Representations and Warranties of the Credit Parties. Effective as of the Closing Date and the date each Domestic Subsidiary delivers a Joinder Agreement, each Credit Party represents and warrants to each of the other parties hereto that: (a) the representations and warranties set forth in Section 28.1 of the Lease are true and correct (unless such relate solely to an earlier point in time), and the Lessee has delivered to the Agent the financial statements and other reports referred to in Article XXVIII of the Lease; (b) the execution and delivery by each Credit Party of this Agreement and the other applicable Operative Agreements as of such date and the performance by each Credit Party of its respective obligations under this Agreement and the other applicable Operative Agreements are within the corporate, partnership or limited liability company (as the case may be) powers of each Credit Party, have been duly authorized by all necessary corporate, partnership or limited liability company (as the case may be) action on the part of each Credit Party (including without limitation any necessary shareholder action), have been duly executed and delivered, have received all necessary governmental approvals, and do not and will not (i) violate any Legal Requirement which is binding on any Credit Party or any of its Subsidiaries, (ii) contravene or conflict with, or result in a breach of, any provision of the articles of incorporation, by-laws or other organizational documents of any Credit Party or any of its Subsidiaries or of any agreement, indenture, instrument or other document which is binding on any Credit Party or any of its Subsidiaries or (iii) result in, or require, the creation or imposition of any Lien (other than pursuant to the terms of the Operative Agreements) on any asset of any Credit Party or any of its Subsidiaries; (c) this Agreement and the other applicable Operative Agreements, executed prior to and as of such date by any Credit Party, constitute the legal, valid and binding obligation of such Credit Party, as applicable, enforceable against such Credit Party, as applicable, in accordance with their terms. Each Credit Party has executed the various Operative Agreements required to be executed by such Credit Party as of such date; (d) there are no material actions, suits or proceedings pending or, to our knowledge, threatened against any Credit Party in any court or before any Governmental Authority (nor shall any order, judgment or decree have been issued or proposed to be issued by any Governmental Authority to set aside, restrain, enjoin or prevent the full performance of any Operative Agreement or any transaction contemplated thereby) that (i) concern any Property or any Credit Party's interest therein, (ii) question the validity or enforceability of any Operative Agreement to which any Credit Party is a party or the overall transaction described in the Operative Agreements to which any Credit Party is a party or (iii) have or could reasonably be expected to have a Material Adverse Effect; provided for purposes of disclosure, the Credit Parties have described -------- the litigation set forth on Exhibit K; --------- (e) no Governmental Action by any Governmental Authority or other authorization, registration, consent, approval, waiver, notice or other action by, to or of any other Person pursuant to any Legal Requirement, contract, indenture, instrument or agreement or for any other reason is required to authorize or is required in connection with (i) the execution, delivery or performance of any Operative Agreement, (ii) the legality, validity, binding effect or enforceability of any Operative Agreement, (iii) the acquisition, ownership, construction, completion, occupancy, operation, leasing or subleasing of any Property or (iv) the Advance, in each case, except those which have been obtained and are in full force and effect; (f) upon the execution and delivery of each Lease Supplement to the Lease, (i) the Lessee will have unconditionally accepted the Property subject to the applicable Lease Supplement and will have a valid and subsisting leasehold interest in such Property, subject only to the Permitted Liens, and (ii) no offset will exist with respect to any Rent or other sums payable under the Lease; (g) [not used] (h) all information heretofore or contemporaneously herewith furnished by each Credit Party or its Subsidiaries to the Agent, the Owner Trustee, any Lender or any Holder for purposes of or in connection with this Agreement and the transactions contemplated hereby is, and all information hereafter furnished by or on behalf of each Credit Party or its Subsidiaries to the Agent, the Owner Trustee, any Lender or any Holder pursuant hereto or in connection herewith will be, true and accurate in every material respect on the date as of which such information is dated or certified, and such information, taken as a whole, does not and will not omit to state any material fact necessary to make such information, taken as a whole, not misleading; (i) the principal place of business, chief executive office and office of the Lessee where the documents, accounts and records relating to the transactions contemplated by this Agreement and each other Operative Agreement are kept are located at 000 Xxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, the state of formation of the Lessee is the State of Delaware and the states of formation and the chief executive offices of each other Credit Party are located at the places set forth in Exhibit L; --------- (j) the representations and warranties of each Credit Party set forth in any of the Operative Agreements are true and correct in all material respects on and as of each such date as if made on and as of such date; each Credit Party is in all material respects in compliance with its obligations under the Operative Agreements and there exists no Default or Event of Default under any of the Operative Agreements which is continuing and which has not been cured within any cure period expressly granted under the terms of the applicable Operative Agreement or otherwise waived in accordance with the applicable Operative Agreement; no Default or Event of Default will occur under any of the Operative Agreements as a result of, or after giving effect to, the Advance; (k) as of the Closing Date, each Property is a Permitted Facility; each Property consists of Land and existing Improvements thereon which Improvements are suitable for occupancy; each Property is located in one of the Approved States; each Property is well-performing (as that term is used in Lessee's financial statements); and Lessee intends to continue operating each Property as a Permitted Facility; (l) as of the Closing Date, the Lessor has good and marketable fee simple title to each Property, subject only to (i) such Liens referenced in Sections 6.2(q)(i) and 6.2(q)(ii) and (ii) subject to Section 5.7, Permitted Liens after the Closing Date; (m) as of the Closing Date, no portion of any Property is located in an area identified as a special flood hazard area by the Federal Emergency Management Agency or other applicable agency, or if any such Property is located in an area identified as a special flood hazard area by the Federal Emergency Management Agency or other applicable agency, then flood insurance has been obtained for such Property in accordance with Section 14.2(b) of the Lease and in accordance with the National Flood Insurance Act of 1968, as amended; (n) as of the Closing Date, each Property complies with all Insurance Requirements and all standards of Lessee with respect to similar properties owned by Lessee; (o) as of the Closing Date, each Property complies with all Legal Requirements as of such date (including without limitation all zoning and land use laws and Environmental Laws), except to the extent that failure to comply therewith, individually or in the aggregate, shall not have and could not reasonably be expected to have a Material Adverse Effect; (p) as of the Closing Date, all utility services and facilities necessary for the operation of the Improvements and the operation of the Equipment regarding each Property (including without limitation gas, electrical, water and sewage services and facilities) are available at the applicable Land; (i) the Security Documents create, as security for the Obligations, valid and enforceable security interests in, and Liens on, all of the Collateral, in favor of the Agent, for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements, and such security interests and Liens are subject to no other Liens other than Liens that are expressly set forth as title exceptions on the title policies issued under Section 5.3(g) with respect to the applicable Property, to the extent such title policies have been approved by the Agent, the Lenders and the Holders; upon recordation of the Mortgage Instrument in the real estate recording office in the applicable Approved State identified by the Lessee, the Lien created by the Mortgage Instrument in the real property described therein shall be a perfected first priority mortgage Lien on such real property in favor of the Agent, for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements; to the extent that the security interests in the portion of the Collateral comprised of personal property can be perfected by filing in the filing offices in the applicable Approved States or elsewhere identified by the Lessee, upon filing of the Lender Financing Statements in such filing offices, the security interests created by the Security Agreement shall be perfected first priority security interests in such personal property in favor of the Agent, for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements; and (ii) the Lease Agreement creates, as security for the obligations of the Lessee under the Lease Agreement, valid and enforceable security interests in, and Liens on, each Property leased thereunder, in favor of the Lessor, and such security interests and Liens are subject to no other Liens other than Liens that are expressly set forth as title exceptions on the title policies issued under Section 5.3(g) with respect to the applicable Property, to the extent such title policies have been approved by the Agent, the Lenders and the Holders; upon recordation of the memorandum of the Lease Agreement (or a short form lease) in the real estate recording office in the applicable Approved State identified by the Lessee, the Lien created by the Lease Agreement in the real property described therein shall be a perfected first priority mortgage Lien on such real property in favor of the Agent, for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements; to the extent that the security interests in the portion of any Property comprised of personal property can be perfected by the filing in the filing offices in the applicable Approved State or elsewhere identified by the Lessee upon filing of the Lessor Financing Statements in such filing offices, a security interest created by the Lease Agreement shall be a perfected first priority security interest in such personal property in favor of the Lessor, which security interest pursuant to the Lessor Financing Statements is assigned to the Agent, for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements; (r) as of the Closing Date, the sum of the Lessee's available cash balances and the available funds under its revolving credit facility is at least $50 million. (s) the Improvements as to each Property comply with all applicable Legal Requirements (including without limitation all applicable Environmental Laws and building, planning, zoning and fire codes), except to the extent the failure to comply therewith, individually or in the aggregate, shall not have and could not reasonably be expected to have a Material Adverse Effect; such Improvements are (i) within (A) the boundary lines of the Property and (B) any building restriction lines or setbacks and (ii) do not encroach in any manner onto any adjoining land (except as permitted by express written easements, which have been approved by the Agent); (t) [not used] (u) as of the Closing Date, each Domestic Subsidiary (formed prior to or on such date) shall have executed this Agreement in its capacity as a Guarantor. (v) [not used] (w) [not used]
Appears in 1 contract
Representations and Warranties of the Credit Parties. Effective as of the Initial Closing Date and Date, the date of each Advance, the date each Domestic Subsidiary or Parent, as the case may be, delivers a Joinder AgreementAgreement and the Rent Commencement Date, each Credit Party represents and warrants to each of the other parties hereto that:
(a) the representations and warranties set forth in Section 28.1 of the Lease are true and correct (unless such relate solely to an earlier point in time), and the The Lessee has delivered to the Agent the financial statements and other reports referred to in Article XXVIII of the LeaseSection 8.3A(a)(i) and (ii) hereof;
(b) the The execution and delivery by each Credit Party of this Agreement and the other applicable Operative Agreements as of such date and the performance by each Credit Party of its respective obligations under this Agreement and the other applicable Operative Agreements are within the corporate, partnership or limited liability company (as the case may be) powers of each Credit Party, have been duly authorized by all necessary corporate, partnership or limited liability company (as the case may be) corporate action on the part of each Credit Party (including without limitation 18 24 any necessary shareholder action), have been duly executed and delivered, have received all necessary governmental approvalsapproval, and do not and will not (i) violate any Legal Requirement which is binding on any Credit Party or any of its Subsidiaries, (ii) contravene or conflict with, or result in a breach of, any provision of the articles Articles of incorporationIncorporation, byBy-laws Laws or other organizational documents of any Credit Party or any of its Subsidiaries or of any agreement, indenture, instrument or other document which is binding on any Credit Party or any of its Subsidiaries or (iii) result in, or require, the creation or imposition of any Lien (other than pursuant to the terms of the Operative Agreements) on any asset of any Credit Party or any of its Subsidiaries;
(c) this This Agreement and the other applicable Operative Agreements, Agreements executed prior to and as of such date by any Credit Party, constitute the legal, valid and binding obligation of such Credit Party, as applicable, enforceable against the such Credit Party, as applicable, in accordance with their terms. Each Credit Party has executed the various Operative Agreements required to be executed by such Credit Party as of such date;
(d) there There are no material actions, suits or proceedings pending or, to our knowledge, threatened against any Credit Party in any court or before any Governmental Authority (nor shall any order, judgment or decree have been issued or proposed to be issued by any Governmental Authority to set aside, restrain, enjoin or prevent the full performance of any Operative Agreement or any transaction contemplated thereby) that (i) concern any Property or any Credit Party's interest therein, (ii) question the validity or enforceability of any Operative Agreement to which or any Credit Party is a party or the overall transaction described in the Operative Agreements to which any Credit Party is a party or (iii) shall have or could reasonably be expected to have a Material Adverse Effect; provided provided, for purposes of disclosure, the Credit Parties have described -------- the litigation set forth on Exhibit K; ---------J;
(e) no No Governmental Action by any Governmental Authority or other authorization, registration, consent, approval, waiver, notice or other action by, to or of any other Person pursuant to any Legal Requirement, contract, indenture, instrument or agreement or for any other reason is required to authorize or is required in connection with (i) the execution, delivery or performance of any Operative Agreement, (ii) the legality, validity, binding effect or enforceability of any Operative Agreement, (iii) the acquisition, ownership, construction, completion, occupancy, operation, leasing or subleasing of any Property or (iv) the any Advance, in each case, except those which have been obtained and are in full force and effect;
(f) upon Upon the execution and delivery of the Lease and each Lease Supplement to the Lease, (i) the Lessee will have unconditionally accepted the Property subject to the applicable Lease Supplement and will have a valid and subsisting leasehold interest in such Property, subject only to the Permitted Liens, and (ii) no offset will exist with respect to any Rent or other sums payable under the Lease;
(g) [not used]
(h) all information heretofore or contemporaneously herewith furnished by each Credit Party or its Subsidiaries to the Agent, the Owner Trustee, any Lender or any Holder for purposes of or in connection with this Agreement and the transactions contemplated hereby is, and all information hereafter furnished by or on behalf of each Credit Party or its Subsidiaries to the Agent, the Owner Trustee, any Lender or any Holder pursuant hereto or in connection herewith will be, true and accurate in every material respect on the date Except as of which such information is dated or certified, and such information, taken as a whole, does not and will not omit to state any material fact necessary to make such information, taken as a whole, not misleading;
(i) the principal place of business, chief executive office and office of the Lessee where the documents, accounts and records relating to the transactions otherwise contemplated by this Agreement and each other Operative Agreement are kept are located at 000 Xxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, the state of formation of the Lessee is the State of Delaware and the states of formation and the chief executive offices of each other Credit Party are located at the places set forth in Exhibit L; ---------
(j) the representations and warranties of each Credit Party set forth in any of the Operative Agreements are true and correct in all material respects on and as of each such date as if made on and as of such date; each Credit Party is in all material respects in compliance with its obligations under the Operative Agreements and there exists no Default or Event of Default under any of the Operative Agreements which is continuing and which has not been cured within any cure period expressly granted under the terms of the applicable Operative Agreement or otherwise waived in accordance with the applicable Operative Agreement; no Default or Event of Default will occur under any of the Operative Agreements as a result of, or after giving effect to, the Advance;
(k) as of the Closing Date, each Property is a Permitted Facility; each Property consists of Land and existing Improvements thereon which Improvements are suitable for occupancy; each Property is located in one of the Approved States; each Property is well-performing (as that term is used in Lessee's financial statements); and Lessee intends to continue operating each Property as a Permitted Facility;
(l) as of the Closing Date, the Lessor has good and marketable fee simple title to each Property, subject only to (i) such Liens referenced in Sections 6.2(q)(i) and 6.2(q)(ii) and (ii) subject to Section 5.7, Permitted Liens after the Closing Date;
(m) as of the Closing Date, no portion of any Property is located in an area identified as a special flood hazard area by the Federal Emergency Management Agency or other applicable agency, or if any such Property is located in an area identified as a special flood hazard area by the Federal Emergency Management Agency or other applicable agency, then flood insurance has been obtained for such Property in accordance with Section 14.2(b) of the Lease and in accordance with the National Flood Insurance Act of 1968, as amended;
(n) as of the Closing Date, each Property complies with all Insurance Requirements and all standards of Lessee with respect to similar properties owned by Lessee;
(o) as of the Closing Date, each Property complies with all Legal Requirements as of such date (including without limitation all zoning and land use laws and Environmental Laws), except to the extent that failure to comply therewith, individually or in the aggregate, shall not have and could not reasonably be expected to have a Material Adverse Effect;
(p) as of the Closing Date, all utility services and facilities necessary for the operation of the Improvements and the operation of the Equipment regarding each Property (including without limitation gas, electrical, water and sewage services and facilities) are available at the applicable Land;
(i) the Security Documents create, as security for the Obligations, valid and enforceable security interests in, and Liens on, all of the Collateral, in favor of the Agent, for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements, and such security interests and Liens are subject to no other Liens other than Liens that are expressly set forth as title exceptions on the title policies issued under Section 5.3(g) with respect to Construction Agent shall not use the applicable Property, to the extent such title policies have been approved by the Agent, the Lenders and the Holders; upon recordation of the Mortgage Instrument in the real estate recording office in the applicable Approved State identified by the Lessee, the Lien created by the Mortgage Instrument in the real property described therein shall be a perfected first priority mortgage Lien on such real property in favor of the Agent, for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements; to the extent that the security interests in the portion of the Collateral comprised of personal property can be perfected by filing in the filing offices in the applicable Approved States or elsewhere identified by the Lessee, upon filing of the Lender Financing Statements in such filing offices, the security interests created by the Security Agreement shall be perfected first priority security interests in such personal property in favor of the Agent, for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements; and
(ii) the Lease Agreement creates, as security for the obligations of the Lessee under the Lease Agreement, valid and enforceable security interests in, and Liens on, each Property leased thereunder, in favor of the Lessor, and such security interests and Liens are subject to no other Liens other than Liens that are expressly set forth as title exceptions on the title policies issued under Section 5.3(g) with respect to the applicable Property, to the extent such title policies have been approved by the Agent, the Lenders and the Holders; upon recordation of the memorandum of the Lease Agreement (or a short form lease) in the real estate recording office in the applicable Approved State identified by the Lessee, the Lien created by the Lease Agreement in the real property described therein shall be a perfected first priority mortgage Lien on such real property in favor of the Agent, for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements; to the extent that the security interests in the portion proceeds of any Property comprised of personal property can be perfected by the filing in the filing offices in the applicable Approved State Holder Advance or elsewhere identified by the Lessee upon filing of the Lessor Financing Statements in such filing offices, a security interest created by the Lease Agreement shall be a perfected first priority security interest in such personal property in favor of the Lessor, which security interest pursuant to the Lessor Financing Statements is assigned to the Agent, Loan for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements;
(r) as of the Closing Date, the sum of the Lessee's available cash balances and the available funds under its revolving credit facility is at least $50 million.
(s) the Improvements as to each Property comply with all applicable Legal Requirements (including without limitation all applicable Environmental Laws and building, planning, zoning and fire codes), except to the extent the failure to comply therewith, individually or in the aggregate, shall not have and could not reasonably be expected to have a Material Adverse Effect; such Improvements are (i) within (A) the boundary lines of the Property and (B) any building restriction lines or setbacks and (ii) do not encroach in any manner onto any adjoining land (except as permitted by express written easements, which have been approved by the Agent);
(t) [not used]
(u) as of the Closing Date, each Domestic Subsidiary (formed prior to or on such date) shall have executed this Agreement in its capacity as a Guarantor.
(v) [not used]
(w) [not used]any
Appears in 1 contract
Samples: Participation Agreement (Veritas Software Corp /De/)
Representations and Warranties of the Credit Parties. Effective as of the Closing Date and the date each Domestic Subsidiary delivers a Joinder Agreement, each Each Credit Party represents and warrants to each of the other parties hereto thatas follows:
(a) Each Credit Party has the representations and warranties set forth in Section 28.1 of the Lease are true and correct (unless such relate solely to an earlier point in time)right, power, and authority and has taken all necessary corporate or other action to authorize the Lessee has delivered to the Agent the financial statements execution, delivery and other reports referred to in Article XXVIII of the Lease;
(b) the execution and delivery by each Credit Party performance of this Agreement and the other applicable Operative Agreements as of such date and the performance by each Credit Party of its respective obligations under this Agreement and the other applicable Operative Agreements are within the corporate, partnership or limited liability company (as the case may be) powers of each Credit Party, have been duly authorized by all necessary corporate, partnership or limited liability company (as the case may be) action on the part of each Credit Party (including without limitation any necessary shareholder action), have been duly executed and delivered, have received all necessary governmental approvals, and do not and will not (i) violate any Legal Requirement which is binding on any Credit Party or any of its Subsidiaries, (ii) contravene or conflict with, or result in Amendment. This Amendment constitutes a breach of, any provision of the articles of incorporation, by-laws or other organizational documents of any Credit Party or any of its Subsidiaries or of any agreement, indenture, instrument or other document which is binding on any Credit Party or any of its Subsidiaries or (iii) result in, or require, the creation or imposition of any Lien (other than pursuant to the terms of the Operative Agreements) on any asset of any Credit Party or any of its Subsidiaries;
(c) this Agreement and the other applicable Operative Agreements, executed prior to and as of such date by any Credit Party, constitute the legal, valid and binding obligation of such Credit Party, as applicable, enforceable against such each Credit Party, as applicable, Party that is party hereto in accordance with their its terms. Each , subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
(b) The execution, delivery and performance by each Credit Party has executed of this Amendment and the various Operative Agreements required transactions contemplated hereby do not and will not, by the passage of time, the giving of notice or otherwise, (i) require any Governmental Approval or violate any Applicable Law relating to be executed by such Credit Party as of such date;
(d) there are no material actions, suits or proceedings pending or, to our knowledge, threatened against any Credit Party in any court or before any Governmental Authority (nor shall any order, judgment or decree have been issued or proposed to be issued by any Governmental Authority to set aside, restrain, enjoin or prevent the full performance of any Operative Agreement or any transaction contemplated thereby) that (i) concern any Property Subsidiary thereof where the failure to obtain such Governmental Approval or any Credit Party's interest therein, (ii) question the validity or enforceability of any Operative Agreement to which any Credit Party is a party or the overall transaction described in the Operative Agreements to which any Credit Party is a party or (iii) have or such violation could reasonably be expected to have a Material Adverse Effect; provided for purposes of disclosure, the Credit Parties have described -------- the litigation set forth on Exhibit K; ---------
(e) no Governmental Action by any Governmental Authority or other authorization, registration, consent, approval, waiver, notice or other action by, to or of any other Person pursuant to any Legal Requirement, contract, indenture, instrument or agreement or for any other reason is required to authorize or is required in connection with (i) the execution, delivery or performance of any Operative Agreement, (ii) conflict with, result in a breach of or constitute a default under the legalityarticles of incorporation, validity, binding effect bylaws or enforceability other organizational documents of any Operative AgreementCredit Party or any Subsidiary thereof, (iii) the acquisitionconflict with, ownershipresult in a breach of or constitute a default under any indenture, construction, completion, occupancy, operation, leasing or subleasing of any Property or (iv) the Advance, in each case, except those which have been obtained and are in full force and effect;
(f) upon the execution and delivery of each Lease Supplement to the Lease, (i) the Lessee will have unconditionally accepted the Property subject to the applicable Lease Supplement and will have a valid and subsisting leasehold interest in such Property, subject only to the Permitted Liens, and (ii) no offset will exist with respect to any Rent agreement or other sums payable under the Lease;
(g) [not used]
(h) all information heretofore instrument to which such Person is a party or contemporaneously herewith furnished by each Credit Party or which any of its Subsidiaries to the Agent, the Owner Trustee, any Lender properties may be bound or any Holder for purposes of or in connection with this Agreement and the transactions contemplated hereby is, and all information hereafter furnished by or on behalf of each Credit Party or its Subsidiaries to the Agent, the Owner Trustee, any Lender or any Holder pursuant hereto or in connection herewith will be, true and accurate in every material respect on the date as of which such information is dated or certified, and such information, taken as a whole, does not and will not omit to state any material fact necessary to make such information, taken as a whole, not misleading;
(i) the principal place of business, chief executive office and office of the Lessee where the documents, accounts and records Governmental Approval relating to the transactions contemplated by this Agreement and each other Operative Agreement are kept are located at 000 Xxxxxxx Xxxxxsuch Person, Xxxxxxxx, Xxxxxxxxxx 00000, the state of formation of the Lessee is the State of Delaware and the states of formation and the chief executive offices of each other Credit Party are located at the places set forth in Exhibit L; ---------
(j) the representations and warranties of each Credit Party set forth in any of the Operative Agreements are true and correct in all material respects on and as of each such date as if made on and as of such date; each Credit Party is in all material respects in compliance with its obligations under the Operative Agreements and there exists no Default or Event of Default under any of the Operative Agreements which is continuing and which has not been cured within any cure period expressly granted under the terms of the applicable Operative Agreement or otherwise waived in accordance with the applicable Operative Agreement; no Default or Event of Default will occur under any of the Operative Agreements as a result of, or after giving effect to, the Advance;
(k) as of the Closing Date, each Property is a Permitted Facility; each Property consists of Land and existing Improvements thereon which Improvements are suitable for occupancy; each Property is located in one of the Approved States; each Property is well-performing (as that term is used in Lessee's financial statements); and Lessee intends to continue operating each Property as a Permitted Facility;
(l) as of the Closing Date, the Lessor has good and marketable fee simple title to each Property, subject only to (i) such Liens referenced in Sections 6.2(q)(i) and 6.2(q)(ii) and (ii) subject to Section 5.7, Permitted Liens after the Closing Date;
(m) as of the Closing Date, no portion of any Property is located in an area identified as a special flood hazard area by the Federal Emergency Management Agency or other applicable agency, or if any such Property is located in an area identified as a special flood hazard area by the Federal Emergency Management Agency or other applicable agency, then flood insurance has been obtained for such Property in accordance with Section 14.2(b) of the Lease and in accordance with the National Flood Insurance Act of 1968, as amended;
(n) as of the Closing Date, each Property complies with all Insurance Requirements and all standards of Lessee with respect to similar properties owned by Lessee;
(o) as of the Closing Date, each Property complies with all Legal Requirements as of such date (including without limitation all zoning and land use laws and Environmental Laws), except to the extent that failure to comply therewithcould, individually or in the aggregate, shall not have and could not reasonably be expected to have a Material Adverse Effect;
, (piv) as result in or require the creation or imposition of the Closing Date, all utility services and facilities necessary for the operation of the Improvements and the operation of the Equipment regarding each Property (including without limitation gas, electrical, water and sewage services and facilities) are available at the applicable Land;
(i) the Security Documents create, as security for the Obligations, valid and enforceable security interests in, and Liens on, all of the Collateral, in favor of the Agent, for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements, and such security interests and Liens are subject to no other Liens other than Liens that are expressly set forth as title exceptions on the title policies issued under Section 5.3(g) any Lien upon or with respect to the applicable Property, to the extent any property now owned or hereafter acquired by such title policies have been approved by the Agent, the Lenders and the Holders; upon recordation of the Mortgage Instrument in the real estate recording office in the applicable Approved State identified by the Lessee, the Lien created by the Mortgage Instrument in the real property described therein shall be a perfected first priority mortgage Lien on such real property in favor of the Agent, for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements; to the extent that the security interests in the portion of the Collateral comprised of personal property can be perfected by filing in the filing offices in the applicable Approved States or elsewhere identified by the Lessee, upon filing of the Lender Financing Statements in such filing offices, the security interests created by the Security Agreement shall be perfected first priority security interests in such personal property in favor of the Agent, for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements; and
(ii) the Lease Agreement creates, as security for the obligations of the Lessee under the Lease Agreement, valid and enforceable security interests in, and Liens on, each Property leased thereunder, in favor of the Lessor, and such security interests and Liens are subject to no other Liens Person other than Permitted Liens that are expressly set forth as title exceptions on the title policies issued under Section 5.3(gor (v) with require any consent or authorization of, filing with, or other act in respect to the applicable Propertyof, to the extent such title policies have been approved by the Agent, the Lenders an arbitrator or Governmental Authority and the Holders; upon recordation of the memorandum of the Lease Agreement (or a short form lease) in the real estate recording office in the applicable Approved State identified by the Lessee, the Lien created by the Lease Agreement in the real property described therein shall be a perfected first priority mortgage Lien on such real property in favor of the Agent, for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements; to the extent that the security interests in the portion no consent of any Property comprised other Person is required in connection with the execution, delivery, performance, validity or enforceability of personal property can be perfected by the filing in the filing offices in the applicable Approved State this Amendment other than consents, authorizations, filings or elsewhere identified by the Lessee upon filing of the Lessor Financing Statements in such filing offices, a security interest created by the Lease Agreement shall be a perfected first priority security interest in such personal property in favor of the Lessor, other acts or consents for which security interest pursuant to the Lessor Financing Statements is assigned to the Agent, for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements;
(r) as of the Closing Date, the sum of the Lessee's available cash balances and the available funds under its revolving credit facility is at least $50 million.
(s) the Improvements as to each Property comply with all applicable Legal Requirements (including without limitation all applicable Environmental Laws and building, planning, zoning and fire codes), except to the extent the failure to comply therewithobtain or make could not, individually or in the aggregate, shall not have and could not reasonably be expected to have a Material Adverse Effect; such Improvements are .
(ic) within (A) After giving effect to this Amendment, the boundary lines representations and warranties contained in each of the Property Loan Documents are true and (B) correct in all material respects, except for any building restriction lines representation and warranty that is qualified by materiality or setbacks and (ii) do not encroach in any manner onto any adjoining land (except as permitted by express written easementsreference to Material Adverse Effect, which have been approved by the Agent);
(t) [not used]
(u) such representation and warranty are true and correct in all respects, on and as of the Closing Datedate hereof as though made on and as of such date (other than any such representations or warranties that, each Domestic Subsidiary (formed prior by their terms, refer to or on a specific date, in which case as of such specific date) shall have executed this Agreement in its capacity as a Guarantor).
(vd) [not used]
(w) [not used]No Default or Event of Default shall exist after giving effect to this Amendment.
Appears in 1 contract
Representations and Warranties of the Credit Parties. Effective as of the Closing Date In order to induce Administrative Agent and the date each Domestic Subsidiary delivers a Joinder Lenders to enter into this Agreement, each Credit Party represents and warrants to each of the other parties hereto Administrative Agent and Lenders that:
(a) the representations and warranties set forth in Section 28.1 of the Lease are true and correct (unless such relate solely to an earlier point in time), and the Lessee The Borrower has delivered to the Administrative Agent the financial statements and other reports referred to in Article XXVIII of the LeaseSubsections 5.1(a)(i) and 5.1(a)(ii);
(b) Each of Credit Parties and its Subsidiaries (i) is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization; (ii) has all requisite power and authority to own, lease and operate its properties, to carry on its business as now conducted and as proposed to be conducted, to enter into the Credit Documents to which it is a party, and to carry out the transactions contemplated hereby and thereby; and (iii) is qualified to do business and is in good standing in every jurisdiction where its assets are located and wherever necessary to carry out its business and operations, except in jurisdictions where the failure to be so qualified or in good standing has not had, and could not be reasonably expected to have, a Material Adverse Effect;
(c) The execution and delivery by each Credit Party of this Agreement and the other applicable Operative Agreements Credit Documents as of such date and the performance by each Credit Party of its respective obligations under this Agreement and the other applicable Operative Agreements Credit Documents are within the corporate, partnership or limited liability company (as the case may be) powers of each Credit Party, have been duly authorized by all necessary corporate, partnership or limited liability company (as the case may be) corporate action on the part of each Credit Party (including without limitation any necessary shareholder action), have been duly executed and delivered, have received all necessary governmental approvalsapproval, and do not and will not (i) violate any Legal Requirement which is binding on any Credit Party or any of its Subsidiaries, (ii) contravene or conflict with, or result in a breach of, any provision of the articles Articles of incorporationIncorporation, byBy-laws Laws or other organizational documents of any Credit Party or any of its Subsidiaries or of any agreement, indenture, instrument or other document which is binding on any Credit Party or any of its Subsidiaries or (iii) result in, or require, the creation or imposition of any Lien (other than pursuant to the terms of the Operative Agreements) on any asset of any Credit Party or any of its Subsidiaries;
(cd) this This Agreement and the other applicable Operative Agreements, Credit Documents executed prior to and as of such date by any Credit Party, constitute the legal, valid and binding obligation of such Credit Party, as applicable, enforceable against such Credit Party, as applicable, in accordance with their terms. Each Credit Party has executed the various Operative Agreements Credit Documents required to be executed by such Credit Party as of such date;
(de) there There are no material actions, suits or proceedings pending or, to our knowledgethe knowledge of any Credit Party, threatened against any Credit Party in any court or before any Governmental Authority (nor shall any order, judgment or decree have been issued or proposed to be issued by any Governmental Authority to set aside, restrain, enjoin or prevent the full performance of any Operative Agreement Credit Document or any transaction contemplated thereby) that (i) concern any Property or any Credit Party's interest therein, (ii) question the validity or enforceability of any Operative Agreement to which Credit Document or any Credit Party is a party or the overall transaction described in the Operative Agreements to which any Credit Party is a party Documents or (iiiii) shall have or could reasonably be expected to have a Material Adverse Effect; provided provided, for purposes of disclosure, the Credit Parties have described -------- the litigation set forth on Exhibit K; ---------Schedule 4.1(e);
(ef) no No Governmental Action by any Governmental Authority or other authorization, registration, consent, approval, waiver, notice or other action by, to or of any other Person pursuant to any Legal Requirement, contract, indenture, instrument or agreement or for any other reason is required to authorize or is required in connection with (i) the execution, delivery or performance of any Operative AgreementCredit Document, (ii) the legality, validity, binding effect or enforceability of any Operative AgreementCredit Document, or (iii) the acquisition, ownership, construction, completion, occupancy, operation, leasing or subleasing of any Property or (iv) the AdvanceBorrowing, in each case, except those which have been obtained and are in full force and effect;
(fg) upon All information (including without limitation the execution financial statements and delivery of each Lease Supplement other reports delivered to the Lease, (iAdministrative Agent pursuant to Section 5.1(a)(i) the Lessee will have unconditionally accepted the Property subject to the applicable Lease Supplement and will have a valid and subsisting leasehold interest in such Property, subject only to the Permitted Liens, and (ii5.1(a)(ii)) no offset will exist with respect to any Rent or other sums payable under the Lease;
(g) [not used]
(h) all information heretofore or contemporaneously herewith furnished by each Credit Party or its Subsidiaries to the Administrative Agent, the Owner Trustee, or any Lender or any Holder for purposes of or in connection with this Agreement and the transactions contemplated hereby is, and all information hereafter furnished by or on behalf of each Credit Party or its Subsidiaries to the Agent, the Owner Trustee, Administrative Agent or any Lender or any Holder pursuant hereto or in connection herewith will be, true and accurate in every material respect on the date as of which such information is dated or certified, and such information, taken as a whole, does not and will not omit to state any material fact necessary to make such information, taken as a whole, not misleading;
(ih) the The principal place of business, business and chief executive office and office of the Lessee Borrower where the documents, accounts and records relating to the transactions contemplated by this Agreement and each other Operative Agreement Credit Document are kept are located at 000 Xxxxxxx XxxxxXxxxx Xxxxxx, XxxxxxxxMountain View, Xxxxxxxxxx 00000, California 94043 or at such other principal location which Borrower may hereafter specify in writing upon thirty (30) days prior written notice to the state of formation of the Lessee is the State of Delaware and the states of formation and the chief executive offices of each other Credit Party are located at the places set forth in Exhibit L; ---------Administrative Agent.
(ji) the The representations and warranties of each Credit Party set forth in any of the Operative Agreements Credit Documents are true and correct in all material respects on and as of each such date as if made on and as of such date; each . Each Credit Party is in all material respects in compliance with its respective obligations under the Operative Agreements Credit Documents and there exists no Default or Event of Default under any of the Operative Agreements Credit Documents which is continuing and which has not been cured within any cure period expressly granted under the terms of the applicable Operative Agreement Credit Document or otherwise waived in accordance with the applicable Operative Agreement; no Default or Event of Credit Document. No Default will occur under any of the Operative Agreements Credit Documents as a result of, or after giving effect to, the AdvanceBorrowing requested by the Notice of Borrowing on the date of each Borrowing;
(j) As of September 30, 1999, all of the following had occurred (in the order designated below):
(i) the merger of Merger Sub with and into the Borrower occurred (making the Borrower a wholly-owned Subsidiary of the Parent) in accordance with the terms of the Reorganization Agreement and applicable law;
(ii) each share of Capital Stock of the Borrower was converted into one share of Capital Stock of the Parent in accordance with the terms of the Reorganization Agreement and applicable law;
(iii) the Parent acquired all of the Capital Stock of NSMG and the NSMG Business in accordance with the terms of the Reorganization Agreement and applicable law; and
(k) as of the Closing DateJune 30, each Property is a Permitted Facility; each Property consists of Land and existing Improvements thereon which Improvements are suitable for occupancy; each Property is located in one 2000, all of the Approved States; each Property is well-performing following had occurred (as that term is used in Lessee's financial statements); and Lessee intends to continue operating each Property as a Permitted Facility;the order designated below):
(l) as of the Closing Date, the Lessor has good and marketable fee simple title to each Property, subject only to (i) such Liens referenced in Sections 6.2(q)(i) and 6.2(q)(ii) and (ii) subject to Section 5.7, Permitted Liens after the Closing Date;
(m) as VERITAS Software Corporation contributed all of the Closing Date, no portion Capital Stock of any Property is located in an area identified as VERITAS Software Global Corporation (formerly NSMG) to VERITAS Operating Corporation (making Borrower a special flood hazard area by the Federal Emergency Management Agency or other applicable agency, or if any such Property is located in an area identified as a special flood hazard area by the Federal Emergency Management Agency or other applicable agency, then flood insurance has been obtained for such Property in accordance with Section 14.2(bwholly-owned Subsidiary of VERITAS Operating Corporation) of the Lease and in accordance with the National Flood Insurance Act of 1968, as amended;
(n) as terms of the Closing DateCapital Contribution Agreement dated June 28, each Property complies with all Insurance Requirements 2000 and all standards of Lessee with respect to similar properties owned by Lessee;
(o) as of the Closing Date, each Property complies with all Legal Requirements as of such date (including without limitation all zoning and land use laws and Environmental Laws), except to the extent that failure to comply therewith, individually or in the aggregate, shall not have and could not reasonably be expected to have a Material Adverse Effect;
(p) as of the Closing Date, all utility services and facilities necessary for the operation of the Improvements and the operation of the Equipment regarding each Property (including without limitation gas, electrical, water and sewage services and facilities) are available at the applicable Land;
(i) the Security Documents create, as security for the Obligations, valid and enforceable security interests in, and Liens on, all of the Collateral, in favor of the Agent, for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements, and such security interests and Liens are subject to no other Liens other than Liens that are expressly set forth as title exceptions on the title policies issued under Section 5.3(g) with respect to the applicable Property, to the extent such title policies have been approved by the Agent, the Lenders and the Holders; upon recordation of the Mortgage Instrument in the real estate recording office in the applicable Approved State identified by the Lessee, the Lien created by the Mortgage Instrument in the real property described therein shall be a perfected first priority mortgage Lien on such real property in favor of the Agent, for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements; to the extent that the security interests in the portion of the Collateral comprised of personal property can be perfected by filing in the filing offices in the applicable Approved States or elsewhere identified by the Lessee, upon filing of the Lender Financing Statements in such filing offices, the security interests created by the Security Agreement shall be perfected first priority security interests in such personal property in favor of the Agent, for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements; andlaw.
(ii) VERITAS Software Corporation contributed assets to VERITAS Operating Corporation in accordance with the Lease Agreement creates, as security for the obligations terms of the Lessee under the Lease AgreementCapital Contribution Agreement dated June 28, valid 2000 and enforceable security interests in, and Liens on, each Property leased thereunder, in favor of the Lessor, and such security interests and Liens are subject to no other Liens other than Liens that are expressly set forth as title exceptions on the title policies issued under Section 5.3(g) with respect to the applicable Property, to the extent such title policies have been approved by the Agent, the Lenders and the Holders; upon recordation of the memorandum of the Lease Agreement (or a short form lease) in the real estate recording office in the applicable Approved State identified by the Lessee, the Lien created by the Lease Agreement in the real property described therein shall be a perfected first priority mortgage Lien on such real property in favor of the Agent, for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements; to the extent that the security interests in the portion of any Property comprised of personal property can be perfected by the filing in the filing offices in the applicable Approved State or elsewhere identified by the Lessee upon filing of the Lessor Financing Statements in such filing offices, a security interest created by the Lease Agreement shall be a perfected first priority security interest in such personal property in favor of the Lessor, which security interest pursuant to the Lessor Financing Statements is assigned to the Agent, for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements;
(r) as of the Closing Date, the sum of the Lessee's available cash balances and the available funds under its revolving credit facility is at least $50 millionlaw.
(siii) VERITAS Operating Corporation contributed assets to VERITAS Software Global Corporation in accordance with the Improvements as to each Property comply with all applicable Legal Requirements (including without limitation all applicable Environmental Laws and building, planning, zoning and fire codes), except to the extent the failure to comply therewith, individually or in the aggregate, shall not have and could not reasonably be expected to have a Material Adverse Effect; such Improvements are (i) within (A) the boundary lines terms of the Property Contribution Agreement dated June 30, 2000 and (B) any building restriction lines or setbacks and (ii) do not encroach in any manner onto any adjoining land (except as permitted by express written easements, which have been approved by the Agent);
(t) [not used]
(u) as of the Closing Date, each Domestic Subsidiary (formed prior to or on such date) shall have executed this Agreement in its capacity as a Guarantorapplicable law.
(v) [not used]
(w) [not used]
Appears in 1 contract
Representations and Warranties of the Credit Parties. Effective as of the Initial Closing Date and Date, the date of each Advance, the date each Domestic Subsidiary or Parent, as the case may be, delivers a Joinder AgreementAgreement and the Rent Commencement Date, each Credit Party represents and warrants to each of the other parties hereto that:
(a) the representations and warranties set forth in Section 28.1 of the Lease are true and correct (unless such relate solely to an earlier point in time), and the The Lessee has delivered to the Agent the financial statements and other reports referred to in Article XXVIII of the LeaseSection 8.3A(a)(i) and (ii) hereof;
(b) the The execution and delivery by each Credit Party of this Agreement and the other applicable Operative Agreements as of such date and the performance by each Credit Party of its respective obligations under this Agreement and the other applicable Operative Agreements are within the corporate, partnership or limited liability company (as the case may be) powers of each Credit Party, have been duly authorized by all necessary corporate, partnership or limited liability company (as the case may be) corporate action on the part of each Credit Party (including without limitation any necessary shareholder action), have been duly executed and delivered, have received all necessary governmental approvalsapproval, and do not and will not (i) violate any Legal Requirement which is binding on any Credit Party or any of its Subsidiaries, (ii) contravene or conflict with, or result in a breach of, any provision of the articles Articles of incorporationIncorporation, byBy-laws Laws or other organizational documents of any Credit Party or any of its Subsidiaries or of any agreement, indenture, instrument or other document which is binding on any Credit Party or any of its Subsidiaries or (iii) result in, or require, the creation or imposition of any Lien (other than pursuant to the terms of the Operative Agreements) on any asset of any Credit Party or any of its Subsidiaries;
(c) this This Agreement and the other applicable Operative Agreements, Agreements executed prior to and as of such date by any Credit Party, constitute the legal, valid and binding obligation of such Credit Party, as applicable, enforceable against the such Credit Party, as applicable, in accordance with their terms. Each Credit Party has executed the various Operative Agreements required to be executed by such Credit Party as of such date;
(d) there There are no material actions, suits or proceedings pending or, to our knowledge, threatened against any Credit Party in any court or before any Governmental Authority (nor shall any order, judgment or decree have been issued or proposed to be issued by any Governmental Authority to set aside, restrain, enjoin or prevent the full performance of any Operative Agreement or any transaction contemplated thereby) that (i) concern any Property or any Credit Party's interest therein, (ii) question the validity or enforceability of any Operative Agreement to which or any Credit Party is a party or the overall transaction described in the Operative Agreements to which any Credit Party is a party or (iii) shall have or could reasonably be expected to have a Material Adverse Effect; provided provided, for purposes of disclosure, the Credit Parties have described -------- the litigation set forth on Exhibit K; ---------J;
(e) no No Governmental Action by any Governmental Authority or other authorization, registration, consent, approval, waiver, notice or other action by, to or of any other Person pursuant to any Legal Requirement, contract, indenture, instrument or agreement or for any other reason is required to authorize or is required in connection with (i) the execution, delivery or performance of any Operative Agreement, (ii) the legality, validity, binding effect or enforceability of any Operative Agreement, (iii) the acquisition, ownership, construction, completion, occupancy, operation, leasing or subleasing of any Property or (iv) the any Advance, in each case, except those which have been obtained and are in full force and effect;
(f) upon Upon the execution and delivery of the Lease and each Lease Supplement to the Lease, (i) the Lessee will have unconditionally accepted the Property subject to the applicable Lease Supplement and will have a valid and subsisting leasehold interest in such Property, subject only to the Permitted Liens, and (ii) no offset will exist with respect to any Rent or other sums payable under the Lease;
(g) [not used]
(h) all information heretofore or contemporaneously herewith furnished by each Credit Party or its Subsidiaries to the Agent, the Owner Trustee, any Lender or any Holder for purposes of or in connection with this Agreement and the transactions contemplated hereby is, and all information hereafter furnished by or on behalf of each Credit Party or its Subsidiaries to the Agent, the Owner Trustee, any Lender or any Holder pursuant hereto or in connection herewith will be, true and accurate in every material respect on the date as of which such information is dated or certified, and such information, taken as a whole, does not and will not omit to state any material fact necessary to make such information, taken as a whole, not misleading;
(i) the principal place of business, chief executive office and office of the Lessee where the documents, accounts and records relating to the transactions contemplated by this Agreement and each other Operative Agreement are kept are located at 000 Xxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, the state of formation of the Lessee is the State of Delaware and the states of formation and the chief executive offices of each other Credit Party are located at the places set forth in Exhibit L; ---------
(j) the representations and warranties of each Credit Party set forth in any of the Operative Agreements are true and correct in all material respects on and as of each such date as if made on and as of such date; each Credit Party is in all material respects in compliance with its obligations under the Operative Agreements and there exists no Default or Event of Default under any of the Operative Agreements which is continuing and which has not been cured within any cure period expressly granted under the terms of the applicable Operative Agreement or otherwise waived in accordance with the applicable Operative Agreement; no Default or Event of Default will occur under any of the Operative Agreements as a result of, or after giving effect to, the Advance;
(k) as of the Closing Date, each Property is a Permitted Facility; each Property consists of Land and existing Improvements thereon which Improvements are suitable for occupancy; each Property is located in one of the Approved States; each Property is well-performing (as that term is used in Lessee's financial statements); and Lessee intends to continue operating each Property as a Permitted Facility;
(l) as of the Closing Date, the Lessor has good and marketable fee simple title to each Property, subject only to (i) such Liens referenced in Sections 6.2(q)(i) and 6.2(q)(ii) and (ii) subject to Section 5.7, Permitted Liens after the Closing Date;
(m) as of the Closing Date, no portion of any Property is located in an area identified as a special flood hazard area by the Federal Emergency Management Agency or other applicable agency, or if any such Property is located in an area identified as a special flood hazard area by the Federal Emergency Management Agency or other applicable agency, then flood insurance has been obtained for such Property in accordance with Section 14.2(b) of the Lease and in accordance with the National Flood Insurance Act of 1968, as amended;
(n) as of the Closing Date, each Property complies with all Insurance Requirements and all standards of Lessee with respect to similar properties owned by Lessee;
(o) as of the Closing Date, each Property complies with all Legal Requirements as of such date (including without limitation all zoning and land use laws and Environmental Laws), except to the extent that failure to comply therewith, individually or in the aggregate, shall not have and could not reasonably be expected to have a Material Adverse Effect;
(p) as of the Closing Date, all utility services and facilities necessary for the operation of the Improvements and the operation of the Equipment regarding each Property (including without limitation gas, electrical, water and sewage services and facilities) are available at the applicable Land;
(i) the Security Documents create, as security for the Obligations, valid and enforceable security interests in, and Liens on, all of the Collateral, in favor of the Agent, for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements, and such security interests and Liens are subject to no other Liens other than Liens that are expressly set forth as title exceptions on the title policies issued under Section 5.3(g) with respect to the applicable Property, to the extent such title policies have been approved by the Agent, the Lenders and the Holders; upon recordation of the Mortgage Instrument in the real estate recording office in the applicable Approved State identified by the Lessee, the Lien created by the Mortgage Instrument in the real property described therein shall be a perfected first priority mortgage Lien on such real property in favor of the Agent, for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements; to the extent that the security interests in the portion of the Collateral comprised of personal property can be perfected by filing in the filing offices in the applicable Approved States or elsewhere identified by the Lessee, upon filing of the Lender Financing Statements in such filing offices, the security interests created by the Security Agreement shall be perfected first priority security interests in such personal property in favor of the Agent, for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements; and
(ii) the Lease Agreement creates, as security for the obligations of the Lessee under the Lease Agreement, valid and enforceable security interests in, and Liens on, each Property leased thereunder, in favor of the Lessor, and such security interests and Liens are subject to no other Liens other than Liens that are expressly set forth as title exceptions on the title policies issued under Section 5.3(g) with respect to the applicable Property, to the extent such title policies have been approved by the Agent, the Lenders and the Holders; upon recordation of the memorandum of the Lease Agreement (or a short form lease) in the real estate recording office in the applicable Approved State identified by the Lessee, the Lien created by the Lease Agreement in the real property described therein shall be a perfected first priority mortgage Lien on such real property in favor of the Agent, for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements; to the extent that the security interests in the portion of any Property comprised of personal property can be perfected by the filing in the filing offices in the applicable Approved State or elsewhere identified by the Lessee upon filing of the Lessor Financing Statements in such filing offices, a security interest created by the Lease Agreement shall be a perfected first priority security interest in such personal property in favor of the Lessor, which security interest pursuant to the Lessor Financing Statements is assigned to the Agent, for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements;
(r) as of the Closing Date, the sum of the Lessee's available cash balances and the available funds under its revolving credit facility is at least $50 million.
(s) the Improvements as to each Property comply with all applicable Legal Requirements (including without limitation all applicable Environmental Laws and building, planning, zoning and fire codes), except to the extent the failure to comply therewith, individually or in the aggregate, shall not have and could not reasonably be expected to have a Material Adverse Effect; such Improvements are (i) within (A) the boundary lines of the Property and (B) any building restriction lines or setbacks and (ii) do not encroach in any manner onto any adjoining land (except as permitted by express written easements, which have been approved by the Agent);
(t) [not used]
(u) as of the Closing Date, each Domestic Subsidiary (formed prior to or on such date) shall have executed this Agreement in its capacity as a Guarantor.
(v) [not used]
(w) [not used]the
Appears in 1 contract
Samples: Participation Agreement (Veritas Software Corp /De/)
Representations and Warranties of the Credit Parties. Effective as of the Closing Date and the date each Domestic Subsidiary delivers a Joinder Agreement, each Each Credit Party represents and warrants to each of the other parties hereto that:that as of the Closing Date (except to the extent that any such representation or warranty relates to an earlier date):
(a) Each of the representations Lessee and warranties its Subsidiaries is duly organized, validly existing and, except for the matter set forth in Section 28.1 Schedule 6.2(a), in good standing under the laws of the Lease are true jurisdiction of its organization, has all requisite power and correct (unless such relate solely authority to an earlier point carry on its business as now conducted and, except where the failure to do so, individually or in time)the aggregate, could not reasonably be expected to result in a Material Adverse Effect, is qualified to do business in, and the Lessee has delivered to the Agent the financial statements and other reports referred to is in Article XXVIII of the Lease;good standing in, every jurisdiction where such qualification is required.
(b) the execution and delivery by each Credit Party of this Agreement and the other applicable Operative Agreements as of such date and the performance by each Credit Party of its respective obligations under this Agreement and the other applicable Operative Agreements The Transactions are within the corporateLessee’s or Guarantor’s, partnership or limited liability company (as the case may be) , corporate powers of each Credit Party, and have been duly authorized by all necessary corporatecorporate and, partnership if required, stockholder action. Each of the Operative Agreements (to which the Lessee or limited liability company (as the case may beany Guarantor is a party) action on the part of each Credit Party (including without limitation any necessary shareholder action), have has been duly executed and delivereddelivered by the Lessee or the Guarantors, have received all necessary governmental approvalsas applicable, and do not constitutes a legal, valid and will not binding obligation of the Lessee or the Guarantors, as applicable, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
(c) The Transactions (i) violate do not require any Legal Requirement which is binding on any Credit Party consent or approval of, registration or filing with, or any of its Subsidiariesother action by, any Governmental Authority, except such as have been obtained or made and are in full force and effect, (ii) contravene will not violate any applicable law or conflict with, regulation or result in a breach of, any provision of the articles of incorporationcharter, by-laws or other organizational documents of any Credit Party the Lessee or any of its Subsidiaries or any order of any agreementGovernmental Authority, (iii) will not violate or result in a default under any indenture, instrument agreement or other document which is instrument binding on any Credit Party upon the Lessee or any of its Subsidiaries or (iii) result inits assets, or requiregive rise to a right thereunder to require any payment to be made by the Lessee or any of its Subsidiaries, and (iv) will not result in the creation or imposition of any Lien (other than pursuant to the terms of the Operative Agreements) on any asset of any Credit Party the Lessee or any of its Subsidiaries;
(c) this Agreement and the other applicable Operative Agreements, executed prior to and as of such date by any Credit Party, constitute the legal, valid and binding obligation of such Credit Party, as applicable, enforceable against such Credit Party, as applicable, in accordance with their terms. Each Credit Party has executed the various Operative Agreements required to be executed by such Credit Party as of such date;
(d) there are no material actions, suits or proceedings pending or, to our knowledge, threatened against any Credit Party in any court or before any Governmental Authority (nor shall any order, judgment or decree have been issued or proposed to be issued by any Governmental Authority to set aside, restrain, enjoin or prevent the full performance of any Operative Agreement or any transaction contemplated thereby) that (i) concern any Property or any Credit Party's interest therein, (ii) question the validity or enforceability of any Operative Agreement to which any Credit Party is a party or the overall transaction described in the Operative Agreements to which any Credit Party is a party or (iii) have or could reasonably be expected to have a Material Adverse Effect; provided for purposes of disclosure, the Credit Parties have described -------- the litigation set forth on Exhibit K; ---------
(e) no Governmental Action by any Governmental Authority or other authorization, registration, consent, approval, waiver, notice or other action by, to or of any other Person pursuant to any Legal Requirement, contract, indenture, instrument or agreement or for any other reason is required to authorize or is required in connection with (i) the execution, delivery or performance of any Operative Agreement, (ii) the legality, validity, binding effect or enforceability of any Operative Agreement, (iii) the acquisition, ownership, construction, completion, occupancy, operation, leasing or subleasing of any Property or (iv) the Advance, in each case, except those which have been obtained and are in full force and effect;
(f) upon the execution and delivery of each Lease Supplement to the Lease, (i) the Lessee will have unconditionally accepted the Property subject to the applicable Lease Supplement and will have a valid and subsisting leasehold interest in such Property, subject only to the Permitted Liens, and (ii) no offset will exist with respect to any Rent or other sums payable under the Lease;
(g) [not used]
(h) all information heretofore or contemporaneously herewith furnished by each Credit Party or its Subsidiaries to the Agent, the Owner Trustee, any Lender or any Holder for purposes of or in connection with this Agreement and the transactions contemplated hereby is, and all information hereafter furnished by or on behalf of each Credit Party or its Subsidiaries to the Agent, the Owner Trustee, any Lender or any Holder pursuant hereto or in connection herewith will be, true and accurate in every material respect on the date as of which such information is dated or certified, and such information, taken as a whole, does not and will not omit to state any material fact necessary to make such information, taken as a whole, not misleading;.
(i) The Lessee has heretofore furnished to the principal place Lessor and the Lenders its consolidated balance sheet and statements of businessincome, stockholders equity and cash flows (A) as of and for the fiscal year ended December 31, 2009, reported on by Ernst & Young LLP, independent public accountants, and (B) as of and for the fiscal quarter and the portion of the fiscal year ended March 31, 2010, certified by its chief executive office financial officer. Such financial statements present fairly, in all material respects, the financial position and office results of operations and cash flows of the Lessee where the documents, accounts and records relating to the transactions contemplated by this Agreement and each other Operative Agreement are kept are located at 000 Xxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, the state of formation of the Lessee is the State of Delaware and the states of formation and the chief executive offices of each other Credit Party are located at the places set forth in Exhibit L; ---------
(j) the representations and warranties of each Credit Party set forth in any of the Operative Agreements are true and correct in all material respects on and as of each such date as if made on and its consolidated Subsidiaries as of such date; each Credit Party is in all material respects in compliance with its obligations under the Operative Agreements dates and there exists no Default or Event of Default under any of the Operative Agreements which is continuing and which has not been cured within any cure period expressly granted under the terms of the applicable Operative Agreement or otherwise waived for such periods in accordance with GAAP, subject to year-end audit adjustments and the applicable Operative Agreement; no Default or Event absence of Default will occur under any footnotes in the case of the Operative Agreements as a result of, or after giving effect to, the Advance;statements referred to in clause (B) above.
(k) as of the Closing Date, each Property is a Permitted Facility; each Property consists of Land and existing Improvements thereon which Improvements are suitable for occupancy; each Property is located in one of the Approved States; each Property is well-performing (as that term is used in Lessee's financial statements); and Lessee intends to continue operating each Property as a Permitted Facility;
(l) as of the Closing Date, the Lessor has good and marketable fee simple title to each Property, subject only to (i) such Liens referenced in Sections 6.2(q)(i) and 6.2(q)(ii) and (ii) subject to Section 5.7Since December 31, Permitted Liens after the Closing Date;
(m) as of the Closing Date2009, there has been no portion of any Property is located in an area identified as a special flood hazard area by the Federal Emergency Management Agency event, occurrence or other applicable agency, or if any such Property is located in an area identified as a special flood hazard area by the Federal Emergency Management Agency or other applicable agency, then flood insurance has been obtained for such Property in accordance with Section 14.2(b) of the Lease and in accordance with the National Flood Insurance Act of 1968, as amended;
(n) as of the Closing Date, each Property complies with all Insurance Requirements and all standards of Lessee with respect to similar properties owned by Lessee;
(o) as of the Closing Date, each Property complies with all Legal Requirements as of such date (including without limitation all zoning and land use laws and Environmental Laws), except to the extent matter that failure to comply therewithcould reasonably be expected, individually or in the aggregate, shall not have and could not reasonably be expected to have result in a Material Adverse Effect;
(p) as of the Closing Date, all utility services and facilities necessary for the operation of the Improvements and the operation of the Equipment regarding each Property (including without limitation gas, electrical, water and sewage services and facilities) are available at the applicable Land;.
(i) Each of the Security Documents createLessee and its Subsidiaries has good title to, as security for the Obligations, or valid and enforceable security leasehold interests in, all its real and Liens on, all of the Collateral, in favor of the Agent, for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements, and such security interests and Liens are subject to no other Liens other than Liens that are expressly set forth as title exceptions on the title policies issued under Section 5.3(g) with respect to the applicable Property, to the extent such title policies have been approved by the Agent, the Lenders and the Holders; upon recordation of the Mortgage Instrument in the real estate recording office in the applicable Approved State identified by the Lessee, the Lien created by the Mortgage Instrument in the real property described therein shall be a perfected first priority mortgage Lien on such real property in favor of the Agent, for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements; to the extent that the security interests in the portion of the Collateral comprised of personal property can be perfected by filing material to its business, except for minor defects in the filing offices in the applicable Approved States title that do not interfere with its ability to conduct its business as currently conducted or elsewhere identified by the Lessee, upon filing of the Lender Financing Statements in to utilize such filing offices, the security interests created by the Security Agreement shall be perfected first priority security interests in such personal property in favor of the Agent, properties for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements; andintended purposes.
(ii) the Lease Agreement creates, as security for the obligations Each of the Lessee under the Lease Agreementand its Subsidiaries owns, valid or is licensed to use, all trademarks, tradenames, copyrights, patents and enforceable security interests inother intellectual property material to its business, and Liens on, each Property leased thereunder, in favor of the Lessor, and such security interests and Liens are subject to no other Liens other than Liens that are expressly set forth as title exceptions on the title policies issued under Section 5.3(g) with respect to the applicable Property, to the extent such title policies have been approved by the Agent, the Lenders and the Holders; upon recordation of the memorandum of the Lease Agreement (or a short form lease) in the real estate recording office in the applicable Approved State identified by the Lessee, the Lien created by the Lease Agreement in the real property described therein shall be a perfected first priority mortgage Lien on such real property in favor of the Agent, for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements; to the extent that the security interests in the portion of any Property comprised of personal property can be perfected by the filing in the filing offices in the applicable Approved State or elsewhere identified use thereof by the Lessee and its Subsidiaries does not infringe upon filing the rights of the Lessor Financing Statements in such filing offices, a security interest created by the Lease Agreement shall be a perfected first priority security interest in such personal property in favor of the Lessor, which security interest pursuant to the Lessor Financing Statements is assigned to the Agent, for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements;
(r) as of the Closing Date, the sum of the Lessee's available cash balances and the available funds under its revolving credit facility is at least $50 million.
(s) the Improvements as to each Property comply with all applicable Legal Requirements (including without limitation all applicable Environmental Laws and building, planning, zoning and fire codes)any other Person, except to the extent the failure to comply therewithfor any such infringements that, individually or in the aggregate, shall not have and could not reasonably be expected to have result in a Material Adverse Effect; such Improvements are .
(f) (i) within There are no actions, suits or proceedings by or before any arbitrator or Governmental Authority pending against or, to the knowledge of the Lessee, threatened against or affecting the Lessee or any of its Subsidiaries (A) as to which there is a reasonable possibility of an adverse determination and that, if adversely determined, could reasonably be expected, individually or in the boundary lines of aggregate, to result in a Material Adverse Effect (other than the Property and Disclosed Matters) or (B) that involve any building restriction lines or setbacks and (ii) do not encroach in any manner onto any adjoining land (except as permitted by express written easements, which have been approved by the Agent);
(t) [not used]
(u) as of the Closing Date, each Domestic Subsidiary (formed prior to Operative Agreements or on such date) shall have executed this Agreement in its capacity as a Guarantorthe Transactions.
(v) [not used]
(w) [not used]
Appears in 1 contract
Representations and Warranties of the Credit Parties. Effective The Credit Parties represent and warrant as of the Closing Date and the date each Domestic Subsidiary delivers a Joinder Agreement, each Credit Party represents and warrants to each of the other parties hereto thatfollows:
(a) the representations and warranties set forth in Section 28.1 Each of the Lease are true Credit Parties is a corporation duly organized, validly existing and correct (unless such relate solely to an earlier point in time), and good standing under the Lessee has delivered to the Agent the financial statements and other reports referred to in Article XXVIII laws of the Lease;jurisdiction of its incorporation or formation.
(b) the execution The execution, delivery and delivery performance by each Credit Party of this Agreement and the other applicable Operative Agreements as of such date Amendment and the performance by each Credit Party of its respective obligations under this Agreement and the other applicable Operative Agreements are within the corporateFive-Year Credit Agreement, partnership or limited liability company (as the case may be) powers of each Credit Partyamended hereby, have been duly authorized by all necessary corporate, partnership or limited liability company (as the case may be) action on the part of each Credit Party (including without limitation any necessary shareholder action), have been duly executed and delivered, have received all necessary governmental approvals, and do not and will not not, by the passage of time, the giving of notice or otherwise, (i) violate require any Legal Requirement which is binding on any of the Credit Party Parties or any of its their Subsidiaries to obtain any Governmental Approval not otherwise already obtained or violate any Applicable Law relating to the Credit Parties or any of their Subsidiaries, (ii) contravene or conflict with, or result in a breach of, any provision of or constitute a default under the articles of incorporation, by-laws bylaws or other organizational documents of any the Credit Party Parties or any of its their Subsidiaries or of any agreement, indenture, instrument indenture or other document which is binding on any Credit Party material agreement or any of its Subsidiaries or (iii) result in, or require, the creation or imposition of any Lien (other than pursuant to the terms of the Operative Agreements) on any asset of any Credit Party or any of its Subsidiaries;
(c) this Agreement and the other applicable Operative Agreements, executed prior to and as of such date by any Credit Party, constitute the legal, valid and binding obligation of such Credit Party, as applicable, enforceable against such Credit Party, as applicable, in accordance with their terms. Each Credit Party has executed the various Operative Agreements required to be executed by such Credit Party as of such date;
(d) there are no material actions, suits or proceedings pending or, to our knowledge, threatened against any Credit Party in any court or before any Governmental Authority (nor shall any order, judgment or decree have been issued or proposed to be issued by any Governmental Authority to set aside, restrain, enjoin or prevent the full performance of any Operative Agreement or any transaction contemplated thereby) that (i) concern any Property or any Credit Party's interest therein, (ii) question the validity or enforceability of any Operative Agreement instrument to which any Credit Party such Person is a party or the overall transaction described in the Operative Agreements to by which any Credit Party is a party of its properties may be bound or (iii) have or could reasonably be expected to have a Material Adverse Effect; provided for purposes of disclosure, the Credit Parties have described -------- the litigation set forth on Exhibit K; ---------
(e) no Governmental Action by any Governmental Authority or other authorization, registration, consent, approval, waiver, notice or other action by, to or of any other Person pursuant to any Legal Requirement, contract, indenture, instrument or agreement or for any other reason is required to authorize or is required in connection with (i) the execution, delivery or performance of any Operative Agreement, (ii) the legality, validity, binding effect or enforceability of any Operative Agreement, (iii) the acquisition, ownership, construction, completion, occupancy, operation, leasing or subleasing of any Property or (iv) the Advance, in each case, except those which have been obtained and are in full force and effect;
(f) upon the execution and delivery of each Lease Supplement to the Lease, (i) the Lessee will have unconditionally accepted the Property subject to the applicable Lease Supplement and will have a valid and subsisting leasehold interest in such Property, subject only to the Permitted Liens, and (ii) no offset will exist with respect to any Rent or other sums payable under the Lease;
(g) [not used]
(h) all information heretofore or contemporaneously herewith furnished by each Credit Party or its Subsidiaries to the Agent, the Owner Trustee, any Lender or any Holder for purposes of or in connection with this Agreement and the transactions contemplated hereby is, and all information hereafter furnished by or on behalf of each Credit Party or its Subsidiaries to the Agent, the Owner Trustee, any Lender or any Holder pursuant hereto or in connection herewith will be, true and accurate in every material respect on the date as of which such information is dated or certified, and such information, taken as a whole, does not and will not omit to state any material fact necessary to make such information, taken as a whole, not misleading;
(i) the principal place of business, chief executive office and office of the Lessee where the documents, accounts and records Approval relating to the transactions contemplated by this Agreement and each other Operative Agreement are kept are located at 000 Xxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, the state of formation of the Lessee is the State of Delaware and the states of formation and the chief executive offices of each other Credit Party are located at the places set forth in Exhibit L; ---------
(j) the representations and warranties of each Credit Party set forth in any of the Operative Agreements are true and correct in all material respects on and such Person except as of each such date as if made on and as of such date; each Credit Party is in all material respects in compliance with its obligations under the Operative Agreements and there exists no Default or Event of Default under any of the Operative Agreements which is continuing and which has not been cured within any cure period expressly granted under the terms of the applicable Operative Agreement or otherwise waived in accordance with the applicable Operative Agreement; no Default or Event of Default will occur under any of the Operative Agreements as a result of, or after giving effect to, the Advance;
(k) as of the Closing Date, each Property is a Permitted Facility; each Property consists of Land and existing Improvements thereon which Improvements are suitable for occupancy; each Property is located in one of the Approved States; each Property is well-performing (as that term is used in Lessee's financial statements); and Lessee intends to continue operating each Property as a Permitted Facility;
(l) as of the Closing Date, the Lessor has good and marketable fee simple title to each Property, subject only to (i) such Liens referenced in Sections 6.2(q)(i) and 6.2(q)(ii) and (ii) subject to Section 5.7, Permitted Liens after the Closing Date;
(m) as of the Closing Date, no portion of any Property is located in an area identified as a special flood hazard area by the Federal Emergency Management Agency or other applicable agency, or if any such Property is located in an area identified as a special flood hazard area by the Federal Emergency Management Agency or other applicable agency, then flood insurance has been obtained for such Property in accordance with Section 14.2(b) of the Lease and in accordance with the National Flood Insurance Act of 1968, as amended;
(n) as of the Closing Date, each Property complies with all Insurance Requirements and all standards of Lessee with respect to similar properties owned by Lessee;
(o) as of the Closing Date, each Property complies with all Legal Requirements as of such date (including without limitation all zoning and land use laws and Environmental Laws), except to the extent that failure to comply therewith, individually or in the aggregate, shall not have and could not reasonably be expected to have a Material Adverse Effect;, or (iii) result in or require the creation or imposition of any material Lien upon or with respect to any property now owned or hereafter acquired by such Person other than a Lien permitted under the terms of the Loan Documents.
(pc) as Each of the Closing DateCredit Parties has the right, power and authority and has taken all utility services necessary corporate and facilities necessary for other action to authorize the operation execution, delivery and performance of this Amendment and the performance of its obligations the Five-Year Credit Agreement, as amended hereby, in accordance with their respective terms. This Amendment has been duly executed and delivered by the duly authorized officers of the Improvements Credit Parties and the operation such document constitutes, and each of the Equipment regarding each Property (including without limitation gasLoan Documents does and continues to constitute, electrical, water and sewage services and facilities) are available at the applicable Land;
(i) the Security Documents create, as security for the Obligationslegal, valid and enforceable security interests in, and Liens on, all binding obligation of the CollateralCredit Parties and, if applicable, each of their Subsidiaries party thereto, enforceable in favor accordance with their respective terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of the Agent, for the ratable benefit of the Lenders creditors' rights in general and the Holdersavailability of equitable remedies.
(d) Except for matters existing on the Closing Date and set forth on Schedule 7.1(q) to the Five-Year Credit Agreement, as their respective interests appear in the Operative Agreementsamended hereby, and such security interests and Liens there are subject to no other Liens other than Liens that are expressly set forth as title exceptions on the title policies issued under Section 5.3(g) with respect to the applicable Propertyactions, suits or proceedings pending nor, to the extent such title policies have been approved by the Agent, the Lenders and the Holders; upon recordation knowledge of the Mortgage Instrument in Credit Parties, threatened against or affecting the real estate recording office in the applicable Approved State identified by the Lessee, the Lien created by the Mortgage Instrument in the real property described therein shall be a perfected first priority mortgage Lien on such real property in favor Credit Parties or any Subsidiary thereof or any of the Agent, for the ratable benefit of the Lenders and the Holders, as their respective interests appear properties in the Operative Agreements; to the extent that the security interests in the portion of the Collateral comprised of personal property can be perfected by filing in the filing offices in the applicable Approved States any court or elsewhere identified by the Lessee, upon filing of the Lender Financing Statements in such filing offices, the security interests created by the Security Agreement shall be perfected first priority security interests in such personal property in favor of the Agent, for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements; and
(ii) the Lease Agreement creates, as security for the obligations of the Lessee under the Lease Agreement, valid and enforceable security interests in, and Liens on, each Property leased thereunder, in favor of the Lessor, and such security interests and Liens are subject to no other Liens other than Liens that are expressly set forth as title exceptions on the title policies issued under Section 5.3(g) with respect to the applicable Property, to the extent such title policies have been approved by the Agent, the Lenders and the Holders; upon recordation of the memorandum of the Lease Agreement (or a short form lease) in the real estate recording office in the applicable Approved State identified by the Lessee, the Lien created by the Lease Agreement in the real property described therein shall be a perfected first priority mortgage Lien on such real property in favor of the Agent, for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements; to the extent that the security interests in the portion before any arbitrator of any Property comprised of personal property can be perfected kind or before or by the filing in the filing offices in the applicable Approved State or elsewhere identified by the Lessee upon filing of the Lessor Financing Statements in such filing offices, a security interest created by the Lease Agreement shall be a perfected first priority security interest in such personal property in favor of the Lessorany Governmental Authority, which security interest pursuant to the Lessor Financing Statements is assigned to the Agent, for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements;
(r) as of the Closing Date, the sum of the Lessee's available cash balances and the available funds under its revolving credit facility is at least $50 million.
(s) the Improvements as to each Property comply with all applicable Legal Requirements (including without limitation all applicable Environmental Laws and building, planning, zoning and fire codes), except to the extent the failure to comply therewith, individually or in the aggregate, shall not have and could not reasonably be expected to have a Material Adverse Effect; such Improvements are (i) within (A) Effect or which relate to the boundary lines enforceability of the Property and (B) this Amendment or any building restriction lines or setbacks and (ii) do not encroach in any manner onto any adjoining land (except Loan Documents, as permitted by express written easements, which have been approved by the Agent);
(t) [not used]
(u) as of the Closing Date, each Domestic Subsidiary (formed prior to or on such date) shall have executed this Agreement in its capacity as a Guarantoramended hereby.
(v) [not used]
(w) [not used]
Appears in 1 contract
Samples: Five Year Credit Agreement (Jones Apparel Group Inc)
Representations and Warranties of the Credit Parties. Effective as of the Closing Date In order to induce Administrative Agent and the date each Domestic Subsidiary delivers a Joinder Lenders to enter into this Agreement, each Credit Party represents and warrants to each of the other parties hereto Administrative Agent and Lenders that:
(a) the representations and warranties set forth in Section 28.1 of the Lease are true and correct (unless such relate solely to an earlier point in time), and the Lessee The Borrower has delivered to the Administrative Agent the financial statements and other reports referred to in Article XXVIII of the LeaseSubsections 5.1(a)(i) and 5.1(a)(ii);
(b) Each of Credit Parties and its Subsidiaries (i) is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization; (ii) has all requisite power and authority to own, lease and operate its properties, to carry on its business as now conducted and as proposed to be conducted, to enter into the Credit Documents to which it is a party, and to carry out the transactions contemplated hereby and thereby; and (iii) is qualified to do business and is in good standing in every jurisdiction where its assets are located and wherever necessary to carry out its business and operations, except in jurisdictions where the failure to be so qualified or in good standing has not had, and could not be reasonably expected to have, a Material Adverse Effect;
(c) The execution and delivery by each Credit Party of this Agreement and the other applicable Operative Agreements Credit Documents as of such date and the performance by each Credit Party of its respective obligations under this Agreement and the other applicable Operative Agreements Credit Documents are within the corporate, partnership or limited liability company (as the case may be) powers of each Credit Party, have been duly authorized by all necessary corporate, partnership or limited liability company (as the case may be) corporate action on the part of each Credit Party (including without limitation any necessary shareholder action), have been duly executed and delivered, have received all necessary governmental approvalsapproval, and do not and will not (i) violate any Legal Requirement which is binding on any Credit Party or any of its Subsidiaries, (ii) contravene or conflict with, or result in a breach of, any provision of the articles Articles of incorporationIncorporation, byBy-laws Laws or other organizational documents of any Credit Party or any of its Subsidiaries or of any agreement, indenture, instrument or other document which is binding on any Credit Party or any of its Subsidiaries or (iii) result in, or require, the creation or imposition of any Lien (other than pursuant to the terms of the Operative Agreements) on any asset of any Credit Party or any of its Subsidiaries;
(cd) this This Agreement and the other applicable Operative Agreements, Credit Documents executed prior to and as of such date by any Credit Party, constitute the legal, valid and binding obligation of such Credit Party, as applicable, enforceable against such Credit Party, as applicable, in accordance with their terms. Each Credit Party has executed the various Operative Agreements Credit Documents required to be executed by such Credit Party as of such date;
(de) there There are no material actions, suits or proceedings pending or, to our knowledgethe knowledge of any Credit Party, threatened against any Credit Party in any court or before any Governmental Authority (nor shall any order, judgment or decree have been issued or proposed to be issued by any Governmental Authority to set aside, restrain, enjoin or prevent the full performance of any Operative Agreement Credit Document or any transaction contemplated thereby) that (i) concern any Property or any Credit Party's interest therein, (ii) question the validity or enforceability of any Operative Agreement to which Credit Document or any Credit Party is a party or the overall transaction described in the Operative Agreements to which any Credit Party is a party Documents or (iiiii) shall have or could reasonably be expected to have a Material Adverse Effect; provided provided, for purposes of disclosure, the Credit Parties have described -------- the litigation set forth on Exhibit K; ---------Schedule 4.1(e);
(ef) no No Governmental Action by any Governmental Authority or other authorization, registration, consent, approval, waiver, notice or other action by, to or of any other Person pursuant to any Legal Requirement, contract, indenture, instrument or agreement or for any other reason is required to authorize or is required in connection with (i) the execution, delivery or performance of any Operative Agreement, (ii) the legality, validity, binding effect or enforceability of any Operative Agreement, (iii) the acquisition, ownership, construction, completion, occupancy, operation, leasing or subleasing of any Property or (iv) the Advance, in each case, except those which have been obtained and are in full force and effect;
(f) upon the execution and delivery of each Lease Supplement to the Lease, (i) the Lessee will have unconditionally accepted the Property subject to the applicable Lease Supplement and will have a valid and subsisting leasehold interest in such Property, subject only to the Permitted Liens, and (ii) no offset will exist with respect to any Rent or other sums payable under the Lease;
(g) [not used]
(h) all information heretofore or contemporaneously herewith furnished by each Credit Party or its Subsidiaries to the Agent, the Owner Trustee, any Lender or any Holder for purposes of or in connection with this Agreement and the transactions contemplated hereby is, and all information hereafter furnished by or on behalf of each Credit Party or its Subsidiaries to the Agent, the Owner Trustee, any Lender or any Holder pursuant hereto or in connection herewith will be, true and accurate in every material respect on the date as of which such information is dated or certified, and such information, taken as a whole, does not and will not omit to state any material fact necessary to make such information, taken as a whole, not misleading;
(i) the principal place of business, chief executive office and office of the Lessee where the documents, accounts and records relating to the transactions contemplated by this Agreement and each other Operative Agreement are kept are located at 000 Xxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, the state of formation of the Lessee is the State of Delaware and the states of formation and the chief executive offices of each other Credit Party are located at the places set forth in Exhibit L; ---------
(j) the representations and warranties of each Credit Party set forth in any of the Operative Agreements are true and correct in all material respects on and as of each such date as if made on and as of such date; each Credit Party is in all material respects in compliance with its obligations under the Operative Agreements and there exists no Default or Event of Default under any of the Operative Agreements which is continuing and which has not been cured within any cure period expressly granted under the terms of the applicable Operative Agreement or otherwise waived in accordance with the applicable Operative Agreement; no Default or Event of Default will occur under any of the Operative Agreements as a result of, or after giving effect to, the Advance;
(k) as of the Closing Date, each Property is a Permitted Facility; each Property consists of Land and existing Improvements thereon which Improvements are suitable for occupancy; each Property is located in one of the Approved States; each Property is well-performing (as that term is used in Lessee's financial statements); and Lessee intends to continue operating each Property as a Permitted Facility;
(l) as of the Closing Date, the Lessor has good and marketable fee simple title to each Property, subject only to (i) such Liens referenced in Sections 6.2(q)(i) and 6.2(q)(ii) and (ii) subject to Section 5.7, Permitted Liens after the Closing Date;
(m) as of the Closing Date, no portion of any Property is located in an area identified as a special flood hazard area by the Federal Emergency Management Agency or other applicable agency, or if any such Property is located in an area identified as a special flood hazard area by the Federal Emergency Management Agency or other applicable agency, then flood insurance has been obtained for such Property in accordance with Section 14.2(b) of the Lease and in accordance with the National Flood Insurance Act of 1968, as amended;
(n) as of the Closing Date, each Property complies with all Insurance Requirements and all standards of Lessee with respect to similar properties owned by Lessee;
(o) as of the Closing Date, each Property complies with all Legal Requirements as of such date (including without limitation all zoning and land use laws and Environmental Laws), except to the extent that failure to comply therewith, individually or in the aggregate, shall not have and could not reasonably be expected to have a Material Adverse Effect;
(p) as of the Closing Date, all utility services and facilities necessary for the operation of the Improvements and the operation of the Equipment regarding each Property (including without limitation gas, electrical, water and sewage services and facilities) are available at the applicable Land;
(i) the Security Documents create, as security for the Obligations, valid and enforceable security interests in, and Liens on, all of the Collateral, in favor of the Agent, for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements, and such security interests and Liens are subject to no other Liens other than Liens that are expressly set forth as title exceptions on the title policies issued under Section 5.3(g) with respect to the applicable Property, to the extent such title policies have been approved by the Agent, the Lenders and the Holders; upon recordation of the Mortgage Instrument in the real estate recording office in the applicable Approved State identified by the Lessee, the Lien created by the Mortgage Instrument in the real property described therein shall be a perfected first priority mortgage Lien on such real property in favor of the Agent, for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements; to the extent that the security interests in the portion of the Collateral comprised of personal property can be perfected by filing in the filing offices in the applicable Approved States or elsewhere identified by the Lessee, upon filing of the Lender Financing Statements in such filing offices, the security interests created by the Security Agreement shall be perfected first priority security interests in such personal property in favor of the Agent, for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements; and
(ii) the Lease Agreement creates, as security for the obligations of the Lessee under the Lease Agreement, valid and enforceable security interests in, and Liens on, each Property leased thereunder, in favor of the Lessor, and such security interests and Liens are subject to no other Liens other than Liens that are expressly set forth as title exceptions on the title policies issued under Section 5.3(g) with respect to the applicable Property, to the extent such title policies have been approved by the Agent, the Lenders and the Holders; upon recordation of the memorandum of the Lease Agreement (or a short form lease) in the real estate recording office in the applicable Approved State identified by the Lessee, the Lien created by the Lease Agreement in the real property described therein shall be a perfected first priority mortgage Lien on such real property in favor of the Agent, for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements; to the extent that the security interests in the portion of any Property comprised of personal property can be perfected by the filing in the filing offices in the applicable Approved State or elsewhere identified by the Lessee upon filing of the Lessor Financing Statements in such filing offices, a security interest created by the Lease Agreement shall be a perfected first priority security interest in such personal property in favor of the Lessor, which security interest pursuant to the Lessor Financing Statements is assigned to the Agent, for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements;
(r) as of the Closing Date, the sum of the Lessee's available cash balances and the available funds under its revolving credit facility is at least $50 million.
(s) the Improvements as to each Property comply with all applicable Legal Requirements (including without limitation all applicable Environmental Laws and building, planning, zoning and fire codes), except to the extent the failure to comply therewith, individually or in the aggregate, shall not have and could not reasonably be expected to have a Material Adverse Effect; such Improvements are (i) within (A) the boundary lines of the Property and (B) any building restriction lines or setbacks and (ii) do not encroach in any manner onto any adjoining land (except as permitted by express written easements, which have been approved by the Agent);
(t) [not used]
(u) as of the Closing Date, each Domestic Subsidiary (formed prior to or on such date) shall have executed this Agreement in its capacity as a Guarantor.
(v) [not used]
(w) [not used]other
Appears in 1 contract
Representations and Warranties of the Credit Parties. Effective as of the Closing Date and the date each Domestic Subsidiary delivers a Joinder Agreement, each Each Credit Party represents and warrants to each of the other parties hereto that:that as of the Closing Date (except to the extent that any such representation or warranty relates to an earlier date):
(a) Such Credit Party and each subsidiary thereof (i) is duly organized, validly existing and is in good standing under the representations and warranties set forth in Section 28.1 laws of the Lease are true jurisdiction of its incorporation or organization, (ii) has the corporate or other necessary power and correct (unless such relate solely to an earlier point in time)authority, and the Lessee has delivered legal right, to own and operate its property, to lease the Agent property it operates as lessee and to conduct the financial statements business in which it is currently engaged, and (iii) is duly qualified as a foreign entity and is in good standing under the laws of each jurisdiction where its ownership, lease or operation of property or the conduct of its business requires such qualification, other reports referred than in such jurisdictions where the failure to be so qualified and in Article XXVIII of the Leasegood standing would not be reasonably expected to have a Material Adverse Effect;
(b) the The execution and delivery by each Credit Party of this Agreement and the other applicable Operative Agreements as of such date and the performance by each Credit Party of its respective obligations under this Agreement and the other applicable Operative Agreements are within the corporate, partnership or limited liability company (as the case may be) powers of each Credit Party, have been duly authorized by all necessary corporate, partnership or limited liability company (as the case may be) action on the part of each Credit Party (including without limitation any necessary shareholder action), have been duly executed and delivered, have received all necessary governmental approvalsapproval, and do not and will not (i) violate any Legal Requirement which is binding on any Credit Party or any of its Subsidiaries, (ii) contravene or conflict with, or result in a breach of, any provision of the articles Articles of incorporationIncorporation, byBy-laws Laws or other organizational documents of any Credit Party or any of its Subsidiaries or of any agreement, indenture, instrument or other document which is binding on any Credit Party or any of its Subsidiaries or (iii) result in, or require, the creation or imposition of any Lien (other than pursuant to the terms of the Operative Agreements) on any asset of any Credit Party or any of its Subsidiaries;
(c) this This Agreement and the other applicable Operative Agreements, executed prior to and as of such date by any Credit Party, constitute the legal, valid and binding obligation of such Credit Party, as applicable, enforceable against such Credit Party, as applicable, in accordance with their terms. Each Credit Party has executed the various Operative Agreements required to be executed by such Credit Party as of such date;
(d) there are no material actions, suits or proceedings pending or, to our knowledge, threatened against any Credit Party in any court or before any Governmental Authority (nor shall any order, judgment or decree have been issued or proposed to be issued by any Governmental Authority to set aside, restrain, enjoin or prevent the full performance of any Operative Agreement or any transaction contemplated thereby) that (i) concern any Property or any Credit Party's interest therein, (ii) question the validity or enforceability of any Operative Agreement to which any Credit Party is a party or the overall transaction described in the Operative Agreements to which any Credit Party is a party or (iii) have or could reasonably be expected to have a Material Adverse Effect; provided for purposes of disclosure, the Credit Parties have described -------- the litigation set forth on Exhibit K; ---------
(e) no Governmental Action by any Governmental Authority or other authorization, registration, consent, approval, waiver, notice or other action by, to or of any other Person pursuant to any Legal Requirement, contract, indenture, instrument or agreement or for any other reason is required to authorize or is required in connection with (i) the execution, delivery or performance of any Operative Agreement, (ii) the legality, validity, binding effect or enforceability of any Operative Agreement, (iii) the acquisition, ownership, construction, completion, occupancy, operation, leasing or subleasing of any Property or (iv) the Advance, in each case, except those which have been obtained and are in full force and effect;
(f) upon the execution and delivery of each Lease Supplement to the Lease, (i) the Lessee will have unconditionally accepted the Property subject to the applicable Lease Supplement and will have a valid and subsisting leasehold interest in such Property, subject only to the Permitted Liens, and (ii) no offset will exist with respect to any Rent or other sums payable under the Lease;
(g) [not used]
(h) all information heretofore or contemporaneously herewith furnished by each Credit Party or its Subsidiaries to the Agent, the Owner Trustee, any Lender or any Holder for purposes of or in connection with this Agreement and the transactions contemplated hereby is, and all information hereafter furnished by or on behalf of each Credit Party or its Subsidiaries to the Agent, the Owner Trustee, any Lender or any Holder pursuant hereto or in connection herewith will be, true and accurate in every material respect on the date as of which such information is dated or certified, and such information, taken as a whole, does not and will not omit to state any material fact necessary to make such information, taken as a whole, not misleading;
(i) the principal place of business, chief executive office and office of the Lessee where the documents, accounts and records relating to the transactions contemplated by this Agreement and each other Operative Agreement are kept are located at 000 Xxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, the state of formation of the Lessee is the State of Delaware and the states of formation and the chief executive offices of each other Credit Party are located at the places set forth in Exhibit L; ---------
(j) the representations and warranties of each Credit Party set forth in any of the Operative Agreements are true and correct in all material respects on and as of each such date as if made on and as of such date; each Credit Party is in all material respects in compliance with its obligations under the Operative Agreements and there exists no Default or Event of Default under any of the Operative Agreements which is continuing and which has not been cured within any cure period expressly granted under the terms of the applicable Operative Agreement or otherwise waived in accordance with the applicable Operative Agreement; no Default or Event of Default will occur under any of the Operative Agreements as a result of, or after giving effect to, the Advance;
(k) as of the Closing Date, each Property is a Permitted Facility; each Property consists of Land and existing Improvements thereon which Improvements are suitable for occupancy; each Property is located in one of the Approved States; each Property is well-performing (as that term is used in Lessee's financial statements); and Lessee intends to continue operating each Property as a Permitted Facility;
(l) as of the Closing Date, the Lessor has good and marketable fee simple title to each Property, subject only to (i) such Liens referenced in Sections 6.2(q)(i) and 6.2(q)(ii) and (ii) subject to Section 5.7, Permitted Liens after the Closing Date;
(m) as of the Closing Date, no portion of any Property is located in an area identified as a special flood hazard area by the Federal Emergency Management Agency or other applicable agency, or if any such Property is located in an area identified as a special flood hazard area by the Federal Emergency Management Agency or other applicable agency, then flood insurance has been obtained for such Property in accordance with Section 14.2(b) of the Lease and in accordance with the National Flood Insurance Act of 1968, as amended;
(n) as of the Closing Date, each Property complies with all Insurance Requirements and all standards of Lessee with respect to similar properties owned by Lessee;
(o) as of the Closing Date, each Property complies with all Legal Requirements as of such date (including without limitation all zoning and land use laws and Environmental Laws), except to the extent that failure to comply therewith, individually or in the aggregate, shall not have and could not reasonably be expected to have a Material Adverse Effect;
(p) as of the Closing Date, all utility services and facilities necessary for the operation of the Improvements and the operation of the Equipment regarding each Property (including without limitation gas, electrical, water and sewage services and facilities) are available at the applicable Land;
(i) the Security Documents create, as security for the Obligations, valid and enforceable security interests in, and Liens on, all of the Collateral, in favor of the Agent, for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements, and such security interests and Liens are subject to no other Liens other than Liens that are expressly set forth as title exceptions on the title policies issued under Section 5.3(g) with respect to the applicable Property, to the extent such title policies have been approved by the Agent, the Lenders and the Holders; upon recordation of the Mortgage Instrument in the real estate recording office in the applicable Approved State identified by the Lessee, the Lien created by the Mortgage Instrument in the real property described therein shall be a perfected first priority mortgage Lien on such real property in favor of the Agent, for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements; to the extent that the security interests in the portion of the Collateral comprised of personal property can be perfected by filing in the filing offices in the applicable Approved States or elsewhere identified by the Lessee, upon filing of the Lender Financing Statements in such filing offices, the security interests created by the Security Agreement shall be perfected first priority security interests in such personal property in favor of the Agent, for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements; and
(ii) the Lease Agreement creates, as security for the obligations of the Lessee under the Lease Agreement, valid and enforceable security interests in, and Liens on, each Property leased thereunder, in favor of the Lessor, and such security interests and Liens are subject to no other Liens other than Liens that are expressly set forth as title exceptions on the title policies issued under Section 5.3(g) with respect to the applicable Property, to the extent such title policies have been approved by the Agent, the Lenders and the Holders; upon recordation of the memorandum of the Lease Agreement (or a short form lease) in the real estate recording office in the applicable Approved State identified by the Lessee, the Lien created by the Lease Agreement in the real property described therein shall be a perfected first priority mortgage Lien on such real property in favor of the Agent, for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements; to the extent that the security interests in the portion of any Property comprised of personal property can be perfected by the filing in the filing offices in the applicable Approved State or elsewhere identified by the Lessee upon filing of the Lessor Financing Statements in such filing offices, a security interest created by the Lease Agreement shall be a perfected first priority security interest in such personal property in favor of the Lessor, which security interest pursuant to the Lessor Financing Statements is assigned to the Agent, for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements;
(r) as of the Closing Date, the sum of the Lessee's available cash balances and the available funds under its revolving credit facility is at least $50 million.
(s) the Improvements as to each Property comply with all applicable Legal Requirements (including without limitation all applicable Environmental Laws and building, planning, zoning and fire codes), except to the extent the failure to comply therewith, individually or in the aggregate, shall not have and could not reasonably be expected to have a Material Adverse Effect; such Improvements are (i) within (A) the boundary lines of the Property and (B) any building restriction lines or setbacks and (ii) do not encroach in any manner onto any adjoining land (except as permitted by express written easements, which have been approved by the Agent);
(t) [not used]
(u) as of the Closing Date, each Domestic Subsidiary (formed prior to or on such date) shall have executed this Agreement in its capacity as a Guarantor.
(v) [not used]
(w) [not used]
Appears in 1 contract
Representations and Warranties of the Credit Parties. Effective as of the Closing Date and the date each Domestic Subsidiary delivers a Joinder Agreement, each Each Credit Party represents and warrants to each as of the other parties hereto that:date hereof and as of the Effective Date as follows (in each case as to itself and its Subsidiaries):
(a) the representations and warranties set forth in Section 28.1 of the Lease are true and correct (unless such relate solely to an earlier point in time), and the Lessee has delivered to the Agent the financial statements and other reports referred to in Article XXVIII of the Lease;
(b) the execution and delivery by each The Credit Party of this Agreement and the other applicable Operative Agreements as of such date and the performance by each Credit Party of its respective obligations under this Agreement and the other applicable Operative Agreements are within the corporate, partnership or limited liability company (as the case may be) powers of each Credit Party, have been duly authorized by all necessary corporate, partnership or limited liability company (as the case may be) action on the part of each Credit Party (including without limitation any necessary shareholder action), have been duly executed and delivered, have received all necessary governmental approvals, and do not and will not Parties (i) violate any Legal Requirement which are Persons duly organized, validly existing and (to the extent such concept is binding on any Credit Party or any applicable in such jurisdiction) in good standing under the laws of its Subsidiariesthe jurisdictions of their respective organization, (ii) contravene or conflict with, or result in a breach of, any provision of the articles of incorporation, by-laws or other organizational documents of any Credit Party or any of its Subsidiaries or of any agreement, indenture, instrument or other document which is binding on any Credit Party or any of its Subsidiaries or (iii) result in, or require, the creation or imposition of any Lien (other than pursuant to the terms of the Operative Agreements) on any asset of any Credit Party or any of its Subsidiaries;
(c) this Agreement and the other applicable Operative Agreements, executed prior to and as of such date by any Credit Party, constitute the legal, valid and binding obligation of such Credit Party, as applicable, enforceable against such Credit Party, as applicable, in accordance with their terms. Each Credit Party has executed the various Operative Agreements required to be executed by such Credit Party as of such date;
(d) there are no material actions, suits or proceedings pending or, to our knowledge, threatened against any Credit Party in any court or before any Governmental Authority (nor shall any order, judgment or decree have been issued or proposed to be issued by any Governmental Authority to set aside, restrain, enjoin or prevent the full performance of any Operative Agreement or any transaction contemplated thereby) that (i) concern any Property or any Credit Party's interest therein, (ii) question the validity or enforceability of any Operative Agreement to which any Credit Party is a party or the overall transaction described in the Operative Agreements to which any Credit Party is a party or (iii) have or could reasonably be expected to have a Material Adverse Effect; provided for purposes of disclosure, the Credit Parties have described -------- the litigation set forth on Exhibit K; ---------
(e) no Governmental Action by any Governmental Authority or other authorization, registration, consent, approval, waiver, notice or other action by, to or of any other Person pursuant to any Legal Requirement, contract, indenture, instrument or agreement or for any other reason is required to authorize or is required in connection with (i) the execution, delivery or performance of any Operative Agreement, (ii) the legality, validity, binding effect or enforceability of any Operative Agreement, (iii) the acquisition, ownership, construction, completion, occupancy, operation, leasing or subleasing of any Property or (iv) the Advance, in each case, except those which have been obtained and are in full force and effect;
(f) upon the execution and delivery of each Lease Supplement to the Lease, (i) the Lessee will have unconditionally accepted the Property subject to the applicable Lease Supplement and will have a valid and subsisting leasehold interest in such Property, subject only to the Permitted Liens, and (ii) no offset will exist with respect to any Rent or other sums payable under the Lease;
(g) [not used]
(h) all information heretofore or contemporaneously herewith furnished by each Credit Party or its Subsidiaries to the Agent, the Owner Trustee, any Lender or any Holder for purposes of or in connection with this Agreement and the transactions contemplated hereby is, and all information hereafter furnished by or on behalf of each Credit Party or its Subsidiaries to the Agent, the Owner Trustee, any Lender or any Holder pursuant hereto or in connection herewith will be, true and accurate in every material respect on the date as of which such information is dated or certified, and such information, taken as a whole, does not and will not omit to state any material fact necessary to make such information, taken as a whole, not misleading;
(i) the principal place of business, chief executive office and office of the Lessee where the documents, accounts and records relating to the transactions contemplated by this Agreement and each other Operative Agreement are kept are located at 000 Xxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, the state of formation of the Lessee is the State of Delaware and the states of formation and the chief executive offices of each other Credit Party are located at the places set forth in Exhibit L; ---------
(j) the representations and warranties of each Credit Party set forth in any of the Operative Agreements are true and correct in all material respects on and as of each such date as if made on and as of such date; each Credit Party is in all material respects in compliance with its obligations under the Operative Agreements and there exists no Default or Event of Default under any of the Operative Agreements which is continuing and which has not been cured within any cure period expressly granted under the terms of the applicable Operative Agreement or otherwise waived in accordance with the applicable Operative Agreement; no Default or Event of Default will occur under any of the Operative Agreements as a result of, or after giving effect to, the Advance;
(k) as of the Closing Date, each Property is a Permitted Facility; each Property consists of Land and existing Improvements thereon which Improvements are suitable for occupancy; each Property is located in one of the Approved States; each Property is well-performing (as that term is used in Lessee's financial statements); and Lessee intends to continue operating each Property as a Permitted Facility;
(l) as of the Closing Date, the Lessor has good and marketable fee simple title to each Property, subject only to (i) such Liens referenced in Sections 6.2(q)(i) and 6.2(q)(ii) and (ii) subject to Section 5.7, Permitted Liens after the Closing Date;
(m) as of the Closing Date, no portion of any Property is located in an area identified as a special flood hazard area by the Federal Emergency Management Agency or other applicable agency, or if any such Property is located in an area identified as a special flood hazard area by the Federal Emergency Management Agency or other applicable agency, then flood insurance has been obtained for such Property in accordance with Section 14.2(b) of the Lease duly qualified and in accordance with the National Flood Insurance Act of 1968, as amended;
good standing (n) as of the Closing Date, each Property complies with all Insurance Requirements and all standards of Lessee with respect to similar properties owned by Lessee;
(o) as of the Closing Date, each Property complies with all Legal Requirements as of such date (including without limitation all zoning and land use laws and Environmental Laws), except to the extent that such concept is applicable in such jurisdiction) as foreign corporations (or the equivalent thereof) in each other jurisdiction in which such qualification is required by law, except where the failure to comply therewithso qualify or be licensed, either individually or in the aggregate, shall not have and could not reasonably be expected to have a Material Adverse Effect;, and (iii) have all corporate power and authority to own or lease and operate their properties and to carry on their respective businesses as now conducted and as proposed to be conducted.
(pb) as The execution, delivery and performance by each Credit Party of this Agreement and the Note, and the consummation of the Closing Datetransactions contemplated hereby or thereby, are within such Credit Party’s corporate powers, have been duly authorized by all utility services necessary corporate action, and facilities necessary for the operation of the Improvements and the operation of the Equipment regarding each Property (including without limitation gas, electrical, water and sewage services and facilities) are available at the applicable Land;
do not contravene (i) such Credit Party’s charter or by-laws (or similar organizational documents), (ii) any law, statute, rule or regulation or any order, writ, judgment, injunction, decree, determination or award applicable to the Security Documents createGuarantor or any of its Subsidiaries or any of their properties or assets or (iii) any material contract, as security loan agreement, indenture, mortgage, deed of trust, lease or other instrument binding on or affecting such Credit Party (other than the Yen Notes) or any of its properties or assets.
(c) No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority is required for the Obligationsdue execution, delivery and performance by the Credit Parties of this Agreement or the Note, or for the consummation of any of the transactions contemplated hereby or thereby, except (i) as have been obtained or made and are in full force and effect, (ii) as may be required because of the legal and regulatory status of the Lender or because of any other facts specifically pertaining to the Lender and (iii) filing of reports under the Foreign Exchange and Foreign Trade Law of Japan which may be required for certain payment of money made by a Credit Party pursuant to this Agreement and the Note to a non-resident Eligible Assignee.
(d) This Agreement has been, and the Note when delivered hereunder will have been, duly executed and delivered by each Credit Party in the case of this Agreement and by the Borrower in the case of the Note. This Agreement is, and the Note when delivered hereunder will be, the legal, valid and enforceable security interests in, binding obligation of each Credit Party in the case of this Agreement and Liens on, all of the Collateral, Borrower in favor the case of the AgentNote, for the ratable benefit of the Lenders and the Holders, as enforceable against such Credit Party in accordance with their respective interests appear in the Operative Agreementsterms, and such security interests and Liens are subject to no other Liens other than Liens that are expressly set forth as title exceptions on the title policies issued under Section 5.3(g) with respect to the applicable Property, to the extent such title policies have been approved by the Agent, the Lenders and the Holders; upon recordation of the Mortgage Instrument in the real estate recording office in the applicable Approved State identified by the Lessee, the Lien created by the Mortgage Instrument in the real property described therein shall be a perfected first priority mortgage Lien on such real property in favor of the Agent, for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements; except to the extent that the security interests in the portion of the Collateral comprised of personal property can enforceability thereof may be perfected by filing in the filing offices in the applicable Approved States or elsewhere identified limited by the Lesseeeffect of any applicable bankruptcy, upon filing insolvency, reorganization, moratorium or similar laws now or hereafter in effect relating to or affecting creditors’ rights generally or by general principles of equity or similar principles under Japanese practice.
(e) The Consolidated balance sheet of (i) the Lender Financing Statements in such filing offices, the security interests created by the Security Agreement shall be perfected first priority security interests in such personal property in favor of the Agent, for the ratable benefit of the Lenders Guarantor and the Holders, as their respective interests appear in the Operative Agreements; and
its Subsidiaries and (ii) the Lease Agreement createsBorrower and its Subsidiaries, each as at December 31, 2007, and the related Consolidated statements of income and cash flows of (i) the Guarantor and its Subsidiaries and (ii) the Borrower and its Subsidiaries, each for the fiscal year then ended, accompanied by an opinion of the Guarantor’s auditors, copies of which have been furnished to each Lender, fairly present in all material respects the Consolidated financial condition of the Guarantor and its Subsidiaries and the Borrower and its Subsidiaries, as security applicable, each as at such date and the Consolidated results of the operations of the Guarantor and its Subsidiaries for the obligations period ended on such date, all in accordance with GAAP consistently applied. Since December 31, 2007, there has been no Material Adverse Change.
(f) All written information and reports furnished by or on behalf of the Lessee under Credit Parties to the Lease Lender in connection with the negotiation of, or pursuant to the terms of, this Agreement, valid and enforceable security interests intaken as a whole, and Liens ondid not or will not, each Property leased thereunderat the time furnished, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein not misleading, in favor light of the Lessor, and circumstances under which any such security interests and Liens are subject to statements were made.
(g) There is no other Liens other than Liens that are expressly set forth as title exceptions on the title policies issued under Section 5.3(g) with respect to the applicable Propertypending or, to the extent such title policies have been approved by the Agent, the Lenders and the Holders; upon recordation knowledge of the memorandum Credit Parties, threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting any member of the Lease Agreement Group before any court, governmental agency or arbitrator that (or a short form leasea) in the real estate recording office in the applicable Approved State identified by the Lessee, the Lien created by the Lease Agreement in the real property described therein shall could be a perfected first priority mortgage Lien on such real property in favor of the Agent, for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements; to the extent that the security interests in the portion of any Property comprised of personal property can be perfected by the filing in the filing offices in the applicable Approved State or elsewhere identified by the Lessee upon filing of the Lessor Financing Statements in such filing offices, a security interest created by the Lease Agreement shall be a perfected first priority security interest in such personal property in favor of the Lessor, which security interest pursuant to the Lessor Financing Statements is assigned to the Agent, for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements;
(r) as of the Closing Date, the sum of the Lessee's available cash balances and the available funds under its revolving credit facility is at least $50 million.
(s) the Improvements as to each Property comply with all applicable Legal Requirements (including without limitation all applicable Environmental Laws and building, planning, zoning and fire codes), except to the extent the failure to comply therewith, individually or in the aggregate, shall not have and could not reasonably be expected likely to have a Material Adverse Effect; such Improvements are Effect or (b) purports to affect the legality, validity or enforceability of this Agreement or the consummation of the transactions contemplated hereby.
(h) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying “margin stock” (within the meaning of Regulation U of the Board of Governors of the Federal Reserve System), and no proceeds of the Loan will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying margin stock.
(i) within (A) the boundary lines No member of the Property and Group is an “investment company”, or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company” (B) any building restriction lines or setbacks and (ii) do not encroach each as defined in any manner onto any adjoining land (except the Investment Borrower Act of 1940, as permitted by express written easements, which have been approved by the Agentamended);
(t) [not used]
(u) as of the Closing Date, each Domestic Subsidiary (formed prior to or on such date) shall have executed this Agreement in its capacity as a Guarantor.
(v) [not used]
(w) [not used]
Appears in 1 contract
Samples: Credit Agreement (International Flavors & Fragrances Inc)
Representations and Warranties of the Credit Parties. Effective as Each of the Closing Date and the date each Domestic Subsidiary delivers a Joinder Agreement, each Credit Party Parties represents and warrants to each of the other parties hereto thatas follows:
(a) the representations The execution, delivery and warranties set forth in Section 28.1 of the Lease are true and correct (unless performance by such relate solely to an earlier point in time), and the Lessee has delivered to the Agent the financial statements and other reports referred to in Article XXVIII of the Lease;
(b) the execution and delivery by each Credit Party of this Agreement and the other applicable Operative Agreements as of such date and the performance by each Credit Party of its respective obligations under this Agreement and the other applicable Operative Agreements are within the corporate, partnership or limited liability company (as the case may be) powers of each Credit Party, have Amendment has been duly authorized by all necessary corporate, partnership corporate or limited liability company other organizational action and does not (as a) contravene the case may beterms of such Credit Party’s Organization Documents; (b) action on the part conflict with or result in any breach or contravention of each Credit Party (including without limitation any necessary shareholder action), have been duly executed and delivered, have received all necessary governmental approvals, and do not and will not (i) violate any Legal Requirement Contractual Obligation to which such Credit Party is binding on party or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Credit Party or any of its Subsidiaries, Property is subject; (iic) contravene or conflict with, or result in a breach of, any provision of the articles of incorporation, by-laws or other organizational documents of any Credit Party or any of its Subsidiaries or of any agreement, indenture, instrument or other document which is binding on any Credit Party or any of its Subsidiaries or (iii) result in, or require, the creation or imposition of any Lien (other than pursuant Permitted Liens); or (d) violate any Law applicable to the terms of the Operative Agreements) on any asset of any Credit Party or any of its Subsidiaries;
(c) this Agreement and the other applicable Operative Agreements, executed prior to and as of such date by any Credit Party, constitute the legal, valid and binding obligation of such Credit Party, as applicable, enforceable against such Credit Party, as applicable, in accordance with their terms. Each Credit Party has executed the various Operative Agreements required to be executed by such Credit Party as and this Amendment, except, in the case of such date;
clause (b) or (d) there are no material actionsonly, suits or proceedings pending or, to our knowledge, threatened against any Credit Party in any court or before any Governmental Authority (nor shall any order, judgment or decree have been issued or proposed to be issued by any Governmental Authority to set aside, restrain, enjoin or prevent the full performance of any Operative Agreement or any transaction contemplated thereby) that (i) concern any Property or any Credit Party's interest therein, (ii) question the validity or enforceability of any Operative Agreement to which any Credit Party is a party or the overall transaction described in the Operative Agreements to which any Credit Party is a party or (iii) have or could as would not reasonably be expected to have a Material Adverse Effect; provided for purposes of disclosure, the Credit Parties have described -------- the litigation set forth on Exhibit K; ---------.
(eb) no Governmental Action This Amendment has been duly executed and delivered by any Governmental Authority such Credit Party. This Amendment constitutes legal, valid and binding obligations of such Credit Party, enforceable against such Credit Party in accordance with its terms, except to the extent the enforceability thereof may be limited by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable principles of law (regardless of whether enforcement is sought in equity or other authorization, registrationat law) and implied covenants of good faith and fair dealing.
(c) No approval, consent, approvalexemption, waiverauthorization, notice or other action by, to or of notice to, or filing with, any Governmental Authority or any other Person pursuant to any Legal Requirement, contract, indenture, instrument is necessary or agreement or for any other reason is required to authorize or is required in connection with (i) the execution, delivery or performance by, or enforcement against, such Credit Party of any Operative Agreement, this Amendment (iiother than (a) the legality, validity, binding effect or enforceability of any Operative Agreement, (iii) the acquisition, ownership, construction, completion, occupancy, operation, leasing or subleasing of any Property or (iv) the Advance, in each case, except those which as have already been obtained and are in full force and effect;, (b) filings to perfect security interests granted pursuant to this Amendment and (c) approvals, consents, exemptions, authorizations, or other actions, notices or filings the failure to procure which would not reasonably be expected to have a Material Adverse Effect).
(fd) upon the execution and delivery of each Lease Supplement After giving effect to the Leasethis Amendment, (i) the Lessee will have unconditionally accepted the Property subject to the applicable Lease Supplement and will have a valid and subsisting leasehold interest in such Property, subject only to the Permitted Liens, and (ii) no offset will exist with respect to any Rent or other sums payable under the Lease;
(g) [not used]
(h) all information heretofore or contemporaneously herewith furnished by each Credit Party or its Subsidiaries to the Agent, the Owner Trustee, any Lender or any Holder for purposes of or in connection with this Agreement and the transactions contemplated hereby is, and all information hereafter furnished by or on behalf of each Credit Party or its Subsidiaries to the Agent, the Owner Trustee, any Lender or any Holder pursuant hereto or in connection herewith will be, true and accurate in every material respect on the date as of which such information is dated or certified, and such information, taken as a whole, does not and will not omit to state any material fact necessary to make such information, taken as a whole, not misleading;
(i) the principal place of business, chief executive office and office of the Lessee where the documents, accounts and records relating to the transactions contemplated by this Agreement and each other Operative Agreement are kept are located at 000 Xxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, the state of formation of the Lessee is the State of Delaware and the states of formation and the chief executive offices of each other Credit Party are located at the places set forth in Exhibit L; ---------
(j) the representations and warranties contained in each of each the Credit Documents and applicable to such Credit Party set forth in any of the Operative Agreements are true and correct in all material respects on and as of each such the date hereof as if though made on and as of such date except to the extent that such representations and warranties specifically refer to an earlier date; each Credit Party is , in which case they shall be true and correct in all material respects on and as of such earlier date (provided that representations and warranties that are qualified by materiality or reference to Material Adverse Effect shall be true and correct in compliance with its obligations under all respects), and except that the Operative Agreements representations and there exists no warranties contained in Section 6.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and (b) of the Credit Agreement and to the date of such financial statements.
(e) No Default or Event of Default under any of the Operative Agreements which is continuing shall exist immediately prior to and which has not been cured within any cure period expressly granted under the terms of the applicable Operative Agreement or otherwise waived in accordance with the applicable Operative Agreement; no Default or Event of Default will occur under any of the Operative Agreements as a result of, or after giving effect to, the Advance;
(k) as of the Closing Date, each Property is a Permitted Facility; each Property consists of Land and existing Improvements thereon which Improvements are suitable for occupancy; each Property is located in one of the Approved States; each Property is well-performing (as that term is used in Lessee's financial statements); and Lessee intends to continue operating each Property as a Permitted Facility;
(l) as of the Closing Date, the Lessor has good and marketable fee simple title to each Property, subject only to (i) such Liens referenced in Sections 6.2(q)(i) and 6.2(q)(ii) this Amendment and (ii) subject to Section 5.7, Permitted Liens after the Closing Date;
(m) as of the Closing Date, no portion of any Property is located Credit Extension made in an area identified as a special flood hazard area by the Federal Emergency Management Agency or other applicable agency, or if any such Property is located in an area identified as a special flood hazard area by the Federal Emergency Management Agency or other applicable agency, then flood insurance has been obtained for such Property in accordance with Section 14.2(b) of the Lease and in accordance with the National Flood Insurance Act of 1968, as amended;
(n) as of the Closing Date, each Property complies with all Insurance Requirements and all standards of Lessee with respect to similar properties owned by Lessee;
(o) as of the Closing Date, each Property complies with all Legal Requirements as of such date (including without limitation all zoning and land use laws and Environmental Laws), except to the extent that failure to comply therewith, individually or in the aggregate, shall not have and could not reasonably be expected to have a Material Adverse Effect;
(p) as of the Closing Date, all utility services and facilities necessary for the operation of the Improvements and the operation of the Equipment regarding each Property (including without limitation gas, electrical, water and sewage services and facilities) are available at the applicable Land;
(i) the Security Documents create, as security for the Obligations, valid and enforceable security interests in, and Liens on, all of the Collateral, in favor of the Agent, for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements, and such security interests and Liens are subject to no other Liens other than Liens that are expressly set forth as title exceptions on the title policies issued under Section 5.3(g) with respect to the applicable Property, to the extent such title policies have been approved by the Agent, the Lenders and the Holders; upon recordation of the Mortgage Instrument in the real estate recording office in the applicable Approved State identified by the Lessee, the Lien created by the Mortgage Instrument in the real property described therein shall be a perfected first priority mortgage Lien on such real property in favor of the Agent, for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements; to the extent that the security interests in the portion of the Collateral comprised of personal property can be perfected by filing in the filing offices in the applicable Approved States or elsewhere identified by the Lessee, upon filing of the Lender Financing Statements in such filing offices, the security interests created by the Security Agreement shall be perfected first priority security interests in such personal property in favor of the Agent, for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements; and
(ii) the Lease Agreement creates, as security for the obligations of the Lessee under the Lease Agreement, valid and enforceable security interests in, and Liens on, each Property leased thereunder, in favor of the Lessor, and such security interests and Liens are subject to no other Liens other than Liens that are expressly set forth as title exceptions on the title policies issued under Section 5.3(g) with respect to the applicable Property, to the extent such title policies have been approved by the Agent, the Lenders and the Holders; upon recordation of the memorandum of the Lease Agreement (or a short form lease) in the real estate recording office in the applicable Approved State identified by the Lessee, the Lien created by the Lease Agreement in the real property described therein shall be a perfected first priority mortgage Lien on such real property in favor of the Agent, for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements; to the extent that the security interests in the portion of any Property comprised of personal property can be perfected by the filing in the filing offices in the applicable Approved State or elsewhere identified by the Lessee upon filing of the Lessor Financing Statements in such filing offices, a security interest created by the Lease Agreement shall be a perfected first priority security interest in such personal property in favor of the Lessor, which security interest pursuant to the Lessor Financing Statements is assigned to the Agent, for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements;
(r) as of the Closing Date, the sum of the Lessee's available cash balances and the available funds under its revolving credit facility is at least $50 millionconnection herewith.
(s) the Improvements as to each Property comply with all applicable Legal Requirements (including without limitation all applicable Environmental Laws and building, planning, zoning and fire codes), except to the extent the failure to comply therewith, individually or in the aggregate, shall not have and could not reasonably be expected to have a Material Adverse Effect; such Improvements are (i) within (A) the boundary lines of the Property and (B) any building restriction lines or setbacks and (ii) do not encroach in any manner onto any adjoining land (except as permitted by express written easements, which have been approved by the Agent);
(t) [not used]
(u) as of the Closing Date, each Domestic Subsidiary (formed prior to or on such date) shall have executed this Agreement in its capacity as a Guarantor.
(v) [not used]
(w) [not used]
Appears in 1 contract
Representations and Warranties of the Credit Parties. Effective as Each of the Closing Date Borrower and the date each Domestic Subsidiary delivers a Joinder Agreement, each Credit Party Guarantor represents and warrants to each of the other parties hereto thatas follows:
(a) the representations and warranties set forth in Section 28.1 Each of the Lease are true and correct (unless such relate solely to an earlier point in time), Borrower and the Lessee has delivered to Guarantor is a corporation duly organized, validly existing and, in the Agent the financial statements and other reports referred to in Article XXVIII case of the Lease;Borrower, authorized to transact business under the laws of the State of its incorporation, and, in the case of the Guarantor, in good standing under the laws of the State of its incorporation.
(b) the execution The execution, delivery and delivery by each Credit Party of this Agreement and the other applicable Operative Agreements as of such date and the performance by each of the Credit Party Parties of its respective obligations under this Agreement and the other applicable Operative Agreements Credit Documents to which it is a party (i) are within the corporate, partnership or limited liability company (as the case may be) powers of each such Credit Party’s corporate powers, (ii) have been duly authorized by all necessary corporatecorporate action, partnership (iii) do not contravene (A) such Credit Party’s charter or limited liability company (by-laws, as the case may be, or (B) action on any law, rule or regulation (including, without limitation, the part Public Utility Holding Company Act of each Credit Party (including without limitation any necessary shareholder action1935, as amended), have been duly executed and deliveredor any material Contractual Obligation or legal restriction, have received all necessary governmental approvals, and do not and will not (i) violate any Legal Requirement which is binding on any or affecting such Credit Party or any of its SubsidiariesMaterial Subsidiary, as the case may be, and (iiiv) contravene or conflict with, or result in a breach of, any provision of do not require the articles of incorporation, by-laws or other organizational documents creation of any Lien on the property of such Credit Party or any of its Subsidiaries or of Material Subsidiary under any agreement, indenture, instrument or other document which is Contractual Obligation binding on any or affecting such Credit Party or any of its Subsidiaries or (iii) result in, or require, the creation or imposition of any Lien (other than pursuant to the terms of the Operative Agreements) on any asset of any Credit Party or any of its Subsidiaries;Material Subsidiary.
(c) this Agreement No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority or other Person is required for the other applicable Operative Agreementsdue execution, executed prior to delivery and as of such date performance by any Credit PartyParty of this Agreement or any other Credit Document to which any of them is a party, constitute the except for such as (i) have been obtained or made and that are in full force and effect or (ii) are not presently required under applicable law and have not yet been applied for.
(d) Each Credit Document to which any Credit Party is a party is a legal, valid and binding obligation of such Credit Party, as applicable, enforceable against such Credit Party, as applicable, Party in accordance with their its terms. Each , subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
(e) The consolidated balance sheet of the Guarantor and its Subsidiaries as at September 30, 2004, and the related statements of income and retained earnings of the Guarantor and its Subsidiaries for the nine months then ended, copies of which have been made available or furnished to each Lender, fairly present (subject to year-end adjustments) the financial condition of the Guarantor and its Subsidiaries as at such date and the results of the operations of the Guarantor and its Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied.
(f) Since December 31, 2003, there has been no material adverse change in such condition or operations, or in the business, assets, operations, condition (financial or otherwise) or prospects of any of the Credit Party has executed the various Operative Agreements required to be executed by Parties or of Columbia.
(g) There is no pending or threatened action, proceeding or investigation affecting such Credit Party as of such date;
(d) there are no material actions, suits or proceedings pending or, to our knowledge, threatened against any Credit Party in any court or before any court, governmental agency or other Governmental Authority or arbitrator that (nor shall any ordertaking into account the exhaustion of appeals) would have a Material Adverse Effect, judgment or decree have been issued or proposed to be issued by any Governmental Authority to set aside, restrain, enjoin or prevent the full performance of any Operative Agreement or any transaction contemplated thereby) that (i) concern any Property or any Credit Party's interest thereinpurports to affect the legality, (ii) question the validity or enforceability of this Agreement or any Operative Agreement promissory notes executed pursuant hereto, or (ii) seeks to which prohibit the ownership or operation, by any Credit Party or any of their respective Material Subsidiaries, of all or a material portion of their respective businesses or assets.
(h) The Guarantor and its Subsidiaries, taken as a whole, do not hold or carry Margin Stock having an aggregate value in excess of 10% of the value of their consolidated assets, and no part of the proceeds of any Loan or Letter of Credit hereunder will be used to buy or carry any Margin Stock.
(i) No ERISA Event has occurred, or is a party or the overall transaction described in the Operative Agreements reasonably expected to which occur, with respect to any Credit Party is a party or (iii) have or Plan that could reasonably be expected to have a Material Adverse Effect; provided for purposes of disclosure, the Credit Parties have described -------- the litigation set forth on Exhibit K; ---------
(e) no Governmental Action by any Governmental Authority or other authorization, registration, consent, approval, waiver, notice or other action by, to or of any other Person pursuant to any Legal Requirement, contract, indenture, instrument or agreement or for any other reason is required to authorize or is required in connection with (i) the execution, delivery or performance of any Operative Agreement, (ii) the legality, validity, binding effect or enforceability of any Operative Agreement, (iii) the acquisition, ownership, construction, completion, occupancy, operation, leasing or subleasing of any Property or (iv) the Advance, in each case, except those which have been obtained and are in full force and effect;
(f) upon the execution and delivery of each Lease Supplement to the Lease, (i) the Lessee will have unconditionally accepted the Property subject to the applicable Lease Supplement and will have a valid and subsisting leasehold interest in such Property, subject only to the Permitted Liens, and (ii) no offset will exist with respect to any Rent or other sums payable under the Lease;
(g) [not used]
(h) all information heretofore or contemporaneously herewith furnished by each Credit Party or its Subsidiaries to the Agent, the Owner Trustee, any Lender or any Holder for purposes of or in connection with this Agreement and the transactions contemplated hereby is, and all information hereafter furnished by or on behalf of each Credit Party or its Subsidiaries to the Agent, the Owner Trustee, any Lender or any Holder pursuant hereto or in connection herewith will be, true and accurate in every material respect on the date as of which such information is dated or certified, and such information, taken as a whole, does not and will not omit to state any material fact necessary to make such information, taken as a whole, not misleading;
(i) the principal place of business, chief executive office and office of the Lessee where the documents, accounts and records relating to the transactions contemplated by this Agreement and each other Operative Agreement are kept are located at 000 Xxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, the state of formation of the Lessee is the State of Delaware and the states of formation and the chief executive offices of each other Credit Party are located at the places set forth in Exhibit L; ---------.
(j) Schedule B (Actuarial Information) to the representations 2003 Annual report (Form 5500 Series) for each Plan, copies of which have been filed with the Internal Revenue Service and warranties of made available or furnished to each Credit Party set forth in any of Lender, is complete and accurate and fairly presents the Operative Agreements are true and correct in all material respects on and as of each such date as if made on and as funding status of such date; each Credit Party is Plan, and since the date of such Schedule B there has been no adverse change in all material respects in compliance with its obligations under the Operative Agreements and there exists no Default or Event of Default under any of the Operative Agreements such funding status which is continuing and which has not been cured within any cure period expressly granted under the terms of the applicable Operative Agreement or otherwise waived in accordance with the applicable Operative Agreement; no Default or Event of Default will occur under any of the Operative Agreements as may reasonably be expected to have a result of, or after giving effect to, the Advance;Material Adverse Effect.
(k) as of Neither the Closing Date, each Property Guarantor nor any ERISA Affiliate has incurred or is reasonably expected to incur any Withdrawal Liability to any Multiemployer Plan which may reasonably be expected to have a Permitted Facility; each Property consists of Land and existing Improvements thereon which Improvements are suitable for occupancy; each Property is located in one of the Approved States; each Property is well-performing (as that term is used in Lessee's financial statements); and Lessee intends to continue operating each Property as a Permitted Facility;Material Adverse Effect.
(l) as Neither the Guarantor nor any ERISA Affiliate has been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or has been terminated, within the Closing Datemeaning of Title VI of ERISA, and no Multiemployer Plan is reasonably expected to be in reorganization or to be terminated, within the Lessor has good and marketable fee simple title meaning of Title IV of ERISA, in either such case, that could reasonably be expected to each Property, subject only to (i) such Liens referenced in Sections 6.2(q)(i) and 6.2(q)(ii) and (ii) subject to Section 5.7, Permitted Liens after the Closing Date;have a Material Adverse Effect.
(m) as No Credit Party is an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Closing Date, no portion of any Property is located in an area identified as a special flood hazard area by the Federal Emergency Management Agency or other applicable agency, or if any such Property is located in an area identified as a special flood hazard area by the Federal Emergency Management Agency or other applicable agency, then flood insurance has been obtained for such Property in accordance with Section 14.2(b) of the Lease and in accordance with the National Flood Insurance Investment Company Act of 19681940, as amended;.
(n) as The Guarantor is a “public utility holding company” within the meaning of the Closing DatePublic Utility Holding Company Act of 1935, each Property complies with all Insurance Requirements and all standards of Lessee with respect to similar properties owned by Lessee;as amended, registered in compliance therewith.
(o) as Each Credit Party has filed all tax returns (Federal, state and local) required to be filed by it and has paid or caused to be paid all taxes due for the periods covered thereby, including interest and penalties, except for any such taxes, interest or penalties which are being contested in good faith and by proper proceedings and in respect of which such Credit Party has set aside adequate reserves for the Closing Date, each Property complies payment thereof in accordance with GAAP.
(p) Each Credit Party and its Subsidiaries are and have been in compliance with all Legal Requirements laws (including, without limitation, the Public Utility Holding Company Act of 1935, as of such date (including without limitation amended, and all zoning and land use laws and Environmental Laws), except to the extent that any failure to comply therewithbe in compliance, individually or in the aggregate, shall not have and could not reasonably be expected to have result in a Material Adverse Effect;.
(pq) as No Subsidiary of any Credit Party is party to, or otherwise bound by, any agreement that prohibits such Subsidiary from making any payments, directly or indirectly, to such Credit Party, by way of dividends, advances, repayment of loans or advances, reimbursements of management or other intercompany charges, expenses and accruals or other returns on investment, or any other agreement that restricts the Closing Dateability of such Subsidiary to make any payment, all utility services and facilities necessary for the operation of the Improvements and the operation of the Equipment regarding each Property (including without limitation gasdirectly or indirectly, electricalto such Credit Party, water and sewage services and facilities) are available at the applicable Land;
(i) the Security Documents create, as security for the Obligations, valid and enforceable security interests in, and Liens on, all of the Collateral, in favor of the Agent, for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements, and such security interests and Liens are subject to no other Liens other than Liens that are expressly set forth as title exceptions on the title policies issued prohibitions and restrictions permitted to exist under Section 5.3(g) with respect to the applicable Property, to the extent such title policies have been approved by the Agent, the Lenders and the Holders; upon recordation of the Mortgage Instrument in the real estate recording office in the applicable Approved State identified by the Lessee, the Lien created by the Mortgage Instrument in the real property described therein shall be a perfected first priority mortgage Lien on such real property in favor of the Agent, for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements; to the extent that the security interests in the portion of the Collateral comprised of personal property can be perfected by filing in the filing offices in the applicable Approved States or elsewhere identified by the Lessee, upon filing of the Lender Financing Statements in such filing offices, the security interests created by the Security Agreement shall be perfected first priority security interests in such personal property in favor of the Agent, for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements; and
(ii) the Lease Agreement creates, as security for the obligations of the Lessee under the Lease Agreement, valid and enforceable security interests in, and Liens on, each Property leased thereunder, in favor of the Lessor, and such security interests and Liens are subject to no other Liens other than Liens that are expressly set forth as title exceptions on the title policies issued under Section 5.3(g) with respect to the applicable Property, to the extent such title policies have been approved by the Agent, the Lenders and the Holders; upon recordation of the memorandum of the Lease Agreement (or a short form lease) in the real estate recording office in the applicable Approved State identified by the Lessee, the Lien created by the Lease Agreement in the real property described therein shall be a perfected first priority mortgage Lien on such real property in favor of the Agent, for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements; to the extent that the security interests in the portion of any Property comprised of personal property can be perfected by the filing in the filing offices in the applicable Approved State or elsewhere identified by the Lessee upon filing of the Lessor Financing Statements in such filing offices, a security interest created by the Lease Agreement shall be a perfected first priority security interest in such personal property in favor of the Lessor, which security interest pursuant to the Lessor Financing Statements is assigned to the Agent, for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements;6.01(e).
(r) The information, exhibits and reports furnished by the Guarantor or any of its Subsidiaries to the Administrative Agent or to any Lender in connection with the negotiation of, or compliance with, the Credit Documents, taken as a whole, do not contain any material misstatement of fact and do not omit to state a material fact or any fact necessary to make the statements contained therein not misleading in light of the Closing Date, the sum of the Lessee's available cash balances and the available funds under its revolving credit facility is at least $50 millioncircumstances made.
(s) the Improvements as to each Property comply with all applicable Legal Requirements (including without limitation all applicable Environmental Laws and building, planning, zoning and fire codes), except to the extent the failure to comply therewith, individually or in the aggregate, shall not have and could not reasonably be expected to have a Material Adverse Effect; such Improvements are (i) within (A) the boundary lines of the Property and (B) any building restriction lines or setbacks and (ii) do not encroach in any manner onto any adjoining land (except as permitted by express written easements, which have been approved by the Agent);
(t) [not used]
(u) as of the Closing Date, each Domestic Subsidiary (formed prior to or on such date) shall have executed this Agreement in its capacity as a Guarantor.
(v) [not used]
(w) [not used]
Appears in 1 contract
Representations and Warranties of the Credit Parties. Effective as of the Closing Date The Credit Parties, jointly and the date each Domestic Subsidiary delivers a Joinder Agreementseverally, each Credit Party represents represent and warrants warrant to each of the other parties hereto Bank that:
(a) Applicant (i) is a corporation duly organized, validly existing and in good standing under the representations and warranties set forth in Section 28.1 laws of the Lease State of Illinois, (ii) is qualified to transact business and is in good standing in all jurisdictions in which qualification and good standing are true necessary in order for it to conduct its business and correct (unless such relate solely to an earlier point in time)own its property, and the Lessee (iii) has delivered all requisite power and authority to the Agent the financial statements conduct its business, to own its property, to execute and other reports referred deliver this Agreement and to in Article XXVIII of the Leaseperform its obligations hereunder;
(b) Guarantor (i) is a corporation duly organized, validly existing and in good standing under the execution laws of the State of Delaware, (ii) is qualified to transact business and delivery is in good standing in all jurisdictions in which qualification and good standing are necessary in order for it to conduct its business and own its property, and (iii) has all requisite power and authority to conduct its business, to own its property, to execute and deliver this Agreement and to perform its obligations hereunder;
(c) this Agreement has been duly and validly executed and delivered by each Credit Party of this Agreement and the other applicable Operative Agreements as of such date constitutes a legal, valid and the performance by each Credit Party of its respective obligations under this Agreement and the other applicable Operative Agreements are within the corporate, partnership or limited liability company (as the case may be) powers binding obligation of each Credit Party, have been duly authorized by all necessary corporate, partnership or limited liability company (as the case may be) action on the part of enforceable against each Credit Party in accordance with its terms, subject, as to enforceability of remedies, to bankruptcy, insolvency and other laws affecting creditors’ rights generally;
(including without limitation any necessary shareholder action), have been duly executed and delivered, have received d) Each Credit Party has taken all necessary governmental approvalsaction to authorize the execution, delivery and performance of this Agreement, and such authorization, delivery and performance do not and will not (i) violate any Legal Requirement law, rule, regulation, order, judgment, injunction, decree, determination or award presently in effect and applicable to such Credit Party, (ii) require any consent or result in a material breach of or constitute a default under any agreement, lease or instrument to which such Credit Party is binding on any a party or by which such Credit Party or any of its Subsidiariesassets may be bound or affected, (ii) contravene or conflict with, or result in a breach of, any provision of the articles of incorporation, by-laws or other organizational documents of any Credit Party or any of its Subsidiaries or of any agreement, indenture, instrument or other document which is binding on any Credit Party or any of its Subsidiaries or (iii) result in, in or require, require the creation or imposition of any Lien (other than in favor of Bank pursuant to the terms this Agreement) upon or with respect to any of the Operative Agreements) on any asset of any Credit Party properties now owned or any of its Subsidiaries;
(c) this Agreement and the other applicable Operative Agreements, executed prior to and as of such date hereafter acquired by any Credit Party, constitute the legal, valid and binding obligation of such Credit Party, as applicable, enforceable against such Credit Party, as applicable, in accordance with their terms. Each Credit Party has executed the various Operative Agreements required to be executed by such Credit Party as of such date;
(d) there are no material actions, suits or proceedings pending or, to our knowledge, threatened against any Credit Party in any court or before any Governmental Authority (nor shall any order, judgment or decree have been issued or proposed to be issued by any Governmental Authority to set aside, restrain, enjoin or prevent the full performance of any Operative Agreement or any transaction contemplated thereby) that (i) concern any Property or any Credit Party's interest therein, (ii) question the validity or enforceability of any Operative Agreement to which any Credit Party is a party or the overall transaction described in the Operative Agreements to which any Credit Party is a party or (iii) have or could reasonably be expected to have a Material Adverse Effect; provided for purposes of disclosure, the Credit Parties have described -------- the litigation set forth on Exhibit K; ---------
(e) no Governmental Action by any Governmental Authority or other recording, order, authorization, consent, license, registration, consent, approval, waiverexemption, filing, notice or other similar action byby or with any governmental body, governmental official or other regulatory authority (except such as have been obtained and copies or confirmations of which have been delivered by the applicable Credit Party to Bank) is or of any other Person pursuant to any Legal Requirement, contract, indenture, instrument or agreement or for any other reason is required to authorize or is required in connection with will be necessary (i) the execution, delivery or performance of any Operative Agreement, (ii) for the legality, validity, binding effect or enforceability of any Operative this Agreement, (ii) to permit the performance by each Credit Party of its obligations under this Agreement in accordance with the terms thereof, (iii) to enable Bank to enforce its rights and remedies under this Agreement, including any sale, transfer or other disposition by Bank of all or any part of the acquisition, ownership, construction, completion, occupancy, operation, leasing or subleasing of any Property Collateral or (iv) to create and perfect the Advance, in each case, except those Liens on the Collateral which have been obtained and are in full force and effectis granted under this Agreement or any related agreement or guarantee;
(f) upon the execution and delivery of each Lease Supplement to the Lease, (i) the Lessee will have unconditionally accepted the Property subject to the applicable Lease Supplement and will have a valid and subsisting leasehold interest no Credit Party is in such Property, subject only to the Permitted Liens, and (ii) no offset will exist default with respect to any Rent or other sums payable under the Leaseof its Indebtedness;
(g) [not used]except as disclosed by the Credit Parties to Bank in writing prior to the date of this Agreement, there is no litigation or other proceeding pending or, to any Credit Party’s knowledge, threatened against or affecting any Credit Party which, if determined adversely to such Credit Party, would have a material adverse effect on such Credit Party’s financial condition;
(h) all information heretofore or contemporaneously herewith furnished by with respect to each Credit Party or its Subsidiaries heretofore delivered to Bank by such Credit Party is true and correct as of the Agentdate hereof, the Owner Trustee, any Lender or any Holder for purposes of or and all other statements and data submitted in writing in connection with this Agreement and the transactions contemplated hereby is, and all information hereafter furnished by or on behalf of each Credit Party or its Subsidiaries to the Agent, the Owner Trustee, any Lender or any Holder pursuant hereto or in connection herewith will be, true and accurate in every material respect on the date as of which such information is dated or certified, and such information, taken as a whole, does not and will not omit to state any material fact necessary to make such information, taken as a whole, not misleading;
(i) the principal place of business, chief executive office and office of the Lessee where the documents, accounts and records relating to the transactions contemplated by this Agreement and each other Operative Agreement are kept are located at 000 Xxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, the state of formation of the Lessee is the State of Delaware and the states of formation and the chief executive offices of each other Credit Party are located at the places set forth in Exhibit L; ---------
(j) the representations and warranties of each Credit Party set forth in any of the Operative Agreements Application are true and correct in all material respects on and as of each such date as if made on and as of such date; each Credit Party is in all material respects in compliance with its obligations under the Operative Agreements and there exists no Default or Event of Default under any of the Operative Agreements which is continuing and which has not been cured within any cure period expressly granted under the terms of the applicable Operative Agreement or otherwise waived in accordance with the applicable Operative Agreement; no Default or Event of Default will occur under any of the Operative Agreements as a result of, or after giving effect to, the Advance;
(k) as of the Closing Date, each Property is a Permitted Facility; each Property consists of Land and existing Improvements thereon which Improvements are suitable for occupancy; each Property is located in one date of the Approved States; each Property is well-performing (as that term is used in Lessee's financial statements); and Lessee intends to continue operating each Property as a Permitted Facility;
(l) as of the Closing Date, the Lessor Application. No Credit Party has good and marketable fee simple title to each Property, subject only to (i) such Liens referenced in Sections 6.2(q)(i) and 6.2(q)(ii) and (ii) subject to Section 5.7, Permitted Liens after the Closing Date;
(m) as of the Closing Date, no portion knowledge of any Property is located in an area identified as a special flood hazard area by the Federal Emergency Management Agency liabilities at said dates, contingent or other applicable agencyotherwise, not otherwise notified to Bank on or prior to such dates, and no Credit Party has entered into any commitments or contracts, or if incurred any other liabilities, at such Property is located in an area identified as a special flood hazard area by the Federal Emergency Management Agency or other applicable agencydates that have not otherwise been notified to Bank, then flood insurance has been obtained for such Property in accordance with Section 14.2(b) of the Lease and in accordance with the National Flood Insurance Act of 1968, as amended;
(n) as of the Closing Date, each Property complies with all Insurance Requirements and all standards of Lessee with respect to similar properties owned by Lessee;
(o) as of the Closing Date, each Property complies with all Legal Requirements as of such date (including without limitation all zoning and land use laws and Environmental Laws), except to the extent that failure to comply therewith, individually or in the aggregate, shall not have and which could not reasonably be expected to have a Material Adverse Effect;
(p) as of the Closing Date, all utility services and facilities necessary for the operation of the Improvements and the operation of the Equipment regarding each Property (including without limitation gas, electrical, water and sewage services and facilities) are available at the applicable Landmaterial adverse effect upon any Credit Party’s financial condition;
(i) all Collateral is owned by the Security Documents createapplicable Credit Party free and clear of all Liens whatsoever (except for Liens in favor of Bank and, in the case of Collateral consisting of property held by or through Bank’s affiliates, Liens in favor of such affiliates);
(j) at no time shall the Collateral include any securities or other property in an amount such that (without taking any other relationships or assets of Bank into account) Bank, either upon exercising its rights or remedies hereunder or otherwise, would become a holder of 10% or more of any class of any equity security of any issuer or would become (or be presumed to be) an affiliate of any issuer of securities (as such term “affiliate” is defined for purposes of the Securities Act of 1933);
(k) no Credit Party is an affiliate (as such term “affiliate” is defined for purposes of the Securities Act of 1933) of the issuer of any security included in the Collateral;
(l) no part of the proceeds of any Advance will be used for the Obligationspurpose of buying or carrying Margin Stock (as defined in Regulation U promulgated by the Board of Governors of the Federal Reserve System of the United States of America) or for any purpose that entails a violation of, or that is inconsistent with, the provisions of the Regulations of the Board of Governors of the Federal Reserve System, including Regulation T, U or X;
(m) no Credit Party is an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940; and
(n) This Agreement, upon execution and delivery thereof by the parties thereto, will create in favor of Bank, a legal, valid and enforceable security interests in, interest in the Collateral and Liens on, all (i) upon execution and delivery of the Collateral, in favor of the Agent, for the ratable benefit of the Lenders this Agreement and the Holders, as their respective interests appear in the Operative Agreements, and such security interests and Liens are subject to no other Liens other than Liens that are expressly set forth as title exceptions on the title policies issued under Section 5.3(g) with respect to the applicable Property, to the extent such title policies have been approved Securities Account Control Agreement by the Agent, the Lenders and the Holders; upon recordation of the Mortgage Instrument in the real estate recording office in the applicable Approved State identified by the Lesseeparties thereto, the Lien created by the Mortgage Instrument in the real property described therein shall be a perfected first priority mortgage Lien on such real property hereunder in favor of the Agent, for the ratable benefit Bank in respect of the Lenders Account shall constitute a fully perfected first-priority Lien on, and the Holderssecurity interest in, as their respective interests appear all right, title and interest of Guarantor in the Operative Agreements; Account, prior and superior in right to the extent that the security interests any other person (other than as contemplated in the portion of the Collateral comprised of personal property can be perfected by filing in the filing offices in the applicable Approved States or elsewhere identified by the LesseeSecurities Account Control Agreement), upon filing of the Lender Financing Statements in such filing offices, the security interests created by the Security Agreement shall be perfected first priority security interests in such personal property in favor of the Agent, for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements; and
(ii) upon execution of this Agreement and the Lease Agreement creates, as security for filing of a financing statement in appropriate form with the obligations Secretary of State of the Lessee under the Lease Agreement, valid and enforceable security interests in, and Liens on, each Property leased thereunder, in favor State of the Lessor, and such security interests and Liens are subject to no other Liens other than Liens that are expressly set forth as title exceptions on the title policies issued under Section 5.3(g) with respect to the applicable Property, to the extent such title policies have been approved by the Agent, the Lenders and the Holders; upon recordation of the memorandum of the Lease Agreement (or a short form lease) in the real estate recording office in the applicable Approved State identified by the LesseeDelaware, the Lien created by the Lease Agreement in the real property described therein shall be a perfected first priority mortgage Lien on such real property hereunder in favor of Bank in all other Guarantor Collateral will constitute a fully perfected first-priority Lien on, and security interest in, all right, title and interest of Guarantor in all other Guarantor Collateral, prior and superior in right to any other person, and (iii) upon execution of this Agreement and the Agent, for filing of a financing statement in appropriate form with the ratable benefit Secretary of State of the Lenders and State of Illinois, the Holders, as their respective interests appear in the Operative Agreements; to the extent that the security interests in the portion of any Property comprised of personal property can be perfected by the filing in the filing offices in the applicable Approved State or elsewhere identified by the Lessee upon filing of the Lessor Financing Statements in such filing offices, a security interest Lien created by the Lease Agreement shall be a perfected first priority security interest in such personal property hereunder in favor of the LessorBank in all Applicant Collateral will constitute a fully perfected first-priority Lien on, which and security interest pursuant in, all right, title and interest of Applicant in all Applicant Collateral, prior and superior in right to the Lessor Financing Statements is assigned to the Agent, for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements;
(r) as of the Closing Date, the sum of the Lessee's available cash balances and the available funds under its revolving credit facility is at least $50 millionany other person.
(s) the Improvements as to each Property comply with all applicable Legal Requirements (including without limitation all applicable Environmental Laws and building, planning, zoning and fire codes), except to the extent the failure to comply therewith, individually or in the aggregate, shall not have and could not reasonably be expected to have a Material Adverse Effect; such Improvements are (i) within (A) the boundary lines of the Property and (B) any building restriction lines or setbacks and (ii) do not encroach in any manner onto any adjoining land (except as permitted by express written easements, which have been approved by the Agent);
(t) [not used]
(u) as of the Closing Date, each Domestic Subsidiary (formed prior to or on such date) shall have executed this Agreement in its capacity as a Guarantor.
(v) [not used]
(w) [not used]
Appears in 1 contract
Samples: Letter of Credit Reimbursement, Guarantee, Security and Pledge Agreement (Decode Genetics Inc)
Representations and Warranties of the Credit Parties. Effective as of the Closing Date and the date each Domestic Subsidiary delivers a Joinder Agreement, each Each Credit Party severally, as applicable to itself and not the other Credit Party, represents and warrants to each of the other parties hereto Bank that:
(a) Applicant (i) is a corporation duly organized, validly existing and in good standing under the representations and warranties set forth in Section 28.1 laws of the Lease State of Nevada, (ii) is qualified to transact business and is in good standing in all states in which qualification and good standing are true necessary in order for it to conduct its business and correct (unless such relate solely to an earlier point in time)own its property, and the Lessee (iii) has delivered all requisite power and authority to the Agent the financial statements conduct its business, to own its property, to execute and other reports referred deliver this Agreement and to in Article XXVIII of the Leaseperform its obligations hereunder;
(b) Guarantor (i) is a sub-trust of Vicis Capital Series Master Trust, a unit trust duly organized, validly existing and in good standing under the execution laws of the Cayman Islands, (ii) is qualified to transact business and delivery is in good standing in all jurisdictions in which qualification and good standing are necessary in order for it to conduct its business and own its property, and (iii) has all requisite power and authority to conduct its business, to own its property, to execute and deliver this Agreement and to perform its obligations hereunder;
(c) this Agreement has been duly and validly executed and delivered by each Credit Party of this Agreement and the other applicable Operative Agreements as of such date constitutes a legal, valid and the performance by each Credit Party of its respective obligations under this Agreement and the other applicable Operative Agreements are within the corporate, partnership or limited liability company (as the case may be) powers binding obligation of each Credit Party, have been duly authorized by all necessary corporate, partnership or limited liability company (as the case may be) action on the part of enforceable against each Credit Party in accordance with its terms, subject, as to enforceability of remedies, to bankruptcy, insolvency and other laws affecting creditors’ rights generally;
(including without limitation any necessary shareholder action), have been duly executed and delivered, have received d) Each Credit Party has taken all necessary governmental approvalsaction to authorize the execution, delivery and performance of this Agreement, and such authorization, delivery and performance do not and will not (i) violate any Legal Requirement law, rule, regulation, order, judgment, injunction, decree, determination or award presently in effect and applicable to such Credit Party, (ii) require any consent or result in a material breach of or constitute a default under any agreement, lease or instrument to which such Credit Party is binding on any a party or by which such Credit Party or any of its Subsidiariesassets may be bound or affected, (ii) contravene or conflict with, or result in a breach of, any provision of the articles of incorporation, by-laws or other organizational documents of any Credit Party or any of its Subsidiaries or of any agreement, indenture, instrument or other document which is binding on any Credit Party or any of its Subsidiaries or (iii) result in, in or require, require the creation or imposition of any Lien (other than in favor of Bank pursuant to the terms this Agreement) upon or with respect to any of the Operative Agreements) on any asset of any Credit Party properties now owned or any of its Subsidiaries;
(c) this Agreement and the other applicable Operative Agreements, executed prior to and as of such date hereafter acquired by any Credit Party, constitute the legal, valid and binding obligation of such Credit Party, as applicable, enforceable against such Credit Party, as applicable, in accordance with their terms. Each Credit Party has executed the various Operative Agreements required to be executed by such Credit Party as of such date;
(d) there are no material actions, suits or proceedings pending or, to our knowledge, threatened against any Credit Party in any court or before any Governmental Authority (nor shall any order, judgment or decree have been issued or proposed to be issued by any Governmental Authority to set aside, restrain, enjoin or prevent the full performance of any Operative Agreement or any transaction contemplated thereby) that (i) concern any Property or any Credit Party's interest therein, (ii) question the validity or enforceability of any Operative Agreement to which any Credit Party is a party or the overall transaction described in the Operative Agreements to which any Credit Party is a party or (iii) have or could reasonably be expected to have a Material Adverse Effect; provided for purposes of disclosure, the Credit Parties have described -------- the litigation set forth on Exhibit K; ---------
(e) no Governmental Action by any Governmental Authority or other recording, order, authorization, consent, license, registration, consent, approval, waiverexemption, filing, notice or other similar action byby or with any governmental body, governmental official or other regulatory authority (except such as have been obtained and copies or confirmations of which have been delivered by the applicable Credit Party to Bank) is or of any other Person pursuant to any Legal Requirement, contract, indenture, instrument or agreement or for any other reason is required to authorize or is required in connection with will be necessary (i) the execution, delivery or performance of any Operative Agreement, (ii) for the legality, validity, binding effect or enforceability of any Operative this Agreement, (ii) to permit the performance by each by each Credit Party of its obligations under this Agreement in accordance with the terms thereof, (iii) to enable Bank to enforce its rights and remedies under this Agreement, including any sale, transfer or other disposition by Bank of all or any part of the acquisition, ownership, construction, completion, occupancy, operation, leasing or subleasing of any Property Collateral or (iv) to create and perfect the Advance, in each case, except those Lien on the Collateral which have been obtained and are in full force and effectis granted under this Agreement or any related agreement or guarantee;
(f) upon the execution and delivery of each Lease Supplement to the Lease, (i) the Lessee will have unconditionally accepted the Property subject to the applicable Lease Supplement and will have a valid and subsisting leasehold interest Applicant is not in such Property, subject only to the Permitted Liens, and (ii) no offset will exist default with respect to any Rent of its Indebtedness in a principal amount of $500,000 or other sums payable under the Leasemore;
(g) [Guarantor is not used]in default with respect to any of its Indebtedness in a principal amount of $2,500,000 or more;
(h) all information heretofore except as disclosed by the Credit Parties to Bank in writing prior to the date of this Agreement, there is no litigation or contemporaneously herewith furnished by each other proceeding pending or, to any Credit Party’s knowledge, threatened against or affecting any Credit Party or its Subsidiaries which, if determined adversely to the Agentsuch Credit Party, the Owner Trustee, any Lender or any Holder for purposes of or in connection with this Agreement and the transactions contemplated hereby is, and all information hereafter furnished by or would have a material adverse effect on behalf of each such Credit Party or its Subsidiaries to the Agent, the Owner Trustee, any Lender or any Holder pursuant hereto or in connection herewith will be, true and accurate in every material respect on the date as of which such information is dated or certified, and such information, taken as a whole, does not and will not omit to state any material fact necessary to make such information, taken as a whole, not misleadingParty’s financial condition;
(i) the principal place of business, chief executive office and office of the Lessee where the documents, accounts and records relating all information with respect to the transactions contemplated by this Agreement and each other Operative Agreement are kept are located at 000 Xxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, the state of formation of the Lessee is the State of Delaware and the states of formation and the chief executive offices of each other Credit Party are located at the places set forth in Exhibit L; ---------
(j) the representations and warranties of each Credit Party set forth in any heretofore delivered to Bank by such Credit Party is true and correct as of the Operative Agreements date hereof, and all other statements and data submitted in writing in connection with the Application are true and correct in all material respects on and as of each such date as if made on and as of such date; each Credit Party is in all material respects in compliance with its obligations under the Operative Agreements and there exists no Default or Event of Default under any of the Operative Agreements which is continuing and which has not been cured within any cure period expressly granted under the terms of the applicable Operative Agreement or otherwise waived in accordance with the applicable Operative Agreement; no Default or Event of Default will occur under any of the Operative Agreements as a result of, or after giving effect to, the Advance;
(k) as of the Closing Date, each Property is a Permitted Facility; each Property consists of Land and existing Improvements thereon which Improvements are suitable for occupancy; each Property is located in one date of the Approved States; each Property is well-performing (as that term is used in Lessee's financial statements); and Lessee intends to continue operating each Property as a Permitted Facility;
(l) as of the Closing Date, the Lessor Application. No Credit Party has good and marketable fee simple title to each Property, subject only to (i) such Liens referenced in Sections 6.2(q)(i) and 6.2(q)(ii) and (ii) subject to Section 5.7, Permitted Liens after the Closing Date;
(m) as of the Closing Date, no portion knowledge of any Property is located in an area identified as a special flood hazard area by the Federal Emergency Management Agency liabilities at said dates, contingent or other applicable agencyotherwise, not otherwise notified to Bank on or prior to such dates, and no Credit Party has entered into any commitments or contracts, or if incurred any other liabilities, at such Property is located in an area identified as a special flood hazard area by the Federal Emergency Management Agency or other applicable agencydates that have not otherwise been notified to Bank, then flood insurance has been obtained for such Property in accordance with Section 14.2(b) of the Lease and in accordance with the National Flood Insurance Act of 1968, as amended;
(n) as of the Closing Date, each Property complies with all Insurance Requirements and all standards of Lessee with respect to similar properties owned by Lessee;
(o) as of the Closing Date, each Property complies with all Legal Requirements as of such date (including without limitation all zoning and land use laws and Environmental Laws), except to the extent that failure to comply therewith, individually or in the aggregate, shall not have and which could not reasonably be expected to have a Material Adverse Effectmaterial adverse effect upon any Credit Party’s financial condition;
(pj) as all Collateral is owned by Guarantor free and clear of all Liens whatsoever (except for Liens in favor of Bank and, in the Closing Datecase of Collateral consisting of property held by or through Bank’s affiliates, all utility services and facilities necessary for the operation Liens in favor of the Improvements and the operation of the Equipment regarding each Property (including without limitation gas, electrical, water and sewage services and facilities) are available at the applicable Landsuch affiliates);
(ik) at no time shall the Security Documents createCollateral include any securities or other property in an amount such that (without taking any other relationships or assets of Bank into account) Bank, either upon exercising its rights or remedies hereunder or otherwise, would become a holder of 10% or more of any class of any equity security of any issuer or would become (or be presumed to be) an affiliate of any issuer of securities (as such term “affiliate” is defined for purposes of the Securities Act of 1933);
(l) no Credit Party is an affiliate (as such term “affiliate” is defined for purposes of the Securities Act of 1933) of the issuer of any security included in the Collateral;
(m) no part of the proceeds of any Advance will be used for the Obligationspurpose of buying or carrying Margin Stock (as defined in Regulation U promulgated by the Board of Governors of the Federal Reserve System of the United States of America) or for any purpose that entails a violation of, or that is inconsistent with, the provisions of the Regulations of the Board of Governors of the Federal Reserve System, including Regulation T, U or X;
(n) no Credit Party is an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940; and
(o) This Agreement, upon execution and delivery thereof by the parties thereto, will create in favor of Bank, a legal, valid and enforceable security interests in, and Liens on, all of the Collateral, in favor of the Agent, for the ratable benefit of the Lenders and the Holders, as their respective interests appear interest in the Operative Agreements, Collateral and such security interests (i) upon execution and Liens are subject to no other Liens other than Liens that are expressly set forth as title exceptions on the title policies issued under Section 5.3(g) with respect to the applicable Property, to the extent such title policies have been approved by the Agent, the Lenders and the Holders; upon recordation delivery of the Mortgage Instrument in the real estate recording office in the applicable Approved State identified by the Lesseethis Agreement, the Lien created by hereunder in respect of the Mortgage Instrument Account shall constitute a fully perfected first-priority Lien on, and security interest in, all right, title and interest of Guarantor in the real property described therein shall be a perfected first priority mortgage Lien on such real property Account, prior and superior in favor of the Agentright to any other person, for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements; to the extent that the security interests in the portion of the Collateral comprised of personal property can be perfected by filing in the filing offices in the applicable Approved States or elsewhere identified by the Lessee, upon filing of the Lender Financing Statements in such filing offices, the security interests created by the Security Agreement shall be perfected first priority security interests in such personal property in favor of the Agent, for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements; and
(ii) when financing statements in appropriate form are filed with the Lease Agreement creates, as security for the obligations Secretary of State of the Lessee under the Lease Agreement, valid and enforceable security interests in, and Liens on, each Property leased thereunder, in favor District of the Lessor, and such security interests and Liens are subject to no other Liens other than Liens that are expressly set forth as title exceptions on the title policies issued under Section 5.3(g) with respect to the applicable Property, to the extent such title policies have been approved by the Agent, the Lenders and the Holders; upon recordation of the memorandum of the Lease Agreement (or a short form lease) in the real estate recording office in the applicable Approved State identified by the LesseeColumbia, the Lien created by the Lease Agreement in the real property described therein shall be hereunder will constitute a fully perfected first first-priority mortgage Lien on such real property in favor of the Agenton, for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements; to the extent that the security interests in the portion of any Property comprised of personal property can be perfected by the filing in the filing offices in the applicable Approved State or elsewhere identified by the Lessee upon filing of the Lessor Financing Statements in such filing offices, a security interest created by the Lease Agreement shall be a perfected first priority security in, all right, title and interest of Guarantor in such personal property all other Collateral, prior and superior in favor of the Lessor, which security interest pursuant right to the Lessor Financing Statements is assigned to the Agent, for the ratable benefit of the Lenders and the Holders, as their respective interests appear in the Operative Agreements;
(r) as of the Closing Date, the sum of the Lessee's available cash balances and the available funds under its revolving credit facility is at least $50 millionany other person.
(s) the Improvements as to each Property comply with all applicable Legal Requirements (including without limitation all applicable Environmental Laws and building, planning, zoning and fire codes), except to the extent the failure to comply therewith, individually or in the aggregate, shall not have and could not reasonably be expected to have a Material Adverse Effect; such Improvements are (i) within (A) the boundary lines of the Property and (B) any building restriction lines or setbacks and (ii) do not encroach in any manner onto any adjoining land (except as permitted by express written easements, which have been approved by the Agent);
(t) [not used]
(u) as of the Closing Date, each Domestic Subsidiary (formed prior to or on such date) shall have executed this Agreement in its capacity as a Guarantor.
(v) [not used]
(w) [not used]
Appears in 1 contract
