Obligor Representations and Warranties. The Obligor does hereby represent and warrant as follows: (a) The Obligor is a limited liability company duly organized under the laws of the State of Delaware, is validly existing and in good standing under the laws of the State of Delaware, is duly qualified to do business and in good standing under the laws of the State, is not in violation of any provision of its Organizational Documents, has the requisite power and authority to own its property and assets, to carry on its business as now being conducted by it and to execute, deliver and perform this Pledge and Security Agreement and each other Security Document or Project Document to which it is or shall be a party. (b) The execution, delivery and performance of this Pledge and Security Agreement and each other Security Document or Project Document to which the Obligor is or shall be a party and the consummation of the transactions herein and therein contemplated will not (x) violate any provision of law, any order of any court or agency of government, or any of the Organizational Documents of the Obligor, or any indenture, agreement or other instrument to which the Obligor is a party or by which it or any of its property is bound or to which it or any of its property is subject, (y) be in conflict with or result in a breach of or constitute (with due notice and/or lapse of time) a default under any such indenture, agreement or other instrument, or (z) result in the imposition of any lien, charge or encumbrance of any nature whatsoever other than Permitted Encumbrances. (c) There is no action or proceeding pending or, to the best of the Obligor’s knowledge, after diligent inquiry, threatened by or against the Obligor by or before any court or administrative agency that would adversely affect the ability of the Obligor to perform its obligations under this Pledge and Security Agreement or any other Security Document or Project Document to which it is a party. Such knowledge is based upon the knowledge of Xxxxxx Xxxxxxx, a Senior Vice President of the Parent, and a person employed by the Parent with actual knowledge of the Project and of the matters set forth in this paragraph. (d) The Obligor has obtained all authorizations, consents and approvals of governmental bodies or agencies required to be obtained by the Obligor as of the Closing Date in connection with the execution and delivery of this Pledge and Security Agreement and each other Security Document or Project Document to which the Obligor is a party or in connection with the performance of the obligations of the Obligor hereunder and under each of the Security Documents or Project Documents. (e) This Pledge and Security Agreement and each other Security Document or Project Document to which the Obligor is a party (x) have been duly authorized by all necessary action on the part of the Obligor, (y) have been duly executed and delivered by the Obligor, and (z) constitute the legal, valid and binding obligations of the Obligor, enforceable against the Obligor in accordance with their respective terms, subject to the limitations on enforceability resulting from bankruptcy, insolvency and principles of equity. (f) There exists no indebtedness for money borrowed or representing the deferred purchase price of property of the Obligor which is secured by a Lien on the Pledged Collateral, other than Permitted Encumbrances. (g) The Obligor has not granted, and has no knowledge of, any other Lien in the Pledged Collateral, other than Permitted Encumbrances. The Obligor has not described the Pledged Collateral in any New York Uniform Commercial Code financing statement currently in effect except in connection with the pledge made by the Mortgage and by this Pledge and Security Agreement. (h) This Pledge and Security Agreement creates a pledge and security interest in the Pledged Collateral in favor of the Trustee as security for payment of the Obligations and is not prohibited by, and does not constitute a default under, any agreements constituting a part of the Pledged Collateral and no consent is required of any Person to effect such pledge and security interest. The pledge and security interest in the Pledged Collateral and the proceeds thereof will be perfected upon the filing of the Uniform Commercial Code financing statement to the extent it can be perfected by filing. By the Closing Date, the Obligor will have taken all action necessary to file all Uniform Commercial Code financing statements describing such of the Pledged Collateral as may be perfected by such filings, and for so long as any Obligations are unpaid, the Obligor will file, continue, and amend all such financing statements as may be necessary to establish and maintain such priority in each jurisdiction in which the Obligor is organized or the Pledged Collateral may be located or that may otherwise be applicable pursuant to Sections 9.301-9.316 of the Uniform Commercial Code of such jurisdiction. Under the laws of the State, the security interest hereby granted to secure the Obligations is and shall be prior to any judicial lien hereafter imposed on the Pledged Collateral to enforce a judgment against the Obligor on a simple contract, and the Obligor shall not hereafter make or suffer to exist any pledge or assignment of, Lien on, or security interest in the Pledged Collateral, or file any financing statement describing any such pledge, assignment, Lien, or security interest, except as expressly permitted hereby.
Appears in 1 contract
Samples: Loan Agreement (Acadia Realty Trust)
Obligor Representations and Warranties. The Obligor does hereby represent represents and warrant warrants as followsof the Restructuring Date for the benefit of each other party hereto that:
(a) The Obligor is a limited liability company corporation duly organized under the laws of the State of Delawareorganized, is validly existing and in good standing under the laws of the State its state of Delaware, is duly qualified to do business and in good standing under the laws of the State, is not in violation of any provision of its Organizational Documentsincorporation set forth above, has the requisite power full power, authority and authority to own its property and assets, to carry on its business as now being conducted by it and legal right under such laws to execute, deliver and perform this Pledge and Security Agreement and each other Security Document or Project Document its obligations under the Operative Documents to which it is a party and is qualified to do business in and is in good standing in each state or shall be other jurisdiction in which the nature of its business makes such qualification necessary, except where failure to so qualify would not have a party.material adverse effect on Obligor;
(b) The executionthe financing of the Equipment, the execution and delivery of the Operative Documents and the other related instruments, documents and agreements to which it is a party, and the compliance by Obligor with the terms hereof and thereof and the payments and performance by Obligor of this Pledge any of its obligations hereunder and Security Agreement thereunder (i) have been duly and each other Security Document legally authorized by appropriate corporate action taken by Obligor, (ii) are not in contravention of, and will not result in a violation or Project Document to which the Obligor is or shall be a party and the consummation breach of, any of the transactions herein terms of Obligor’s certificate of incorporation, its by‑laws or any provisions relating to the capital stock of Obligor, and therein contemplated will (iii) do not (x) violate or constitute a breach of any provision of law, any order of any court or other agency of government, or any of the Organizational Documents of the Obligor, or any indenture, agreement or other instrument to which the Obligor is a party party, or by or under which it Obligor or any of its Obligor’s property is bound except where such violation or breach would not be expected to which it have a material adverse effect on Obligor and would not affect Obligees’ respective interests in the Obligee Property, Security Trustee’s interest in the Collateral or any of its property is subjectparty’s remedies under the Operative Documents, (y) be in or conflict with or with, result in a breach of of, or constitute (with due notice and/or lapse of time) a default under any such indenture, agreement or other instrumentinstrument except where such conflict, breach or default would not be expected to have a material adverse effect on Obligor and would not affect Obligees’ respective interests in the Obligee Property, Security Trustee’s interest in the Collateral or any party’s remedies under the Operative Documents, or (z) result in the creation or imposition of any lienLien, charge or encumbrance of any nature whatsoever other than Permitted Encumbrances.Liens, upon any of Obligor’s property or assets and (iv) do not require, on the part of Obligor or any shareholder or Subsidiary thereof, the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any Governmental Entity except for filings, if any, made pursuant to any notice reporting requirement applicable to it;
(c) There is no action or proceeding pending or, to the best of the Obligor’s knowledge, after diligent inquiry, threatened by or against the Obligor by or before any court or administrative agency that would adversely affect the ability of the Obligor to perform its obligations under this Pledge and Security Agreement or any other Security Document or Project each Operative Document to which it is a party. Such knowledge party and each Security Document to which a Subsidiary of Obligor is based upon a party has been executed by the knowledge duly authorized officer or officers of Xxxxxx XxxxxxxObligor or such Subsidiary, a Senior Vice President of the Parentrespectively, and a person employed by delivered to the Parent with actual knowledge of the Project other parties thereto and of the matters set forth in this paragraph.
(d) The Obligor has obtained all authorizationsassuming due authorization, consents and approvals of governmental bodies or agencies required to be obtained by the Obligor as of the Closing Date in connection with the execution and delivery of this Pledge and Security Agreement and each the Operative Documents by the other Security Document parties thereto) constitutes, or Project Document to which when executed by the Obligor is a party or in connection with the performance of the obligations of the Obligor hereunder and under each of the Security Documents or Project Documents.
(e) This Pledge and Security Agreement and each other Security Document or Project Document to which the Obligor is a party (x) have been duly authorized by all necessary action on the part officer or officers of the Obligor, (y) have been duly executed Obligor or such Subsidiary and delivered by to the Obligorother parties thereto, and (z) constitute such Operative Documents will constitute, the legal, valid and binding obligations of the ObligorObligor or such Subsidiary, enforceable against the Obligor or such Subsidiary in accordance with their respective termsterms except as limited by any applicable bankruptcy, subject insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights from time to time in effect and by general principles of equity including those applicable to the limitations enforceability of the remedy of specific performance;
(d) Immediately prior to giving effect to each Cross-Receipt under the Original Operative Documents therefor, Obligor had good and marketable title to each Item of Equipment specified in such Cross Receipt, and Obligor has not granted any Lien on enforceability resulting from bankruptcyany Item of Equipment or the proceeds thereof, insolvency the Equipment Agreement or the insurance required under the Equipment Agreement other than Liens granted by it under the Operative Documents, and principles no Lien, other than Permitted Liens, has attached to any Item of equity.Equipment, the proceeds thereof or the Equipment Agreement or the insurances required under the Equipment Agreement, or in any manner has affected adversely Corporate Obligee’s, Trust Obligee’s or Security Trustee’s right, title and interest therein;
(e) each Item of Equipment is personal property and not a fixture attached to realty under Applicable Law, and each Item of Equipment that has a serial number or other identification number set forth therefor on the Related Equipment Agreement Supplement has such serial number or other identification number permanently affixed thereto;
(f) There exists no indebtedness for money borrowed or representing (i) when the deferred purchase price of property Subsidiary Equipment Agreements were executed, the security interests in the Equipment granted to Obligor by the Subsidiaries pursuant to the Subsidiary Equipment Agreements, (ii) the security interests in the Equipment and in the Subsidiary Equipment Agreements granted to Corporate Obligee by Obligor pursuant to the Equipment Agreement and (iii) the security interests in the Equipment Collateral granted to Security Trustee pursuant to this Agreement, in each case constitute a first priority Lien with respect to such Equipment Collateral under Applicable Law, and Obligor, Corporate Obligee and Security Trustee shall be entitled to all of the Obligor which is secured by rights, benefits and priorities provided to a holder of a first priority Lien on the Pledged Collateral, other than Permitted Encumbrances.under Applicable Law;
(g) The Obligor has not grantedat all times during the Term, each Item of Equipment will be in a Permitted Country and has no knowledge of, any other Lien Items of Equipment with aggregate Acquisition Costs equal to or greater than 75% of the total Acquisition Costs of all Items of Equipment will be in the Pledged CollateralUnited States, other than Permitted Encumbrances. The Obligor has not described Germany or the Pledged Collateral in any New York Uniform Commercial Code financing statement currently in effect except in connection with the pledge made by the Mortgage and by this Pledge and Security Agreement.United Kingdom;
(h) This Pledge for each Item of Equipment located in the United States for which a serial number or other identification number is identified on the Related Equipment Agreement Supplement, upon the filing of:
(i) appropriately completed UCC financing statements with the Equipment described in the manner described on the Related Equipment Agreement Supplement (1) naming the relevant Subsidiary of Obligor that is a party to a Subsidiary Equipment Agreement as debtor and the Obligor as secured party, with the Secretary of State of the State of such Subsidiary’s UCC Location, (2) naming Obligor as debtor and Corporate Obligee as secured party, with the Secretary of State of the State of Obligor’s UCC Location, and (3) naming Corporate Obligee as debtor and the Security Trustee as secured party, with the Secretary of State of the State of Corporate Obligee’s UCC Location;
(ii) appropriately completed UCC “in-lieu” financing statements continuing the effectiveness of the Pre Effective Date Financing Statements (x) naming a Subsidiary of Obligor that is a party to a Subsidiary Equipment Agreement creates a pledge as debtor and Obligor as secured party, filed with the Secretary of State of the relevant Subsidiary of Obligor’s UCC Location, (y) naming Obligor as debtor and Original Obligee as secured party, filed with the Secretary of State of the State of Obligor’s UCC Location and (z) naming Original Obligee as debtor and Original Security Trustee as secured party, filed with the Secretary of State of the State of Original Obligee’s UCC Location;
(iii) appropriately completed UCC-3 financing statements assigning the Liens evidenced by the UCC financing statements referenced in (ii) above (x) naming Original Obligee as secured party from Original Obligee to and for the benefit of Corporate Obligee and (v) naming Original Security Trustee as secured party to and for the benefit of Security Trustee in each case filed with the Secretary of State of the State of the relevant UCC Location;
(iv) an appropriately completed UCC-3 financing statements amending the UCC financing statements referenced in (ii) above naming Original Obligee as debtor to reflect Corporate Obligee as the debtor for the benefit of Security Trustee and filed with the Secretary of State of the State of Corporate Obligee’s UCC Location,the security interest in each such Item of Equipment granted to Obligor by such Subsidiary pursuant to the Pledged Collateral related Subsidiary Equipment Agreement, the security interests in favor such Item of Equipment and in the related Subsidiary Equipment Agreement granted by Obligor to Corporate Obligee pursuant to the Equipment Agreement, and the security interests in such Item of Equipment and in the Equipment Agreement granted by Corporate Obligee to Security Trustee pursuant to this Agreement, shall in each case constitute a first priority perfected Lien under the UCC (as applicable) with respect to such Equipment, Subsidiary Equipment Agreement and Equipment Agreement under Applicable Law and Obligor, Corporate Obligee and Security Trustee shall be entitled to all of the Trustee as security for payment rights and benefits and priorities provided to a holder of the Obligations and is not prohibited bya perfected first priority Lien under Applicable Law, and does not constitute a default underon Restructuring Date, all recordations and filings shall have been accomplished with respect to this Agreement in each UCC jurisdiction as may be required by Applicable Law to establish and perfect Obligor’s Liens granted by such Subsidiary of Obligor, Corporate Obligee’s Liens granted by Obligor and Security Trustee’s Liens granted by Corporate Obligee in and to such Item of Equipment, such Subsidiary Equipment Agreement and the Equipment Agreement, and any agreements constituting a part giving of the Pledged Collateral and no consent is notice or any other action to such end required by Applicable Law has been given or taken;
(i) for each Item of any Person to effect such pledge and security interest. The pledge and security interest Equipment located in the Pledged United States for which a serial number or other identification number is identified on the Related Equipment Agreement Supplement, (i) the security interests in the Equipment Collateral and granted by Corporate Obligee to Security Trustee pursuant to this Agreement constitutes a first priority Lien with respect to the proceeds thereof will be perfected Equipment Collateral under Applicable Law, (ii) upon the filing of the Uniform Commercial Code appropriately completed UCC financing statement to with the extent it can be perfected by filing. By Equipment described in the Closing Datemanner described on the Related Equipment Agreement Supplement for the benefit of Security Trustee and filed with the Secretary of State of the State of Corporate Obligee’s UCC Location, the Obligor will have taken security interests in Corporate Obligee’s interest in each such Item of Equipment granted to Security Trustee pursuant to this Agreement constitutes a first priority perfected Lien with respect to such interest in such Items of Equipment under Applicable Law and Security Trustee shall be entitled to all action necessary to file all Uniform Commercial Code financing statements describing such of the Pledged Collateral as may be rights and benefits and priorities provided to a holder of a perfected by such filingsfirst priority Lien under Applicable Law, and for so long as any Obligations are unpaid, the Obligor will file, continue, (iii) all recordations and amend all such financing statements as may filings shall be necessary accomplished with respect to establish and maintain such priority this Agreement in each jurisdiction in which the Obligor is organized or the Pledged Collateral United States as may be required by law to establish and perfect Security Trustee’s rights in and to such Items of Equipment located in the United States and in the Equipment Agreement and any giving of notice or that may otherwise be applicable pursuant any other action such end required by Applicable Law has been given or taken;
(j) Obligor’s UCC Location is in the State of Delaware;
(k) no Equipment Agreement Default or Equipment Agreement Event of Default has occurred and is continuing and no Event of Loss or event which with the passage of time, would become or Event of Loss has occurred;
(l) there is no litigation or other proceeding now pending or, to Sections 9.301-9.316 the Obligor’s knowledge, threatened, against or affecting Obligor or any Subsidiary thereof, in any court or before any regulatory commission, board or other administrative governmental agency which will adversely affect or impair the right, title or interest of Corporate Obligee to any Item of Equipment, the Uniform Commercial Code of such jurisdiction. Under the laws of the StateEquipment Agreement or any other Operative Document, or the security interest hereby granted of Security Trustee in any Item of Equipment or the Equipment Agreement, this Agreement or any Operative Document, or which, if decided adversely to secure Obligor or such Subsidiary, will materially adversely affect the Obligations is business operations or financial condition of Obligor;
(m) without limiting the generality of the foregoing, the retention of possession by Obligor of the Items of Equipment financed hereunder following the transfer of an interest therein to Corporate Obligee shall not be deemed fraudulent or void as against any present or future creditor of Obligor under Applicable Law, nor would any subsequent bona fide purchaser from Obligor of such Items of Equipment, in the event of any attempted subsequent transfer thereof by Obligor, acquire any title to or rights therein superior to Corporate Obligee’s right, title or interest therein;
(n) Obligor has delivered to each Obligee, Owner Participant, each Lender and shall be prior to any judicial lien hereafter imposed Agent its most recent annual report on Form 10-K and quarterly report on Form 10-Q and they are complete and correct in all material respects, accurately present the financial condition of Obligor on the Pledged Collateral to enforce a judgment against the Obligor on a simple contractdates for which, and the results of its operations for the periods for which, the same have been furnished and have been prepared in accordance with generally accepted accounting principles consistently followed throughout the periods covered thereby; and there has been no material adverse change in the condition of Obligor shall and its Subsidiaries taken as a whole, financial or otherwise, since the date of such Form 10-Q;
(o) Obligor has not hereafter make entered into the transactions contemplated herein, directly or suffer indirectly, in connection with any arrangement in any way involving any employee benefit plan or plans or related trust to exist any pledge which it is a party in interest or assignment disqualified person, all within the meaning of ERISA, and the Code, and, assuming the accuracy of the representations made in Sections 2.5(f) and (g) and 2.6(a) and (b) herein, the execution and delivery of, Lien onand the consummation of the transactions contemplated by, the Operative Documents, will be exempt from, or security interest will not involve any transaction which is subject to, the prohibitions of either Section 406 of ERISA or Section 4975 of the Code and will not involve any transaction in connection with which a penalty could be imposed under Section 502(i) of ERISA or a tax could be imposed pursuant to Section 4975 of the Pledged CollateralCode;
(p) Obligor is not an “investment company”, or file any financing statement describing any a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended;
(q) Obligor delivered to Original Obligee a true, correct and complete Certificate of Costs evidencing payment for the Items of Equipment specified in such pledgeCertificate of Costs financed by Original Obligee;
(r) payment in full has been made by or on behalf of Obligor to the vendor of each Item of Equipment; and
(s) each Item of Equipment is leased to a Subsidiary of Obligor, assignmentand the identification of such Subsidiary, Lien, or security interest, except as expressly permitted herebythe location of its chief executive office and the location of such Item of Equipment are each identified on the Subsidiary Equipment Agreement.
Appears in 1 contract
Samples: Participation Agreement (Harman International Industries Inc /De/)
Obligor Representations and Warranties. The Obligor does hereby represent represents and warrant warrants as followsof the Restructuring Date for the benefit of each other party hereto that:
(a) The Obligor is a limited liability company corporation duly organized under the laws of the State of Delawareorganized, is validly existing and in good standing under the laws of the State its state of Delaware, is duly qualified to do business and in good standing under the laws of the State, is not in violation of any provision of its Organizational Documentsincorporation set forth above, has the requisite power full power, authority and authority to own its property and assets, to carry on its business as now being conducted by it and legal right under such laws to execute, deliver and perform this Pledge and Security Agreement and each other Security Document or Project Document its obligations under the Operative Documents to which it is a party and is qualified to do business in and is in good standing in each state or shall be other jurisdiction in which the nature of its business makes such qualification necessary, except where failure to so qualify would not have a party.material adverse effect on Obligor;
(b) The executionthe financing of the Equipment, the execution and delivery of the Operative Documents and the other related instruments, documents and agreements to which it is a party, and the compliance by Obligor with the terms hereof and thereof and the payments and performance by Obligor of this Pledge any of its obligations hereunder and Security Agreement thereunder (i) have been duly and each other Security Document legally authorized by appropriate corporate action taken by Obligor, (ii) are not in contravention of, and will not result in a violation or Project Document to which the Obligor is or shall be a party and the consummation breach of, any of the transactions herein terms of Obligor’s certificate of incorporation, its by-laws or any provisions relating to the capital stock of Obligor, and therein contemplated will (iii) do not (x) violate or constitute a breach of any provision of law, any order of any court or other agency of government, or any of the Organizational Documents of the Obligor, or any indenture, agreement or other instrument to which the Obligor is a party party, or by or under which it Obligor or any of its Obligor’s property is bound except where such violation or breach would not be expected to which it have a material adverse effect on Obligor and would not affect Obligees’ respective interests in the Obligee Property, Security Trustee’s interest in the Collateral or any of its property is subjectparty’s remedies under the Operative Documents, (y) be in or conflict with or with, result in a breach of of, or constitute (with due notice and/or lapse of time) a default under any such indenture, agreement or other instrumentinstrument except where such conflict, breach or default would not be expected to have a material adverse effect on Obligor and would not affect Obligees’ respective interests in the Obligee Property, Security Trustee’s interest in the Collateral or any party’s remedies under the Operative Documents, or (z) result in the creation or imposition of any lienLien, charge or encumbrance of any nature whatsoever other than Permitted Encumbrances.
(c) There is no action or proceeding pending orLiens, to the best upon any of the Obligor’s knowledgeproperty or assets and (iv) do not require, after diligent inquiry, threatened by or against the Obligor by or before any court or administrative agency that would adversely affect the ability of the Obligor to perform its obligations under this Pledge and Security Agreement or any other Security Document or Project Document to which it is a party. Such knowledge is based upon the knowledge of Xxxxxx Xxxxxxx, a Senior Vice President of the Parent, and a person employed by the Parent with actual knowledge of the Project and of the matters set forth in this paragraph.
(d) The Obligor has obtained all authorizations, consents and approvals of governmental bodies or agencies required to be obtained by the Obligor as of the Closing Date in connection with the execution and delivery of this Pledge and Security Agreement and each other Security Document or Project Document to which the Obligor is a party or in connection with the performance of the obligations of the Obligor hereunder and under each of the Security Documents or Project Documents.
(e) This Pledge and Security Agreement and each other Security Document or Project Document to which the Obligor is a party (x) have been duly authorized by all necessary action on the part of Obligor or any shareholder or Subsidiary thereof, the Obligorconsent or approval of, (y) have been duly executed and delivered by the Obligorgiving of notice to, and (z) constitute the legalregistration with, valid and binding obligations or the taking of the Obligor, enforceable against the Obligor any other action in accordance with their respective terms, subject to the limitations on enforceability resulting from bankruptcy, insolvency and principles of equity.
(f) There exists no indebtedness for money borrowed or representing the deferred purchase price of property of the Obligor which is secured by a Lien on the Pledged Collateral, other than Permitted Encumbrances.
(g) The Obligor has not granted, and has no knowledge respect of, any other Lien in the Pledged Collateral, other than Permitted Encumbrances. The Obligor has not described the Pledged Collateral in any New York Uniform Commercial Code financing statement currently in effect Governmental Entity except in connection with the pledge made by the Mortgage and by this Pledge and Security Agreement.
(h) This Pledge and Security Agreement creates a pledge and security interest in the Pledged Collateral in favor of the Trustee as security for payment of the Obligations and is not prohibited by, and does not constitute a default under, any agreements constituting a part of the Pledged Collateral and no consent is required of any Person to effect such pledge and security interest. The pledge and security interest in the Pledged Collateral and the proceeds thereof will be perfected upon the filing of the Uniform Commercial Code financing statement to the extent it can be perfected by filing. By the Closing Date, the Obligor will have taken all action necessary to file all Uniform Commercial Code financing statements describing such of the Pledged Collateral as may be perfected by such filings, and for so long as any Obligations are unpaidif any, the Obligor will file, continue, and amend all such financing statements as may be necessary to establish and maintain such priority in each jurisdiction in which the Obligor is organized or the Pledged Collateral may be located or that may otherwise be applicable made pursuant to Sections 9.301-9.316 of the Uniform Commercial Code of such jurisdiction. Under the laws of the State, the security interest hereby granted any notice reporting requirement applicable to secure the Obligations is and shall be prior to any judicial lien hereafter imposed on the Pledged Collateral to enforce a judgment against the Obligor on a simple contract, and the Obligor shall not hereafter make or suffer to exist any pledge or assignment of, Lien on, or security interest in the Pledged Collateral, or file any financing statement describing any such pledge, assignment, Lien, or security interest, except as expressly permitted hereby.it;
Appears in 1 contract
Samples: Participation Agreement (Harman International Industries Inc /De/)
Obligor Representations and Warranties. The Obligor does hereby represent represents and warrant warrants as followsof the Closing Date and on each Funding Date for the benefit of each other party hereto that:
(a) The Obligor is a limited liability company corporation duly organized under the laws of the State of Delawareorganized, is validly existing and in good standing under the laws of the State its state of Delaware, is duly qualified to do business and in good standing under the laws of the State, is not in violation of any provision of its Organizational Documentsincorporation set forth above, has the requisite power full power, authority and authority to own its property and assets, to carry on its business as now being conducted by it and legal right under such laws to execute, deliver and perform this Pledge and Security Agreement and each other Security Document or Project Document its obligations under the Operative Documents to which it is a party and is qualified to do business in and is in good standing in each state or shall be other jurisdiction in which the nature of its business makes such qualification necessary, except where failure to so qualify would not have a party.material adverse effect on Obligor;
(b) The executionthe financing of the Equipment, the execution and delivery of the Operative Documents and the other related instruments, documents and agreements to which it is a party, and the compliance by Obligor with the terms hereof and thereof and the payments and performance by Obligor of this Pledge any of its obligations hereunder and Security Agreement thereunder (i) have been duly and each other Security Document legally authorized by appropriate corporate action taken by Obligor, (ii) are not in contravention of, and will not result in a violation or Project Document to which the Obligor is or shall be a party and the consummation breach of, any of the transactions herein terms of Obligor's certificate of incorporation, its by-laws or any provisions relating to the capital stock of Obligor, and therein contemplated will (iii) do not (x) violate or constitute a breach of any provision of law, any order of any court or other agency of government, or any of the Organizational Documents of the Obligor, or any indenture, agreement or other instrument to which the Obligor is a party party, or by or under which it Obligor or any of its Obligor's property is bound except where such violation or breach would not be expected to which it have a material adverse effect on Obligor and would not affect Obligee's interest in the Trust Estate, Security Trustee's interest in the Collateral or any of its property is subjectparty's remedies under the Operative Documents, (y) be in or conflict with or with, result in a breach of of, or constitute (with due notice and/or lapse of time) a default under any such indenture, agreement or other instrumentinstrument except where such conflict, breach or default would not be expected to have a material adverse effect on Obligor and would not affect Obligee's interest in the Trust Estate, Security Trustee's interest in the Collateral or any party's remedies under the Operative Documents, or (z) result in the creation or imposition of any lienLien, charge or encumbrance of any nature whatsoever other than Permitted Encumbrances.Liens, upon any of Obligor's property or assets and (iv) do not require, on the part of Obligor or any shareholder or Subsidiary thereof, the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any Governmental Entity except for filings, if any, made pursuant to any notice reporting requirement applicable to it;
(c) There is no action or proceeding pending or, to the best of the Obligor’s knowledge, after diligent inquiry, threatened by or against the Obligor by or before any court or administrative agency that would adversely affect the ability of the Obligor to perform its obligations under this Pledge and Security Agreement or any other Security Document or Project each Operative Document to which it is a party. Such knowledge party and each Security Document to which a Subsidiary of Obligor is based upon a party has been executed by the knowledge duly authorized officer or officers of Xxxxxx XxxxxxxObligor or such Subsidiary, a Senior Vice President of the Parentrespectively, and a person employed by delivered to the Parent with actual knowledge of the Project other parties thereto and of the matters set forth in this paragraph.
(d) The Obligor has obtained all authorizationsassuming due authorization, consents and approvals of governmental bodies or agencies required to be obtained by the Obligor as of the Closing Date in connection with the execution and delivery of this Pledge and Security Agreement and each the Operative Documents by the other Security Document parties thereto) constitutes, or Project Document to which when executed by the Obligor is a party or in connection with the performance of the obligations of the Obligor hereunder and under each of the Security Documents or Project Documents.
(e) This Pledge and Security Agreement and each other Security Document or Project Document to which the Obligor is a party (x) have been duly authorized by all necessary action on the part officer or officers of the Obligor, (y) have been duly executed Obligor or such Subsidiary and delivered by to the Obligorother parties thereto, and (z) constitute such Operative Documents will constitute, the legal, valid and binding obligations of the ObligorObligor or such Subsidiary, enforceable against the Obligor in accordance with their respective termsterms except as limited by any applicable bankruptcy, subject insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors' rights from time to time in effect and by general principles of equity including those applicable to the limitations on enforceability resulting from bankruptcy, insolvency and principles of equity.the remedy of specific performance;
(fd) There exists no indebtedness for money borrowed or representing Immediately prior to giving effect to the deferred purchase price Cross-Receipt therefor, Obligor has good and marketable title to each Item of property of the Equipment, and Obligor which is secured by a has not granted any Lien on any Item of Equipment or the Pledged Collateralproceeds thereof, the Equipment Agreement or the insurances required under the Equipment Agreement other than those that arise under the Operative Documents, and no Lien, other than Permitted EncumbrancesLiens, has attached to any Item of Equipment, the proceeds thereof or the Equipment Agreement or the insurances required under the Equipment Agreement, or in any manner has affected adversely Obligee's or Security Trustee's right, title and interest therein;
(e) each Item of Equipment is personal property and not a fixture attached to realty under Applicable Law, and each Item of Equipment that has a serial number or other identification number set forth therefor on the Related Lease Supplement has such serial number or other identification number permanently affixed thereto.
(i) when the Subsidiary Equipment Agreements are executed, the security interests in the Equipment granted to Obligor by the Subsidiaries pursuant to the Subsidiary Equipment Agreements, (ii) the security interests in the Equipment and, when the Subsidiary Equipment Agreements are executed, in Subsidiary Equipment Agreements granted to Obligee by Obligor pursuant to the Equipment Agreement and (iii) the security interests in the Collateral granted to Security Trustee pursuant to this Agreement in each case constitute a first priority Lien with respect to such Collateral under Applicable Law, and Obligor, Obligee and Security Trustee shall be entitled to all of the rights, benefits and priorities provided to a holder of a first priority Lien under Applicable Law.
(g) The for each Item of Equipment located in the United States for which a serial number or other identification number is identified on the Related Lease Supplement, upon the filing of appropriately completed UCC financing statements with the Equipment described in the manner described on the Related Equipment Agreement Supplement (i) executed by the Obligor has not grantedSubsidiary for the benefit of Obligor and filed with the Secretary of State or other appropriate state filing office for UCC personal property financing statements for the state in which the Equipment is located and in addition, if such Item of Equipment is located in Massachusetts, with the town clerk for the City of Bedford and if in New York with the filing officer for Orange County, (ii) executed by Obligor for the benefit of Obligee and filed with the Secretary of State or other appropriate state filing office for UCC personal property financing statements for the state in which the Equipment is located and in addition, if such Item of Equipment is located in Massachusetts, with the town clerk for the City of Bedford and if in New York with the filing officer for Orange County and (iii) and by Obligee for the benefit of the Security Trustee and filed with the Secretary of State or other appropriate state filing office for UCC personal property financing statements for the state in which the Equipment is located and in addition, if such Item of Equipment is located in Massachusetts, with the town clerk for the City of Bedford and if in New York with the filing officer for Orange County the security interest in each such Item of Equipment granted to Obligor by such Subsidiary pursuant to the related Subsidiary Equipment Agreement, the security interests in such Item of Equipment and in the related Subsidiary Equipment Agreement granted to Obligee by Obligor pursuant to the Equipment Agreement, and has no knowledge ofthe security interests in such Item of Equipment and in the Equipment Agreement granted to Security Trustee pursuant to this Agreement constitute a first priority perfected Lien with respect to such Equipment, Subsidiary Equipment Agreement and Equipment Agreement under Applicable Law and Obligor, Obligee and Security Trustee shall be entitled to all of the rights and benefits and priorities provided to a holder of a perfected first priority Lien under Applicable Law, and on each Funding Date, all recordations and filings shall have been accomplished with respect to this Agreement in each jurisdiction as may be required by law to establish and perfect Obligor's, Obligee's and Security Trustee's respective rights in and to such Item of Equipment, Subsidiary Equipment Agreement and Equipment Agreement, and any giving of notice or any other Lien in the Pledged Collateral, other than Permitted Encumbrances. The Obligor action to such end required by Applicable Law has not described the Pledged Collateral in any New York Uniform Commercial Code financing statement currently in effect except in connection with the pledge made by the Mortgage and by this Pledge and Security Agreement.been given or taken;
(h) This Pledge Obligor's chief executive office and Security principal place of business is located at 0000 Xxxxxxxxxxxx Xxxxxx X.X. Xxxxx 0000, Xxxxxxxxxx, X.X. 00000 and Obligor's records with respect to the transactions contemplated by the Operative Documents are located at such address;
(i) no Equipment Agreement creates a pledge and security interest in the Pledged Collateral in favor Default or Equipment Agreement Event of the Trustee as security for payment of the Obligations Default has occurred and is not prohibited by, and does not constitute a default under, any agreements constituting a part of the Pledged Collateral continuing and no consent Event of Loss or event which with the passage of time, would become or Event of Loss has occurred;
(j) there is required of any Person to effect such pledge and security interest. The pledge and security interest in the Pledged Collateral and the proceeds thereof will be perfected upon the filing of the Uniform Commercial Code financing statement no litigation or other proceeding now pending or, to the extent it can be perfected by filing. By Obligor's knowledge, threatened, against or affecting Obligor or any Subsidiary thereof, in any court or before any regulatory commission, board or other administrative governmental agency which will adversely affect or impair the Closing Dateright, title or interest of Obligee to any Item of Equipment, the Obligor will have taken all action necessary to file all Uniform Commercial Code financing statements describing such of the Pledged Collateral as may be perfected by such filingsEquipment Agreement or any Operative Document, and for so long as any Obligations are unpaid, the Obligor will file, continue, and amend all such financing statements as may be necessary to establish and maintain such priority in each jurisdiction in which the Obligor is organized or the Pledged Collateral may be located or that may otherwise be applicable pursuant to Sections 9.301-9.316 of the Uniform Commercial Code of such jurisdiction. Under the laws of the State, the security interest hereby granted of Security Trustee in any Item of Equipment or the Equipment Agreement, this Agreement or any Operative Document, or which, if decided adversely to secure Obligor or such Subsidiary, will materially adversely affect the Obligations is business operations or financial condition of Obligor;
(k) without limiting the generality of the foregoing, the retention of possession by Obligor of the Items of Equipment to be financed hereunder following the transfer of an interest therein to Obligee shall not be deemed fraudulent or void as against any present or future creditor of Obligor under Applicable Law, nor would any subsequent bona fide purchaser from Obligor of such Items of Equipment, in the event of any attempted subsequent transfer thereof by Obligor, acquire any title to or rights therein superior to Obligee's right, title or interest therein;
(l) Obligor has delivered to Obligee, Owner Participant, Lender and shall be prior to any judicial lien hereafter imposed Agent its most recent annual report on Form 10-K and quarterly report on Form 10-Q and they are complete and correct in all material respects, accurately present the financial condition of Obligor on the Pledged Collateral to enforce a judgment against the Obligor on a simple contractdates for which, and the results of its operations for the periods for which, the same have been furnished and have been prepared in accordance with generally accepted accounting principles consistently followed throughout the periods covered thereby; and there has been no material adverse change in the condition of Obligor shall and its Subsidiaries taken as a whole, financial or otherwise, since the date of such Form 10-Q;
(m) Obligor has not hereafter make entered into the transactions contemplated herein, directly or suffer indirectly, in connection with any arrangement in any way involving any employee benefit plan or plans or related trust to exist any pledge which it is a party in interest or assignment disqualified person, all within the meaning of ERISA, and the Code, and, assuming the accuracy of the representations made in Sections 2.5(f) and (g) and 2.6(a) and (b) herein, the execution and delivery of, Lien onand the consummation of the transactions contemplated by, the Operative Documents, will be exempt from, or security interest will not involve any transaction which is subject to, the prohibitions of either Section 406 of ERISA or Section 4975 of the Code and will not involve any transaction in connection with which a penalty could be imposed under Section 502(i) of ERISA or a tax could be imposed pursuant to Section 4975 of the Pledged CollateralCode;
(n) Obligor is not an "investment company", or file any financing statement describing any a company "controlled" by an "investment company", within the meaning of the Investment Company Act of 1940, as amended;
(o) Obligor has delivered to Obligee a true, correct and complete Certificate of Costs evidencing payment for the Items of Equipment financed by Obligee;
(p) payment in full has been made by or on behalf of Obligor to the vendor of each Item of Equipment; and
(q) after giving effect to the Cross-Receipt and Related Equipment Supplement therefor, each Item of Equipment shall be leased to an Obligor Subsidiary, and the identification of such pledgeSubsidiary, assignment, Lien, or security interest, except as expressly permitted herebythe location of its chief executive office and the location of such Item of Equipment are each identified on the Related Equipment Supplement.
Appears in 1 contract
Samples: Participation Agreement (Harman International Industries Inc /De/)
