(c) the Vendor holds no other shares legally or beneficially in the capital stock of Phage other than the Shares;
(d) any convertible right held by the Vendor (the "Convertible Right"), including without limitation, any stock options, stock appreciation rights, warrants or convertible debentures, shall be deemed to be void and have no force or effect at or subsequent to the Closing;
(e) if the Vendor hold any Convertible Right, the Vendor agrees not to directly or indirectly exercise any rights pursuant to that Convertible Right;
(f) if applicable, the execution and delivery of this Amendment Agreement and the consummation of the transactions contemplated hereby have been duly authorized by the Borrower and the performance and observance by the Borrower board of directors of the provisions hereof, do not violate or conflict with the organizational agreements of the Borrower or any law applicable to the Borrower or result in a breach of any provision of or constitute a default under any other agreement, instrument or document binding upon or enforceable against the BorrowerPurchaser;
(cg) The representations the shares comprising the Purchase Price have not been registered under the Securities Act of 1933 nor qualified under applicable state securities laws in reliance upon exemptions therefrom. These shares may be acquired for investment purposes only and warranties set forth within Article III not with a view to distribution or resale, and the shares may not be sold, mortgaged, pledged, hypothecated or otherwise transferred or offered to be so transferred without an effective registration statement for such securities under the Securities Act of 1933 and the regulations promulgated pursuant thereto (unless exempt therefrom), or an opinion of counsel satisfactory to the board of directors, that any such transaction shall not violate any federal or state securities laws;
(h) no person, firm or corporation has any agreement or option or any right or privilege, whether by law, pre-emption or contract, that is capable of becoming an agreement or option for the purchase of the Agreement continue to be true and correct in all material respects as of the date of this Amendment except those changes resulting from the passage of timeShares; and
(di) No material adverse change has occurred in the businessVendor will not sell, operationstransfer, consolidated financial condition mortgage, charge, or prospects otherwise dispose of any of the Borrower since the date of the most recent annual financial statement delivered to the Bank, and no Event of Default or condition which, with the passage of time, the giving of notice or both, could become an Event of Default has occurred and is continuingShares while they may have any obligation under this Agreement.
3.4 The Borrower shall execute or cause to be executed and deliver to the Bank all other documents, instruments and agreements deemed necessary or appropriate by the Bank in connection herewith.
Appears in 1 contract
Samples: Purchase Agreement (Phage Therapeutics International Inc)
Covenants, Representations and Warranties. 3.1 The Borrower ratifies5.1 During the Term, confirms and reaffirmsARCA covenants, without condition, all the terms and conditions of the Agreement and the other Loan Documents and agrees that it continues to be bound by the terms and conditions thereof as amended by this Amendment; and, the Borrower further confirms and affirms that it has no defense, set off or counterclaim against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, and, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect in accordance with its terms.
3.2 The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower represents and warrants that: (i) it has the legal right to provide the Services in the jurisdictions where the Services are provided; (ii) its Services hereunder will be performed by qualified individuals in a professional and workmanlike manner conforming to the Bank highest generally applicable industry standards and practices, including without limitation those set forth in Schedules 1.1(c) and 1.1(f) hereof (or such modifications to such standards and practices as may be reasonably agreed with GE in writing); and (iii) it will perform its duties and obligations under this Agreement in compliance with all applicable laws, regulations, codes and standards of government agencies or authorities having jurisdiction in connection with its obligations under this Agreement including, without limitation, Environmental Laws (as hereinafter defined).
5.2 During the Term, ARCA further covenants, represents and warrants for itself and its Affiliates, including AAP, that:
(a) This Amendment has been duly executed it and delivered by its Service Providers will, in the Borrower performance of this Agreement or anywhere at the Philadelphia RPC facility: (i) use no forced, indentured or prison labor, or labor which violates any applicable minimum working age, working condition, wage or overtime laws; (ii) comply with the tax, immigration, and constitutes the legal, valid employment laws of all jurisdictions in which its employees perform work under this Agreement; and binding obligations of the Borrower enforceable in accordance (iii) comply with its termsall applicable privacy or data protection laws relating to this Agreement;
(b) The execution it is and delivery of this Amendment by its Service Providers are business organization(s) duly incorporated or otherwise organized, validly existing and in good standing under the Borrower and the performance and observance by the Borrower Laws of the provisions hereofjurisdiction in which it was incorporated, do not violate and is in good standing in each other jurisdiction where the failure to be in good standing would have a material adverse effect on its business or conflict with the organizational agreements of the Borrower or any law applicable its ability to the Borrower or result in a breach of any provision of or constitute a default perform its obligations under any other agreement, instrument or document binding upon or enforceable against the Borrowerthis Agreement;
(c) The representations except as disclosed by ARCA or its Service Providers, neither its nor its Service Providers’ owners, directors or senior managers have been charged with or convicted of a felony, are the subject of any lawsuit or proceeding involving charges of misconduct or violations of law (excluding small claims and warranties set forth within Article III of the Agreement continue to be true minor traffic violations), including Environmental Laws and correct in all material respects as of the date of this Amendment except those changes resulting from the passage of time; andno judgment, order or decree (excluding small claims and minor traffic violations) has been issued against ARCA, its Affiliates or Service Providers, their respective owners, directors and senior managers with any claim that ARCA, its Affiliates or Service Providers or their respective owners, directors or senior management has violated any criminal or other laws, including any Environmental Laws;
(d) No it shall remain primarily responsible and liable to GE and its Affiliates for performance of or failure to perform the Services, regardless of whether GE and/or its Affiliates has given approval or consent to a specific Service Provider including without limitation, a TSDF;
(e) it and its Service Providers will transport Waste Material to and store, treat, and/or dispose of Waste Material only at Approved TSDFs and in accordance with all Environmental Laws;
(f) it and its Service Providers’ Services shall be performed using personnel, equipment, and material adverse change has occurred in qualified and/or suitable to perform the businessServices requested, operationsincluding, consolidated financial condition or prospects without limitation, the proper installation, operation and maintenance of the Borrower since URT System;
(g) services performed by or delivered through ARCA or a Service Provider shall be in accordance with the date highest generally accepted standards of the most recent annual financial statement delivered industry at the time of performance and shall conform to the Bank, and no Event provisions of Default or condition which, with the passage of time, the giving of notice or both, could become an Event of Default has occurred and is continuing.
3.4 The Borrower shall execute or cause to be executed and deliver to the Bank all other documents, instruments and agreements deemed necessary or appropriate by the Bank in connection herewith.this Agreement;
Appears in 1 contract
Samples: Appliance Sales and Recycling Agreement (Appliance Recycling Centers of America Inc /Mn)
Covenants, Representations and Warranties. 3.1 The Borrower ratifies, confirms and reaffirms, without condition, all In connection with the terms and conditions of the Agreement and the other Loan Documents and agrees that it continues to be bound by the terms and conditions thereof as amended transactions contemplated by this Amendment; andAgreement, and knowing that the Pledgee is and shall be relying hereon, the Borrower further confirms and affirms that it has no defensePledgor hereby covenants, set off or counterclaim against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, and, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect in accordance with its terms.
3.2 The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower represents and warrants to the Bank that:
(a) This Amendment the Pledged Stock has been and will be duly and validly issued, is and will be fully paid and non-assessable, and is and will be owned by the Pledgor free and clear of any and all restrictions, pledges, liens, encumbrances or other security interests of any kind, save and except for the pledge to the Pledgee pursuant to this Agreement;
(b) there are and will be no options, warrants or other rights in respect of the sale, transfer or other disposition of any of the Pledged Stock by the Pledgor, and the Pledgor has the absolute right to pledge the Pledged Stock hereunder without the necessity of any consent of any Person;
(c) neither the execution or delivery of this Agreement, nor the consummation of the transactions contemplated hereby, nor the compliance with or performance of this Agreement by the Pledgor, conflicts with or will result in the breach or violation of or a default under the terms, conditions or provisions of (i) any mortgage, security agreement, indenture, evidence of indebtedness, loan or financing agreement, or other agreement or instrument to which the Pledgor is a party or by which the Pledgor is bound, or (ii) any provision of law, any order of any court or administrative agency, or any rule or regulation applicable to the Pledgor;
(d) this Agreement has been duly executed and delivered by the Borrower Pledgor, and constitutes the legal, valid and binding obligations obligation of the Borrower Pledgor, enforceable against the Pledgor in accordance with its terms;
(be) The execution and delivery of this Amendment by there are no actions, suits or proceedings pending or threatened against or affecting the Borrower and the performance and observance by the Borrower of the provisions hereof, do not violate Pledgor that involve or conflict with the organizational agreements of the Borrower or any law applicable relate to the Borrower or result in a breach of any provision of or constitute a default under any other agreement, instrument or document binding upon or enforceable against the Borrower;
(c) The representations and warranties set forth within Article III of the Agreement continue to be true and correct in all material respects as of the date of this Amendment except those changes resulting from the passage of timePledged Stock; and
(df) No material adverse change has occurred upon execution of this Agreement by Pledgor, the Pledgee shall have the senior security interest in the business, operations, consolidated financial condition or prospects of the Borrower since the date of the most recent annual financial statement delivered to the Bank, and no Event of Default or condition which, with the passage of time, the giving of notice or both, could become an Event of Default has occurred and is continuingPledged Stock.
3.4 The Borrower shall execute or cause to be executed and deliver to the Bank all other documents, instruments and agreements deemed necessary or appropriate by the Bank in connection herewith.
Appears in 1 contract
Covenants, Representations and Warranties. 3.1 The Borrower ratifies(a) In order to induce Buyer to enter into this Agreement and purchase the Premises, confirms Seller makes the following covenants, agreements, representations and reaffirmswarranties:
(1) Seller has obtained all necessary authorizations and consents to enable it to execute and deliver this Agreement and to consummate the transaction contemplated hereby, including without conditionlimitation all authorizations and consents required to be obtained from governmental authorities during the course of, all the terms and conditions upon completion of, construction of the Agreement Improvements (other than building permits and similar final construction permits for the other Loan Documents and agrees that it continues to be bound by the terms and conditions thereof as amended by this Amendment; andImprovements not yet under construction, the Borrower further confirms and affirms that it which Seller has no defense, set off or counterclaim against reason to believe will not be available in the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, and, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect in accordance with its termsordinary course when needed).
3.2 The Borrower ratifies(2) Seller holds fee simple title to the Premises, confirms free of all liens, assessments and reaffirms without conditionencumbrances except for the Permitted Exceptions, all and liens and security interests granted encumbrances which will be paid and discharged or otherwise released at or prior to the Bank Closing.
(3) Seller has no knowledge of any condition or state of facts which would preclude, limit or restrict the business operations contemplated, pursuant to the Agreement terms of the Lease, to be conducted by Tenant at the Premises.
(4) Except as set forth in the Permitted Exceptions or as provided to Buyer within thirty (30) days of the Effective Date of this Agreement, or ten (10) days prior to the end of the Inspection Period or ten (10) days prior to Closing, whichever is earlier, there are no contracts or obligations affecting the Premises to which Buyer will be bound upon Closing.
(5) To Seller's knowledge, the Premises and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note proposed use thereof by Tenant and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower represents and warrants to the Bank that:
(a) This Amendment has been duly executed and delivered by the Borrower and constitutes the legal, valid and binding obligations of the Borrower enforceable in accordance with its terms;
(b) The execution and delivery of this Amendment by the Borrower and the performance and observance by the Borrower of the provisions hereof, condition thereof do not violate in any material respect any applicable deed restrictions, zoning or conflict with the organizational agreements of the Borrower subdivision regulations, urban redevelopment plans, local, state or federal environmental law or regulation or any law building code or fire code applicable to the Borrower or result Premises ("Applicable Laws and Restrictions"), and are not designated by any governmental agency to be in a breach flood plain area. Seller has, on or before the Effective Date, provided written notice to Buyer of any provision continuing, material violations of or constitute a default under any other agreement, instrument or document binding upon or enforceable against the Borrower;Applicable Laws and Restrictions known to Seller.
(c6) The representations and warranties set forth within Article III As of the Agreement continue to be true and correct in all material respects as of the date of this Amendment except those changes resulting from the passage of time; and
Closing Date (di) No material adverse change has occurred in the business, operations, consolidated financial condition or prospects of the Borrower since the date of the most recent annual financial statement delivered to the Bank, and there shall exist no Event of Default or condition event which, with the passage of time, the giving of notice or the passage of time or both, could become currently would constitute an Event of Default has occurred under the Lease; (ii) Tenant shall not have any defense, set-off or counterclaim in respect of its obligations under the Lease arising as a result of Seller's actions or activities, or those of Seller's employees, agents or contractors; and is continuing(iii) all leasing commissions and fees with respect to the Lease, if any, have been paid in full by Seller or Tenant.
3.4 The Borrower (7) There is no pending or, to Seller's knowledge, threatened litigation or other proceeding affecting the title to or the use or operation of the Premises.
(8) Seller is not a "foreign person" within the meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended, and Seller shall execute certify its taxpayer identification number at Closing.
(9) To Seller's knowledge, there are no federal, state, county or cause municipal plans to be executed and deliver restrict or change access from any highway or road to the Bank Premises.
(10) The Premises (other than appurtenant easement areas) are a separate parcel for real estate tax assessment purposes.
(11) All of the financial data regarding the construction, ownership and operation of the Premises that Seller has provided to Buyer is true, complete and correct.
(12) To the best of Seller's knowledge the Project, including, without limitation, the completed Improvements have been constructed in accordance with (i) the Plans and (ii) applicable building codes, laws and regulations in a good, substantial and workmanlike manner.
(a) No Hazardous Materials are or will be stored, treated, disposed of or incorporated into, on or around the Premises in violation of any applicable statutes, ordinances or regulations; (b) the Premises are in material compliance with all other documentsapplicable environmental, instruments health and agreements deemed necessary safety requirements; (c) any business currently operated on the Premises has disposed of its waste in accordance with all applicable statutes, ordinances and regulations; (d) Seller has no notice of any pending or, to the best of Seller's knowledge, threatened action or appropriate by proceeding arising out of the Bank condition of the Premises or any alleged violation of environmental, health or safety statutes, ordinances or regulations; and (e) to the best of Seller's knowledge and belief the environmental reports provided to Buyer during the Inspection Period accurately reflect the status of the Premises in connection herewithregard to any potential contamination of the Premises relating to Hazardous Materials and prior uses of the Premises involving Hazardous Materials.
Appears in 1 contract
Samples: Purchase and Sale Agreement (CNL Retirement Properties Inc)
Covenants, Representations and Warranties. 3.1 The Borrower ratifies, confirms and reaffirms, without condition, all Subject to the terms and conditions of the Credit Agreement and the other Loan Documents Agreement, each Pledgor hereby covenants and agrees that it continues to be bound by the terms and conditions thereof as amended by this Amendment; and, the Borrower further confirms and affirms that it has no defense, set off or counterclaim against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, and, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect in accordance with its terms.
3.2 The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if anywith, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower represents and warrants to to, the Bank thatAgent and the Secured Creditors as follows:
(a) This Amendment has been The certificates for all shares of stock, equity interests and other securities owned by each Pledgor (other than securities evidencing an ownership interest in any entity whose total assets are less than or equal to $100,000) in each case to the extent certificated now or at any time constituting the Pledged Securities shall be delivered to the Agent duly executed endorsed in blank for transfer or accompanied by an appropriate assignment or assignments or an appropriate undated stock power or powers, in every case sufficient to transfer title thereto. The Agent may at any time after the occurrence of an Event of Default and delivered by during the Borrower continuance thereof cause to be transferred into its name or the name of its nominee or nominees any and constitutes the legal, valid and binding obligations all of the Borrower enforceable in accordance with its terms;Pledged Securities hereunder. The Agent shall at all times have the right to exchange the certificates representing the Pledged Securities for certificates of smaller or larger denominations.
(b) The execution Each Pledgor is and delivery will be the sole and lawful legal and beneficial owner of this Amendment all of the Pledged Securities deposited by such Pledgor hereunder. Each Pledgor agrees not to sell, assign, pledge or otherwise dispose of any of such Pledgor’s Pledged Securities or any interest therein except for the security interest granted to the Agent hereunder and liens permitted by Sections 4.1 and 7.11 of the Credit Agreement and the Term Loan Agreement and except for the sale or other disposition of Pledged Securities permitted by the Borrower Credit Agreement or the Term Loan Agreement (including, without limitation, Sections 7.14 and 7.15 in each such agreement). In the case of such permitted sale, disposition or dissolution, the Agent shall release the lien upon such Pledged Securities and deliver such Pledged Securities to the relevant Pledgor. The Pledged Securities are and will be free and clear of all security interests, Liens, rights, claims, attachments, levies and encumbrances of every kind, nature and description and whether voluntary or involuntary except for the pledge to the Agent hereunder and for other Liens permitted by the Credit Agreement and the performance Term Loan Agreement, and observance by each Pledgor will warrant and defend all Pledged Securities which such Pledgor has deposited with the Borrower Agent against any claims and demands of all other persons at any time claiming the same or any interest therein adverse to the Agent and the Secured Creditors. Each Pledgor has the right to vote the Pledged Securities (except as set forth herein) and there are no restrictions upon the voting rights associated with, or the transfer of, any of the provisions hereofPledged Securities, do not violate or conflict with the organizational agreements of the Borrower or except as provided by any law applicable to the Borrower sale of securities generally or result in a breach the terms and provisions of any provision of or constitute a default under any other agreement, instrument or document binding upon or enforceable against the Borrower;this Agreement.
(c) The representations Pledged Securities have been validly issued and warranties set forth within Article III are fully paid and non-assessable (except for the provisions of Section 630 of the Agreement continue Business Corporation Law of the State of New York as to New York corporations). There are no outstanding commitments or other obligations of the issuers of the Pledged Securities to issue, and no options, warrants or other rights of any individual or entity to acquire, any share of any class or series of capital stock or other equity interests of such issuers. Except otherwise indicated on Schedule A, the Pledged Securities listed and described on Schedule A attached hereto constitute all of the issued and outstanding capital stock or other equity interests of every series and class of each issuer thereof. Each Pledgor further agrees that in the event any such issuer shall issue any additional capital stock of any series or class, each Pledgor will forthwith pledge and deposit hereunder, or cause to be true pledged and correct in deposited hereunder, all material respects as such additional shares of the date of this Amendment except those changes resulting from the passage of time; andsuch capital stock.
(d) No material adverse change has occurred On failure of any Pledgor to perform any of the agreements and covenants herein contained, the Agent may perform the same and in so doing may expend such sums as the Agent may deem advisable in the businessperformance thereof, operationsincluding without limitation the payment of any taxes, consolidated financial condition liens and encumbrances, expenditures made in defending against any adverse claim or prospects demand and all other expenditures which the Agent may be compelled to make by operation of law or which Agent may make by agreement or otherwise for the protection of the Borrower since security hereof. All such sums and amounts so expended shall be due and payable, immediately without notice or demand, shall constitute additional Obligations hereby secured together with interest thereon at the rate per annum (computed on the basis of a year of 360 days) determined by adding 2% to the Domestic Rate from time to time in effect (with any change in such rate per annum as so determined by reason of a change in such Domestic Rate to become effective on the date of such change in said Domestic Rate) (such rate per annum as so determined being hereinafter referred to as the most recent annual financial statement delivered to “Reimbursement Rate”). No such performance of any covenant or agreement by the BankAgent on behalf of such Pledgor, and no Event such advancement or expenditure therefor, shall relieve such Pledgor of Default any default under the terms of this Agreement or condition which, in any way obligate the Agent or any Secured Creditor to take any further or future action with respect thereto. The Agent is authorized to charge any depository account of any Pledgor maintained with the passage Agent for the amount of time, the giving of notice or both, could become an Event of Default has occurred such sums and is continuingamounts so expended.
3.4 The Borrower shall (e) Each Pledgor represents that this Agreement, together with its delivery to the Agent of the certificates evidencing the Pledged Securities and stock powers therefor, creates a valid security interest securing payment and performance of the Obligations and that no other action is necessary to perfect such security interest. Each Pledgor agrees to execute or cause to be executed and deliver to the Bank all Agent such further agreements and assignments or other documents, instruments and agreements deemed to do all such other things as the Agent may deem reasonably necessary or appropriate by to assure the Bank Agent of such Pledgor’s pledge of the Pledged Securities hereunder.
(f) If, as and when any Pledgor delivers any securities for pledge hereunder in connection herewithaddition to those listed on Schedule A hereto, the Pledgors shall furnish the Agent a duly completed and executed amendment to such Schedule in substantially the form (with appropriate insertions) of Schedule B hereto reflecting the securities pledged hereunder after giving effect to such addition.
Appears in 1 contract
Samples: Pledge Agreement (Emcor Group Inc)
Covenants, Representations and Warranties. 3.1 The Borrower ratifiesparties each make the following covenants, confirms representations and reaffirmswarranties, without conditionin addition to any covenants, all the terms and conditions of the Agreement and the other Loan Documents and agrees that it continues representations or warranties specified to be bound made by the terms and conditions thereof as amended by Seller or Buyer elsewhere in this Amendment; and, the Borrower further confirms and affirms that it has no defense, set off or counterclaim against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, and, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect in accordance with its terms.
3.2 The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower represents and warrants to the Bank that:
(a) This Amendment has been duly executed and delivered by the Borrower and constitutes the legal, valid and binding obligations each of the Borrower enforceable in accordance with its terms;
(b) The execution and delivery of this Amendment by the Borrower and the performance and observance by the Borrower of the provisions hereof, do not violate or conflict with the organizational agreements of the Borrower or any law applicable to the Borrower or result in a breach of any provision of or constitute a default under any other agreement, instrument or document binding upon or enforceable against the Borrower;
(c) The which representations and warranties only shall do the following: (i) survive the Closing and the recordation of the Deed as set forth within Article III at the end of this Section 5.1; (ii) be deemed material and being relied upon by the Agreement continue to other; (iii) be true and correct in all material respects as of the date each is made; (iv) the term “to the best of Seller’s knowledge” when used in this Amendment except those changes resulting Section 5.1 means the actual knowledge of XXXX XXXXX and XXXXXXX XXXX, without the imputation of knowledge either from facts which may be disclosed in the passage of timepublic record or that might have been obtained from diligent inquiry or investigation; and, (v) be true in all material respects on the Closing: Covenants, Representations and Warranties
(d) No material adverse change has occurred in the businessa. Seller shall grant Buyer and its agents and employees, operations, consolidated financial condition or prospects as of the Borrower since Effective Date, the date right to enter the Property at any time prior to the Closing Date for the purpose of inspecting the Property, making such surveys or performing such tests or studies as it may deem appropriate and performing any other duties, obligations and/or responsibilities of Buyer under this Agreement, including satisfaction of any of the most recent annual financial statement delivered to conditions set forth in Article IV; provided, however, that: (i) all such activities shall not include any invasive or destructive testing or any phase II environmental tests without the Bank, prior written consent of Seller as exercised in its reasonable discretion; (ii) shall be at Buyer’s sole cost and no Event expense without right of Default or condition which, reimbursement from Seller; (iii) Buyer shall not unreasonably interfere with Seller’s and/or Tenant’s existing activities on the passage of time, the giving of notice or both, could become an Event of Default has occurred and is continuing.
3.4 The Borrower shall execute or cause to be executed and deliver to the Bank all other documents, instruments and agreements deemed necessary or appropriate by the Bank in connection herewith.Property; and,
Appears in 1 contract
Covenants, Representations and Warranties. 3.1 The Borrower ratifiesPledgor and Company covenant, confirms represent and reaffirmswarrant to Lender that:
a. The Pledgor and Company have the power and authority to execute, without conditiondeliver and perform this Agreement with respect to the Pledged Shares and such execution, delivery and performance does not violated any undertaking, agreement, promise, covenant, obligation, law or governmental regulation to which the Pledgor or Company are a party or are subject.
b. The Pledgor is the legal record owner and the beneficial owner of all the terms and conditions of the Agreement Pledged Shares;
c. Except as pledged herein to Lender, the Pledgor has not sold, assigned, transferred, conveyed, pledged, granted any security interest in or otherwise hypothecated the Pledged Shares in any manner whatsoever;
d. Except as provided in this Agreement, the Pledged Shares are pledged hereunder free and clear of any and all liens, encumbrances, pledges, security interest, charges, claims, voting trusts or agreements, restrictions on transfer or agreements of any nature whatsoever;
e. The Pledgor has the full, unconditional and unrestricted right to pledge, transfer and deliver control over the Pledged Shares to Lender pursuant to this Agreement;
f. Pledgor and the other Loan Documents Company are the only parties required to execute this Agreement in order to provide Lender the required pledge and agrees that it continues to be bound by necessary control of the terms and conditions thereof Pledged Shares as amended contemplated by this Amendment; and, Agreement;
g. The Pledgor will preserve and defend Lender’s rights to the Borrower further confirms and affirms that it has no defense, set off or counterclaim Pledged Shares under this Agreement against the same. The Agreement claims of all persons and will preserve and maintain the lien and security interest with respect to the Pledged Shares as long as this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, and, except as specifically amended by this Amendment, the Agreement shall remain in full force force;
h. The Pledgor will employ its best efforts to cause the Company not to, and effect in accordance with its terms.
3.2 The Borrower ratifiesthe Company will not, confirms and reaffirms issue any additional shares of Company stock without condition, all liens and security interests granted Lender’s prior written consent. Any shares of stock issued by the Company shall be subject to the Bank pursuant to the provisions of this Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made be encumbered by the Bank to the Borrower as amended security interest granted by this Amendment.
3.3 The Borrower represents and warrants to the Bank that:
(a) This Amendment has been duly executed and delivered by the Borrower and constitutes the legal, valid and binding obligations of the Borrower enforceable in accordance with its terms;
(b) The execution and delivery of this Amendment by the Borrower and the performance and observance by the Borrower of the provisions hereof, do not violate or conflict with the organizational agreements of the Borrower or any law applicable to the Borrower or result in a breach of any provision of or constitute a default under any other agreement, instrument or document binding upon or enforceable against the Borrower;
(c) The representations and warranties set forth within Article III of the Agreement continue to be true and correct in all material respects as of the date of this Amendment except those changes resulting from the passage of timeAgreement; and
(d) No material adverse change has occurred in i. The Pledgor will employ its best efforts to cause the business, operations, consolidated financial condition or prospects of the Borrower since the date of the most recent annual financial statement delivered to the BankCompany not to, and no Event the Company will not, engage in or be a party to any merger, consolidation, division or other reorganization or restructuring of Default or condition whichany kind, with without the passage prior written consent of time, the giving of notice or both, could become an Event of Default has occurred and is continuingLender.
3.4 The Borrower shall execute or cause to be executed and deliver to the Bank all other documents, instruments and agreements deemed necessary or appropriate by the Bank in connection herewith.
Appears in 1 contract
Samples: Stock Pledge and Security Agreement (Protea Biosciences Group, Inc.)
Covenants, Representations and Warranties. 3.1 The Borrower ratifies4.1 By NABI NABI covenants, confirms represents and reaffirmswarrants to FRESENIUS that:
A. NABI is a legal entity duly organized and validly existing under the laws of its state and/or country of incorporation, without conditionas applicable, NABI has full power and authority to enter into this Agreement, and to consummate the transactions contemplated hereby; the execution, delivery and performance by NABI of this Agreement has been duly and validly authorized and approved by all necessary action on the part of NABI; and except as set forth on Schedule 3 to this Agreement, neither the execution and delivery by NABI nor its performance of this Agreement is subject to obtaining any consents or approvals of any other Person, will conflict with, result in a breach of, or constitute a default under, any contract to which NABI is a party or by which it or any of its assets may be bound, or will result in the creation of any lien upon any of the assets of NABI.
B. Except for the Pending Agreements, all Assigned Contracts are in full force and effect, NABI has not received any written notice alleging any default or any other irregularity with respect to the terms Assigned Contracts and conditions NABI has no reason to believe that the parties to such contracts are in, nor will, default in the performance of their respective obligations thereunder or that NABI has defaulted in its obligations under such Assigned Contracts.
C. NABI has fully performed and discharged or will fully perform and discharge all of its obligations (including but not limited to payment obligations) under the Assigned Contracts, other than the Pending Agreements, through the End Date (even if such payment obligations are invoiced after the End Date). NABI shall not take any action between the Effective Date and the End Date to cause any Assigned Contract, exclusive of the Agreement and the other Loan Documents and agrees that it continues Pending Agreements, to fail to be bound by the terms and conditions thereof as amended by this Amendment; and, the Borrower further confirms and affirms that it has no defense, set off or counterclaim against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, and, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect in accordance with its termson the End Date.
3.2 The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted D. NABI has delivered to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower represents and warrants to the Bank that:
(a) This Amendment has been duly executed and delivered by the Borrower and constitutes the legal, valid and binding obligations of the Borrower enforceable in accordance with its terms;
(b) The execution and delivery of this Amendment by the Borrower and the performance and observance by the Borrower of the provisions hereof, do not violate or conflict with the organizational agreements of the Borrower or any law applicable to the Borrower or result in a breach of any provision of or constitute a default under any other agreement, instrument or document binding upon or enforceable against the Borrower;
(c) The representations and warranties set forth within Article III of the Agreement continue to be FRESENIUS true and correct in copies of all material respects as of the date of this Amendment Assigned Contracts in its possession or under its control, together with all amendments, modifications, waivers and consents relating thereto and the correspondence files pertinent thereto, and except those changes resulting from the passage of time; and
(d) No material adverse change has occurred in the business, operations, consolidated financial condition or prospects of the Borrower since the date of the most recent annual financial statement as delivered to the BankFRESENIUS, and there are no Event other amendments, modifications, waivers or consents relating to such Assigned Contracts.
E. NABI is not aware of Default any claim, lawsuit, arbitration, investigation or condition whichaction which has been threatened against NABI, or any Persons with whom NABI has dealt, with respect to the passage of time, the giving of notice or both, could become an Event of Default has occurred and is continuingStudies.
3.4 The Borrower shall execute F. Since March 30, 2006, NABI has not filed any claim, or cause given any notice regarding a claim, to be executed and deliver its insurers with respect to the Bank all other documents, instruments and agreements deemed necessary or appropriate by the Bank in connection herewithany Study.
Appears in 1 contract
Samples: Transition/Termination Agreement (Nabi Biopharmaceuticals)
Covenants, Representations and Warranties. 3.1 The 10.1 Borrower ratifieshereby remakes all of the representations and warranties contained in the Loan Documents, confirms and reaffirmsas amended hereby, without condition, as of the date hereof.
10.2 Borrower hereby reaffirms all the terms and conditions of covenants made in the Agreement Loan Documents as amended hereby or pursuant hereto.
10.3 Borrower hereby represents and warrants to Lender that (a) this Amendment and the other Loan Documents and agrees that it continues to be bound by the terms and conditions thereof Agreement as amended by this Amendment; and, the Borrower further confirms and affirms that it has no defense, set off or counterclaim against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, and, except as specifically amended modified by this Amendment, the Agreement shall remain in full force and effect in accordance with its terms.
3.2 The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower represents and warrants to the Bank that:
(a) This Amendment has been duly executed and delivered by the Borrower and constitutes constitute the legal, valid and binding obligations obligation of the Borrower, enforceable against Borrower enforceable in accordance with its their terms;
, and (b) The the execution and delivery by Borrower of this Amendment has been duly authorized by all requisite action on the part of Borrower and the performance and observance by the Borrower of the provisions hereof, do will not violate or conflict with the organizational agreements of the Borrower or any law applicable to the Borrower or result in a breach of any provision of or constitute a default under any other agreementthe organizational documents of Borrower.
10.4 Borrower hereby represents and warrants to Lender that, instrument or document binding upon or enforceable against the Borrower;
(c) The representations and warranties set forth within Article III of the Agreement continue to be true and correct in all material respects as of the date of this Amendment except those changes resulting from the passage of time; and
hereof, (da) No material adverse change has occurred in the businessto Borrower’s knowledge, operations, consolidated financial condition or prospects of the Borrower since the date of the most recent annual financial statement delivered to the Bank, and no Event of Default or condition which, with the passage of time, the giving of notice or both, could become an Event of Default has occurred and is continuing, and no other Event of Default will occur as a result of the execution, delivery and performance by Borrower of this Amendment and (b) Borrower does not have has any offsets, defenses, counterclaims, set offs, or similar rights with respect to its obligations of payment and performance under the Loan Documents.
3.4 The Borrower shall execute or cause to be executed and deliver to the Bank all other documents, instruments and agreements deemed necessary or appropriate by the Bank in connection herewith.
Appears in 1 contract
Samples: Loan Agreement (Affordable Residential Communities Inc)
Covenants, Representations and Warranties. 3.1 The Borrower ratifies, confirms and reaffirms, without condition, all In connection with the terms and conditions of the Agreement and the other Loan Documents and agrees that it continues to be bound by the terms and conditions thereof as amended transactions contemplated by this Amendment; andAgreement, and knowing that the Pledgee are and shall be relying hereon, the Borrower further confirms and affirms that it has no defensePledgor hereby covenants, set off or counterclaim against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, and, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect in accordance with its terms.
3.2 The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower represents and warrants to the Bank that:
(a) This Amendment the Pledged Stock has been and will be duly and validly issued, is and will be fully paid and non-assessable, and is and will be owned by the Pledgor free and clear of any and all restrictions, pledges, liens, encumbrances or other security interests of any kind, save and except for the pledge to the Pledgee pursuant to this Agreement;
(b) there are and will be no options, warrants or other rights in respect of the sale, transfer or other disposition of any of the Pledged Stock, and the Pledgor has the absolute right to pledge the Pledged Stock hereunder without the necessity of any consent of any Person;
(c) neither the execution or delivery of this Agreement, nor the consummation of the transactions contemplated hereby, nor the compliance with or performance of this Agreement by the Pledgor, conflicts with or will result in the breach or violation of or a default under the terms, conditions or provisions of (i) any mortgage, security agreement, indenture, evidence of indebtedness, loan or financing agreement, or other agreement or instrument to which the Pledgor is a party or by which the Pledgor is bound, or (ii) any provision of law, any order of any court or administrative agency, or any rule or regulation applicable to the Pledgor;
(d) this Agreement has been duly executed and delivered by the Borrower Pledgor, and constitutes the legal, valid and binding obligations obligation of the Borrower Pledgor, enforceable against the Pledgor in accordance with its terms;
(be) The execution and delivery of this Amendment by there are no actions, suits or proceedings pending or threatened against or affecting the Borrower and the performance and observance by the Borrower of the provisions hereof, do not violate Pledgor that involve or conflict with the organizational agreements of the Borrower or any law applicable relate to the Borrower or result in a breach of any provision of or constitute a default under any other agreement, instrument or document binding upon or enforceable against the BorrowerPledged Stock;
(cf) The representations and warranties set forth within Article III the Pledgor shall not, at any time prior to the release of the Agreement continue lien on the Pledged Stock in accordance with paragraph 8 below, (i) sell, transfer or convey any interest in any of the Pledged Stock, or (ii) suffer or permit any other pledge, lien or encumbrance to be true and correct in all material respects as created upon or granted with respect to any of the date of this Amendment except those changes resulting from the passage of timePledged Stock; and
(dg) No material adverse change has occurred from time to time hereafter, the Pledgor shall take any and all such further action, and shall execute and deliver any and all such further documents and/or instruments, as the Pledgee may request in order to accomplish the purposes of this Agreement, in order to enable the Pledgee to exercise any of its rights hereunder, and/or in order to secure more fully the Pledgee's interest in the business, operations, consolidated financial condition or prospects of the Borrower since the date of the most recent annual financial statement delivered to the Bank, and no Event of Default or condition which, with the passage of time, the giving of notice or both, could become an Event of Default has occurred and is continuingPledged Stock.
3.4 The Borrower shall execute or cause to be executed and deliver to the Bank all other documents, instruments and agreements deemed necessary or appropriate by the Bank in connection herewith.
Appears in 1 contract
Samples: Stock Pledge Agreement (Commodore Applied Technologies Inc)
Covenants, Representations and Warranties. 3.1 The Borrower ratifies(a) . In order to induce Buyer to enter into this Agreement and purchase the Premises, confirms Seller makes the following covenants, agreements, representations and reaffirms, without conditionwarranties, all of which shall survive the Closing and the purchase and sale of the Premises:
(1) Seller has obtained all necessary authorizations and consents to enable it to execute and deliver this Agreement and to consummate the transaction contemplated hereby, including without limitation all authorizations and consents required to be obtained from governmental authorities during the course of, and upon completion of, construction of the Improvements.
(2) Seller holds fee simple title to the Premises, free of all liens, assessments and encumbrances except for the Permitted Exceptions, and liens and encumbrances which will be paid and discharged or otherwise released at or prior to the Closing. Seller has no knowledge of any condition or state of facts which would preclude, limit or restrict the business operations contemplated, pursuant to the terms and conditions of the Agreement Lease, to be conducted by Tenant at the Premises.
(3) Except for construction warranties with respect to the Improvements, there are no service or maintenance contracts affecting the Premises to which Buyer will be bound upon Closing.
(4) The Premises and the other Loan Documents proposed use thereof by Tenant and agrees that it continues the condition thereof do not violate in any material respect any applicable deed restrictions, zoning or subdivision regulations, urban redevelopment plans, local, state or federal environmental law or regulation or any building code or fire code applicable to the Premises ("Applicable Laws and Restrictions"), and are not designated by any governmental agency to be bound by in a flood plain area. Seller has, on or before the terms Effective Date, provided written notice to Buyer of any continuing, alleged or potential violations of Applicable Laws and conditions thereof as amended by this AmendmentRestrictions known to Seller.
(5) As of the Closing Date (i) there shall exist no event which, with the giving of notice or the passage of time or both, would constitute an Event of Default under the Lease; and, the Borrower further confirms and affirms that it has no (ii) Tenant shall not have any defense, set set-off or counterclaim against in respect of its obligations under the same. The Agreement Lease arising as a result of Seller's actions or activities, or those of Seller's employees, agents or contractors; and this Amendment shall be construed as complementing each other (iii) all leasing commissions and as augmenting and not restricting the Bank's rights, and, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect in accordance fees with its terms.
3.2 The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted respect to the Bank pursuant to the Agreement and the other Loan DocumentsLease, if any, and such liens and security interests shall continue have been paid in full by Seller or Tenant.
(6) There is no pending or, to secure Seller's knowledge, threatened litigation or other proceeding affecting the indebtedness and obligations title to or the use or operation of the Borrower Premises.
(7) Seller is not a "foreign person" within the meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended, and Seller shall certify its taxpayer identification number at Closing.
(8) To Seller's knowledge, there are no federal, state, county or municipal plans to restrict or change access from any highway or road to the Bank under Premises.
(9) The Premises are a separate parcel for real estate tax assessment purposes.
(10) All of the Agreementfinancial data regarding the construction, ownership and operation of the Note Premises that Seller has provided to Buyer is true, complete and correct.
(11) To the other Loan Documentsbest of Seller's knowledge the Improvements have been constructed in accordance with (i) the Plans and (ii) applicable building codes, laws and regulations in a good, substantial and workmanlike manner.
(12) No Hazardous Materials are, will be, or to the best of Seller's knowledge, have been, stored, treated, disposed of or incorporated into, on or around the Premises in violation of any applicable statutes, ordinances or regulations; the Premises are in material compliance with all applicable environmental, health and safety requirements; any business currently or, to the best of Seller's knowledge, heretofore operated on the Premises has disposed of its waste in accordance with all applicable statutes, ordinances and regulations; and Seller has no notice of any pending or, to the best of Seller's knowledge, threatened action or proceeding arising out of the condition of the Premises or any alleged violation of environmental, health or safety statutes, ordinances or regulations.
(13) Seller has operated the Improvements in compliance with all applicable federal and state laws and regulations, including, but not limited to, all loans made by the Bank to the Borrower as amended by this AmendmentMedicare and Medicaid laws and regulations.
3.3 The Borrower represents (14) Seller specifically acknowledges and warrants to understands that where Seller knows of any fact(s) materially affecting the Bank that:
(a) This Amendment has been duly executed and delivered by the Borrower and constitutes the legal, valid and binding obligations value or desirability of the Borrower enforceable Premises, whether said fact(s) is/are readily observable or not, Seller hereby assumes and accepts a duty to disclose said fact(s) to Buyer. Seller warrants that, other than as may be disclosed in accordance with its terms;
(bthe foregoing representations and warranties, Seller has no knowledge of any other fact(s) The materially affecting the value or desirability of the Premises whether or not said fact(s) is/are readily observable. All of the representations, warranties and agreements of Seller set forth herein and elsewhere in this Agreement shall be true upon the execution and delivery of this Amendment by the Borrower Agreement and the performance shall be reaffirmed and observance by the Borrower of the provisions hereof, do not violate or conflict with the organizational agreements of the Borrower or any law applicable to the Borrower or result repeated in a breach of any provision of or constitute a default under any other agreement, instrument or document binding upon or enforceable against the Borrower;
(c) The representations writing at and warranties set forth within Article III of the Agreement continue to be true and correct in all material respects as of the date of this Amendment except those changes resulting from the passage of time; and
(d) No material adverse change has occurred in the businessClosing Date, operations, consolidated financial condition or prospects of the Borrower since the date of the most recent annual financial statement delivered but not subsequent to the BankClosing Date, and no Event of Default or condition which, with shall survive the passage of time, the giving of notice or both, could become an Event of Default has occurred and is continuingClosing Date.
3.4 The Borrower shall execute or cause to be executed and deliver to the Bank all other documents, instruments and agreements deemed necessary or appropriate by the Bank in connection herewith.
Appears in 1 contract
Samples: Real Estate Purchase and Sale Contract (CNL Retirement Properties Inc)
Covenants, Representations and Warranties. 3.1 The Borrower ratifies, confirms and reaffirms, without condition, all In connection with the terms and conditions of the Agreement and the other Loan Documents and agrees that it continues to be bound by the terms and conditions thereof as amended transactions contemplated by this Amendment; andAgreement, and knowing that the Borrower further confirms Pledgees are and affirms that it has no defense, set off or counterclaim against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rightsrelying hereon, andCommodore hereby covenants, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect in accordance with its terms.
3.2 The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower represents and warrants to the Bank that:
(a) This Amendment the Pledged Stock has been and will be duly and validly issued, are and will be fully paid and non-assessable, and are and will be owned by Commodore free and clear of any and all restrictions, pledges, liens, encumbrances or other security interests of any kind, save and except for the pledge to the Pledgees pursuant to this Agreement;
(b) there are and will be no options, warrants or other rights in respect of the sale, transfer or other disposition of any of the Pledged Stock, and Commodore has the absolute right to pledge the Pledged Interests hereunder without the necessity of any consent of any Person;
(c) the Pledged Stock constitutes one hundred (100%) percent of the issued and outstanding ordinary shares and other securities of the Company which is owned of record and beneficially by Commodore on the date hereof; and, on the date hereof, there are no options, warrants or other rights to subscribe for or acquire any capital stock or other securities of the Company, or any securities or other rights exercisable for or convertible into any capital stock, securities or rights to acquire securities of the Company;
(d) neither the execution or delivery of this Agreement, nor the consummation of the transactions contemplated hereby, nor the compliance with or performance of this Agreement by the Pledgor, conflicts with or will result in the breach or violation of or a default under the terms, conditions or provisions of (i) any mortgage, security agreement, indenture, evidence of indebtedness, loan or financing agreement, or other agreement or instrument to which the Pledgor is a party or by which the Pledgor is bound, or (ii) any provision of law, any order of any court or administrative agency, or any rule or regulation applicable to the Pledgor;
(e) this Agreement has been duly executed and delivered by the Borrower Commodore and constitutes the legal, valid and binding obligations obligation of each of Commodore, enforceable against the Borrower enforceable Pledgor in accordance with its terms;
(bf) The execution and delivery of this Amendment by there are no actions, suits or proceedings pending or threatened against or affecting the Borrower and the performance and observance by the Borrower of the provisions hereof, do not violate Pledgor that involve or conflict with the organizational agreements of the Borrower or any law applicable relate to the Borrower or result in a breach of any provision of or constitute a default under any other agreement, instrument or document binding upon or enforceable against the BorrowerPledged Stock;
(cg) The representations and warranties set forth within Article III Pledgor shall not, at any time prior to the release of the Agreement continue lien on the Pledged Interests in accordance with paragraph 8 below, (i) sell, transfer or convey any interest in any of the Pledged Stock, or (ii) suffer or permit any other pledge, lien or encumbrance to be true and correct in all material respects as created upon or granted with respect to any of the date of this Amendment except those changes resulting from the passage of timePledged Stock; and
(dh) No material adverse change has occurred from time to time hereafter, Commodore shall take any and all such further action, and shall execute and deliver any and all such further documents and/or instruments, as the Pledgees may request in order to accomplish the purposes of this Agreement, in order to enable the Pledgees to exercise any of their rights hereunder, and/or in order to secure more fully the Pledgee's interest in the businessPledged Stock.
(i) Commodore acknowledges that, operations, consolidated financial condition or prospects but for the Repurchase Obligation set forth in Section 7.2(b) of the Borrower since Purchase Agreement and its willingness to provide Pledgees collateral security for the payment and performance of such Repurchase Obligation, pursuant to this Pledge Agreement, and without the covenants by Commodore set forth in this Section 7(i) and in Section 7(j) below, the Pledgees would not have entered into the Purchase Agreement and would have terminated all transactions and other relationships with Commodore. Accordingly, Commodore does hereby agree that if at any time following the date hereof a petition is filed by or against Commodore and/or any member of the most recent annual financial statement delivered Commodore Group commencing a case under the United States Bankruptcy Code or if Commodore or any of the other members of the Commodore Group shall become the subject of any insolvency, bankruptcy, receivership, readjustment of debt, dissolution, reorganization , liquidation or similar proceeding, under state or federal law, the Pledgees and the other holders of Repurchase Shares will be immediately and absolutely entitled to, and each member of the Commodore Group hereby consents to, the relief specified in clauses (A), (B) and (C) below, singly, alternatively or cumulatively, and each member of the Commodore Group agrees that it will not object to, contest or oppose any motion, application, complaint or other proceeding by the Pledgees (acting on behalf of themselves and any other holders of the Repurchase Shares), to obtain such relief, and each member of the Commodore Group will take all actions necessary to enable the Pledgees and other holders of Repurchase Shares to obtain the following relief:
(A) the Pledgees and the other holders of Repurchase Shares shall be entitled to the Bankimmediate termination of the automatic stay imposed by Section 362 of the Bankruptcy Code to enable any of them to exercise all of their rights and remedies under this Agreement and applicable law;
(B) the Pledgees and the other holders of the Repurchase Shares shall be entitled to the immediate dismissal of such case pursuant to Section 305(a)(1) of the Bankruptcy Code (with attorneys' fees and other costs), and no Event Commodore and each other member of Default or condition whichthe Commodore Group agree that such dismissal will be in the interest of creditors and themselves; and
(C) the Pledgees and each other holder of Repurchase Shares shall be entitled to the immediate dismissal of such case under Section 1112(b) of the Bankruptcy Code for cause, and Commodore and each other member of the Commodore Group agree that the filing of such case by any of them shall per se be deemed to have been commenced in bad faith and solely for the improper purpose of impeding the exercise of the rights and remedies of the Pledgees and other holders of Repurchase Shares with attendant unnecessary delay and needless cost.
(j) Commodore does hereby further irrevocably and unconditionally covenant and agree, on behalf of itself and all other members of the passage Commodore Group:
(A) to waive any and all equitable defenses to the exercise of timethe rights and remedies of the Pledgees and the other holders of Repurchase Shares set forth in Section 7.2 of the Purchase Agreement and in this Agreement, including, without limitation, the giving equitable defense of notice or both, could become an Event forfeiture; and
(B) that the rights and remedies of Default has occurred the Pledgees and is continuing.
3.4 The Borrower other holders of Repurchase Shares set forth in Section 7.2 of the Purchase Agreement and in this Agreement shall execute or cause not be subject to be executed and deliver to the Bank all other documents, instruments and agreements deemed necessary or appropriate by the Bank in connection herewith.pro ration
Appears in 1 contract
Samples: Stock Purchase Agreement (Commodore Applied Technologies Inc)
Covenants, Representations and Warranties. 3.1 The Borrower ratifiesConcerning Leases ----------------------------------------------------------- and Rents. Mortgagor covenants, confirms represents and reaffirmswarrants that: (a) Mortgagor --------- has good title to, without conditionand is the owner of the entire landlord's interest in, the Leases and Rents hereby assigned and has authority to assign them; (b) to the best of Mortgagor's knowledge after due inquiry, all Leases are valid and enforceable, and in full force and effect, and are unmodified except as stated therein; (c) except as expressly disclosed to Mortgagee in writing, neither Mortgagor nor, to the terms best of Mortgagor's knowledge after due inquiry, any tenant in the Property is in default under its Lease (and conditions to the best of Mortgagor's knowledge no event has occurred which with the Agreement passage of time or notice or both would result in a default under its Lease) or is the subject of any bankruptcy, insolvency or similar proceeding; (d) unless otherwise stated in a Permitted Encumbrance, no Rents or Leases have been or will be assigned, mortgaged, pledged or otherwise encumbered and no other person has or will acquire any right, title or interest in such Rents or Leases; (e) to the other Loan Documents and agrees that it continues to be bound by the terms and conditions thereof as amended by this Amendment; andbest of Mortgagor's knowledge after due inquiry, the Borrower further confirms and affirms that it has no defenseRents have been waived, released, discounted, set off or counterclaim against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, and, compromised; (f) except as specifically amended by this Amendment, the Agreement shall remain in full force and effect in accordance with its terms.
3.2 The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower represents and warrants to the Bank that:
(a) This Amendment has been duly executed and delivered by the Borrower and constitutes the legal, valid and binding obligations of the Borrower enforceable in accordance with its terms;
(b) The execution and delivery of this Amendment by the Borrower and the performance and observance by the Borrower of the provisions hereof, do not violate or conflict with the organizational agreements of the Borrower or any law applicable to the Borrower or result in a breach of any provision of or constitute a default under any other agreement, instrument or document binding upon or enforceable against the Borrower;
(c) The representations and warranties set forth within Article III of the Agreement continue to be true and correct in all material respects as of the date of this Amendment except those changes resulting from the passage of time; and
(d) No material adverse change has occurred stated in the businessLeases, operations, consolidated financial condition Mortgagor has not received any funds or prospects deposits from any tenant for which credit has not already been made on account of the Borrower since the date of the most recent annual financial statement delivered to the Bank, and no Event of Default or condition which, with the passage of time, the giving of notice or both, could become an Event of Default has occurred and is continuing.
3.4 The Borrower shall execute or cause to be executed and deliver to the Bank all other documents, instruments and agreements deemed necessary or appropriate by the Bank in connection herewith.accrued Rents;
Appears in 1 contract
Samples: Mortgage, Assignment and Security Agreement (Wells Real Estate Investment Trust Inc)
Covenants, Representations and Warranties. 3.1 6.1 The Borrower ratifies, confirms and reaffirms, without condition, all the terms and conditions of the Agreement and the other Loan Documents and agrees that it continues to be bound by the terms and conditions thereof as amended by this Amendment; and, the Borrower further confirms and affirms that it has no defense, set off or counterclaim against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, and, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect in accordance with its terms.
3.2 The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower Vendor hereby represents and warrants to the Bank thatPurchaser, which representations and warranties will, unless otherwise provided, survive and not merge on Closing, and acknowledges that the Purchaser has relied on and continues to rely on such representations and warranties in entering into and completing this Agreement, as follows:
(a) This Amendment the Vendor is the sole registered and beneficial owner of the Purchased Assets and on Closing will be the sole registered and beneficial owner thereof, free and clear of any liens, charges, security interests or encumbrances, save and except for the Permitted Encumbrances;
(b) the Vendor is not a trustee, nominee or agent for another Person with respect to all or any portion of the Purchased Assets;
(c) the Purchased Assets are not owned in partnership or pursuant to a joint venture or other syndicate or joint ownership;
(d) the Vendor has been the sole and absolute right to sell, transfer, convey and/or assign its interest in the Purchased Assets to the Purchaser;
(e) the Vendor is duly executed incorporated, organized, validly existing and in good standing in the jurisdiction of its formation;
(f) the Vendor has all necessary corporate power, authority and capacity to enter into this Agreement and all other agreements contemplated by this Agreement and to perform its obligations under this Agreement and all other agreements contemplated by this Agreement;
(g) neither this Agreement nor any documents to be entered into pursuant hereto, including all documents to be delivered by the Borrower Vendor on Closing, is or will be executed pursuant to a power of attorney;
(h) neither the execution and constitutes delivery of this Agreement by the legalVendor, valid and binding obligations the consummation by the Vendor of the Borrower enforceable transactions contemplated by this Agreement, nor compliance by the Vendor with any of the provisions of this Agreement or of the other agreements to be entered into at Closing, will (i) violate, conflict with or result in a breach of any provisions of, or constitute default (or an event which, with notice or the passage of time, or both, would constitute default) under any of the terms, conditions or provisions of the Vendor’s governing instruments or any agreement to which it is a party, or by which it or any of its properties or assets are bound or affected, or (ii) violate any order having jurisdiction over the Vendor, or (iii) violate any Applicable Laws;
(i) no authorization, consent, permit or approval of, or other action by or filing with, or notice to, any Governmental Authority, regulatory body, court, tribunal or other similar entity having jurisdiction in the Province of Ontario is required of the Vendor in connection with completion of the Transaction;
(j) the Vendor is not insolvent, and the Vendor has not committed an act of bankruptcy and no proceedings have been taken by it or by any other Person or are pending or contemplated with respect to the bankruptcy of the Vendor, or any proposal in bankruptcy of the Vendor, and no trustee, receiver, manager, liquidator or similar Person has been appointed with respect to any of the Vendor’s property, and there is no encumbrancer in possession of any property of the Vendor;
(k) the Vendor is not now, and will not be on Closing, a non-resident of Canada for the purposes of the Income Tax Act (Canada);
(l) the Vendor will continue to operate the Buildings until the Closing Date in an efficient and businesslike manner, consistent with past practice;
(m) no Person, other than the Purchaser, has any written or oral agreement, option, right of first refusal, understanding or commitment for the purchase or lease of any interest in the Purchased Assets or any part thereof, other than the Vendor pursuant to the Leases;
(n) on the Closing Date, vacant possession of the Lands will be given to the Purchaser, save and except for the possession of the Vendor pursuant to the Leases;
(o) the Vendor has not received written notice of any suits, actions or other proceedings pending or threatened against the Vendor at law or equity or by any Governmental Authority which may affect the title of the Vendor to the Purchased Assets, the marketability thereof, the continued operation of the Building, or the right of the Vendor to complete this Agreement in accordance with its terms;
(bp) The execution there are no expropriation proceedings relating to the Lands and delivery the Vendor has not received written notice of this Amendment any pending expropriation proceedings relating thereto;
(q) to the best of the Vendor's knowledge: (i) there are no Hazardous Substances located on or in or under the surface of the Lands; and (ii) no Release of any Hazardous Substances has occurred on, in or from of the Lands or has resulted from the conduct of activities thereon;
(r) there are no administrative directions, orders or sanctions issued or imposed by any Governmental Authority pursuant to any Applicable Laws requiring any remediation or clean-up of any Hazardous Substances or requiring that any Release be reduced, modified or eliminated or requiring any other preventative or remedial measure;
(s) the Vendor is not aware of any condition at the Lands and Building that might give rise to a Work Order;
(t) to the best of the Vendor's knowledge, the Vendor has not used, and has not permitted anyone to use, any of the Lands to produce, generate, manufacture, treat, store, handle, transport or dispose of any Hazardous Substances except in compliance with Applicable Laws;
(u) to the best of the Vendor's knowledge, except as disclosed to the Purchaser in the Vendor's Deliveries, there are no underground or above-ground fuel storage tanks or associated piping or appurtenances (active or abandoned), or urea formaldehyde foam insulation, asbestos, polychlorinated biphenyls or radioactive substances located on or in or under the surface of any of the Lands or Building;
(v) the Vendor has provided the Purchaser with copies of final environmental audits, final site assessments and final studies concerning the Lands, prepared by third Parties for the Vendor, that are in its possession or control;
(w) there is no claim or charge against the Lands or the Building under the provisions of the Health Protection and Promotion Act (Ontario) for the expense of anything done or directed to be done on the Lands or Building by the Borrower Board of Health or by any person or authority under the said Act by way of installing sanitary conveniences or of abating a nuisance or in respect of any other act or thing done or directed to be done under the provisions of the said Act;
(x) no fixtures affixed to the Lands or the Buildings which are owned by the Vendor are subject to any conditional sale contract, lease, lien note or financing statement, and the performance Vendor is the absolute owner of all such fixtures free from all encumbrances;
(y) on the Closing Date there will not be any Contracts for or under which the Purchaser will be liable after Closing;
(z) the Vendor does not retain the fee or the equity of redemption in, or a power or right to grant, assign or exercise a power of appointment in respect of, any land abutting the Lands;
(aa) the Vendor will not intentionally omit, and observance to the best of the Vendor's knowledge, has not omitted, to deliver or disclose any material information and documentation in respect of the Purchased Assets which might have an adverse effect on the value or operation of the Lands or Buildings or which might have a material effect on the Purchaser’s due diligence deliberations;
(bb) there is no indebtedness, agreement, lien, Claim, account or other outstanding obligation which may, by operation of law or otherwise, survive the Closing Date and, whether registered or unregistered, constitutes a lien, security interest, encumbrance, encroachment, easement, right-of-way, restriction, lease or other interest against the Lands, Buildings, or any part thereof and, without limiting the generality of the foregoing, all source deductions, premiums, payment or taxes collected from third parties have been remitted by the Borrower Vendor to all applicable government agencies;
(cc) to the best of the provisions hereofVendor's knowledge, do not violate no owner of adjacent lands has made any claim to, or conflict with the organizational agreements asserted any interest in, any part of the Borrower Lands, by way of adverse possession or any law applicable otherwise;
(dd) the Buildings are situated wholly within the limits of the Lands, and there is no dispute as to the Borrower boundaries of the Lands or result in a breach as to the location of any provision existing fences or other enclosures;
(ee) to the best of or constitute a the Vendor's knowledge, the Vendor is not in default under any other agreement, instrument or document binding upon or enforceable documents registered against title to the BorrowerLands;
(cff) The representations the Vendor has not received, nor has anyone on behalf of it received, any notice with respect to any by-law change or passage of a site-specific or interim-control by-law or new official plan or other proceedings affecting the Lands or Buildings from any Governmental Authority having jurisdiction thereover, and warranties set forth within Article III the Vendor is not aware of any of the Agreement continue to be true and correct in all material respects foregoing; (gg) no “improvement” (as of defined under the date of this Amendment except those changes resulting from the passage of time; and
Construction Lien Act (dOntario)) No material adverse change has occurred in the business, operations, consolidated financial condition been made or prospects of the Borrower since the date of the most recent annual financial statement delivered is being made to the BankBuilding or the Lands and there has been no “supply of services” (as defined under the Construction Lien Act (Ontario)) to the Building or the Lands within the last forty-five (45) days, and no Event improvement or supply of Default or condition which, with services will be made from the passage of time, the giving of notice or both, could become an Event of Default has occurred and is continuing.
3.4 The Borrower shall execute or cause to be executed and deliver to the Bank all other documents, instruments and agreements deemed necessary or appropriate by the Bank in connection herewith.date hereof until Closing;
Appears in 1 contract
Covenants, Representations and Warranties. 3.1 The Borrower ratifies, confirms and reaffirms, without condition, all the terms and conditions of the Agreement and the other Loan Documents and agrees that it continues to be bound by the terms and conditions thereof as amended by this Amendment; and, the Borrower further confirms and affirms that it has no defense, set off or counterclaim against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, and, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect in accordance with its terms.
3.2 The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower 8.1 Each Party hereto represents and warrants to the Bank thatall other Parties hereto as follows:
(a) The Party has full power and authority to execute, deliver and perform its obligations under this Agreement;
(b) This Amendment Agreement has been duly and validly authorized, executed and delivered by the Borrower undersigned Party, and constitutes the legal, a valid and binding obligations of the Borrower agreement, enforceable against such Party in accordance with the terms and conditions herein, except to the extent that enforceability may be limited by bankruptcy, insolvency or other similar laws affecting creditors' rights generally; and
(c) The Party is not a signatory or adherent to any agreement which is inconsistent with the rights of any party hereunder or otherwise conflicts with the provisions hereof.
(d) The Party is in good standing and is duly authorized under its terms;respective charter and constitutional governing instruments to execute and deliver this agreement. There is no order and no proceeding, investigation or claim of any kind whatsoever, at law or in equity, pending or, to the Parties knowledge, threatened against the Parties, which would give a third party the right to enjoin or rescind the transactions contemplated by this Agreement or otherwise prevent the Parties from complying with the terms and provisions of this Agreement.
(e) The Party does not require any governmental consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing to execute, deliver and cause the effectiveness of this Agreement.
8.2 The Inventor hereby covenants, represents and warrants to all other Parties hereto as follows:
(a) The Inventor is the sole beneficial and record owner of the Mobilotto Shares and has good and marketable title to all Mobilotto Shares free and clear of all Liens convertible rights, derivative rights, pre-emptive rights and contingent rights, and the Company shall at the Closing acquire from the Inventor all of the Inventor’s right, title and interest in and to the Mobilotto Shares. The Mobilotto Shares represent the sole equity ownership interests in Mobilotto. No other person has any right, title or interest in the Inventor’s Mobilotto Shares, contingent or otherwise, or any option or other right to acquire the Mobilotto Shares or claim of any direct or indirect interests in the Mobilotto Shares, or any ownership or rights of any nature or kind in any other issued or unissued securities or equity interests of Mobilotto. The Mobilotto Shares are not the subject of any domestic consent decree or domestic relations order. If the Mobilotto Shares are marital property, the Inventor has fully disclosed the existence of this Agreement to his spouse and obtained written consent for the sale of the Mobilotto Shares hereunder. Other than the transactions contemplated by this Agreement, the Inventor has not entered into any agreement or letter of intent or other commitment to acquire or dispose of any securities or assets of Mobilotto. For purposes of this Agreement “Lien” means any and all liens, charges, mortgages, deeds of trust, pledges, easements, encumbrances of any and all nature or kind, derivative third party rights and direct or indirect contingent third party rights. Loto Inc. Founders' Agreement
(b) The execution Inventor has not previously assigned, transferred, conveyed or otherwise encumbered any of his rights, title or interests in any of the Intellectual Property or the business plan developed for Mobilotto. The Inventor was the sole owner of the Intellectual Property prior to its transfer to Mobilotto and delivery no other persons or entities has or shall have any claim of this Amendment by ownership with respect to any part of the Borrower Intellectual Property. To the best of the Inventor’s knowledge after reasonable investigation, no persons are infringing any of the intellectual property rights of the Inventor in connection with respect to the Technology and the performance and observance by the Borrower Technology does not infringe on any of the provisions hereof, do not violate intellectual property rights of any other persons or conflict with the organizational agreements parties. As of the Borrower Closing Mobilotto is in compliance with any and all federal, state, provincial, regional, local or any foreign law applicable to the Borrower (including common law), statute, code, ordinance, rule, regulation or result in a breach of any provision of or constitute a default under any other agreement, instrument or document similar pronouncement binding upon or enforceable against affecting Mobilotto as adopted or issued by any and all governmental authorities having competent jurisdiction over Mobilotto, except where non-compliance would not materially or adversely affect the Borrower;Company.
(c) The representations Prior to the Closing, the Inventor shall have transferred to Mobilotto: (i) the Intellectual Property, and warranties set forth within Article III all rights and all derivative rights thereof; and (ii) any and all rights to the Mobilotto business model, in each case free and clear of all Liens and Indebtedness. At the Closing Mobilotto shall be the sole owner of all of the Agreement continue Intellectual Property, and all rights and all derivative rights thereof free and clear of all Liens and Indebtedness. For purposes of this Agreement, “Indebtedness” means (a) all liabilities and obligations for credit in advance of payment, borrowed money or funded indebtedness or issued in substitution for or exchange for borrowed money or funded Indebtedness (including obligations in respect of principal, accrued interest, any applicable prepayment charges or premiums and any unpaid fees, expenses or other monetary obligations in respect thereof); (b) any indebtedness evidenced by any note, bond, debenture or other debt security; (c) any lease obligations required to be true and correct capitalized in all material respects as of the date of this Amendment except those changes resulting from the passage of timeaccordance with GAAP; and
(d) No material adverse change has occurred in all obligations for reimbursement then-required to be made as an obligor of any banker’s acceptance or similar transactions (including, without limitation, standby letters of credit and similar contingent sureties and guaranties); (e) all obligations for the businessdeferred purchase price of property, operations, consolidated financial condition all conditional sale obligations under any title retention agreement; (f) any obligations with respect to the termination of any interest rate hedging or prospects swap agreements; (g) all obligations of the Borrower since type referred to in clauses (a) through (f) of this definition with respect to any Person for the date payment of which either Company is responsible or liable, directly or indirectly, as guarantor, obligor, surety or otherwise (excluding intercompany debt); and (h) obligations of the most recent annual financial statement delivered type referred to in clauses (a) through (g) of this definition with respect to other Persons secured by any Lien on any property or asset of the Bank, and no Event of Default or condition which, with the passage of time, the giving of notice or both, could become an Event of Default has occurred and is continuingCompany.
3.4 The Borrower shall execute or cause to be executed and deliver to the Bank all other documents, instruments and agreements deemed necessary or appropriate by the Bank in connection herewith.
Appears in 1 contract
Samples: Founders' Agreement (Loto Inc.)
Covenants, Representations and Warranties. 3.1 The Borrower ratifies(a) Each party to this Agreement hereby represents and warrants to the other party that (i) it is duly organized or incorporated, confirms as the case may be, and reaffirms, without condition, all validly existing as an entity under the terms and conditions laws of the Agreement and the other Loan Documents and agrees that jurisdiction in which it continues to be bound by the terms and conditions thereof as amended by this Amendment; andis incorporated, the Borrower further confirms and affirms that chartered or organized, (ii) it has no defensethe requisite power and authority to enter into and perform this Agreement, set off and (iii) this Agreement has been duly authorized by all necessary action, has been duly executed by one or counterclaim more duly authorized officers and is the valid and binding agreement of such party enforceable against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, and, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect such party in accordance with its terms.
3.2 (b) The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower Seller further represents and warrants to the Bank Issuer as of the Closing Date and as of each Subsequent Seller Transfer Date, as applicable, that:
(ai) This Amendment has been duly executed and delivered by immediately prior to the Borrower and constitutes the legal, valid and binding obligations sale of the Borrower enforceable in accordance with its termsMortgage Assets to the Issuer, the Seller shall own the Mortgage Assets, shall have good and marketable title thereto, free and clear of any pledge, lien, security interest, charge, claim, equity, or encumbrance of any kind, and upon the delivery or transfer of the Mortgage Assets to the Issuer as contemplated herein, the Issuer shall receive good and marketable title to the Mortgage Assets, free and clear of any pledge, lien, security interest, charge, claim, equity or encumbrance of any kind;
(bii) The execution the Seller acquired its ownership in the Mortgage Assets in good faith without notice of any adverse claim, and upon the delivery or transfer of the Mortgage Assets to the Issuer as contemplated herein, the Issuer shall acquire ownership in the Mortgage Assets in good faith without notice of any adverse claim;
(iii) the Seller has not assigned, pledged or otherwise encumbered any interest in the Mortgage Assets (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released);
(iv) none of the execution, delivery or performance by the Seller of this Amendment by the Borrower and the performance and observance by the Borrower of the provisions hereofAgreement shall (x) conflict with, do not violate or conflict with the organizational agreements of the Borrower or any law applicable to the Borrower or result in a any breach of any provision of or constitute a default (or an event which, with the giving of notice or passage of time, or both, would constitute a default) under, any term or provision of the organizational documents of the Seller, or any material indenture, agreement, order, decree or other material instrument to which the Seller is party or by which the Seller is bound which materially adversely affects the Seller’s ability to perform its obligations hereunder or (y) violate any provision of any law, rule or regulation applicable to the Seller of any regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Seller or its properties which has a material adverse effect;
(v) no consent, license, approval or authorization from, or registration or qualification with, any governmental body, agency or authority, nor any consent, approval, waiver or notification of any creditor or lessor is required in connection with the execution, delivery and performance by the Seller of this Agreement the failure of which to obtain would have a material adverse effect except such as have been obtained and are in full force and effect;
(vi) it has adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations. It is generally able to pay, and as of the date hereof is paying, its debts as they come due. It has not become or is not presently, financially insolvent nor will it be made insolvent by virtue of its execution of or performance under any of the provisions of this Agreement within the meaning of the bankruptcy laws or the insolvency laws of any jurisdiction. It has not entered into this Agreement or the transactions effectuated hereby in contemplation of insolvency or with intent to hinder, delay or defraud any creditor;
(vii) no proceedings are pending or, to its knowledge, threatened against it before any federal, state or other agreementgovernmental agency, instrument authority, administrative or document binding regulatory body, arbitrator, court or other tribunal, foreign or domestic, which, singularly or in the aggregate, could reasonably be expected to materially and adversely affect the ability of the Seller to perform any of its obligations under this Agreement; and
(viii) the consideration received by it upon or enforceable against the Borrower;sale of the Mortgage Assets owned by it constitutes fair consideration and reasonably equivalent value for such Mortgage Assets.
(c) The Seller further represents and warrants to the Issuer as of the Closing Date and as of each Subsequent Seller Transfer Date, as applicable, that:
(i) the Asset Documents with respect to each Mortgage Asset do not prohibit the Issuer from granting a security interest in and assigning and pledging such Mortgage Asset to the Trustee;
(ii) none of the Mortgage Assets will cause the Issuer to have payments subject to foreign or United States withholding tax;
(iii) with respect to each Closing Date Mortgage Asset, except as set forth in the Exception Schedule, and with respect to each Unfunded Future Funding Participation, except as set forth in the Subsequent Transfer Instrument, the representations and warranties set forth within Article III of the Agreement continue to be in Exhibit B are true and correct in all material respects as of the date of this Amendment except those changes resulting from the passage of timerespects; and
(div) No material adverse change the Seller has occurred in the business, operations, consolidated financial condition or prospects of the Borrower since the date of the most recent annual financial statement delivered to the BankIssuer or its designee (A) the original of any Mortgage Note (or a copy of such Mortgage Note together with a lost note affidavit and indemnity), participation certificate, certificate or other instrument, if any, constituting or evidencing such Mortgage Asset (and, in the case of a Participation, the related Mortgage Loan) together with an assignment in blank and no Event all other assignment documents reasonably necessary to evidence the transfer of Default the Mortgage Asset (and, in the case of a Participation, the related Mortgage Loan, subject to the rights and obligations of the related Companion Participation Holder) including, where applicable, UCC assignments and any other Asset Documents and copies of any other documents related to the Mortgage Asset (and, in the case of a Participation, the related Mortgage Loan, subject to the rights and obligations of the related Companion Participation Holder) in the Seller’s possession, the delivery of which is necessary to perfect the security interest of the Trustee in such Mortgage Asset and (B) copies of the Asset Documents.
(d) For purposes of the representations and warranties set forth in Exhibit B, the phrases “to the knowledge of the Seller” or condition which“to the Seller’s knowledge” shall mean, except where otherwise expressly set forth in a particular representation and warranty, the actual state of knowledge of the Seller or any servicer acting on its behalf regarding the matters referred to, in each case: (i) at the time of the Seller’s origination or acquisition of the particular Mortgage Asset, after the Seller having conducted such inquiry and due diligence into such matters as would be customarily performed by a prudent institutional commercial or multifamily, as applicable, mortgage lender; and (ii) subsequent to such origination, the Seller having utilized monitoring practices that would be utilized by a prudent commercial or multifamily, as applicable, mortgage lender and having made prudent inquiry as to the knowledge of the servicer servicing such Mortgage Asset on its behalf. Also, for purposes of such representations and warranties, the phrases “to the actual knowledge of the Seller” or “to the Seller’s actual knowledge” shall mean, except where otherwise expressly set forth below, the actual state of knowledge of the Seller or any servicer acting on its behalf without any express or implied obligation to make inquiry. All information contained in documents which are part of or required to be part of a Mortgage Asset File shall be deemed to be within the knowledge and the actual knowledge of the Seller. Wherever there is a reference to receipt by, or possession of, the Seller of any information or documents, or to any action taken by the Seller or not taken by the Seller, such reference shall include the receipt or possession of such information or documents by, or the taking of such action or the failure to take such action by, the Seller or any servicer acting on its behalf.
(e) The Seller shall not later than ninety (90) days from discovery by the Seller or receipt of written notice from any party to the Indenture of (i) its breach of a representation or a warranty pursuant to this Agreement that materially and adversely affects the ownership interests of the Issuer (or the Trustee as its assignee) in a Mortgage Asset or the value of a Mortgage Asset (a “Material Breach”), or (ii) any Material Document Defect relating to any Mortgage Asset, (1) cure such Material Breach or Material Document Defect, provided, that, if such Material Breach or Material Document Defect cannot be cured within such 90-day period, the Seller shall repurchase the affected Mortgage Loan not later than the end of such 90-day period at the Repurchase Price; provided, however, that if the Seller certifies to the Issuer and the Trustee in writing that (x) any such Material Breach or Material Document Defect, as the case may be, is capable of being cured in all material respects but not within the initial 90-day period and (y) the Seller has commenced and is diligently proceeding with the cure of such Material Breach or Material Document Defect, as the case may be, then the Seller shall have an additional 90-day period to complete such cure or, failing such, to repurchase the affected Mortgage Asset (or the related Mortgaged Property); and provided, further, that, if any such Material Document Defect is still not cured in all material respects after the initial 90-day period and any such additional 90-day period solely due to the failure of the Seller to have received the recorded or filed document, then the Seller shall be entitled to continue to defer its cure and repurchase obligations in respect of such Material Document Defect so long as the Seller certifies to the Trustee every 30 days thereafter that such Material Document Defect is still in effect solely because of its failure to have received the recorded or filed document and that the Seller is diligently pursuing the cure of such Material Document Defect (specifying the actions being taken), or (2) subject to the consent of a majority of the holders of each Class of Notes (excluding any Note held by the Seller or any of its affiliates), the Seller shall make a cash payment to the Issuer in an amount that the Special Servicer on behalf of the Issuer determines is sufficient to compensate the Issuer for such breach of representation or warranty or defect (such payment, a “Loss Value Payment”), which Loss Value Payment will be deemed to cure such Material Breach or Material Document Defect. Such repurchase or cure obligation by the Seller shall be the Issuer’s sole remedy for any Material Breach or Material Document Defect pursuant to this Agreement with respect to any Mortgage Asset sold to the Issuer by the Seller.
(f) The Seller hereby acknowledges and consents to the collateral assignment by the Issuer of this Agreement and all right, title and interest thereto to the Trustee, for the benefit of the Secured Parties, as required in Sections 15.1(f)(i) and (ii) of the Indenture.
(g) The Seller hereby covenants and agrees that it shall perform any provisions of the Indenture made expressly applicable to the Seller by the Indenture, as required by Section 15.1(f)(i) of the Indenture.
(h) The Seller hereby covenants and agrees that all of the representations, covenants and agreements made by or otherwise entered into by it in this Agreement shall also be for the benefit of the Secured Parties, as required by Section 15.1(f)(ii) of the Indenture and agrees that enforcement of any rights hereunder by the Trustee, the Note Administrator, the Servicer, or the Special Servicer, as the case may be, shall have the same force and effect as if the right or remedy had been enforced or executed by the Issuer but that such rights and remedies shall not be any greater than the rights and remedies of the Issuer under Section 4(e) above.
(i) On or prior to the Closing Date, or each Subsequent Seller Transfer Date, as applicable, the Seller shall deliver the Asset Documents to the Issuer or, at the direction of the Issuer, to the Custodian, with respect to each Mortgage Asset sold to the passage Issuer hereunder. The Seller hereby covenants and agrees, as required by Section 15.1(f)(iii) of timethe Indenture, the giving of notice or both, could become an Event of Default has occurred and is continuing.
3.4 The Borrower that it shall execute or cause to be executed and deliver to the Bank Trustee duplicate original copies of all notices, statements, communications and instruments delivered or required to be delivered to the Issuer by each party pursuant to this Agreement.
(j) The Seller hereby covenants and agrees, as required by Section 15.1(f)(iv) of the Indenture, that it shall not enter into any agreement amending, modifying or terminating this Agreement (other documentsthan in respect of an amendment or modification to cure any inconsistency, instruments ambiguity or manifest error, in each case, so long as such amendment or modification does not affect in any material respects the interests of any Secured Party), without notifying the Rating Agencies through the 17g-5 Website as set forth in the Indenture..
(k) ACRE and agreements deemed necessary the Issuer hereby covenant, that at all times (1) ACRE will qualify as a REIT for federal income tax purposes and the Issuer will qualify as a Qualified REIT Subsidiary or appropriate by other disregarded entity of ACRE for federal income tax purposes, or (2) based on an Opinion of Counsel, the Bank Issuer will be treated as a Qualified REIT Subsidiary or other disregarded entity of a REIT other than ACRE, or (3) based on an Opinion of Counsel, the Issuer will be treated as a foreign corporation that is not engaged in connection herewitha trade or business in the United States for U.S. federal income tax purposes (which Opinion may be conditioned on compliance with certain restrictions on the investment or other activities of the Issuer and/or the Servicer on behalf of the Issuer).
Appears in 1 contract
Samples: Mortgage Asset Purchase Agreement (Ares Commercial Real Estate Corp)
Covenants, Representations and Warranties. 3.1 The Borrower ratifies, confirms and reaffirms, without condition, all In connection with the terms and conditions of the Agreement and the other Loan Documents and agrees that it continues to be bound by the terms and conditions thereof as amended transactions contemplated by this Amendment; andAgreement, and knowing that the Pledgee is and shall be relying hereon, the Borrower further confirms Pledgor hereby covenants, represents and affirms that it has no defense, set off or counterclaim against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, andwarrants that, except as specifically amended by this Amendment, contemplated in the Agreement shall remain in full force and effect in accordance with its terms.
3.2 The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Purchase Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower represents and warrants to the Bank that:
(a) This Amendment the Pledged Stock have been and will be duly and validly issued, are and will be fully paid and non-assessable, and are and will be owned by the Pledgor free and clear of any and all restrictions, pledges, liens, encumbrances or other security interests of any kind, save and except for the pledge to the Pledgee pursuant to this Agreement;
(b) there are and will be no options, warrants or other rights in respect of the sale, transfer or other disposition of any of the Pledged Stock by the Pledgor, and the Pledgor has the absolute right to pledge the Pledged Stock hereunder without the necessity of any consent of any Person;
(c) the Pledged Stock constitute all of the outstanding capital stock and other securities of the Maker on the date hereof; and neither the Maker nor the Pledgor not granted any options, warrants or other rights to subscribe for or acquire any capital stock or other securities of Maker, or any securities or other rights exercisable for or convertible into any capital stock, securities or rights to acquire securities of Maker;
(d) neither the execution or delivery of this Agreement, nor the consummation of the transactions contemplated hereby, nor the compliance with or performance of this Agreement by the Pledgor, conflicts with or will result in the breach or violation of or a default under the terms, conditions or provisions of (i) any mortgage, security agreement, indenture, evidence of indebtedness, loan or financing agreement, or other agreement or instrument to which the Pledgor or the Maker is a party or by which the Pledgor or the Maker is bound, or (ii) any provision of law, any order of any court or administrative agency, or any rule or regulation applicable to the Pledgor or the Maker;
(e) this Agreement has been duly executed and delivered by the Borrower Pledgor, and constitutes the legal, valid and binding obligations obligation of the Borrower Pledgor, enforceable against the Pledgor in accordance with its terms;
(b) The execution and delivery of this Amendment by the Borrower and the performance and observance by the Borrower of the provisions hereof, do not violate or conflict with the organizational agreements of the Borrower or any law applicable to the Borrower or result in a breach of any provision of or constitute a default under any other agreement, instrument or document binding upon or enforceable against the Borrower;
(c) The representations and warranties set forth within Article III of the Agreement continue to be true and correct in all material respects as of the date of this Amendment except those changes resulting from the passage of time; and
(df) No material adverse change has occurred there are no actions, suits or proceedings pending or threatened against or affecting the Maker or the Pledgor that involve or relate to the Pledged Collateral.
(g) Until the Purchase Note shall be paid in full, neither the business, operations, consolidated financial condition Pledgor nor any Affiliate or prospects family member of the Borrower since the date Pledgor will (i) sell, transfer, pledge or assign any shares of capital stock of the most recent annual financial statement delivered to Maker; or (ii) sell, transfer, pledge or assign any of the Bank, and no Event assets or properties of Default or condition which, with the passage of time, the giving of notice or both, could become an Event of Default has occurred and is continuingMaker.
3.4 The Borrower shall execute or cause to be executed and deliver to the Bank all other documents, instruments and agreements deemed necessary or appropriate by the Bank in connection herewith.
Appears in 1 contract
Covenants, Representations and Warranties. 3.1 The Borrower ratifies, confirms and reaffirms, without condition, all In connection with the terms and conditions of the Agreement and the other Loan Documents and agrees that it continues to be bound by the terms and conditions thereof as amended transactions contemplated by this Amendment; andAgreement, and knowing that the Pledgees are and shall be relying hereon, the Borrower further confirms and affirms that it has no defensePledgor hereby covenants, set off or counterclaim against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, and, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect in accordance with its terms.
3.2 The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower represents and warrants to the Bank that:
(a) This Amendment the Pledged Stock has been duly and validly issued, is fully paid and non-assessable (and any Pledged Stock received in the future will be duly and validly issued, fully paid and non-assessable) , and is and will be owned by the Pledgor free and clear of any and all restrictions, pledges, liens, encumbrances or other security interests of any kind, save and except for the pledge to the Pledgees pursuant to this Agreement;
(b) there are and will be no options, warrants or other rights in respect of the Pledged Stock which are not pledged to the benefit of Pledgees hereunder, and the Pledgor has the absolute right to pledge the Pledged Stock hereunder without the necessity of any consent of any person;
(c) neither the execution or delivery of this Agreement, nor the consummation of the transactions contemplated hereby, nor the compliance with or performance of this Agreement by the Pledgor, conflicts with or will result in the breach or violation of or a default under the terms, conditions or provisions of (i) any mortgage, security agreement, indenture, evidence of indebtedness, loan or financing agreement, or other agreement or instrument to which the Pledgor is a party or by which the Pledgor is bound, or (ii) any provision of law, any order of any court or administrative agency, or any rule or regulation applicable to the Pledgor;
(d) this Agreement has been duly executed and delivered by the Borrower Pledgor, and constitutes the legal, valid and binding obligations obligation of the Borrower Pledgor, enforceable against the Pledgor in accordance with its terms;
(be) The execution and delivery of this Amendment by there are no actions, suits or proceedings pending or threatened against or affecting the Borrower and the performance and observance by the Borrower of the provisions hereof, do not violate Pledgor that involve or conflict with the organizational agreements of the Borrower or any law applicable relate to the Borrower or result in a breach of any provision of or constitute a default under any other agreement, instrument or document binding upon or enforceable against the BorrowerPledged Stock;
(cf) The representations and warranties set forth within Article III of the Agreement continue to be true and correct in all material respects as of the date upon execution of this Amendment except those changes resulting from Agreement by the passage of timePledgor, the Pledgees shall have the sole and first priority lien and security interest in the Pledged Stock; and
(dg) No material adverse change has occurred in the business, operations, consolidated financial condition or prospects of the Borrower since Pledgor is solvent on the date of the most recent annual financial statement delivered to the Bank, and no Event of Default or condition which, with the passage of time, the giving of notice or both, could become an Event of Default has occurred and is continuinghereof.
3.4 The Borrower shall execute or cause to be executed and deliver to the Bank all other documents, instruments and agreements deemed necessary or appropriate by the Bank in connection herewith.
Appears in 1 contract
Covenants, Representations and Warranties. 3.1 The Borrower ratifiesEmerge Knowledge covenants, confirms represents and reaffirmswarrants, without conditionwhich representations and warranties will remain true and accurate throughout the Term, that Emerge Knowledge and all subcontractors, employees or other persons retained by it in connection with the terms Services and/or the performance of its obligations hereunder will (at Emerge Knowledge’s sole cost and conditions expense):
a) procure and maintain all applicable permits, licenses and approvals of any governmental authority relating to the Agreement Services and/or business operations;
b) comply with all statutes, regulations and other legal stipulations or guidelines of any governmental authority having jurisdiction over the other Loan Documents Services or business operations of Emerge Knowledge;
c) conduct its activities in a discrete, safe, ethical and agrees professional manner;
d) ensure that the reports generated by the Software accurately reflect the relevant Data (including any calculations performed thereon or aggregations thereof); and
e) not take any action to intentionally injure or damage Customer’s reputation or business.
3.2 Customer represents, warrants and covenants that it continues is and shall at all times comply with all applicable local, provincial or state, federal, and international laws including but not limited to be bound those laws regarding:
a) court ordered publication bans;
b) restrictions on publishing, printing, distributing, possessing, selling, advocating, promoting or exposing, obscene or threatening material, child pornography, or hate propaganda and Customer understands that these situations could generate criminal liability;
c) restrictions on the use of trade-marks or trade names, or any work which is protected by the terms copyright, trade secret, patent or other intellectual property laws, including without limitation, software;
d) restrictions on defamation, libel, harm to reputation, invasion of privacy, misuse or failure to protect personal information, violation of secrecy, confidentiality, unfair competition and conditions thereof as amended by this Amendmentother situations which could generate liability;
e) export and import restrictions; and
f) the privacy of any users whose personal information it collects, the Borrower further confirms and affirms uses and/or discloses.
3.3 Notwithstanding anything contained herein, Customer represents that it has no defense, set off or counterclaim against the same. The Agreement right to enter into the Contract and this Amendment shall be construed as complementing each other and as augmenting and not restricting solely responsible for all information generated by the Bank's rights, and, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect in accordance with its terms.
3.2 The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement Software and the other Loan Documentscontents of all items or statements transmitted, if anyposted, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendmentreceived or created through Customer’s account.
3.3 The Borrower represents and warrants to the Bank that:
(a) This Amendment has been duly executed and delivered by the Borrower and constitutes the legal, valid and binding obligations of the Borrower enforceable in accordance with its terms;
(b) The execution and delivery of this Amendment by the Borrower and the performance and observance by the Borrower of the provisions hereof, do not violate or conflict with the organizational agreements of the Borrower or any law applicable to the Borrower or result in a breach of any provision of or constitute a default under any other agreement, instrument or document binding upon or enforceable against the Borrower;
(c) The representations and warranties set forth within Article III of the Agreement continue to be true and correct in all material respects as of the date of this Amendment except those changes resulting from the passage of time; and
(d) No material adverse change has occurred in the business, operations, consolidated financial condition or prospects of the Borrower since the date of the most recent annual financial statement delivered to the Bank, and no Event of Default or condition which, with the passage of time, the giving of notice or both, could become an Event of Default has occurred and is continuing.
3.4 The Borrower shall execute or cause to be executed and deliver to the Bank all other documents, instruments and agreements deemed necessary or appropriate by the Bank in connection herewith.
Appears in 1 contract
Samples: Contract for Design, Development, and Maintenance of a Web Based System
Covenants, Representations and Warranties. 3.1 The Borrower ratifies, confirms Seller shall have performed and reaffirms, without conditionobserved in all material respects, all covenants of Seller under this Agreement. Seller shall not be in material breach of any of covenants, representations and warranties it has made in this Agreement. In addition, there shall not exist any facts or circumstances that would make any of the Seller’s Express Representations untrue in any material adverse respect as of the Closing Date. Notwithstanding the foregoing, if a change in circumstances occurs after the Effective Date which is not otherwise a breach or default by Seller under the terms of this Agreement and conditions such change of circumstances requires a representation and warranty made by the Seller to be modified in order for such representation and warranty to be accurate as of Closing, then Seller shall provide written notice of such change (if such change is actually known to Seller), the representation and warranty shall be deemed remade as so modified, and Seller shall not be in breach of or in default under this Agreement by virtue of such change in circumstances or modification, and Purchaser shall have the right to terminate this Agreement and receive a refund of the Deposit within five (5) Business Days of Purchaser’s receipt of written notice of change in representation or warranty from Seller, if such modification is material and adverse as reasonably determined by Purchaser; provided, however, that in no event shall Purchaser be permitted to so terminate this Agreement and if: (i) Purchaser had actual knowledge of the other Loan Documents and agrees that it continues change in circumstances prior to be bound the expiration of the Study Period, (ii) the change in circumstances is expressly permitted by the terms and conditions thereof as amended of this Agreement; (iii) the change in circumstance is due to the natural expiration of a Lease or License by this Amendmentits terms; and(iv) the change in circumstance is caused by the act of Purchaser or its agents; (v) with respect to a change in circumstance that requires a modification to the representation set forth in Section 5.1.3 (Litigation), the Borrower further confirms action , suit or other proceeding is covered by Seller’s insurance (other than standard deductibles), or, if not covered by Seller’s insurance and affirms if the adverse affect of such proceeding if determined adversely to Seller, would reasonably be expected to be less than $2,000,000.00 and Seller has agreed in writing to indemnify, defend and hold harmless Purchaser, its officers, directors, agents, employees, affiliates and representatives from and against any and all loss, cost, damage, claim, expense, liability, interest, penalties, and reasonable attorney’s fees caused by, arising out of or relating to such action, suit or proceeding (and Seller has caused a direct or indirect beneficial owner of Seller with a tangible net worth appropriate to satisfy such obligations, as reasonably determined by Purchaser, to guaranty such agreement of Seller to indemnify, defend and hold harmless Purchaser); (vi) with respect to a change in circumstance that it has no defense, requires a modification to the representations set off or counterclaim against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, and, except as specifically amended by this Amendmentforth in Section 5.1.7 (Leases), the modification was not caused by a breach or default of Seller under this Agreement shall remain (provided, however, that Purchaser may terminate this Agreement if there is a material and adverse change to a representation of Seller in full force and effect in accordance with its terms.
3.2 The Borrower ratifiesSection 5.1.7 made to knowledge, confirms and reaffirms without condition, all liens and security interests granted if the factual matter that is the subject to the Bank pursuant representation on the Effective Date is false notwithstanding any lack of Seller knowledge), (vii) with respect to a change in circumstance that requires a modification to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations representation set forth in Section 5.1.8 (Violations of the Borrower to the Bank under the AgreementLaw), the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank written notice from governmental authority relates to the Borrower as amended by this Amendment.
3.3 The Borrower represents and warrants to the Bank that:
(a) This Amendment has been duly executed and delivered by the Borrower and constitutes the legal, valid and binding obligations of the Borrower enforceable in accordance with its terms;
(b) The execution and delivery of this Amendment by the Borrower and the performance and observance by the Borrower of the provisions hereof, do not violate or conflict with the organizational agreements of the Borrower or any law applicable to the Borrower or result in a breach of any provision of or constitute a default under any other agreement, instrument or document binding upon or enforceable against the Borrower;
(c) The representations and warranties set forth within Article III of the Agreement continue to be true and correct in all material respects circumstance existing as of the date of this Amendment except those changes resulting from the passage of time; and
(d) No material adverse change has occurred in the business, operations, consolidated financial condition or prospects expiration of the Borrower since the date of the most recent annual financial statement delivered to the Bank, and no Event of Default or condition which, with the passage of time, the giving of notice or both, could become an Event of Default has occurred and is continuingStudy Period.
3.4 The Borrower shall execute or cause to be executed and deliver to the Bank all other documents, instruments and agreements deemed necessary or appropriate by the Bank in connection herewith.
Appears in 1 contract
Samples: Purchase and Sale Agreement (KBS Strategic Opportunity REIT, Inc.)
Covenants, Representations and Warranties. 3.1 The Borrower ratifies(a) In order to induce Buyer to enter into this Agreement and purchase the Premises, confirms Seller makes the following covenants, agreements, representations and reaffirms, without conditionwarranties, all of which shall survive the terms Closing and conditions the purchase and sale of the Premises:
(1) Seller has obtained all necessary authorizations and consents to enable it to execute and deliver this Agreement and to consummate the other Loan Documents transaction contemplated hereby, including without limitation all authorizations and agrees that it continues consents required to be bound by obtained from governmental authorities during the terms course of, and conditions thereof as amended by this Amendment; andupon completion of, construction of the Borrower further confirms Improvements.
(2) Seller holds fee simple title to the Premises, free of all liens, assessments and affirms that it encumbrances except for the Permitted Exceptions, and liens and encumbrances which will be paid and discharged or otherwise released at or prior to the Closing. Seller has no defenseknowledge of any condition or state of facts which would preclude, set off limit or counterclaim against restrict the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rightsbusiness operations contemplated, and, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect in accordance with its terms.
3.2 The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement terms of the Lease, to be conducted by Tenant at the Premises.
(3) Except for construction warranties with respect to the Improvements, there are no service or maintenance contracts affecting the Premises to which Buyer will be bound upon Closing.
(4) The Premises and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note proposed use thereof by Tenant and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower represents and warrants to the Bank that:
(a) This Amendment has been duly executed and delivered by the Borrower and constitutes the legal, valid and binding obligations of the Borrower enforceable in accordance with its terms;
(b) The execution and delivery of this Amendment by the Borrower and the performance and observance by the Borrower of the provisions hereof, condition thereof do not violate violate, in any material respect, any applicable deed restrictions, zoning or conflict with the organizational agreements subdivision regulations, conditions of the Borrower approval or permitting, urban redevelopment plans, local, state or federal environmental law or regulation or any law building code or fire code applicable to the Borrower or result Premises ("Applicable Laws and Restrictions"), and are not designated by any governmental agency to be in a breach flood plain area. Seller has, on or before the Effective Date, provided written notice to Buyer of any provision continuing, alleged or potential violations of or constitute a default under any other agreement, instrument or document binding upon or enforceable against the Borrower;Applicable Laws and Restrictions known to Seller.
(c5) The representations and warranties set forth within Article III As of the Agreement continue to be true and correct in all material respects as of the date of this Amendment except those changes resulting from the passage of time; and
Closing Date (di) No material adverse change has occurred in the business, operations, consolidated financial condition or prospects of the Borrower since the date of the most recent annual financial statement delivered to the Bank, and there shall exist no Event of Default or condition event which, with the passage of time, the giving of notice or the passage of time or both, could become would constitute an Event of Default has occurred under the Lease; (ii) Tenant shall not have any defense, set-off or counterclaim in respect of its obligations under the Lease arising as a result of Seller's actions or activities, or those of Seller's employees, agents or contractors; and is continuing(iii) all leasing commissions and fees with respect to the Lease, if any, have been paid in full by Seller or Tenant.
3.4 The Borrower (6) There is no pending or, to Seller's knowledge, threatened litigation or other proceeding affecting the title to or the use or operation of the Premises.
(7) Seller is not a "foreign person" within the meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended, and Seller shall execute certify its taxpayer identification number at Closing.
(8) To Seller's knowledge, there are no federal, state, county or cause municipal plans to be executed and deliver restrict or change access from any highway or road to the Bank Premises.
(9) The Premises are a separate parcel for real estate tax assessment purposes.
(10) All of the financial data regarding the construction, ownership and operation of the Premises that Seller has provided to Buyer is true, complete and correct.
(11) To the best of Seller's knowledge the Improvements have been constructed in accordance with (i) the Plans and (ii) applicable building codes, laws and regulations in a good, substantial and workmanlike manner.
(12) No Hazardous Materials are, will be, or to the best of Seller's knowledge, have been, stored, treated, disposed of or incorporated into, on or around the Premises in violation of any applicable statutes, ordinances or regulations; the Premises are in material compliance with all applicable environmental, health and safety requirements; any business currently or, to the best of Seller's knowledge, heretofore operated on the Premises has disposed of its waste in accordance with all applicable statutes, ordinances and regulations; and Seller has no notice of any pending or, to the best of Seller's knowledge, threatened action or proceeding arising out of the condition of the Premises or any alleged violation of environmental, health or safety statutes, ordinances or regulations.
(13) Seller specifically acknowledges and understands that where Seller knows of any fact(s) materially affecting the value or desirability of the Premises, whether said fact(s) is/are readily observable or not, Seller hereby assumes and accepts a duty to disclose said fact(s) to Buyer. Seller warrants that, other documentsthan as may be disclosed in the foregoing representations and warranties, instruments Seller has no knowledge of any other fact(s) materially affecting the value or desirability of the Premises whether or not said fact(s) is/are readily observable. All of the representations, warranties and agreements deemed of Seller set forth herein and elsewhere in this Agreement shall be true upon the execution of this Agreement and shall be reaffirmed and repeated in writing at and as of the Closing Date, but not subsequent to the Closing Date, and shall survive the Closing Date.
(b) In order to induce Seller to enter into this Agreement and sell the Premises, Buyer makes the following covenants, agreements, representations and warranties, all of which shall survive the Closing and the purchase and sale of the Premises:
(1) Buyer is a corporation duly organized and validly existing and in good standing under the laws of the State of Florida. Buyer has all requisite power and authority under the laws of the State of Florida and its charter documents to enter into and perform its obligations under this Agreement and to consummate the transactions contemplated hereby.
(2) Buyer has taken all necessary or appropriate by action to authorize the Bank in connection herewithexecution, delivery and performance of this Agreement, and upon the execution and delivery hereof, this Agreement shall constitute the valid and binding agreement of Buyer.
Appears in 1 contract
Samples: Purchase and Sale Agreement (CNL Retirement Properties Inc)
Covenants, Representations and Warranties. 3.1 The Borrower ratifies, confirms and reaffirms, without condition, all In connection with the terms and conditions of the Agreement and the other Loan Documents and agrees that it continues to be bound by the terms and conditions thereof as amended transactions contemplated by this Amendment; andAgreement, and knowing that the Borrower further confirms Pledgee is and affirms that it has no defense, set off or counterclaim against the same. The Agreement and this Amendment shall be construed as complementing relying hereon, each other and as augmenting and not restricting the Bank's rightsPledgor hereby covenants, and, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect in accordance with its terms.
3.2 The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower represents and warrants to the Bank that:
(a) This Amendment Such pledgor’s portion of the Pledged Securities has been and will be duly and validly issued, is and will be fully paid and non-assessable, and is and will be owned by such Pledgor free and clear of any and all restrictions, pledges, liens, encumbrances or other security interests of any kind, save and except for the pledge to the Pledgee pursuant to this Agreement;
(b) there are and will be no options, warrants or other rights in respect of the sale, transfer or other disposition of any of such Pledgor’s portion of the Pledged Securities by such Pledgor, and such Pledgor has the absolute right to pledge its portion of the Pledged Securities hereunder without the necessity of any consent of any Person;
(c) neither the execution or delivery of this Agreement, nor the consummation of the transactions contemplated hereby, nor the compliance with or performance of this Agreement by such Pledgor, conflicts with or will result in the breach or violation of or a default under the terms, conditions or provisions of (i) any mortgage, security agreement, indenture, evidence of indebtedness, loan or financing agreement, or other agreement or instrument to which such Pledgor is a party or by which such Pledgor is bound, or (ii) any provision of law, any order of any court or administrative agency, or any rule or regulation applicable to such Pledgor;
(d) this Agreement has been duly executed and delivered by the Borrower such Pledgor, and constitutes the legal, valid and binding obligations obligation of the Borrower such Pledgor, enforceable against such Pledgor in accordance with its terms;
(be) The execution and delivery of this Amendment by the Borrower and the performance and observance by the Borrower of the provisions hereofthere are no actions, do not violate suits or conflict with the organizational agreements of the Borrower proceedings pending or any law applicable threatened against or affecting such Pledgor that involve or relate to the Borrower or result in a breach of any provision of or constitute a default under any other agreement, instrument or document binding upon or enforceable against the Borrower;
(c) The representations and warranties set forth within Article III of the Agreement continue to be true and correct in all material respects as of the date of this Amendment except those changes resulting from the passage of timePledged Securities; and
(df) No material adverse change has occurred upon execution of this Agreement by such Pledgor, the Pledgee shall have the senior security interest in the business, operations, consolidated financial condition or prospects such Pledgor’s portion of the Borrower since the date of the most recent annual financial statement delivered to the Bank, and no Event of Default or condition which, with the passage of time, the giving of notice or both, could become an Event of Default has occurred and is continuingPledged Securities.
3.4 The Borrower shall execute or cause to be executed and deliver to the Bank all other documents, instruments and agreements deemed necessary or appropriate by the Bank in connection herewith.
Appears in 1 contract
Covenants, Representations and Warranties. 3.1 The 8.1 Each of Borrower ratifies, confirms and reaffirms, without condition, CNL REIT hereby remakes all of its respective representations and warranties contained in the terms and conditions of the Agreement and the other Loan Documents and agrees that it continues to be bound by the terms and conditions thereof as amended by this Amendment; and, the Borrower further confirms and affirms that it has no defense, set off or counterclaim against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, and, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect in accordance with its terms.
3.2 The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if anyas amended hereby, and such liens and security interests shall continue to secure the indebtedness and obligations as of the date hereof.
8.2 Each of Borrower to and CNL REIT hereby reaffirms all terms and covenants made in the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower Documents binding upon it as amended by this Amendmenthereby or pursuant hereto.
3.3 The 8.3 Each of Borrower and CNL REIT hereby represents and warrants to Administrative Agent and the Bank that:
Lenders that (a) This this Amendment has been duly executed and delivered by the Borrower Loan Agreement as modified and constitutes amended hereby, constitute the legal, valid and binding obligations obligation of the Borrower and CNL REIT, enforceable against Borrower and CNL REIT in accordance with its their terms;
, and (b) The the execution and delivery by each of Borrower and CNL REIT of this Amendment has been duly authorized by all requisite action on the part of Borrower and the performance CNL REIT and observance by the Borrower of the provisions hereof, do will not violate or conflict with the organizational agreements of the Borrower or any law applicable to the Borrower or result in a breach of any provision of the organizational documents of Borrower or constitute a default under any other agreementCNL REIT.
8.4 Each of Borrower and CNL REIT hereby represents and warrants to Administrative Agent and the Lenders that, instrument or document binding upon or enforceable against the Borrower;
(c) The representations and warranties set forth within Article III of the Agreement continue to be true and correct in all material respects as of the date of this Amendment except those changes resulting from the passage of time; and
hereof, (da) No material adverse change has occurred in the businessto Borrower’s and CNL REIT’s knowledge, operations, consolidated financial condition or prospects of the Borrower since the date of the most recent annual financial statement delivered to the Bank, and no Event of Default or condition which, with the passage of time, the giving of notice or both, could become an Event of Default has occurred and is continuing, and no Event of Default will occur as a result of the execution, delivery and performance by Borrower and CNL REIT of this Amendment and (b) none of the Transaction Parties has any offsets, defenses, counterclaims, set offs, or similar rights with respect to its obligations of payment and performance under the Loan Documents.
3.4 The Borrower shall execute or cause to be executed and deliver to the Bank all other documents, instruments and agreements deemed necessary or appropriate by the Bank in connection herewith.
Appears in 1 contract
Samples: Loan and Security Agreement (CNL Hotels & Resorts, Inc.)
Covenants, Representations and Warranties. 3.1 The Borrower ratifies(a) Each party hereby represents and warrants to the other party that (i) it is duly organized or incorporated, confirms as the case may be, and reaffirms, without condition, all validly existing as an entity under the terms and conditions laws of the Agreement and the other Loan Documents and agrees that jurisdiction in which it continues to be bound by the terms and conditions thereof as amended by this Amendment; andis incorporated, the Borrower further confirms and affirms that chartered or organized, (ii) it has no defensethe requisite power and authority to enter into and perform this Agreement, set off and (iii) this Agreement has been duly authorized by all necessary action, has been duly executed by one or counterclaim more duly authorized officers and is the valid and binding agreement of such party enforceable against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, and, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect such party in accordance with its terms.
3.2 (b) The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower Seller further represents and warrants to the Bank Issuer that:
(ai) This Amendment has been duly executed and delivered by immediately prior to the Borrower and constitutes the legal, valid and binding obligations sale of the Borrower enforceable in accordance with its termsLoan Obligations to the Issuer, the Seller shall own the Loan Obligations, shall have good and marketable title thereto, free and clear of any pledge, lien, security interest, charge, claim, equity, or encumbrance of any kind, and upon the delivery or transfer of the Loan Obligations to the Issuer as contemplated herein, the Issuer shall receive good and marketable title to the Loan Obligations, free and clear of any pledge, lien, security interest, charge, claim, equity or encumbrance of any kind;
(bii) The execution the Seller acquired its ownership in the Loan Obligations in good faith without notice of any adverse claim, and upon the delivery or transfer of the Loan Obligations to the Issuer as contemplated herein, the Issuer shall acquire ownership in the Loan Obligations in good faith without notice of any adverse claim;
(iii) the Seller has not assigned, pledged or otherwise encumbered any interest in the Loan Obligations (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released);
(iv) none of the execution, delivery or performance by the Seller of this Amendment by the Borrower and the performance and observance by the Borrower of the provisions hereofAgreement shall (x) conflict with, do not violate or conflict with the organizational agreements of the Borrower or any law applicable to the Borrower or result in a any breach of any provision of or constitute a default (or an event which, with the giving of notice or passage of time, or both, would constitute a default) under, any term or provision of the organizational documents of the Seller, or any material indenture, agreement, order, decree or other material instrument to which the Seller is party or by which the Seller is bound which materially adversely affects the Seller’s ability to perform its obligations hereunder or (y) violate any provision of any law, rule or regulation applicable to the Seller of any regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Seller or its properties which has a material adverse effect;
(v) no consent, license, approval or authorization from, or registration or qualification with, any governmental body, agency or authority, nor any consent, approval, waiver or notification of any creditor or lessor is required in connection with the execution, delivery and performance by the Seller of this Agreement the failure of which to obtain would have a material adverse effect except such as have been obtained and are in full force and effect;
(vi) it has adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations. It is generally able to pay, and as of the date hereof is paying, its debts as they come due. It has not become or is not presently, financially insolvent nor will it be made insolvent by virtue of its execution of or performance under any of the provisions of this Agreement within the meaning of the bankruptcy laws or the insolvency laws of any jurisdiction. It has not entered into this Agreement or the transactions effectuated hereby in contemplation of insolvency or with intent to hinder, delay or defraud any creditor;
(vii) no proceedings are pending or, to its knowledge, threatened against it before any federal, state or other agreementgovernmental agency, instrument authority, administrative or document binding regulatory body, arbitrator, court or other tribunal, foreign or domestic, which, singularly or in the aggregate, could materially and adversely affect the ability of the Seller to perform any of its obligations under this Agreement; and
(viii) the consideration received by it upon or enforceable against the Borrower;sale of the Loan Obligations owned by it constitutes fair consideration and reasonably equivalent value for such Loan Obligations.
(c) The the Seller further represents and warrants to the Issuer that:
(i) the Underlying Instruments with respect to each Loan Obligation do not prohibit the Issuer from granting a security interest in and assigning and pledging such Loan Obligation to the Trustee;
(ii) the information set forth with respect to the Loan Obligations in Schedule A of the Indenture is true and correct;
(iii) none of the Loan Obligations will cause the Issuer to have payments subject to foreign or United States withholding tax;
(iv) with respect to each Loan Obligation, except as set forth in the Exception Schedule, the representations and warranties set forth within Article III of the Agreement continue to be in Schedule 1(a) are true and correct in all material respects as of the date of this Amendment except those changes resulting from the passage of timecorrect; and
(dv) No material adverse change the Seller has occurred in the business, operations, consolidated financial condition or prospects of the Borrower since the date of the most recent annual financial statement delivered to the BankIssuer or its designee (A) the original of any note (or a copy of such note together with a lost note affidavit and indemnity), certificate or other instrument, if any, constituting or evidencing such Loan Obligation together with an assignment in blank and no Event all other assignment documents reasonably necessary to evidence the transfer of Default the Loan Obligation including, where applicable, UCC assignments and any other Underlying Instrument and copies of any other documents related to the Loan Obligation in the Seller’s possession, including copies of any related mortgage loan documents if the Loan Obligation is a Mortgage Loan, related to such Loan Obligation the delivery of which is necessary to perfect the security interest of the Trustee in such Loan Obligation and (B) copies of the Underlying Instruments.
(d) For purposes of the representations and warranties set forth in Schedule 1(a), the phrases “to the knowledge of the Seller” or condition which“to the Seller’s knowledge” shall mean, except where otherwise expressly set forth in a particular representation and warranty, the actual state of knowledge of the Seller or any servicer acting on its behalf regarding the matters referred to, in each case: (i) at the time of the Seller’s origination or acquisition of the particular Loan Obligation, after the Seller having conducted such inquiry and due diligence into such matters as would be customarily performed by a prudent institutional commercial or multifamily, as applicable, mortgage lender; and (ii) subsequent to such origination, the Seller having utilized monitoring practices that would be utilized by a prudent commercial or multifamily, as applicable, mortgage lender and having made prudent inquiry as to the knowledge of the servicer servicing such Loan Obligation on its behalf. Also, for purposes of such representations and warranties, the phrases “to the actual knowledge of the Seller” or “to the Seller’s actual knowledge” shall mean, except where otherwise expressly set forth below, the actual state of knowledge of the Seller or any servicer acting on its behalf without any express or implied obligation to make inquiry. All information contained in documents which are part of or required to be part of a Collateral File shall be deemed to be within the knowledge and the actual knowledge of the Seller. Wherever there is a reference to receipt by, or possession of, the Seller of any information or documents, or to any action taken by the Seller or not taken by the Seller, such reference shall include the receipt or possession of such information or documents by, or the taking of such action or the failure to take such action by, the Seller or any servicer acting on its behalf.
(e) If the Seller receives written notice of a breach of a representation or a warranty pursuant to this Agreement relating to any Loan Obligation, then the Seller shall (1) not later than 90 days from receipt of such notice cure such breach, (2) subject to the consent of a majority of the holders of each Class of Notes (excluding any Note held by the Seller or any of its affiliates), make a cash payment to the Issuer in an amount that the Loan Obligation Manager on behalf of the Issuer determines is sufficient to compensate the Issuer for such breach of representation or warranty (such payment, a “Loss Value Payment”), which Loss Value Payment will be deemed to cure sure breach of representation or warranty or (3) if such breach cannot be cured within such 90-day period, repurchase the affected Loan Obligation not later than the end of such 90-day period at the Repurchase Price (as defined in Section 16.3(c) of the Indenture).
(f) The Seller hereby acknowledges and consents to the collateral assignment by the Issuer of this Agreement and all right, title and interest thereto to the Trustee, for the benefit of the Secured Parties, as required in Sections 15.1(f)(i) and (ii) of the Indenture.
(g) The Seller hereby covenants and agrees that it shall perform any provisions of the Indenture made expressly applicable to the Seller by the Indenture, as required by Section 15.1(f)(i) of the Indenture.
(h) The Seller hereby covenants and agrees that all of the representations, covenants and agreements made by or otherwise entered into by it in this Agreement shall also be for the benefit of the Secured Parties, as required by Section 15.1(f)(ii) of the Indenture and agrees that enforcement of any rights hereunder by the Trustee shall have the same force and effect as if the right or remedy had been enforced or executed by the Issuer but that such rights and remedies shall not be any greater than the rights and remedies of the Issuer under Section 4(e) above.
(i) On or prior to the Closing Date, the Seller shall deliver the Underlying Instruments to the Issuer or, at the direction of the Issuer, to the Trustee, with respect to each Loan Obligation sold to the passage Issuer hereunder. The Seller hereby covenants and agrees, as required by Section 15.1(f)(iii) of timethe Indenture, the giving of notice or both, could become an Event of Default has occurred and is continuing.
3.4 The Borrower that it shall execute or cause to be executed and deliver to the Bank Trustee duplicate original copies of all notices, statements, communications and instruments delivered or required to be delivered to the Issuer by each party pursuant to this Agreement.
(j) The Seller hereby covenants and agrees, as required by Section 15.1(f)(iv) of the Indenture, that it shall not enter into any agreement amending, modifying or terminating this Agreement (other documentsthan in respect of an amendment or modification to cure any inconsistency, instruments ambiguity or manifest error, in each case, so long as such amendment or modification does not affect in any material respects the interests of any Secured Party), without notifying the Rating Agency n.
(k) Seller hereby covenants, that at all times (1) Seller will qualify as a REIT for federal income tax purposes and agreements deemed necessary the Issuer will qualify as a Qualified REIT Subsidiary (or appropriate by other disregarded entity) of Seller for federal income tax purposes, or (2) based on an Opinion of Counsel, the Bank Issuer will be treated as a Qualified REIT Subsidiary (or other disregarded entity) of a REIT other than Seller, or (3) based on an Opinion of Counsel, the Issuer will be treated as a foreign corporation that will not be treated as engaged in connection herewitha trade or business in the United States for U.S. federal income tax purposes.
Appears in 1 contract
Samples: Loan Obligation Purchase Agreement (Arbor Realty Trust Inc)
Covenants, Representations and Warranties. 3.1 (a) The Borrower ratifies, confirms Pledgor represents and reaffirms, without condition, all the terms and conditions of the Agreement and the other Loan Documents and agrees warrants that it continues to be bound by has duly executed and delivered the terms and conditions thereof Pledge Agreement (as amended by this Amendment; and) and the Pledge Agreement constitutes a legal, valid and binding obligation of the Borrower further confirms and affirms that Pledgor, enforceable against it has no defense, set off or counterclaim against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, and, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect in accordance with its terms, subject to limitations as to enforceability which might result from bankruptcy, insolvency, moratorium and other similar laws affecting creditors’ rights generally and subject to general principles of equity.
3.2 The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower represents and warrants to the Bank that:
(a) This Amendment has been duly executed and delivered by the Borrower and constitutes the legal, valid and binding obligations of the Borrower enforceable in accordance with its terms;
(b) The execution and delivery Upon the effectiveness of this Amendment by Amendment, the Borrower Pledgor hereby (i) represents that no Event of Default (as defined in the Pledge Agreement) exists, (ii) reaffirms all covenants, representations and warranties made in the performance Pledge Agreement, and observance by the Borrower (iii) agrees that all such covenants, representations and warranties shall be deemed to have been remade as of the provisions hereofeffective date of this Amendment, do not violate or conflict with the organizational agreements of the Borrower or any law applicable unless and to the Borrower or result extent that such representation and warranty is stated to relate solely to an earlier date, in a breach which case such representation and warranty shall be true and correct as of any provision of or constitute a default under any other agreement, instrument or document binding upon or enforceable against the Borrower;such earlier date.
(c) The representations Pledgor hereby agrees that should the Restructuring fail to occur by April 20, 2012 (or such later date as the Secured Party shall determine in its sole discretion), the Pledgor shall take the appropriate steps to promptly execute a new pledge agreement substantially similar to the Pledge Agreement and warranties set forth within Article III all other documents reasonably required by the Secured Party to reconvey to the Secured Party, on behalf of the Agreement continue Creditors, the security interest in the Collateral released pursuant to be true and correct Section 2(a) hereof. To the extent the foregoing actions are in all material respects as contravention of the date of this Amendment except those changes resulting from the passage of time; and
(d) No material adverse change has occurred in the business, operations, consolidated financial condition Credit Agreement or prospects of the Borrower since the date of the most recent annual financial statement delivered to the Bank, and no Event of Default or condition which, with the passage of timeany Note Purchase Agreement, the giving of notice or both, could become an Event of Default has occurred and is continuingPledgor shall use its best efforts to enter into the requisite amendments thereto in order to permit the foregoing actions.
3.4 The Borrower shall execute or cause to be executed and deliver to the Bank all other documents, instruments and agreements deemed necessary or appropriate by the Bank in connection herewith.
Appears in 1 contract
Samples: Pledge Agreement (Graco Inc)
Covenants, Representations and Warranties. 3.1 The Borrower ratifies, confirms and reaffirms, without condition, all In order to induce the terms and conditions of the Agreement Administrative Agent and the other Loan Documents and agrees that it continues Lenders to be bound by the terms and conditions thereof as amended by this Amendment; and, the Borrower further confirms and affirms that it has no defense, set off or counterclaim against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, and, except as specifically amended by enter into this Amendment, the Agreement Borrower and each other Obligor hereby acknowledges, consents, agrees, represents and warrants as follows:
A. Notwithstanding the effectiveness of this Amendment, the Obligations of each Obligor under each Loan Document to which such Obligor is a party shall remain not be impaired, extinguished, novated, waived, canceled or otherwise satisfied, in whole or in part, as a result of the transactions contemplated hereby and each such Loan Document to which such Obligor is a party is, and shall continue to be, in full force and effect and is hereby confirmed and ratified in accordance with its termsall respects.
3.2 The Borrower ratifies, confirms and reaffirms without condition, B. All Guaranteed Obligations include all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if anyObligations under, and such liens and security interests shall continue to secure as defined in, the indebtedness and obligations of the Borrower to the Bank under the Credit Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower represents and warrants C. Notwithstanding the conditions to effectiveness set forth in this Amendment, no Subsidiary Guarantor is required by the terms of the Credit Agreement or any other Loan Document to consent to the Bank that:
(a) This Amendment has been duly executed amendments to the Credit Agreement effected pursuant to this Amendment, and delivered by nothing in the Borrower and constitutes the legalCredit Agreement, valid and binding obligations of the Borrower enforceable in accordance with its terms;
(b) The execution and delivery of this Amendment or any other Loan Document shall be deemed to require the consent of any Subsidiary Guarantor to any future amendments to the Credit Agreement.
D. All representations and warranties made by the Borrower and the performance other Obligors in the Loan Documents are true and observance by the Borrower correct in all material respects as if made on and as of the provisions hereof, do not violate date hereof (or conflict with in the organizational agreements of the Borrower or any law applicable to the Borrower or result in a breach case of any provision of representation or constitute a default under any other agreementwarranty qualified by materiality, instrument Material Adverse Effect or document binding upon similar qualification, true and correct in all respects) unless stated to relate solely to an earlier date, in which case such representations or enforceable against the Borrower;
(c) The representations and warranties set forth within Article III of the Agreement continue to shall be true and correct in all material respects as of the date of such earlier date.
E. Each Obligor has full power, authority and legal right to enter into this Amendment and perform its obligations under this Amendment and each Loan Document, as amended hereby or thereby.
F. The transactions contemplated by this Amendment are within each Obligor’s corporate powers and have been duly authorized by all necessary corporate or other organizational action and, if required, by all necessary holders of the Equity Interests of such Obligor.
G. This Amendment has been duly executed and delivered by each Obligor and constitutes the legal, valid and binding obligation of such Obligor, enforceable against such Obligor in accordance with its terms, except those changes resulting from as such enforceability may be limited by (x) bankruptcy, insolvency, reorganization, moratorium or similar laws of general applicability affecting the passage enforcement of time; andcreditors’ rights and (y) the application of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
H. The transactions contemplated by this Amendment (d1) No material adverse change has occurred do not require any Governmental Approval of, registration or filing with, or any other action by, any Governmental Authority or any Person, except for such as have been obtained or made and are in full force and effect, (2) will not violate (x) any Law or any order of any Governmental Authority, other than any such violations that, individually or in the businessaggregate, operationscould not reasonably be expected to have a Material Adverse Effect, consolidated financial condition or prospects (y) the Organic Documents of the Borrower since the date of the most recent annual financial statement delivered each Obligor or its Subsidiaries, (3) will not violate or result in a default under any indenture, agreement or other instrument binding upon such Obligor or its Subsidiaries or assets, or give rise to the Banka right thereunder to require any payment to be made by any such Person, and (4) will not result in the creation or imposition of any Lien (other than Permitted Liens) on any asset of such Obligor or its Subsidiaries.
I. Both immediately before and after giving effect to this Amendment, no Event of Default or condition which, with the passage of time, the giving of notice or both, could become an Event of Default has occurred and is continuing, or could reasonably be expected to result from this Amendment or the transactions contemplated hereby.
3.4 The Borrower shall execute or cause to be executed and deliver to the Bank all other documents, instruments and agreements deemed necessary or appropriate by the Bank in connection herewith.
Appears in 1 contract
Covenants, Representations and Warranties. 3.1 The Borrower ratifies(a) Each party hereby represents and warrants to the other party that (i) it is duly organized or incorporated, confirms as the case may be, and reaffirms, without condition, all validly existing as an entity under the terms and conditions laws of the Agreement and the other Loan Documents and agrees that jurisdiction in which it continues to be bound by the terms and conditions thereof as amended by this Amendment; andis incorporated, the Borrower further confirms and affirms that chartered or organized, (ii) it has no defensethe requisite power and authority to enter into and perform this Agreement, set off and (iii) this Agreement has been duly authorized by all necessary action, has been duly executed by one or counterclaim more duly authorized officers and is the valid and binding agreement of such party enforceable against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, and, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect such party in accordance with its terms.
3.2 (b) The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower Seller further represents and warrants to the Bank Issuer that:
(ai) This Amendment has been duly executed and delivered by immediately prior to the Borrower and constitutes the legal, valid and binding obligations sale of the Borrower enforceable in accordance with its termsLoan Obligations to the Issuer, the Seller shall own the Loan Obligations, shall have good and marketable title thereto, free and clear of any pledge, lien, security interest, charge, claim, equity, or encumbrance of any kind, and upon the delivery or transfer of the Loan Obligations to the Issuer as contemplated herein, the Issuer shall receive good and marketable title to the Loan Obligations, free and clear of any pledge, lien, security interest, charge, claim, equity or encumbrance of any kind;
(bii) The execution the Seller acquired its ownership in the Loan Obligations in good faith without notice of any adverse claim, and upon the delivery or transfer of the Loan Obligations to the Issuer as contemplated herein, the Issuer shall acquire ownership in the Loan Obligations in good faith without notice of any adverse claim;
(iii) the Seller has not assigned, pledged or otherwise encumbered any interest in the Loan Obligations (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released);
(iv) none of the execution, delivery or performance by the Seller of this Amendment by the Borrower and the performance and observance by the Borrower of the provisions hereofAgreement shall (x) conflict with, do not violate or conflict with the organizational agreements of the Borrower or any law applicable to the Borrower or result in a any breach of any provision of or constitute a default (or an event which, with the giving of notice or passage of time, or both, would constitute a default) under, any term or provision of the organizational documents of the Seller, or any material indenture, agreement, order, decree or other material instrument to which the Seller is party or by which the Seller is bound which materially adversely affects the Seller’s ability to perform its obligations hereunder or (y) violate any provision of any law, rule or regulation applicable to the Seller of any regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Seller or its properties which has a material adverse effect;
(v) no consent, license, approval or authorization from, or registration or qualification with, any governmental body, agency or authority, nor any consent, approval, waiver or notification of any creditor or lessor is required in connection with the execution, delivery and performance by the Seller of this Agreement the failure of which to obtain would have a material adverse effect except such as have been obtained and are in full force and effect;
(vi) it has adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations. It is generally able to pay, and as of the date hereof is paying, its debts as they come due. It has not become or is not presently, financially insolvent nor will it be made insolvent by virtue of its execution of or performance under any of the provisions of this Agreement within the meaning of the bankruptcy laws or the insolvency laws of any jurisdiction. It has not entered into this Agreement or the transactions effectuated hereby in contemplation of insolvency or with intent to hinder, delay or defraud any creditor;
(vii) no proceedings are pending or, to its knowledge, threatened against it before any federal, state or other agreementgovernmental agency, instrument authority, administrative or document binding regulatory body, arbitrator, court or other tribunal, foreign or domestic, which, singularly or in the aggregate, could materially and adversely affect the ability of the Seller to perform any of its obligations under this Agreement; and
(viii) the consideration received by it upon or enforceable against the Borrower;sale of the Loan Obligations owned by it constitutes fair consideration and reasonably equivalent value for such Loan Obligations.
(c) The the Seller further represents and warrants to the Issuer that:
(i) the Underlying Instruments with respect to each Loan Obligation do not prohibit the Issuer from granting a security interest in and assigning and pledging such Loan Obligation to the Trustee;
(ii) the information set forth with respect to the Loan Obligations in Schedule A of the Indenture is true and correct;
(iii) none of the Loan Obligations will cause the Issuer to have payments subject to foreign or United States withholding tax;
(iv) with respect to each Loan Obligation, except as set forth in the Exception Schedule, the representations and warranties set forth within Article III of the Agreement continue to be in Schedule 1(a) are true and correct in all material respects as of the date of this Amendment except those changes resulting from the passage of timecorrect; and
(dv) No material adverse change the Seller has occurred in the business, operations, consolidated financial condition or prospects of the Borrower since the date of the most recent annual financial statement delivered to the BankIssuer or its designee (A) the original of any note (or a copy of such note together with a lost note affidavit and indemnity), certificate or other instrument, if any, constituting or evidencing such Loan Obligation together with an assignment in blank and no Event all other assignment documents reasonably necessary to evidence the transfer of Default the Loan Obligation including, where applicable, UCC assignments and any other Underlying Instrument and copies of any other documents related to the Loan Obligation in the Seller’s possession, including copies of any related mortgage loan documents if the Loan Obligation is a Mortgage Loan, related to such Loan Obligation the delivery of which is necessary to perfect the security interest of the Trustee in such Loan Obligation and (B) copies of the Underlying Instruments.
(d) For purposes of the representations and warranties set forth in Schedule 1(a), the phrases “to the knowledge of the Seller” or condition which“to the Seller’s knowledge” shall mean, except where otherwise expressly set forth in a particular representation and warranty, the actual state of knowledge of the Seller or any servicer acting on its behalf regarding the matters referred to, in each case: (i) at the time of the Seller’s origination or acquisition of the particular Loan Obligation, after the Seller having conducted such inquiry and due diligence into such matters as would be customarily performed by a prudent institutional commercial or multifamily, as applicable, mortgage lender; and (ii) subsequent to such origination, the Seller having utilized monitoring practices that would be utilized by a prudent institutional commercial or multifamily, as applicable, mortgage lender and having made prudent inquiry as to the knowledge of the servicer servicing such Loan Obligation on its behalf. Also, for purposes of such representations and warranties, the phrases “to the actual knowledge of the Seller” or “to the Seller’s actual knowledge” shall mean, except where otherwise expressly set forth below, the actual state of knowledge of the Seller or any servicer acting on its behalf without any express or implied obligation to make inquiry. All information contained in documents which are part of or required to be part of a Collateral File shall be deemed to be within the knowledge and the actual knowledge of the Seller. Wherever there is a reference to receipt by, or possession of, the Seller of any information or documents, or to any action taken by the Seller or not taken by the Seller, such reference shall include the receipt or possession of such information or documents by, or the taking of such action or the failure to take such action by, the Seller or any servicer acting on its behalf.
(e) If the Seller receives written notice of a breach of a representation or a warranty pursuant to this Agreement relating to any Loan Obligation, which breach materially and adversely affects the value of such Loan Obligation, the value of the related Mortgaged Property or the interests of the Trustee or any Noteholder therein, then the Seller shall (1) not later than 90 days from receipt of such notice or discovery by the Seller, cure such breach (to the extent such breach is capable of being cured), (2) subject to the consent of a Majority of each Class of Notes (excluding any Note held by the Seller or any of its affiliates), make a Cash payment to the Issuer in an amount that the Loan Obligation Manager, on behalf of the Issuer, subject to the consent of a Majority of each Class of Notes (excluding any Note held by the Seller or any of its affiliates), determines is sufficient to compensate the Issuer for such breach of representation or warranty (such payment, a “Loss Value Payment”), which Loss Value Payment will be deemed to cure such breach of representation or warranty, or (3) if such breach cannot be cured within such 90-day period, repurchase the affected Loan Obligation not later than the end of such 90-day period at the Repurchase Price (as defined in Section 16.3(c) of the Indenture)
(f) The Seller hereby acknowledges and consents to the collateral assignment by the Issuer of this Agreement and all right, title and interest thereto to the Trustee, for the benefit of the Noteholders, as required in Sections 15.1(f)(i) and (ii) of the Indenture.
(g) The Seller hereby covenants and agrees that it shall perform any provisions of the Indenture made expressly applicable to the Seller by the Indenture, as required by Section 15.1(f)(i) of the Indenture.
(h) The Seller hereby covenants and agrees that all of the representations, covenants and agreements made by or otherwise entered into by it in this Agreement shall also be for the benefit of the Trustee and the Noteholders, as required by Section 15.1(f)(ii) of the Indenture and agrees that enforcement of any rights hereunder by the Trustee shall have the same force and effect as if the right or remedy had been enforced or executed by the Issuer but that such rights and remedies shall not be any greater than the rights and remedies of the Issuer under Section 4(e) above.
(i) On or prior to the Closing Date, the Seller shall deliver the Underlying Instruments to the Issuer or, at the direction of the Issuer, to the Trustee, with respect to each Loan Obligation sold to the passage Issuer hereunder. The Seller hereby covenants and agrees, as required by Section 15.1(f)(iii) of timethe Indenture, the giving of notice or both, could become an Event of Default has occurred and is continuing.
3.4 The Borrower that it shall execute or cause to be executed and deliver to the Bank Trustee duplicate original copies of all notices, statements, communications and instruments delivered or required to be delivered to the Issuer by each party pursuant to this Agreement.
(j) The Seller hereby covenants and agrees, as required by Section 15.1(f)(iv) of the Indenture, that it shall not enter into any agreement amending, modifying or terminating this Agreement (other than in respect of an amendment or modification to cure any inconsistency, ambiguity or manifest error), without notifying the Rating Agencies.
(k) The Seller hereby covenants, that at all times (1) Seller will qualify as a REIT for federal income tax purposes and the Issuer will qualify as a Qualified REIT Subsidiary (or other disregarded entity) of Seller for federal income tax purposes, (2) based on an Opinion of Counsel, the Issuer will be treated as a Qualified REIT Subsidiary (or other disregarded entity) of a REIT other than Seller, or (3) based on an Opinion of Counsel, the Issuer will be treated as a foreign corporation that will not be treated as engaged in a trade or business in the United States for U.S. federal income tax purposes.
(l) Except for the agreed-upon procedures report obtained from a nationally recognized accounting firm for due diligence services with respect to certain information regarding the Loan Obligations to be conveyed to the Issuer (such report, the “Accountants’ Due Diligence Report”), the Seller has not obtained and shall not obtain any “third party due diligence report” (as defined in Rule 15Ga-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) in connection with the securitization transaction contemplated by the recitals hereto.
(m) The Purchaser (A) prepared or caused to be prepared a report on Form ABS-15G (the “Form 15G”) containing the findings and conclusions of the Accountants’ Due Diligence Report and meeting all other documentsrequirements of that Rule 15Ga-2 under the Exchange Act, instruments any other rules and agreements deemed necessary or appropriate regulations of the Securities and Exchange Commission and the Exchange Act; (B) provided a copy of the final draft of the Form 15G to the Placement Agent at least seven Business Days before the first sale of any Notes; and (C) furnished the Form 15G to the Securities and Exchange Commission on XXXXX at least five Business Days before the first sale of any Notes as required by Rule 15Ga-2 under the Bank in connection herewithExchange Act.
Appears in 1 contract
Samples: Loan Obligation Purchase Agreement (Arbor Realty Trust Inc)
Covenants, Representations and Warranties. 3.1 The Borrower ratifies, confirms and reaffirms, without condition, all the terms and conditions of the Agreement and the other Loan Documents and agrees that it continues to be bound by the terms and conditions thereof as amended by this Amendment; and, the Borrower further confirms and affirms that it has no defense, set off or counterclaim against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, and, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect in accordance with its terms.
3.2 The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower (A) Vendor represents and warrants that to the Bank thatbest of its knowledge:
(a) This Amendment it has been duly executed requisite authority, right and delivered by the Borrower and constitutes the legal, valid and binding obligations of the Borrower enforceable in accordance with its termspower to enter into this Agreement;
(b) The execution Vendor is a valid and delivery subsisting corporation duly incorporated and in good standing under the laws of this Amendment by Barbados;
(c) it is not insolvent, bankrupt or in receivership and there are no bankruptcy proceedings threatened, pending or instituted against it to affect its ability to carry out its obligations hereunder;
(d) there are no judgments outstanding or litigation pending, actual or threatened against it that will affect its ability to carry out its obligations hereunder;
(e) it is the Borrower owner of and has title to the performance Work to the extent specified in its agreements with its developers (that may be modified or amended from time to time), and observance by Vendor is not aware of any claims made upon it nor actions pending on or threatened upon Vendor regarding the Borrower ownership of the provisions hereof, do Vendor Software.
(f) its entering into this Agreement does not violate or conflict with the organizational agreements of the Borrower or any law applicable to the Borrower or result in constitute a breach of any provision of or constitute a default its obligations under any other agreement, instrument or document binding upon or enforceable against the Borrowerto which it is a party;
(cg) The representations and warranties set forth within Article III it has received no notice of infringement of the Agreement continue to be true and correct in all material respects as Work by a third party;
(h) it with its affiliated entities has knowledge of the date of this Amendment except those changes resulting from software industry, including expertise, which will enable it to further develop, distribute, market and maintain the passage of time; andWork;
(di) No material adverse change no order ceasing or suspending trading in securities of Vendor or prohibiting the sale of such securities has occurred been issued to Vendor or its directors, officers and no investigations or proceedings for such purposes are pending or threatened;
(B) Purchaser hereby certifies, represents and warrants to, and covenants with, Vendor as follows:
(i) Purchaser will not sell, transfer, or assign all or any part of its interest in the businessWork, operations, consolidated financial condition or prospects except with the express written consent of Vendor;
(ii) Purchaser and Vendor will cooperate each with the Borrower since other to exploit the date of the most recent annual financial statement delivered to the BankWork, and no Event of Default or condition whichwill each do all things and execute all documents as may be reasonably required to maintain, with develop, enhance, distribute, and market the passage of time, the giving of notice or both, could become an Event of Default has occurred and is continuingWork world-wide.
3.4 The Borrower shall execute (iii) Purchaser (if other than a natural person) is not organized under the laws of any jurisdiction within the United States of America, its territories or cause to be executed and deliver to possessions, was not formed for the Bank all other documentspurpose of investing in Regulation S securities. Purchaser is not a U.S. person as that is defined in Regulation S ("Regulation S") under the United States Securities Act of 1933, instruments and agreements deemed necessary or appropriate by as amended (the Bank in connection herewith."1933 Act");
Appears in 1 contract
Samples: Software Acquisition Agreement (Cyop Systems International Inc)
Covenants, Representations and Warranties. 3.1 The Borrower ratifiesProperty Owner hereby represents and warrants that it is the legal and beneficial owner in fee simple of the Property described in Section 1.1 and has the legal right and authority to grant to the Developer, confirms its directors, officers, employees, agents, consultants, contractors and reaffirms, without condition, all assigns the right to access the Property on the terms and conditions set out herein and has not and will not grant an easement or any other property rights, including any aggregate extraction or mining or mineral or petroleum or natural gas lease, related to the Property to any other person that would interfere with the rights granted to the Developer hereunder.
(a) The Property Owner further hereby represents and warrants that it is a corporation, duly organized, validly existing and in good standing under the laws of the Province of Ontario and it has the right, power and privilege to execute and deliver this Agreement and to perform its obligations hereunder.
(b) The Property Owner hereby represents and warrants that it is not a non-resident of Canada within the meaning of the Income Tax Act, (Canada).
(c) The Property Owner hereby represents and warrants that it is a registrant pursuant to the Excise Tax Act, (Canada).
3.3 The Developer hereby represents and warrants that it is a corporation, duly organized, validly existing and in good standing under the laws of Canada and that it has the right, power and privilege to execute and deliver this Agreement and to perform its obligations hereunder.
3.4 The Property Owner has sought and received independent legal counsel in respect of this Agreement as evidenced by the execution of a Certificate of Independent Legal Advice in the form attached hereto as Schedule “C”, understands the nature and consequences of the Agreement and the other Loan Documents and agrees that is signing it continues to be bound by the terms and conditions thereof as amended by this Amendment; and, the Borrower further confirms and affirms that it has no defense, set off or counterclaim against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, and, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect in accordance with its termsvoluntarily.
3.2 3.5 The Borrower ratifies, confirms Property Owner hereby agrees and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited covenants to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower represents and warrants to the Bank that:
(a) This Amendment has been duly executed and delivered by subsequent to the Borrower and constitutes the legal, valid and binding obligations of the Borrower enforceable in accordance with its terms;
(b) The execution and delivery of this Amendment by the Borrower Agreement and the performance without any additional consideration, execute and observance by the Borrower of the provisions hereof, do not violate or conflict with the organizational agreements of the Borrower or any law applicable to the Borrower or result in a breach of any provision of or constitute a default under any other agreement, instrument or document binding upon or enforceable against the Borrower;
(c) The representations and warranties set forth within Article III of the Agreement continue to be true and correct in all material respects as of the date of this Amendment except those changes resulting from the passage of time; and
(d) No material adverse change has occurred in the business, operations, consolidated financial condition or prospects of the Borrower since the date of the most recent annual financial statement delivered to the Bank, and no Event of Default or condition which, with the passage of time, the giving of notice or both, could become an Event of Default has occurred and is continuing.
3.4 The Borrower shall execute deliver or cause to be executed and deliver delivered any further legal instruments, including, without limitation, any required consents or acknowledgements in favour of the Developer’s lenders, and perform any acts which are or may become necessary to effectuate the purposes of this Agreement and to complete the transactions contemplated hereunder; and
(b) without limiting the generality of Section 3.5(a), complete and execute the “Appointment and Authorization of Agent” (the “Agency Form”) attached hereto as Schedule “D” which Agency Form may be used by the Developer for the purposes of Section 3.5(a).
3.6 The Developer hereby covenants that it shall, at its sole cost and expense and prior to accessing the Property for any purpose related to wind testing, or the siting, assessment or construction of the Turbine(s) contemplated to be erected by the Developer herein, provide and maintain in full force and effect with financially responsible insurance carriers, insurance with commercially reasonable coverages, which shall remain in effect during the term of the Easement or any extension thereof or as otherwise specified herein and which shall, if applicable, include:
(a) automobile liability insurance covering owned, non-owned, hired, leased and rented automobiles and automotive equipment providing coverage for injury, death, or property damage;
(b) workers compensation as required by the Ontario Workplace Safety and Insurance Act (Ontario) or similar legislation covering all persons employed by the Developer or subcontractors for work performed under this Agreement; and
(c) commercial general liability insurance covering bodily injury, death, personal injury and damage to property as may relate to the Bank works and operations of the Developer with respect to the Property. Such coverage must be to the sole satisfaction of the Property Owner, acting reasonably, and upon request, the Developer shall provide the property Owner with a Certificate of Insurance completed by a duly authorized representative of the Developer’s insurer, certifying that such insurance has been obtained and that it shall not be cancelled or altered without sixty (60) days prior written notice to the Property Owner. Such coverage shall name the property Owner as an additional insured.
3.7 The Property Owner covenants and agrees to execute all applications, consents, permissions, agreements, postponements, partial discharges and any other documents which the Developer may require in connection with obtaining any rezoning, governmental approvals, consents, permits or variances (collectively, “Approvals”) and in connection with the entering into by the Developer of any agreements with such governmental and public authorities as may be necessary to give due force and effect to and in furtherance of the Developer’s applications, and the Property Owner shall produce all other documentsdocuments and information which may be required in connection with such applications. All applications for Approvals, instruments and agreements deemed necessary or appropriate shall be made by the Bank Developer, at its sole cost and expense and any costs to the Property Owner associated with such Approvals shall be borne by the Developer. The Developer agrees that the obligations of the Property Owner pursuant to this paragraph shall be restricted to execution of documents and production of documents and information and shall not impose upon the Property Owner any financial obligation whatsoever.
(a) The Property Owner specifically acknowledges that a title search has not been conducted on the Property and that the Developer is entering into this Agreement on the basis of the representations and warranties provided by the Property Owner hereunder and in connection herewithparticular those provided in Sections 3.1 and 3.
Appears in 1 contract
Samples: Option and License Agreement
Covenants, Representations and Warranties. 3.1 The Borrower ratifiesPledgor covenants, confirms ----------------------------------------- represents and reaffirmswarrants to Secured Party, without conditionwith the understanding that Secured Party is relying on such representations and warranties, all that:
(a) the Collateral is the sole and separate Property of Pledgor, and Pledgor has title to the Collateral and is the legal and beneficial owner of the Collateral, free from any liens, security interests, assignments, encumbrances or claims of any kind, other than the security interest created by this Agreement and, subject to the provisions of the Subordination Agreement (as defined in the Term Loan Agreement), and the Subordinated Indebtedness Liens (as defined in the Term Loan Agreement);
(b) Except for the Subordinated Indebtedness Liens, so long as it is subject to the terms and conditions of the Subordination Agreement, Pledgor will not assign, pledge, encumber or otherwise transfer in any way, so long as this Agreement and shall remain in effect, the other Loan Documents and agrees that whole or any part of the Collateral;
(c) Except for the Subordinated Indebtedness Liens, so long as it continues is subject to be bound by the terms and conditions thereof as amended by this Amendment; andof the Subordination Agreement, Pledgor will not permit or suffer to exist any lien, security interest, encumbrance or claim of any kind upon the Borrower further confirms and affirms that it has no defense, set off or counterclaim against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, andCollateral, except as specifically amended by this Amendment, the Agreement shall remain those in full force and effect in accordance with its terms.
3.2 The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations favor of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower represents and warrants to the Bank that:
(a) This Amendment has been duly executed and delivered by the Borrower and constitutes the legal, valid and binding obligations of the Borrower enforceable in accordance with its termsSecured Party;
(bd) Pledgor shall deliver to Secured Party and Secured Party shall retain physical possession of all stock certificates and other instruments and documents representing or evidencing any of the Collateral, which stock certificates shall be duly endorsed for transfer to Secured Party;
(e) Pledgor will not amend or waive or consent to any amendment or waiver of the instruments or documents constituting the Collateral or make any compromise, adjustment, settlement or termination in connection therewith, and Pledgor will preserve and enforce all of its rights under the corporate governance documents establishing the rights of holders of shares of stock of the class held by Pledgor, unless failure to do so would not adversely affect the Collateral;
(f) Pledgor will accept no payments, distributions or dividends on the Collateral, Pledgor will hold any such payment, distribution or dividend received by Pledgor in trust for Secured Party and not commingle it with its general funds, and Pledgor will immediately remit to Secured Party any payment, distribution or dividend received by it;
(g) The execution and delivery of this Amendment by the Borrower Agreement, and the performance and observance by the Borrower of the provisions hereofits terms, do will not violate or conflict with the organizational agreements of the Borrower or any law applicable to the Borrower or result in a breach of any provision violation of or constitute a default under the terms of any other agreement, instrument or document binding upon other instrument, license, judgment, order, statute, ordinance or enforceable against other governmental rule or regulation, applicable to Pledgor or the BorrowerCollateral;
(ch) Upon its execution and delivery, this Agreement shall create an enforceable and valid lien upon and security interest in the Collateral;
(i) Pledgor has full power and authority to enter into this Agreement and, if Pledgor is other than a natural person, the person executing this Agreement on behalf of Pledgor have been duly authorized to act on behalf of Pledgor in the execution thereof;
(j) The representations and warranties set forth within Article III capitalization of the Pledgor consists of ten thousand (10,000) authorized and issued shares of common stock and upon the merger of Pledgor into Company will convert into ten thousand (10,000) shares of common stock of Company; the capitalization of Company consists of five thousand six hundred (5,600) authorized and issued shares of common stock and except for the warrants described in schedule 2 (j), there are no agreements in effect which require or obligate Pledgor or Company to issue any additional shares of stock of Pledgor or Company and there are no outstanding warrants, options of other rights to purchase any shares of stock of Pledgor;
(k) Other than Pledgor and the other stockholders of Pledgor listed in schedule 2(k), there are no persons who assert any type of ownership interest or control (whether by virtue of voting rights or otherwise) whatsoever in Pledgor; and other than Pledgor, there are no other persons who assert any type of ownership interest in Company.
(1) Other than this Agreement continue and the pledge agreement creating the Subordinated Indebtedness Liens on the Collateral, there is no agreement which imposes any conditions or restrictions on the Shares, and Pledgor shall take no action to be true and correct in impose any such restrictions prior to full satisfaction of all material respects as of Borrowers' Obligations under the Credit Facilities Documents;
(m) All of the date Shares have been duly authorized, validly issued and are fully paid and non--assessable;
(n) The granting by Pledgor to Secured Party of the security interest in the Collateral as evidenced by this Amendment except those changes resulting Agreement complies with all applicable federal and state securities laws or qualifies for an exemption from such registration;
(o) Pledgor will promptly (but not later than three (3) days after receipt thereof) deliver to Secured Party copies of any notices received with respect to matters materially affecting the passage of timeCollateral; and
(dp) No material adverse change has occurred in the Pledgor's principal place of business, operations, consolidated financial condition or prospects of chief executive office and/or (if it is a natural person) residence is located at the Borrower since the date of the most recent annual financial statement delivered to the Bankmailing address set forth in paragraph 15(m) below, and no Event Pledgor will not change the location of Default its principal place of business or condition which, with the passage of time, the giving of chief executive office or (if it is a natural person) residence without ten (10) days prior written notice or both, could become an Event of Default has occurred and is continuingto Secured Party.
3.4 The Borrower shall execute or cause to be executed and deliver to the Bank all other documents, instruments and agreements deemed necessary or appropriate by the Bank in connection herewith.
Appears in 1 contract
Samples: Stock Pledge and Security Agreement (CPS Systems Inc)
Covenants, Representations and Warranties. 3.1 The Borrower ratifiesPurchaser covenants, confirms and reaffirms, without condition, all the terms and conditions of the Agreement and the other Loan Documents and agrees that it continues to be bound by the terms and conditions thereof as amended by this Amendment; and, the Borrower further confirms and affirms that it has no defense, set off or counterclaim against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, and, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect in accordance with its terms.
3.2 The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower represents and warrants to the Bank in favour of Target that:
(a) This Amendment has been it is a corporation duly executed and delivered by incorporated under the Borrower and constitutes the legal, valid and binding obligations laws of the Borrower enforceable State of Nevada and that it is a valid, subsisting corporation in accordance with good standing under all of the applicable corporate or other laws, and that it is unrestricted in its termsright to enter into this Agreement;
(b) The execution its books and delivery records, financial and otherwise, are and have been properly prepared and maintained in form and substance adequate for preparing audited financial statements in accordance with generally accepted accounting principles, and fairly and accurately reflect all of this Amendment its assets, obligations and accruals, and all transactions (normally reflected in books and records in accordance with generally accepted accounting principles) to which it is or was a party or by the Borrower and the performance and observance by the Borrower of the provisions hereof, do not violate or conflict with the organizational agreements of the Borrower which it or any law applicable to the Borrower of its assets are or result in a breach of any provision of or constitute a default under any other agreement, instrument or document binding upon or enforceable against the Borrowerwere affected;
(c) The representations the execution, delivery and warranties set forth within Article III performance by Purchaser of this Agreement and the consummation by Purchaser of the Agreement continue transactions contemplated hereby do not require any consent that has not been received prior to be true the date hereof;
(d) its authorized and correct in all material respects as of issued capital is, at the date of this Amendment except those changes resulting from the passage Agreement, 75,000,000 common shares, with a par value of time; and$0.001 per share, of which 56,437,500 are issued and outstanding;
(de) No the financial statements of Purchaser dated as of March 31, 2008 (the “Purchaser’s Financial Statements”), copies of which have been delivered to Target, fully, fairly and accurately represent the financial affairs and condition of Purchaser as of the said date, and no material adverse change has changes have occurred in or to the businesscondition of Purchaser or its financial position since March 31, operations2008;
(f) Xxxxx X. Xxxxxxxx is the sole officer and director of Purchaser; Xx. Xxxxxxxx has no employment contract with Purchaser and is not owed any money by Purchaser for salary, consolidated financial condition consulting fees, shareholder loans or prospects otherwise;
(g) it will not, prior to the Closing, without the prior written consent of Target, enter into any agreements which shall require it to issue any shares, or securities convertible to shares, in its capital, or to acquire any assets, or to assume or incur any debts or other obligations, except as would be required in the Borrower normal course to satisfy its obligations under this Agreement;
(h) it has no liabilities, due or accruing due, contingent or absolute, liquidated or unliquidated, of any kind except
(i) liabilities disclosed or provided for in the Purchaser’s Financial Statements,
(ii) liabilities incurred in the ordinary course of business since the date of the most recent annual financial statement delivered Purchaser’s Financial Statements, which are consistent with past practice and are not, in the aggregate, material and adverse to the Bankbusiness of Purchaser, or to the financial condition or results of the Purchaser;
(i) the Exchange Shares will, when issued, be validly issued as fully paid and non-assessable and free and clear of all encumbrances;
(j) the issuance of the Exchange Shares will be effected in such a manner as to be exempt from registration under the Securities Act of 1933 (the “Securities Act”) and all applicable state securities or blue sky laws;
(k) there is no basis for and there are no actions, suits, judgments, investigations or proceedings outstanding or pending, or to the knowledge of Purchaser, threatened against or affecting Purchaser or any of its property or assets at law or in equity or before or by any court or federal, state, municipal or other governmental authority, department, commission, board, tribunal, bureau or agency; and
(l) to the best of its knowledge, there are no orders ceasing or suspending trading in the securities of Purchaser and no Event of Default proceedings for this purpose have been instituted or condition which, with the passage of time, the giving of notice are pending or both, could become an Event of Default has occurred and is continuingthreatened.
3.4 The Borrower shall execute or cause to be executed and deliver to the Bank all other documents, instruments and agreements deemed necessary or appropriate by the Bank in connection herewith.
Appears in 1 contract
Covenants, Representations and Warranties. 3.1 The Borrower ratifiesSeller hereby covenants, confirms represents and reaffirmswarrants to Purchaser (and shall be deemed to covenant, represent and warrant to Purchaser on the Closing Date) that: (a) there is no condemnation or similar proceeding which is pending or, to Seller's knowledge, threatened against the Real Estate or any part thereof; (b) Seller has not received any notification from any governmental agency, authority or instrumentality of any pending or threatened assessments on or against the Real Estate for the cost of improvements to be made with respect to the Real Estate or any part thereof; (c) after the Acceptance Date, Seller will not create, permit or suffer any lien or other encumbrance to attach to or affect the Real Estate and improvements thereon, except for (i) the lien of nondelinquent real estate taxes and liens and encumbrances which will be fully discharged on or before the Closing Date, and (ii) such lien(s) and encumbrances, if any, arising out of any Lhret loan financing with respect to the Real Estate; (d) to Seller's knowledge, there are no claims, actions, suits, proceedings or investigations pending or threatened with respect to or in any manner affecting the Real Estate or Seller's ownership thereof; (e) no work has been or will be performed, and no materials have been or will be furnished to, the Real Estate or any portion thereof at the behest of Seller which will result in any mechanics', materialmen's or other liens against the Real Estate or any portion thereof; (f) Seller is the fee simple owner of the Real Estate and has not sold, assigned, transferred, leased, subleased, encumbered or conveyed any right, title or interest whatsoever in or to the Real Estate, except for the Ground Lease and leases and encumbrances which, if not approved by Purchaser pursuant to Section 7.5 of this Contract, will have terminated or will be fully discharged on or before the Closing Date; (g) except for the (i) Ground Lease, (ii) Leases, and (iii) Contracts, prior to the closing, Seller shall not sell, assign, transfer, lease, sublease, encumber or convey any right, title or interest whatsoever in or to the Real Estate or any portion thereof without Purchaser's prior written consent, nor shall Seller amend, modify, extend, terminate or alter any currently existing agreement or document (including, without conditionlimitation, the Ground Lease, Leases and/or Contracts) relating to the Real Estate without Purchaser's prior written consent; (h) to the best of Seller's knowledge, neither the Real Estate nor any portion thereof has been used for the treatment, storage or disposal of any hazardous, special or other wastes, substances, materials, constituents, pollutants or contaminants as defined under applicable federal, state or local laws or regulations promulgated thereunder; (i) o Seller's knowledge, the Real Estate complies with all local, state and federal laws and regulations; (j) prior to the terms and conditions closing, Seller agrees not to market, sell, advertise or seek proposals to develop or sell the Real Estate or any portion thereof or enter into any agreements for the marketing, sale or development of the Agreement and the Real Estate or any portion thereof to any entity or person other Loan Documents and agrees than Purchaser; (k) prior to closing, Seller shall cause all Title Objections that it continues Seller commits to cure, if any, to be bound by cured in accordance with Section 7.2 above, and (ml) that certain Ground Lease dated as of May 30, 2003 between Lhret and Seller, pursuant to which Lhret leases the terms Real Estate and conditions thereof as amended by this Amendment; andowns certain improvements, buildings and fixtures located thereon (the Borrower further confirms and affirms that it has no defense"Ground Lease"), set off or counterclaim against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, and, except as specifically amended by this Amendment, the Agreement shall remain is in full force and effect in accordance with its terms.
3.2 The Borrower ratifieseffect, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant best of Seller's knowledge, neither Lhret nor Seller is in default under the Ground Lease and to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations best of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower represents and warrants to the Bank Seller's knowledge no condition exists that:
(a) This Amendment has been duly executed and delivered by the Borrower and constitutes the legal, valid and binding obligations of the Borrower enforceable in accordance with its terms;
(b) The execution and delivery of this Amendment by the Borrower and the performance and observance by the Borrower of the provisions hereof, do not violate or conflict with the organizational agreements of the Borrower or any law applicable to the Borrower or result in a breach of any provision of or constitute a default under any other agreement, instrument or document binding upon or enforceable against the Borrower;
(c) The representations and warranties set forth within Article III of the Agreement continue to be true and correct in all material respects as of the date of this Amendment except those changes resulting from the passage of time; and
(d) No material adverse change has occurred in the business, operations, consolidated financial condition or prospects of the Borrower since the date of the most recent annual financial statement delivered to the Bank, and no Event of Default or condition which, with the passage of time, the giving of notice or bothpassage of time, could become an Event of Default has occurred would constitute a breach or default under the Ground Lease. Purchaser acknowledges that the building and is continuing.
3.4 The Borrower shall execute or cause to be executed and deliver other improvements located on the Real Estate are owned by Lhret. Seller makes no representations nor warranties with respect to the Bank all building and other documents, instruments improvements on the Real Estate and agreements deemed necessary Purchaser shall rely exclusively upon its own investigations and inspections thereof. Purchaser also acknowledges that the Real Estate is subject to certain use restrictions and Seller makes no representation or appropriate by warranty concerning the Bank in connection herewithsuitability of the Real Estate for Purchaser's intended use.
Appears in 1 contract
Covenants, Representations and Warranties. 3.1 The Borrower ratifies4.1 Upon the effectiveness of this Agreement, confirms each EaglePicher Party (a) hereby reaffirms all covenants, representations and reaffirms, without condition, all the terms and conditions warranties made by it in each Related Document as of the Agreement date hereof the same expressly relates solely to an earlier date in which case such Person remakes such representation and the other Loan Documents warranty as of such earlier date and (b) agrees that it continues to be bound by the terms all such covenants, representations and conditions thereof as amended by this Amendment; and, the Borrower further confirms and affirms that it has no defense, set off or counterclaim against the same. The Agreement and this Amendment warranties shall be construed deemed to have been re-made as complementing each other of the Effective Date.
4.2 Each of the EaglePicher Parties represents and as augmenting warrants that (a) this Agreement constitutes a legal, valid and not restricting the Bank's rights, and, except as specifically amended by this Amendment, the Agreement shall remain in full force binding obligation of such Person and effect is enforceable against such Person in accordance with its terms, (b) it is a corporation or limited liability company duly organized, validly existing and in good standing under the laws of its jurisdiction of , in each case as set forth opposite such EaglePicher Party’s name on Schedule 1 hereto (which is such EaglePicher Party’s only state of organization) and (c) that the information set forth on Schedule 1 is true, complete and correct for each of the EaglePicher Parties.
3.2 The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement 4.3 Each of EPFC and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower Servicer represents and warrants to the Bank that:
that (a) This Amendment has been duly executed and delivered by the Borrower and Purchase Agreement, as amended hereby, constitutes the a legal, valid and binding obligations obligation of the Borrower such Person and is enforceable against such Person in accordance with its terms;
terms and (b) The execution and delivery of this Amendment by the Borrower and the performance and observance by the Borrower of the provisions hereof, do not violate or conflict with the organizational agreements of the Borrower or any law applicable to the Borrower or result in a breach of any provision of or constitute a default under any other agreement, instrument or document binding upon or enforceable against the Borrower;
(c) The representations and warranties set forth within Article III of the Agreement continue to be true and correct in all material respects as of the date of this Amendment Effective Date and after giving effect hereto, except those changes resulting from for the passage of time; and
(d) No material adverse change has occurred in the businessSpecified Violations, operationsno Termination Event, consolidated financial condition or prospects of the Borrower since the date of the most recent annual financial statement delivered to the BankIncipient Termination Event, and no Event of Default Servicer Termination or condition which, with the passage of time, the giving of notice or both, could become an Incipient Servicer Termination Event of Default has occurred and is continuing.
3.4 The Borrower shall execute 4.4 EPFC and the Servicer represents and warrants that EPFC has not purchased Receivables from any Person besides the Persons identified as “Originators” on the signature pages to this Agreement.
4.5 Within five Business Days of its receipt thereof, each EaglePicher Party hereby covenants to deliver (or cause to be executed and deliver delivered) to the Bank Administrative Agent a copy of (a) any final report prepared by or on behalf of Gxxxxxxx Capital Advisors LLC related to EaglePicher Automotive, Inc. or (b) any final offering memorandum or final preliminary offering memorandum distributed to potential investors (or comparable documents) prepared by or on behalf of any investment banking firm relating to the sale of the equity or substantially all other documents, instruments and agreements deemed necessary the assets of any EaglePicher Party or appropriate by the Bank in connection herewithany Affiliate thereof.
Appears in 1 contract
Covenants, Representations and Warranties. 3.1 (A) Vendor represents and warrants that to the best of its knowledge:
(a) it has requisite authority, right and power to enter into this Agreement;
(b) Vendor is a valid and subsisting corporation duly incorporated and in good standing under the laws of Barbados;
(c) it is not insolvent, bankrupt or in receivership and there are no bankruptcy proceedings threatened, pending or instituted against it to affect its ability to carry out its obligations hereunder;
(d) there are no judgments outstanding or litigation pending, actual or threatened against it that will affect its ability to carry out its obligations hereunder;
(e) it is the owner of and has title to the Work to the extent specified in its agreements with its developers (that may be modified or amended from time to time), and Vendor is not aware of any claims made upon it nor actions pending on or threatened upon Vendor regarding the ownership of the Vendor Software.
(f) its entering into this Agreement does not constitute a breach of any of its obligations under any other agreement, to which it is a party;
(g) it has received no notice of infringement of the Work by a third party;
(h) it with its affiliated entities has knowledge of the software industry, including expertise, which will enable it to further develop, distribute, market and maintain the Work;
(i) no order ceasing or suspending trading in securities of Vendor or prohibiting the sale of such securities has been issued to Vendor or its directors, officers and no investigations or proceedings for such purposes are pending or threatened;
(B) Purchaser hereby certifies, represents and warrants to, and covenants with, Vendor as follows:
(i) Purchaser will not sell, transfer, or assign all or any part of its interest in the Work, except with the express written consent of Vendor;
(ii) Purchaser and Vendor will cooperate each with the other to exploit the Work, and will each do all things and execute all documents as may be reasonably required to maintain, develop, enhance, distribute, and market the Work world-wide.
(iii) Purchaser (if other than a natural person) is not organized under the laws of any jurisdiction within the United States of America, its territories or possessions, was not formed for the purpose of investing in Regulation S securities. Purchaser is not a U.S. person as that is defined in Regulation S ("Regulation S") under the United States Securities Act of 1933, as amended (the "1933 Act");
(iv) At the time the acquisition of the Work was originated, the Purchaser was outside the United States, its territories and possessions;
(v) No offer to purchase the Ownership Percentage was made by the Purchaser in the United States, its territories or possessions;
(vi) The Borrower ratifiesPurchaser is purchasing the Ownership Percentage for its own account and not for the account or benefit of any U. S. person;
(vii) All offers and sales of the Ownership Percentage by the Purchaser shall be made in compliance with Regulation S, confirms pursuant to registration of the Work under the 1933 Act, or pursuant to an exemption from registration. In any case, the Work will not be resold to a U.S. person (as defined in Regulation S) or within the United States, its territories or possessions, until after the end of the one year restricted period determined in accordance with Regulation S;
(viii) Purchaser has not entered into any prearranged transaction with any person in the United States for the sale or other transfer of the Ownership Percentage in the Work.
(ix) It has requisite authority, right and reaffirmspower to enter into this Agreement;
(x) Purchaser is not insolvent, without conditionbankrupt or in receivership and there are no bankruptcy or creditor proceedings threatened, all pending or instituted against Purchaser to affect its ability to carry out its obligations hereunder; Vendor covenants and agrees that Vendor shall not permit, recognize or register any transfer of Purchaser's Ownership Percentage in the Work unless such transfer is made in accordance with Regulation S and the terms and conditions of the Agreement and the other Loan Documents and agrees that it continues to be bound by the terms and conditions thereof as amended by this Amendment; and, the Borrower further confirms and affirms that it has no defense, set off or counterclaim against the sameAgreement. The Agreement and parties agree that Vendor has not made any representations or warranties other than as specified in this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, and, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect in accordance with its termsAgreement.
3.2 The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower represents and warrants to the Bank that:
(a) This Amendment has been duly executed and delivered by the Borrower and constitutes the legal, valid and binding obligations of the Borrower enforceable in accordance with its terms;
(b) The execution and delivery of this Amendment by the Borrower and the performance and observance by the Borrower of the provisions hereof, do not violate or conflict with the organizational agreements of the Borrower or any law applicable to the Borrower or result in a breach of any provision of or constitute a default under any other agreement, instrument or document binding upon or enforceable against the Borrower;
(c) The representations and warranties set forth within Article III of the Agreement continue to be true and correct in all material respects as of the date of this Amendment except those changes resulting from the passage of time; and
(d) No material adverse change has occurred in the business, operations, consolidated financial condition or prospects of the Borrower since the date of the most recent annual financial statement delivered to the Bank, and no Event of Default or condition which, with the passage of time, the giving of notice or both, could become an Event of Default has occurred and is continuing.
3.4 The Borrower shall execute or cause to be executed and deliver to the Bank all other documents, instruments and agreements deemed necessary or appropriate by the Bank in connection herewith.
Appears in 1 contract
Samples: Software Acquisition Agreement (Cyop Systems International Inc)
Covenants, Representations and Warranties. 3.1 The Borrower ratifiesEach Principal, confirms and reaffirmsseverally, without condition, all the terms and conditions of the Agreement and the other Loan Documents and agrees that it continues to be bound by the terms and conditions thereof as amended by this Amendment; and, the Borrower further confirms and affirms that it has no defense, set off or counterclaim against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rightsjointly, andcovenants, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect in accordance with its terms.
3.2 The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower represents and warrants to the Bank Company, as of the date hereof, that:
(a) Each Principal has all requisite power and authority to enter into this Second Amendment and perform his obligations hereunder and under the Transaction Document and to consummate the transactions contemplated hereby and by the Transaction Documents.
(b) This Second Amendment has been duly executed and by each Principal and, when delivered by in accordance with the Borrower and constitutes terms hereof, will constitute the legal, valid and binding obligations obligation of the Borrower each Principal enforceable against each Principal in accordance with its terms;, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable law.
(bc) The execution and delivery of this Second Amendment by the Borrower each Principal does not, and the performance consummation of the transactions contemplated hereby and observance by the Borrower Transaction Documents and compliance with the terms hereof and thereof, will not, conflict with, or result in any violation of or default (with or without notice or lapse of time, or both) under, or entitle any Person to receipt of notice or to a right of consent under, or give rise to a right of termination, cancellation or acceleration of any obligation or to loss of a material benefit under, or to any increased, additional, accelerated or guaranteed rights or entitlement of any Person under, or result in the creation of any Lien on the properties or assets of the provisions hereofPrincipals (including, do not violate with out limitation, the properties or conflict with the organizational agreements assets of the Borrower Parent or the Purchaser) under, any law provision of any contract to which the Principals are a party or by which any of their respective properties or assets (including, with out limitation, the properties or assets of the Parent or the Purchaser) are bound, or (ii) any judgment, order or decree, or statute, law, ordinance, rule or regulation applicable to the Borrower Principals or result in a breach of any provision of their respective properties or constitute a default under any other agreementassets (including, instrument without limitation, the properties or document binding upon or enforceable against the Borrower;
(c) The representations and warranties set forth within Article III assets of the Agreement continue to be true and correct in all material respects as of Parent or the date of this Amendment except those changes resulting from the passage of time; andPurchaser).
(d) No material adverse change has occurred in Each Principal, severally but not jointly, hereby unconditionally guarantees the business, operations, consolidated financial condition or prospects performance by the Purchaser of its obligations under Article II of the Borrower since Alliance Agreement (including, without limitation, the date delivery of fund required to purchase shares of Series E Preferred Stock of the most recent annual financial statement delivered Company on the Third Closing Date) and, subject only to the Banksatisfaction by the Company of the applicable conditions to the obligations of the Purchaser under Article II of the Alliance Agreement, and no Event upon the failure of Default or condition which, with the passage of timePurchaser to perform such obligations, the giving Principals shall forthwith upon demand of notice or both, could become an Event the Company perform such obligations of Default has occurred and is continuingthe Purchaser.
3.4 The Borrower shall execute or cause to be executed and deliver to the Bank all other documents, instruments and agreements deemed necessary or appropriate by the Bank in connection herewith.”
Appears in 1 contract
Samples: Strategic Alliance Agreement (Elite Pharmaceuticals Inc /De/)
Covenants, Representations and Warranties. 3.1 The Borrower ratifies8.1 Each party represents and warrants to the other party as follows:
(a) Such party has the requisite approvals, confirms power and reaffirmsauthority to enter into, without conditionand perform and comply with, all the terms and conditions of the Agreement and the other Loan Documents and agrees that it continues to be bound by the terms and conditions thereof as amended by this Amendment; and, the Borrower further confirms and affirms that it has no defense, set off or counterclaim against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, and, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect in accordance with its terms.
3.2 The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower represents and warrants to the Bank that:
(a) This Amendment has been duly executed and delivered by the Borrower and constitutes the legal, valid and binding obligations of the Borrower enforceable in accordance with its terms;
(b) The execution Such party's performance and delivery compliance with the terms and conditions of this Amendment by the Borrower and the performance and observance by the Borrower of the provisions hereof, do Agreement will not violate or conflict with the organizational agreements of the Borrower or any law applicable to the Borrower or result in a the violation or breach by such party of any provision of or constitute agreement to which such party is a default under any other agreement, instrument or document binding upon or enforceable against the Borrowerparty;
(c) The representations Such party is validly organized and warranties set forth within Article III in good standing in such party's state of incorporation or organization and duly qualified to transact business in each jurisdiction in which the Agreement continue to be true and correct in all material respects as conduct of the date of this Amendment except those changes resulting from the passage of timesuch party's business requires such qualification; and,
(d) No material adverse change Subject to the provisions of Paragraph 7.2 of this Agreement, such party has occurred in obtained all necessary consents, approvals and authority to enter into, perform and comply with the businessterms and conditions of this Agreement.
8.2 SID covenants and agrees that all Compensation Shares acquired by C & A incident to this Agreement shall, operationsupon issuance, consolidated financial condition or prospects be fully paid and non-assessable and free from all taxes, liens and charges with respect to the issue thereof; and, without limiting the generality of the Borrower since foregoing, SID covenants and agrees that SID will, from time to time, take all such action as may be necessary to assure that the date par value per share of the most recent annual financial statement delivered to the BankCommon Stock is at all times equal to, and no Event of Default or condition which, with the passage of timeless than, the giving then effective purchase price per share of notice or boththe Compensation Shares. SID further covenants and agrees that during the period within which the Compensation Shares may be acquired by C & A, could become an Event SID shall at all times have authorized but unissued Common Stock in a sufficient number of Default has occurred and is continuing.
3.4 The Borrower shall execute or cause shares to be executed and deliver provide the Compensation Shares to the Bank all other documents, instruments and agreements deemed necessary or appropriate by the Bank in connection herewith.C & A.
Appears in 1 contract
Samples: Consulting and Advisory Services Compensation Agreement (Si Diamond Technology Inc)
Covenants, Representations and Warranties. 3.1 The Borrower ratifies, confirms and reaffirms, without condition, all In connection with the terms and conditions of the Agreement and the other Loan Documents and agrees that it continues to be bound by the terms and conditions thereof as amended transactions contemplated by this Amendment; andAgreement, and knowing that the Borrower further confirms Pledgee is and affirms that it has no defense, set off or counterclaim against the same. The Agreement and this Amendment shall be construed as complementing relying hereon, each other and as augmenting and not restricting the Bank's rightsPledgor hereby covenants, and, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect in accordance with its terms.
3.2 The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower represents and warrants to the Bank that:
(a) This Amendment the Pledged Securities has been and will be duly and validly issued, is and will be fully paid and non-assessable, and is and will be owned by the Pledgors free and clear of any and all restrictions, pledges, liens, encumbrances or other security interests of any kind, save and except for the pledge to the Pledgee pursuant to this Agreement;
(b) there are and will be no options, warrants or other rights in respect of the sale, transfer or other disposition of any of the Pledged Securities by the Pledgors, and the Pledgors have the absolute right to pledge the Pledged Securities hereunder without the necessity of any consent of any Person;
(c) neither the execution or delivery of this Agreement, nor the consummation of the transactions contemplated hereby, nor the compliance with or performance of this Agreement by the Pledgors, conflicts with or will result in the breach or violation of or a default under the terms, conditions or provisions of (i) any mortgage, security agreement, indenture, evidence of indebtedness, loan or financing agreement, or other agreement or instrument to which the Pledgors are a party or by which the Pledgors are bound, or (ii) any provision of law, any order of any court or administrative agency, or any rule or regulation applicable to the Pledgors;
(d) this Agreement has been duly executed and delivered by the Borrower Pledgors, and constitutes the legal, valid and binding obligations obligation of the Borrower Pledgors, enforceable against the Pledgors in accordance with its terms;
(be) The execution and delivery of this Amendment by there are no actions, suits or proceedings pending or threatened against or affecting the Borrower and the performance and observance by the Borrower of the provisions hereof, do not violate Pledgor that involve or conflict with the organizational agreements of the Borrower or any law applicable relate to the Borrower or result in a breach of any provision of or constitute a default under any other agreement, instrument or document binding upon or enforceable against the BorrowerPledged Securities;
(cf) The representations and warranties set forth within Article III of the Agreement continue to be true and correct in all material respects as of the date upon execution of this Amendment except those changes resulting from Agreement by Pledgors, the passage of timePledgee shall have the senior security interest in the Pledged Securities; and
(d) No material adverse change has occurred in the business, operations, consolidated financial condition or prospects of the Borrower since the date of the most recent annual financial statement delivered to the Bank, and no Event of Default or condition which, with the passage of time, the giving of notice or both, could become an Event of Default has occurred and is continuing.
3.4 The Borrower shall execute or cause to be executed and deliver to the Bank all other documents, instruments and agreements deemed necessary or appropriate by the Bank in connection herewith.
Appears in 1 contract
Covenants, Representations and Warranties. 3.1 The Borrower ratifies, confirms and reaffirms, without condition, all In connection with the terms and conditions of the Agreement and the other Loan Documents and agrees that it continues to be bound by the terms and conditions thereof as amended transactions contemplated by this Amendment; andAgreement, and knowing that the Pledgee and Collateral Agent are and shall be relying hereon, the Borrower further confirms and affirms that it has no defensePledgor hereby covenants, set off or counterclaim against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, and, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect in accordance with its terms.
3.2 The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower represents and warrants to the Bank that:
(a) This Amendment the Pledged Stock has been and will be duly and validly issued, is and will be fully paid and non-assessable, and is and will be owned by the Pledgor free and clear of any and all restrictions, pledges, liens, encumbrances or other security interests of any kind, save and except for the pledge to the Collateral Agent pursuant to this Agreement;
(b) there are and will be no options, warrants or other rights in respect of the sale, transfer or other disposition of any of the Pledged Stock by the Pledgor, and the Pledgor has the absolute right to pledge the Pledged Stock hereunder without the necessity of any consent of any Person;
(c) neither the execution or delivery of this Agreement, nor the consummation of the transactions contemplated hereby, nor the compliance with or performance of this Agreement by the Pledgor, conflicts with or will result in the breach or violation of or a default under the terms, conditions or provisions of (i) any mortgage, security agreement, indenture, evidence of indebtedness, loan or financing agreement, or other agreement or instrument to which the Pledgor is a party or by which the Pledgor is bound, or (ii) any provision of law, any order of any court or administrative agency, or any rule or regulation applicable to the Pledgor;
(d) this Agreement has been duly executed and delivered by the Borrower Pledgor, and constitutes the legal, valid and binding obligations obligation of the Borrower Pledgor, enforceable against the Pledgor in accordance with its terms;
(be) The execution and delivery of this Amendment by there are no actions, suits or proceedings pending or threatened against or affecting the Borrower and the performance and observance by the Borrower of the provisions hereof, do not violate Pledgor that involve or conflict with the organizational agreements of the Borrower or any law applicable relate to the Borrower or result in a breach of any provision of or constitute a default under any other agreement, instrument or document binding upon or enforceable against the Borrower;
(c) The representations and warranties set forth within Article III of the Agreement continue to be true and correct in all material respects as of the date of this Amendment except those changes resulting from the passage of timePledged Stock; and
(df) No material adverse change has occurred upon execution and performance of this Agreement by Pledgor, the Pledgee shall have the senior security interest in the business, operations, consolidated financial condition or prospects of the Borrower since the date of the most recent annual financial statement delivered to the Bank, and no Event of Default or condition which, with the passage of time, the giving of notice or both, could become an Event of Default has occurred and is continuingPledged Stock.
3.4 The Borrower shall execute or cause to be executed and deliver to the Bank all other documents, instruments and agreements deemed necessary or appropriate by the Bank in connection herewith.
Appears in 1 contract
Samples: Stock Pledge Agreement (Ever-Glory International Group, Inc.)
Covenants, Representations and Warranties. 3.1 The Borrower ratifies4.1 Upon the effectiveness of this Agreement, confirms each EaglePicher Party (a) hereby reaffirms all covenants, representations and reaffirms, without condition, all the terms and conditions warranties made by it in each Related Document as of the Agreement date hereof the same expressly relates solely to an earlier date in which case such Person remakes such representation and the other Loan Documents warranty as of such earlier date and (b) agrees that it continues to be bound by the terms all such covenants, representations and conditions thereof as amended by this Amendment; and, the Borrower further confirms and affirms that it has no defense, set off or counterclaim against the same. The Agreement and this Amendment warranties shall be construed deemed to have been re-made as complementing each other of the Effective Date.
4.2 Each of the EaglePicher Parties represents and as augmenting warrants that (a) this Agreement constitutes a legal, valid and not restricting the Bank's rights, and, except as specifically amended by this Amendment, the Agreement shall remain in full force binding obligation of such Person and effect is enforceable against such Person in accordance with its terms, (b) it is a corporation or limited liability company duly organized, validly existing and in good standing under the laws of its jurisdiction of , in each case as set forth opposite such EaglePicher Party’s name on Schedule 1 hereto (which is such EaglePicher Party’s only state of organization) and (c) that the information set forth on Schedule 1 is true, complete and correct for each of the EaglePicher Parties.
3.2 The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement 4.3 Each of EPFC and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower Servicer represents and warrants to the Bank that:
that (a) This Amendment has been duly executed and delivered by the Borrower and Purchase Agreement, as amended hereby, constitutes the a legal, valid and binding obligations obligation of the Borrower such Person and is enforceable against such Person in accordance with its terms;
terms and (b) The execution and delivery of this Amendment by the Borrower and the performance and observance by the Borrower of the provisions hereof, do not violate or conflict with the organizational agreements of the Borrower or any law applicable to the Borrower or result in a breach of any provision of or constitute a default under any other agreement, instrument or document binding upon or enforceable against the Borrower;
(c) The representations and warranties set forth within Article III of the Agreement continue to be true and correct in all material respects as of the date of this Amendment Effective Date and after giving effect hereto, except those changes resulting from for the passage of time; and
(d) No material adverse change has occurred in the businessSpecified Violations, operationsno Termination Event, consolidated financial condition or prospects of the Borrower since the date of the most recent annual financial statement delivered to the BankIncipient Termination Event, and no Event of Default Servicer Termination or condition which, with the passage of time, the giving of notice or both, could become an Incipient Servicer Termination Event of Default has occurred and is continuing.
3.4 The Borrower shall execute 4.4 EPFC and the Servicer represents and warrants that EPFC has not purchased Receivables from any Person besides the Persons identified as “Originators” on the signature pages to this Agreement.
4.5 Within five Business Days of its receipt thereof, each EaglePicher Party hereby covenants to deliver (or cause to be executed and deliver delivered) to the Bank Administrative Agent a copy of (a) any final report prepared by or on behalf of Xxxxxxxx Capital Advisors LLC related to EaglePicher Automotive, Inc. or (b) any final offering memorandum or final preliminary offering memorandum distributed to potential investors (or comparable documents) prepared by or on behalf of any investment banking firm relating to the sale of the equity or substantially all other documents, instruments and agreements deemed necessary the assets of any EaglePicher Party or appropriate by the Bank in connection herewithany Affiliate thereof.
Appears in 1 contract
Samples: Forbearance Agreement
Covenants, Representations and Warranties. 3.1 The Borrower ratifies7.1 Seller agrees to ship, confirms and reaffirms, without conditionfollowing delivery of the Engine on the Closing Date, all the terms and conditions of the Agreement and the other Loan Documents and agrees that it continues to be bound by the terms and conditions thereof as amended by this Amendment; andexisting Engine records, the Borrower further confirms and affirms that it has no defense, set off or counterclaim against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, and, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect in accordance with its terms.
3.2 The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, including but not limited toto those records provided to Buyer for review in connection with Technical Acceptance, to a location and party designated pursuant to written instructions provided by Buyer.
7.2 Seller hereby agrees to cooperate with Buyer to effect, maintain and discharge any and all loans made by the Bank filings and registrations as may be necessary to protect Buyer’s right, title or interest in and to the Borrower as amended Engine which may be necessary or desirable to be filed or registered in relation to the Convention on International Interests. In Mobile Equipment, and the Aircraft Protocol thereto and matters specific to aircraft equipment signed at Capetown on 16 November 2001. In this regard, Seller specifically acknowledges that it shall consent to the registration of the contract of sale of the Engine on the International Registry requested by this AmendmentBuyer at Delivery of the Engine.
3.3 The Borrower 7.3 Seller represents and warrants to that as of the Bank date hereof and as of the Closing Date, that:
(a) Seller is a an entity duly formed, validly existing and in good standing under the laws of Florida and has the power and authority to carry on its business as presently conducted and to enter into this Agreement and perform its obligations hereunder; Engine Sale Agreement Engine Model CFM56-5B4 ESN 779224. SELLER AerSale, Inc. * The confidential portion has been omitted pursuant to a request for confidential treatment filed by Air T, Inc. with the Securities Exchange Commission and filed separately with the Commission.
(b) The signing and delivering of this Agreement and the performance of the obligations of Seller under this Agreement are within the powers of Seller, have been duly authorized by all necessary action, and do not and will not (i) require the consent or approval or other action by, notice to, or filing with any person, body, or governmental authority, (ii) contravene any provision of its organization documents or resolutions, (iii) violate any law, rule, regulation, order, writ, judgment, injunction, decree, determination, or award binding upon it or its property or applicable to this Agreement or the Engine, (iv) violate, or constitute a default under, any indenture, agreement, document, or instrument to which it is a party or by which it or its property is bound, or (v) result in, or require the creation of, any imposition, mortgage, deed of trust, pledge, lien, security interest, or other charge or encumbrance of any nature upon, or with respect to, any of its property; and
(c) This Amendment Agreement has been duly executed and delivered by the Borrower it and, upon execution and constitutes the delivery by Seller, will constitute its legal, valid valid, and binding obligations of the Borrower obligations, enforceable in accordance with their respective terms, except as may be limited by the effect of bankruptcy, insolvency and other similar laws of general application now or hereafter in effect relating to the enforcement of the rights of creditors in general
7.4 Buyer represents and warrants that as of the date hereof and as of the Closing Date, that:
(a) Buyer is an entity validly existing and in good standing under the laws of Wisconsin and has the power and authority to carry on its termsbusiness as presently conducted and to enter into this Agreement and perform its obligations hereunder;
(b) The execution signing and delivery delivering of this Amendment by the Borrower Agreement and the performance and observance by the Borrower of the provisions hereofobligations of Buyer under this Agreement are within the powers of Buyer, have been duly authorized by all necessary action, and do not violate and will not (i) require the consent or conflict approval or other action by, notice to, or filing with the organizational agreements of the Borrower any person, body, or any law applicable to the Borrower or result in a breach of governmental authority, (ii) contravene any provision of its organization documents or resolutions, (iii) violate any law, rule, regulation, order, writ, judgment, injunction, decree, determination, or award binding upon it or its property or applicable to this Agreement, the other Sale Documents or the Engine, (iv) violate, or constitute a default under under, any other indenture, agreement, document, or instrument to which it is a party or document binding upon by which it or enforceable against its property is bound, or (v) result in, or require the Borrower;creation of, any imposition, mortgage, deed of trust, pledge, lien, security interest, or other charge or encumbrance of any nature upon, or with respect to, any of its property; and
(c) The representations This Agreement has been duly executed and warranties set forth within Article III delivered by it, and, upon execution and delivery by Buyer, will constitute its legal, valid, and binding obligations, enforceable in accordance with their respective terms, except as may be limited by the effect of bankruptcy, insolvency and other similar laws of general application now or hereafter in effect relating to the enforcement of the rights of creditors in general. Engine Sale Agreement continue Engine Model CFM56-5B4 ESN 779224. SELLER AerSale, Inc. * The confidential portion has been omitted pursuant to be true and correct in all material respects as of the date of this Amendment except those changes resulting from the passage of time; and
(d) No material adverse change has occurred in the businessa request for confidential treatment filed by Air T, operations, consolidated financial condition or prospects of the Borrower since the date of the most recent annual financial statement delivered to the Bank, and no Event of Default or condition which, Inc. with the passage of time, Securities Exchange Commission and filed separately with the giving of notice or both, could become an Event of Default has occurred and is continuingCommission.
3.4 The Borrower shall execute or cause to be executed and deliver to the Bank all other documents, instruments and agreements deemed necessary or appropriate by the Bank in connection herewith.
Appears in 1 contract
Samples: Engine Sale Agreement (Air T Inc)
Covenants, Representations and Warranties. 3.1 The Borrower ratifiesEach Stockholder covenants, confirms represents and reaffirmswarrants that, without condition, all the terms and conditions (i) as of the Agreement and the other Loan Documents and agrees that it continues Effective Time, such Stockholder will continue to be bound by the terms record and conditions thereof as amended by this Amendment; beneficial owner of the Stockholder Shares issued to such Stockholder in the transactions contemplated in the Reorganization Agreement (and, in the Borrower further confirms case of each Former Orius Stockholder, such Stockholder will continue to be the record and affirms that it has no defense, set off or counterclaim against beneficial owner of the same. The Agreement Orius common stock which such Stockholder held immediately prior to such transactions and this Amendment shall be construed as complementing each other and as augmenting and which such Stockholder did not restricting the Bank's rights, and, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect in accordance with its terms.
3.2 The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted surrender to the Bank Company in an exchange pursuant to the Reorganization Agreement), in each case free and clear of all liens, charges or encumbrances (except (x) Liens to secure obligations under an Orius Put Agreement and the other Loan Documents, if anyan Orius Call Agreement with respect to those Stockholder Shares which are subject to such agreements, and (y) to the extent that any such liens and security interests shall continue Stockholder Shares are subject to secure cancellation by the indebtedness and Company pursuant to indemnification obligations of such Stockholder under Section 7 of the Borrower to the Bank under the Reorganization Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by ); (ii) this Amendment.
3.3 The Borrower represents and warrants to the Bank that:
(a) This Amendment Agreement has been duly authorized, executed and delivered by the Borrower such Stockholder and constitutes the legal, valid and binding obligations obligation of the Borrower such Stockholder, enforceable in accordance with its terms;
, subject to bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting the rights and remedies of creditors and secured parties and general principles of equity; and (biii) The execution such Stockholder has not granted and delivery of this Amendment by the Borrower and the performance and observance by the Borrower of the provisions hereofis not a party to any proxy, do not violate voting trust or conflict with the organizational agreements of the Borrower voting agreement or any law applicable to the Borrower agreement which is inconsistent with, conflicts with or result in a breach of violates any provision of this Agreement. No holder of Stockholder Shares shall grant any proxy or constitute a default under become party to any other agreementvoting trust, instrument voting agreement or document binding upon any agreement which is inconsistent with, conflicts with or enforceable against the Borrower;
(c) The representations and warranties set forth within Article III of the Agreement continue to be true and correct in all material respects as of the date violates any provision of this Amendment except those changes resulting from the passage of timeAgreement. PROVISIONS RELATING TO TRANSFER; and
(d) No material adverse change has occurred in the business, operations, consolidated financial condition or prospects of the Borrower since the date of the most recent annual financial statement delivered to the Bank, and no Event of Default or condition which, with the passage of time, the giving of notice or both, could become an Event of Default has occurred and is continuing.
3.4 The Borrower shall execute or cause to be executed and deliver to the Bank all other documents, instruments and agreements deemed necessary or appropriate by the Bank in connection herewith.SALE OF THE COMPANY; PUBLIC OFFERING; PREEMPTIVE RIGHTS
Appears in 1 contract
Covenants, Representations and Warranties. 3.1 (a) The Borrower ratifies, confirms and reaffirms, without condition, all the terms and conditions of the Agreement and the other Loan Documents and hereby agrees that it continues will use commercially reasonable efforts to be bound by obtain a duly executed counterpart of this Agreement from The Lightyear Fund, L.P. promptly after the terms date hereof, and conditions thereof as amended by this Amendment; and, the Borrower further confirms and affirms that it has no defense, set off or counterclaim against the samedeliver same to Bank of America. The Borrower agrees that any failure to comply with the covenants set forth in this Section 4.1(a) shall constitute an immediate Event of Default for all purposes under the Credit Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting at the Bank's rights, and, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect in accordance with its termstime of such failure.
3.2 (b) The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower hereby represents and warrants to and in favor of the Bank thatLender as follows:
(ai) This each representation and warranty set forth in Article 3 of the Credit Agreement, as amended hereby, is hereby restated and affirmed as true and correct in all material respects as of the date hereof, except to the extent (A) previously fulfilled in accordance with the terms of the Credit Agreement, as amended hereby, (B) the Borrower has provided the Lender updates to information provided to the Lender in accordance with the terms of such representations and warranties, or (C) relating specifically to the Closing Date or otherwise inapplicable;
(ii) the Borrower and each Guarantor has the corporate power and authority (A) to enter into this Amendment, and (B) to do all acts and things as are required or contemplated hereunder to be done, observed and performed by it;
(iii) this Amendment has been duly authorized, validly executed and delivered by one or more Responsible Officers of the Borrower and each Guarantor, and constitutes the legal, valid and binding obligations of the Borrower, enforceable against the Borrower enforceable in accordance with its terms, subject, as to enforcement of remedies, to the following qualifications: (A) an order of specific performance and an injunction are discretionary remedies and, in particular, may not be available where damages are considered an adequate remedy at law, and (B) enforcement may be limited by bankruptcy, insolvency, liquidation, reorganization, reconstruction and other similar laws affecting enforcement of creditors' rights generally (insofar as any such law relates to the bankruptcy, insolvency or similar event of the Borrower);
(biv) The the execution and delivery of this Amendment and performance by the Borrower under the Credit Agreement, as amended hereby, does not and will not require the performance and observance by consent or approval of any regulatory authority or governmental authority or agency having jurisdiction over the Borrower which has not already been obtained, nor be in contravention of the provisions hereof, do not violate or in conflict with the organizational agreements Articles of Incorporation or By-Laws of the Borrower Borrower, or any law applicable to the Borrower or result in a breach of any provision of or constitute a default under any other statute, judgment, order, indenture, instrument, agreement, instrument or document binding upon undertaking, to which the Borrower is party or enforceable against by which the Borrower;
(c) The representations and warranties set forth within Article III of the Agreement continue to be true and correct in all material respects as of the date of this Amendment except those changes resulting from the passage of time's assets or properties are bound; and
(dv) No material adverse change has occurred in the business, operations, consolidated financial condition or prospects of the Borrower since the date of the most recent annual financial statement delivered no Default exists both before and after giving effect to the Bankthis Amendment, and there has been no Event of Default or condition which, with the passage of time, the Material Adverse Effect both before and after giving of notice or both, could become an Event of Default has occurred and is continuingeffect to this Amendment.
3.4 The Borrower shall execute or cause to be executed and deliver to the Bank all other documents, instruments and agreements deemed necessary or appropriate by the Bank in connection herewith.
Appears in 1 contract
Samples: Credit Agreement (Goldleaf Financial Solutions Inc.)
Covenants, Representations and Warranties. 3.1 The Borrower ratifies, confirms and reaffirms, without condition, all In connection with the terms and conditions of the Agreement and the other Loan Documents and agrees that it continues to be bound by the terms and conditions thereof as amended transactions contemplated by this Amendment; andAgreement, and knowing that the Pledgee is and shall be relying hereon, the Borrower further confirms Pledgor hereby covenants, represents and affirms that it has no defense, set off or counterclaim against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, andwarrants that, except as specifically amended by this Amendment, contemplated in the Agreement shall remain in full force and effect in accordance with its terms.
3.2 The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Purchase Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower represents and warrants to the Bank that:
(a) This Amendment the Securities have been and will be duly and validly issued, are and will be fully paid and non-assessable, and are and will be owned by the Pledgor free and clear of any and all restrictions, pledges, liens, encumbrances or other security interests of any kind, save and except for the pledge to the Pledgee pursuant to this Agreement;
(b) there are and will be no options, warrants or other rights in respect of the sale, transfer or other disposition of any of the Securities by the Pledgor, and the Pledgor has the absolute right to pledge the Securities hereunder without the necessity of any consent of any Person;
(c) the Securities constitute fifty-one percent (51%) of the outstanding capital stock and other securities of ASE on the date hereof; and, as of the date hereof there are no options, warrants or other rights to subscribe for or acquire any capital stock or other securities of ASE, or any securities or other rights exercisable for or convertible into any capital stock, securities or rights to acquire securities of the ASE;
(d) neither the execution or delivery of this Agreement, nor the consummation of the transactions contemplated hereby, nor the compliance with or performance of this Agreement by the Pledgor, conflicts with or will result in the breach or violation of or a default under the terms, conditions or provisions of (i) any mortgage, security agreement, indenture, evidence of indebtedness, loan or financing agreement, or other agreement or instrument to which the Pledgor is a party or by which the Pledgor is bound, or (ii) any provision of law, any order of any court or administrative agency, or any rule or regulation applicable to the Pledgor;
(e) this Agreement has been duly executed and delivered by the Borrower Pledgor, and constitutes the legal, valid and binding obligations obligation of the Borrower Pledgor, enforceable against the Pledgor in accordance with its terms;
(bf) The execution and delivery of this Amendment by there are no actions, suits or proceedings pending or threatened against or affecting the Borrower and the performance and observance by the Borrower of the provisions hereof, do not violate Pledgor that involve or conflict with the organizational agreements of the Borrower or any law applicable relate to the Borrower or result in a breach of any provision of or constitute a default under any other agreement, instrument or document binding upon or enforceable against the Borrower;
(c) The representations and warranties set forth within Article III of the Agreement continue to be true and correct in all material respects as of the date of this Amendment except those changes resulting from the passage of timePledged Collateral; and
(dg) No material adverse change has occurred in the businessPledgor shall not, operations, consolidated financial condition or prospects at any time prior to the release of the Borrower since Lien on the date Pledged Collateral in accordance with paragraph 8 below, (i) sell, transfer or convey any interest in any of the most recent annual financial statement delivered to the BankPledged Collateral, and no Event of Default or condition which(ii) cause any other pledge, with the passage of time, the giving of notice lien or both, could become an Event of Default has occurred and is continuing.
3.4 The Borrower shall execute or cause encumbrance to be executed and deliver created upon or granted with respect to any of the Bank all other documents, instruments and agreements deemed necessary or appropriate by the Bank in connection herewithPledged Collateral.
Appears in 1 contract
Samples: Stock Pledge and Security Agreement (Minnesota Ase Inc)
Covenants, Representations and Warranties. 3.1 The Borrower ratifiesYou further represent, confirms warrant and reaffirmscovenant that, without conditionas of the Transaction Date and, unless expressly stated otherwise, continuing until Purchaser has obtained the full amount of the Settlement Amount:
7.1 You are in compliance and in good standing with all applicable federal, state and local laws and regulations, and the rules and regulations of all Third Party Sites through which you sell goods and/or services and neither you nor your business are under any criminal investigation or a subject of an open litigation procedure. You have valid permits, authorizations and licenses to own, operate and lease your properties and to conduct the business in which you are presently engaged;
7.2 As of the Transaction Date, you are not contemplating closing your business;
7.3 You, and the person(s) signing this Agreement on your behalf, have full power and authority to incur and carry out the obligations under this Agreement, all the terms of which have been authorized and conditions executed, and all of which are enforceable against you in accordance with their terms;
7.4 As of the Transaction Date, you have not commenced any case or proceeding seeking protection under any bankruptcy or insolvency law, or had any such case or proceeding commenced against it, nor are you contemplating commencing any such case or proceeding;
7.5 You have not and shall not take any action to discourage the purchase of your services and products or the conduct of business in any Third Party Site or to permit any event to occur which could have an adverse effect on the conduct of business in a Third Party Site or the purchase of Your services and/or products;
7.6 You shall not change your arrangements with any Third Party Site which in any way is adverse to Purchaser;
7.7 Until the amount of the Settlement Amount has been delivered in full to us, all of payments owed to you by your Funding Sources will be deposited exclusively into your Payoneer Account or, if applicable, the bank account designated by Purchaser; if and to the extent that any Receivables are paid to or received by you other than into your Payoneer Account, you shall deliver, or procure the delivery of, such Receivable forthwith upon receipt into your Payoneer Account or other account as directed by the Purchaser in writing, and pending such delivery shall hold, or procure to be held, such sums segregated from any other funds and on trust for us;
7.8 You agree that you have an affirmative and continuing obligation to advise us of any material adverse change in your Receivables flow from your Funding Sources, business operation or business ownership. You must let us know if you experience a material adverse change in your Receivables flow If we detect a material adverse change of your Receivables flow, that was not notified by you we will try to contact you including via your email or phone number as registered in connection with you Payoneer Account. It is your responsibility to promptly respond and provide any information as required by us in connection to any inquiry made as aforesaid;
7.9 Seller shall not attempt to revoke its authorizations to Purchaser or instructions to a Third Party Site set forth in Section 5 of this Agreement or the power of attorney granted to Purchaser under Section 14 below or otherwise or take any measure to interfere with delivery of payment of the Purchased Receivables directly from the Third Party Site or Seller’s Payoneer Account and any such attempt to revoke shall be deemed null and void;
7.10 You shall keep your Payoneer Account in good standing, comply with all terms of service related to your Payoneer Account and the other Loan Documents Payoneer Services, and agrees that it continues to be bound shall not close its Payoneer Account or change the method by which a Third Party Site pays you for receivables owed;
7.11 You are a valid business in good standing under the terms and conditions thereof as amended by laws of the jurisdictions in which you are organized and/or operate; you are entering into this Amendment; and, the Borrower further confirms and affirms that it has no defense, set off or counterclaim against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting for business purposes and not restricting the Bank's rightsas a consumer or for personal, andfamily or household purposes; you have not and shall not conduct your businesses under any name(s) other than as disclosed to us hereunder, except as specifically amended or change any of your places of business without our prior written consent;
7.12 Each time that we request, you will, upon at least one day’s prior notice from us, execute, acknowledge and deliver to us and/or to any other person, firm or corporation specified by us, a statement certifying that this Amendment, the Agreement shall remain is unmodified and in full force and effect in accordance with its terms.
3.2 The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents(or, if anythere have been modifications, that the same is in full force and such liens effect as modified and security interests shall continue to secure stating the indebtedness modifications) and obligations stating the dates which all or any portion of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this AmendmentReceivables have been delivered.
3.3 The Borrower represents and warrants to the Bank that:
(a) This Amendment has been duly executed and delivered by the Borrower and constitutes the legal, valid and binding obligations of the Borrower enforceable in accordance with its terms;
(b) The execution and delivery of this Amendment by the Borrower and the performance and observance by the Borrower of the provisions hereof, do not violate or conflict with the organizational agreements of the Borrower or any law applicable to the Borrower or result in a breach of any provision of or constitute a default under any other agreement, instrument or document binding upon or enforceable against the Borrower;
(c) The representations and warranties set forth within Article III of the Agreement continue to be true and correct in all material respects as of the date of this Amendment except those changes resulting from the passage of time; and
(d) No material adverse change has occurred in the business, operations, consolidated financial condition or prospects of the Borrower since the date of the most recent annual financial statement delivered to the Bank, and no Event of Default or condition which, with the passage of time, the giving of notice or both, could become an Event of Default has occurred and is continuing.
3.4 The Borrower shall execute or cause to be executed and deliver to the Bank all other documents, instruments and agreements deemed necessary or appropriate by the Bank in connection herewith.
Appears in 1 contract
Samples: Receivables Loan and Security Agreement (Payoneer Global Inc.)
Covenants, Representations and Warranties. 3.1 The Borrower ratifies, confirms and reaffirms, without condition, all the terms and conditions of the Agreement and the other Loan Documents and agrees that it continues to be bound by the terms and conditions thereof as amended by this Amendment; and, the Borrower further confirms and affirms that it has no defense, set off or counterclaim against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, and, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect in accordance with its terms.
3.2 The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower represents and warrants to and covenants and agrees with the Bank thatInvestor as follows:
(a) This Amendment has been duly executed each representation and delivered warranty made by the Borrower and constitutes the legal, valid and binding obligations it in any of the Borrower enforceable in accordance with its terms;
(b) The execution and delivery of this Amendment by the Borrower and the performance and observance by the Borrower of the provisions hereof, do not violate or conflict with the organizational agreements of the Borrower or any law applicable Investment Documents to the Borrower or result in which it is a breach of any provision of or constitute a default under any other agreement, instrument or document binding upon or enforceable against the Borrower;
(c) The representations and warranties set forth within Article III of the Agreement continue to be party is true and correct in all material respects and the Investor may rely thereon;
(b) it shall not take any action or omit to take any action that would cause the Borrower to cease to qualify as a “qualified active low-income community business” (“QALICB”) as such term is defined in Section 45D of the Internal Revenue Code of 1986, as amended, and the Treasury Regulations and guidance thereunder;
(c) the execution, delivery and performance by it of this Agreement does not and will not contravene or conflict with any law, order, rule, regulation, writ, injunction or decree now in effect of any government, governmental instrumentality or court or tribunal having jurisdiction over it, or any contractual restriction binding on or affecting it;
(d) there are no facts or circumstances of any kind or nature whatsoever of which it is aware that could in any way impair or prevent it from performing its obligations under this Agreement;
(e) any and all financial information with respect to it that it has given to the Investor in connection with the transactions contemplated by this Agreement fairly and accurately present its financial condition and results of operations as of the date respective dates thereof and for the respective dates indicated therein, and, since the respective dates thereof, there has been no material adverse change in the financial condition or results of its operations;
(f) with the assistance of counsel of its choice, it has read and reviewed this Amendment except those changes resulting from Agreement and such other documents as it and its counsel deemed necessary or desirable to read;
(g) it is a corporation, validly organized and existing and in good standing under the passage laws of timethe jurisdiction of its incorporation (and all other jurisdictions where its failure to be so qualified would have a material adverse effect on its financial condition or results of operations) and has the full power and authority to enter into and perform its obligations under this Agreement; and
(dh) No material adverse change this Agreement has occurred been duly authorized, executed and delivered on behalf of Borrower and is fully enforceable against it in the businessaccordance with its terms, operations, consolidated financial condition or prospects of the Borrower since the date of the most recent annual financial statement delivered except to the Bank, extent enforceability is limited by bankruptcy and no Event of Default or condition which, with the passage of time, the giving of notice or both, could become an Event of Default has occurred and is continuingother similar laws affecting creditors rights generally.
3.4 The Borrower shall execute or cause to be executed and deliver to the Bank all other documents, instruments and agreements deemed necessary or appropriate by the Bank in connection herewith.
Appears in 1 contract
Samples: Tax Credit Reimbursement and Indemnity Agreement (Accentia Biopharmaceuticals Inc)
Covenants, Representations and Warranties. 3.1 (a) The Borrower ratifies, confirms and reaffirms, without condition, all the terms and conditions of the Agreement and the other Loan Documents and hereby agrees that it continues will use commercially reasonable efforts to be bound by obtain a duly executed counterpart of this Agreement from The Lightyear Fund, L.P. promptly after the terms date hereof, and conditions thereof as amended by this Amendment; and, delivery of the Borrower further confirms and affirms that it has no defense, set off or counterclaim against the samesame to Bank of America. The Borrower agrees that any failure to comply with the covenants set forth in this Section 4.1(a) shall constitute an immediate Event of Default for all purposes under the Credit Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting at the Bank's rights, and, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect in accordance with its termstime of such failure.
3.2 (b) The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower hereby represents and warrants to and in favor of the Bank thatLender as follows:
(ai) This each representation and warranty set forth in Article 3 of the Credit Agreement, as amended hereby, is hereby restated and affirmed as true and correct in all material respects as of the date hereof, except to the extent (i) previously fulfilled in accordance with the terms of the Credit Agreement, as amended hereby, (ii) the Borrower has provided the Lender updates to information provided to the Lender in accordance with the terms of such representations and warranties, or (iii) relating specifically to the Closing Date or otherwise inapplicable;
(ii) the Borrower has the corporate power and authority (i) to enter into this Amendment, and (ii) to do all acts and things as are required or contemplated hereunder to be done, observed and performed by it;
(iii) this Amendment has been duly authorized, validly executed and delivered by one or more Responsible Officers of the Borrower Borrower, and constitutes the legal, valid and binding obligations of the Borrower, enforceable against the Borrower enforceable in accordance with its terms, subject, as to enforcement of remedies, to the following qualifications: (i) an order of specific performance and an injunction are discretionary remedies and, in particular, may not be available where damages are considered an adequate remedy at law, and (ii) enforcement may be limited by bankruptcy, insolvency, liquidation, reorganization, reconstruction and other similar laws affecting enforcement of creditors' rights generally (insofar as any such law relates to the bankruptcy, insolvency or similar event of the Borrower);
(biv) The the execution and delivery of this Amendment and performance by the Borrower under the Credit Agreement, as amended hereby, does not and will not require the performance and observance by consent or approval of any regulatory authority or governmental authority or agency having jurisdiction over the Borrower which has not already been obtained, nor be in contravention of the provisions hereof, do not violate or in conflict with the organizational agreements Articles of Incorporation or By-Laws of the Borrower Borrower, or any law applicable to the Borrower or result in a breach of any provision of or constitute a default under any other statute, judgment, order, indenture, instrument, agreement, instrument or document binding upon undertaking, to which the Borrower is party or enforceable against by which the Borrower;
(c) The representations and warranties set forth within Article III of the Agreement continue to be true and correct in all material respects as of the date of this Amendment except those changes resulting from the passage of time's assets or properties are bound; and
(dv) No material adverse change has occurred in the business, operations, consolidated financial condition or prospects of the Borrower since the date of the most recent annual financial statement delivered no Default exists both before and after giving effect to the Bankthis Amendment, and there has been no Event of Default or condition which, with the passage of time, the Material Adverse Effect both before and after giving of notice or both, could become an Event of Default has occurred and is continuingeffect to this Amendment.
3.4 The Borrower shall execute or cause to be executed and deliver to the Bank all other documents, instruments and agreements deemed necessary or appropriate by the Bank in connection herewith.
Appears in 1 contract
Covenants, Representations and Warranties. 3.1 The Borrower ratifiesSeller hereby covenants, confirms represents and reaffirmswarrants to Purchaser (and shall be deemed to covenant, without conditionrepresent and warrant to Purchaser on the Closing Date) that: (a) there is no condemnation or similar proceeding which is pending against the Property or any part thereof; (b) Seller has not received any notification from any governmental agency, all authority or instrumentality of any pending or threatened assessments on or against the terms and conditions Property for the cost of the Agreement and the other Loan Documents and agrees that it continues improvements to be bound by made with respect to the terms Property or any part thereof; (c) after the Effective Date Date, Seller will not create, permit or suffer any lien or other encumbrance to attach to or affect the Property and conditions thereof as amended by this Amendment; and, the Borrower further confirms and affirms that it has no defense, set off or counterclaim against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, andimprovements thereon, except for the lien of nondelinquent real estate taxes and liens and encumbrances which will be fully discharged on or before the Closing Date; (d) to Seller’s knowledge there are no claims, actions, suits, proceedings pending with respect to or in any manner affecting the Property or Seller’s ownership thereof; (e) Seller has not sold, assigned, transferred, leased, subleased, encumbered or conveyed any right, title or interest whatsoever in or to the Property, except for the Permitted Exceptions and leases and encumbrances which, if not approved by Purchaser pursuant to Section 7.5 of this Contract, will have terminated or will be fully discharged on or before the Closing Date; (f) prior to the Closing, Seller shall not sell, assign, transfer, lease, sublease, encumber or convey any right, title or interest whatsoever in or to the Property or any portion thereof without Purchaser’s prior written consent, nor shall Seller amend, modify, extend, terminate or alter any currently existing agreement or document relating to the Property without Purchaser’s prior written consent; (g) to the best of Seller’s knowledge, neither the Property nor any portion thereof has been used for the treatment, storage or disposal of any hazardous, special or other wastes, substances, materials, constituents, pollutants or contaminants as specifically amended by this Amendmentdefined under applicable federal, state or local laws or regulations promulgated thereunder; (h) prior to Closing, Seller shall cause all Title Objections that Seller commits to cure, if any, to be cured in accordance with Section 7.2 above; (i) the Agreement shall remain Ground Lease is in full force and effect effect, and to the best of Seller's knowledge, neither Ground Lessor nor Seller are in accordance with default under the Ground Lease; and (j) prior to the Closing, Seller agrees not to sell the Property or any portion thereof or enter into any agreements for the sale of the Property or any portion thereof to any entity or person other than Purchaser unless such agreement specifically provides that it is a back up offer for the purchase and sale of the Property and may only be consummated in the event this Contract terminates pursuant to its terms.
3.2 The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower represents and warrants to the Bank that:
(a) This Amendment has been duly executed and delivered by the Borrower and constitutes the legal, valid and binding obligations of the Borrower enforceable in accordance with its terms;
(b) The execution and delivery of this Amendment by the Borrower and the performance and observance by the Borrower of the provisions hereof, do not violate or conflict with the organizational agreements of the Borrower or any law applicable to the Borrower or result in a breach of any provision of or constitute a default under any other agreement, instrument or document binding upon or enforceable against the Borrower;
(c) The representations and warranties set forth within Article III of the Agreement continue to be true and correct in all material respects as of the date of this Amendment except those changes resulting from the passage of time; and
(d) No material adverse change has occurred in the business, operations, consolidated financial condition or prospects of the Borrower since the date of the most recent annual financial statement delivered to the Bank, and no Event of Default or condition which, with the passage of time, the giving of notice or both, could become an Event of Default has occurred and is continuing.
3.4 The Borrower shall execute or cause to be executed and deliver to the Bank all other documents, instruments and agreements deemed necessary or appropriate by the Bank in connection herewith.
Appears in 1 contract
Covenants, Representations and Warranties. 3.1 The Borrower ratifies, confirms and reaffirms, without condition, all In connection with the terms and conditions of the Agreement and the other Loan Documents and agrees that it continues to be bound by the terms and conditions thereof as amended transactions contemplated by this Amendment; andAgreement, and knowing that the Pledgee is and shall be relying hereon, the Borrower further confirms and affirms that it has no defensePledgor hereby covenants, set off or counterclaim against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, and, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect in accordance with its terms.
3.2 The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower represents and warrants to the Bank that:
(a) This Amendment following conversion of the Preferred Stock, the Pledged Securities will be duly and validly issued, is and will be fully paid and non-assessable, and is and will be owned by the Pledgor free and clear of any and all restrictions, pledges, liens, encumbrances or other security interests of any kind, save and except for the pledge to the Pledgee pursuant to this Agreement;
(b) there are and will be no options, warrants or other rights in respect of the sale, transfer or other disposition of any of the Pledged Securities by the Pledgor, and the Pledgor has the absolute right to pledge the Pledged Securities hereunder without the necessity of any consent of any Person;
(c) neither the execution or delivery of this Agreement, nor the consummation of the transactions contemplated hereby, nor the compliance with or performance of this Agreement by the Pledgor, conflicts with or will result in the breach or violation of or a default under the terms, conditions or provisions of (i) any mortgage, security agreement, indenture, evidence of indebtedness, loan or financing agreement, or other agreement or instrument to which the Pledgor is a party or by which the Pledgor is bound, or (ii) any provision of law, any order of any court or administrative agency, or any rule or regulation applicable to the Pledgor;
(d) this Agreement has been duly executed and delivered by the Borrower Pledgor, and constitutes the legal, valid and binding obligations obligation of the Borrower Pledgor, enforceable against the Pledgor in accordance with its terms;
(be) The execution and delivery of this Amendment by the Borrower and the performance and observance by the Borrower of the provisions hereofthere are no actions, do not violate suits or conflict with the organizational agreements of the Borrower proceedings pending or any law applicable to the Borrower threatened against or result in a breach of any provision of or constitute a default under any other agreement, instrument or document binding upon or enforceable against the Borrower;
(c) The representations and warranties set forth within Article III of the Agreement continue to be true and correct in all material respects as of the date of this Amendment except those changes resulting from the passage of time; and
(d) No material adverse change has occurred in the business, operations, consolidated financial condition or prospects of the Borrower since the date of the most recent annual financial statement delivered to the Bank, and no Event of Default or condition which, with the passage of time, the giving of notice or both, could become an Event of Default has occurred and is continuing.
3.4 The Borrower shall execute or cause to be executed and deliver to the Bank all other documents, instruments and agreements deemed necessary or appropriate by the Bank in connection herewith.affecting the
Appears in 1 contract
Samples: Stock Pledge Agreement (Generex Biotechnology Corp)
Covenants, Representations and Warranties. 3.1 The Borrower ratifiesDebtor warrants, confirms covenants and reaffirms, without condition, all the terms and conditions of the Agreement and the other Loan Documents and agrees that it continues to be bound by the terms and conditions thereof as amended by this Amendment; and, the Borrower further confirms and affirms that it has no defense, set off or counterclaim against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, and, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect in accordance with its terms.
3.2 The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower represents and warrants to the Bank that:
(a) This Amendment has been duly executed and delivered by the Borrower and constitutes Debtor is or, as to the legalCollateral acquired after the date hereof, valid and binding obligations will be, the owner of the Borrower enforceable in accordance with its termsCollateral;
(b) The execution the Debtor will defend the Collateral against all claims and delivery demands of this Amendment by all persons at any time claiming the Borrower and the performance and observance by the Borrower of the provisions hereof, do not violate or conflict with the organizational agreements of the Borrower same or any law applicable to the Borrower or result in a breach of any provision of or constitute a default under any other agreement, instrument or document binding upon or enforceable against the Borrowerinterest therein;
(c) The representations and warranties set forth within Article III the Debtor’s principal place of business is 000 Xxxxxxx Xx, Xxxxxxx, Xxxxxxx X0X 0X0. If the Debtor changes its principal place of business or the location of the Agreement continue to be true and correct in all material respects as Inventory or the location of the date offices where it keeps its records respecting the Accounts or acquires other places of this Amendment except those changes resulting business, it will notify the Secured Party prior to such change;
(d) the Debtor shall from time to time forthwith on the passage Secured Party’s request furnish to the Secured Party in writing all reasonable information requested relating to the Collateral and the Secured Party shall be entitled from time to time to inspect at any reasonable times the Collateral and make copies of timeall documents relating to the Accounts and for such purposes the Secured Party shall have access to all premises, during regular business hours, occupied by the Debtor or where the Collateral or any of it may be found; and
(de) No material adverse change has occurred in the businessDebtor shall from time to time forthwith on the Secured Party’s request do, operationsmake and execute all such financing statements, consolidated financial condition further assignments, documents, acts, matters and things as may reasonably be required by the Secured Party with respect to the Collateral or prospects any part thereof or as may be required to give effect to this Agreement and the transactions contemplated hereby. The Debtor hereby constitutes and appoints the Secured Party, or any receiver appointed by the Court or the Secured Party as hereafter set out, the true and lawful attorney of the Borrower since Debtor irrevocably with full power of substitution to do, make and execute all such assignments, documents, acts, matters or things with the date right to use the name of the most recent annual financial statement delivered to the Bank, Debtor whenever and no Event of Default or condition which, with the passage of time, the giving of notice or both, could become an Event of Default has occurred and is continuing.
3.4 The Borrower shall execute or cause to wherever it may be executed and deliver to the Bank all other documents, instruments and agreements deemed necessary or appropriate expedient in the exercise of any of the rights, powers or remedies conferred on the Secured Party by the Bank in connection herewiththis Agreement.
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Covenants, Representations and Warranties. 3.1 The Borrower ratifiescovenants, confirms and reaffirmsrepresents, without conditionwarrants, all the terms and conditions of the Agreement and the other Loan Documents and agrees that it continues to be bound by the terms and conditions thereof as amended by this Amendment; and, the Borrower further confirms and affirms that it has no defense, set off or counterclaim against the same. The Agreement and this Amendment shall be construed as complementing each other and as augmenting and not restricting the Bank's rights, and, except as specifically amended by this Amendment, the Agreement shall remain in full force and effect in accordance with its terms.
3.2 The Borrower ratifies, confirms and reaffirms without condition, all liens and security interests granted to the Bank pursuant to the Agreement and the other Loan Documents, if any, and such liens and security interests shall continue to secure the indebtedness and obligations of the Borrower to the Bank under the Agreement, the Note and the other Loan Documents, including, but not limited to, all loans made by the Bank to the Borrower as amended by this Amendment.
3.3 The Borrower represents and warrants to the Bank Xxxxxx that:
(a) This Amendment Lender has been duly executed and delivered by not promised, represented, or committed that it will loan any additional sums of money to Borrower, or that Lender will renew or extend the Borrower and constitutes the legal, valid and binding obligations of the Borrower enforceable in accordance with Loan at its termsmaturity;
(b) The execution and delivery of this Amendment by the Borrower and the performance and observance by the Borrower of the provisions hereofshall comply with all laws, do not violate or conflict with the organizational agreements of the Borrower or any law applicable to the Borrower or result in a breach acts, rules, regulations, andorders of any provision federal, state, municipal, legislative, administrative, or judicial body, commission, or office exercising any power of regulation or constitute a default under supervision of Xxxxxxxx; provided however, that Borrower may contest any other agreementsuch law, instrument act, rule, regulation, or document binding upon or enforceable against order in any reasonable manner that will not affect the Borrowerinterest of Xxxxxx;
(c) The representations and warranties set forth within Article III Loan proceeds shall be used exclusively for the acquisition of the Agreement continue to be true and correct in all material respects as of the date of this Amendment except those changes resulting from the passage of time; andthe
(d) No material adverse Borrower shall notify Lender in writing immediately of any change has occurred in the businessnonprofit status, operationsbusiness structure or address of Borrower;
(e) Borrower is a Colorado cooperative association in good standing with the Secretary of State of Colorado and qualified to do business in Colorado, consolidated financial condition and Xxxxxxxx will take all actions necessary to remain at all times in good standing with the Colorado Secretary of State;
(f) Except as provided in the Loan Documents, Borrower shall not, without the prior written consent of Lender, transfer any of its interest in, or prospects grant or permit any security interest in, the Property to anyone except Senior Lender, Lender, and the City with respect to the City Loan;
(g) The obligations of Borrower under this Agreement and the Note shall rank and will at all times rank pari passu in priority of payment and in all other respects with Borrower’s obligations under the City Loan and in respect to that certain promissory note of Borrower issued concurrently herewith to the City pursuant to the City Loan (such note hereinafter referred to as the “City Note”), such that all payments made on the Note and all actions taken by the Borrower with respect to this Loan shall be made and taken pari passu with respect to all payments made on the City Note and actions taken with respect to the City Loan;
(h) Borrower shall maintain its cooperative association status and shall operate under its bylaws, articles of incorporation and rules and regulations;
(i) Borrower will not inhibit or exclude individuals with Low Income or Moderate Income (both defined below) from becoming Members of Borrower and benefitting from membership in Borrower. At all times while the Restrictive Covenant encumbers the Property, in the event a Home is for sale, the seller of such Home must, for the first 30-day period (“Priority Period”) during which such Home is for sale, only allow Low Income and Moderate Income individuals to purchase the Home on the terms and conditions set forth in the Restrictive Covenant. In addition, at all times while the Restrictive Covenant encumbers the Property, in the event a vacant Lot becomes available for Lease (without a Home on it), Borrower shall, for the Priority Period during which such Lot is made available for Lease, only allow Low Income and Moderate Income individuals to rent the Lot on the terms and conditions set forth in the Restrictive Covenant. If a Low Income or Moderate Income individual has commenced and is diligently pursuing in good faith the purchase of a Home or lease of a Lot, each a “Transaction,” the Priority Period shall be extended until the Transaction is complete;
(j) At the expiration of the Priority Period, provided no Low Income or Moderate Income individual has leased the available Lot or purchased the available Home (or commenced and is diligently pursuing in good faith a Transaction, in which case, the Priority Period shall be extended until the Transaction is complete), then the Owner can make the Home available for Sale on the open market at the same Terms (as defined in the Restrictive Covenant) or in the case of a Lot for lease, make the Lot available for lease on the open market at the same Terms. In the event the Terms change, the Priority Period shall re-commence;
(k) Members who qualified for membership in Borrower because of an annual household income equal to or less than Moderate Income, and who experience an increase in their annual household income over time such that their income later exceeds Moderate Income, will remain eligible for membership in Borrower and all benefits related thereto;
(l) If either of the following occur (both of which are deemed a "Transfer Event") the Note shall be immediately due and payable in full: (i) Borrower elects to sell or otherwise dispose of the Property to an entity, organization or association other than a nonprofit affordable housing organization approved in advance by Lender, or (ii) in the event of a condemnation, insurance claim, or similar event that results in Borrower receiving funds and deciding to discontinue the operation of the Community;
(m) Borrower shall provide evidence to Lender, concurrent with the execution of this Agreement, and in the same manner and frequency required by Senior Lender, that at least 75% of the Members of the Borrower since the date have provided household income verification documentation evidencing that they have annual household incomes at or below 100% of the most recent annual financial statement delivered to the BankAMI (defined below) ("Moderate Income"), and no Event that at least 20% of Default the members of the Borrower currently residing at the Community have incomes at or condition which, with below 80% of the passage of time, the giving of notice or both, could become an Event of Default has occurred and is continuing.
3.4 The Borrower shall execute or cause to be executed and deliver to the Bank all other documents, instruments and agreements deemed necessary or appropriate by the Bank in connection herewith.AMI ("Low Income");
Appears in 1 contract
Samples: Loan Agreement
