Representations and Warranties of the Issuers. (a) Each Issuer hereby represents and warrants to each of the other parties hereto and for the benefit of the Indenture Trustee, on behalf of the Noteholders as of each Series Closing Date on or after the date on which such Issuer becomes a party to this Agreement: (i) Such Issuer is a limited liability company duly organized, validly existing, and in good standing under the laws of the State of Delaware and is in compliance with the laws of each state (within the United States of America) in which any applicable Mortgaged Property is located to the extent necessary for the Issuer to perform its obligations under this Agreement; (ii) The execution and delivery by such Issuer of this Agreement and the consummation by such Issuer of the transactions provided for in this Agreement have been duly authorized by all necessary action on the part of the Issuer; (iii) The execution and delivery of this Agreement by such Issuer, and the performance and compliance with the terms of this Agreement by such Issuer, do not violate its organizational documents or constitute an event that, with notice or lapse of time, or both, would constitute a default under, or result in the breach of, any material agreement or other instrument to which it is a party or by which it is bound; (iv) Such Issuer has the limited liability company power and authority to enter into and consummate all transactions to be performed by it contemplated by this Agreement, has duly authorized the execution, delivery and performance by it of this Agreement and any applicable Joinder Agreement, and has duly executed and delivered this Agreement and any applicable Joinder Agreement; (v) This Agreement, assuming due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal and binding obligation of such Issuer, enforceable against such Issuer in accordance with the terms hereof (except as such enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting creditors’ rights generally or by general equitable principles, whether considered in a proceeding at law or in equity and by an implied covenant of good faith and fair dealing); (vi) Such Issuer is not in violation of, and its execution and delivery of, this Agreement or any applicable Joinder Agreement and its performance and compliance with the terms of this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation is likely to affect materially and adversely either the ability of such Issuer to perform its obligations under this Agreement or the financial condition of such Issuer; (vii) No litigation is pending or, to such Issuer’s knowledge, threatened against such Issuer that is reasonably likely to be determined adversely to such Issuer and, if determined adversely to such Issuer, would prohibit such Issuer from entering into this Agreement or that, in such Issuer’s good faith and reasonable judgment, is likely to materially and adversely affect either the ability of such Issuer to perform its obligations under this Agreement or the financial condition of such Issuer; (viii) No consent, approval, authorization or order under any court or governmental agency or body is required for the execution, delivery and performance by such Issuer of, or the compliance by such Issuer with, this Agreement or the consummation of the transactions of such Issuer contemplated by this Agreement, except for any consent, approval, authorization or order that has been obtained or that if not obtained would not have a material and adverse effect on the ability of such Issuer to perform its obligations hereunder; (ix) Each officer and employee of such Issuer that has responsibilities concerning the management, servicing and administration of the applicable Mortgaged Properties, Leases and Mortgage Loans is covered by errors and omissions insurance and the fidelity bond as and to the extent required by Section 3.07(c); and (x) To such Issuer’s knowledge, each of the Mortgaged Properties owned by such Issuer or securing a Mortgage Loan owned by such Issuer is a commercial property. (b) The representations and warranties of each Issuer set forth in Section 2.02(a) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons to whom and for whose benefit they were made for so long as such Issuer remains in existence. Upon discovery by any party hereto of any breach of any of the foregoing representations and warranties, the party discovering such breach shall give prompt written notice to the other parties.
Appears in 1 contract
Representations and Warranties of the Issuers. (a) Each Issuer hereby To induce the Noteholders to enter into this Agreement and to consent to the Amendment and Waiver each of the Issuers represents and warrants to each the holders of the other parties hereto and for the benefit Notes that as of the Indenture Trustee, on behalf date hereof and as of the Noteholders as of each Series Closing Date on or after the date on which such Issuer becomes a party to this AgreementEffective Date:
(ia) Such Issuer It is a limited liability company duly organized, validly existing, existing and in good standing under the laws of its jurisdiction of incorporation and it has taken all necessary action to authorize the State execution, delivery and performance of Delaware and is in compliance with the laws of each state (within the United States of America) in which any applicable Mortgaged Property is located to the extent necessary for the Issuer to perform its obligations under this Agreement;.
(b) This Agreement has been duly executed and delivered by such Person and constitutes such Person’s legal, valid and binding obligation, enforceable in accordance with its terms, except as such enforceability may be subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity).
(c) The execution representations and delivery by such Issuer of this Agreement and the consummation by such Issuer warranties set forth in Section 5 of the transactions provided Note Purchase Agreement are true and correct as of such date (except for in this Agreement have been duly authorized by all necessary action on the part of the Issuer;those which expressly relate to an earlier date).
(iiid) Both immediately before and immediately after giving effect to this Agreement, no Default or Event of Default (other than the Specified Event of Default) shall have occurred and be continuing.
(e) The execution and delivery of this Agreement by such Issuer, and the performance by each of the Issuers of its obligations hereunder and compliance with under the terms of this Agreement by such Issuer, other documents executed in connection herewith to which it is a party do not violate its organizational documents or constitute an event thatconflict with, with notice or lapse of timeresult in any breach of, or both, would constitute a default under, or result in the breach creation of any Lien in respect of any property of such Issuer or any of its Subsidiaries or under the provisions of: (i) any charter document, any material constitutive document, agreement with shareholders or members, bylaws, operating agreement or any other organizational or governing agreement of such Issuer or any of its Subsidiaries, (ii) any other Material agreement or instrument to which it is a party or by which it is bound;
(iv) Such Issuer has the limited liability company power and authority to enter into and consummate all transactions to be performed by it contemplated by this Agreement, has duly authorized the execution, delivery and performance by it of this Agreement and any applicable Joinder Agreement, and has duly executed and delivered this Agreement and any applicable Joinder Agreement;
(v) This Agreement, assuming due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal and binding obligation of such Issuer, enforceable against such Issuer in accordance with the terms hereof (except as such enforceability or any of its Subsidiaries or any of their respective properties may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and bound or affected; or (iii) any statute or other similar laws affecting creditors’ rights generally rule or by general equitable principles, whether considered in a proceeding at law or in equity and by an implied covenant of good faith and fair dealing);
(vi) Such Issuer is not in violation of, and its execution and delivery of, this Agreement or any applicable Joinder Agreement and its performance and compliance with the terms of this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, regulation or any order, regulation judgment, decree or demand ruling of any federalcourt, state arbitrator or local governmental or regulatory authority, which violation is likely Governmental Authority applicable to affect materially and adversely either the ability of such Issuer or any of its Subsidiaries.
(f) No fee or other compensation is being provided to perform its obligations under this any holder of notes in respect of the 2020 Agreement or the financial condition of such Issuer;
(vii) No litigation is pending or, to such Issuer’s knowledge, threatened against such Issuer that is reasonably likely to be determined adversely to such Issuer and, if determined adversely to such Issuer, would prohibit such Issuer from entering into this Agreement or that, in such Issuer’s good faith and reasonable judgment, is likely to materially and adversely affect either the ability of such Issuer to perform its obligations under this Agreement or the financial condition of such Issuer;
(viii) No consent, approval, authorization or order under any court or governmental agency or body is required for the execution, delivery and performance by such Issuer of, or the compliance by such Issuer with, this Agreement or the consummation of the transactions of such Issuer contemplated by this 2013 Agreement, except for any consent, approval, authorization or order that has been obtained or that if not obtained would not have a material and adverse effect on the ability of such Issuer to perform its obligations hereunder;
(ix) Each officer and employee of such Issuer that has responsibilities concerning the management, servicing and administration of the applicable Mortgaged Properties, Leases and Mortgage Loans is covered by errors and omissions insurance and the fidelity bond as and to the extent required by Section 3.07(c); and
(x) To such Issuer’s knowledge, each of the Mortgaged Properties owned by such Issuer or securing a Mortgage Loan owned by such Issuer is a commercial property.
(b) The representations and warranties of each Issuer set forth in Section 2.02(a) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons to whom and for whose benefit they were made for so long as such Issuer remains in existence. Upon discovery by any party hereto of any breach of any of the foregoing representations and warranties, the party discovering such breach shall give prompt written notice to the other parties.
Appears in 1 contract
Representations and Warranties of the Issuers. Each Issuer (and, solely with respect to Sections 3(e)-(h), Mallinckrodt Parent) hereby represents and warrants, severally and not jointly, to the Noteholder Parties that the following statements are true and correct as of the date hereof:
(a) Each Issuer hereby represents and warrants to each of the other parties hereto and for the benefit of the Indenture Trustee, on behalf of the Noteholders as of each Series Closing Date on or after the date on which such Issuer becomes a party to this Agreement:
(i) Such Issuer is a limited liability company duly organized, validly existing, has all necessary corporate or similar power and in good standing under the laws of the State of Delaware authority to execute and is in compliance with the laws of each state (within the United States of America) in which any applicable Mortgaged Property is located to the extent necessary for the Issuer deliver this Agreement and to perform its obligations under this Agreement;
(ii) The execution and delivery by such Issuer of this Agreement and the consummation by such Issuer of the transactions provided for in this Agreement have been duly authorized by all necessary action on the part of the Issuer;
(iii) hereunder. The execution and delivery of this Agreement by such Issuer, Issuer and the performance and compliance with of its obligations hereunder have been duly authorized by all necessary corporate or similar action on the terms part of such Issuer. No other votes, written consents, actions or proceedings by or on behalf of such Issuer are necessary to authorize this Agreement or the performance of its obligations hereunder.
(b) This Agreement has been duly and validly executed and delivered by such Issuer, do not violate its organizational documents or constitute an event that, with notice or lapse of time, or both, would constitute a default under, or result in . This Agreement constitutes the breach of, any material agreement or other instrument to which it is a party or by which it is bound;
(iv) Such Issuer has the limited liability company power and authority to enter into and consummate all transactions to be performed by it contemplated by this Agreement, has duly authorized the execution, delivery and performance by it of this Agreement and any applicable Joinder Agreement, and has duly executed and delivered this Agreement and any applicable Joinder Agreement;
(v) This Agreement, assuming due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal valid and binding obligation of such Issuer, enforceable against such Issuer in accordance with the terms hereof (its terms, except as such enforceability may be limited by (i) the effects of bankruptcy, insolvency, fraudulent conveyancetransfer, reorganization, moratorium and or other similar laws relating to or affecting creditors’ the rights and remedies of creditors generally or by (ii) general equitable principles, principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity and by an implied covenant of good faith and fair dealingor at law);.
(vic) Such Issuer is not in violation ofThe execution, and its execution and delivery of, or performance of this Agreement or any applicable Joinder Agreement by such Issuer and its performance and such Issuer’s compliance with the terms of this Agreement provisions hereof will not (with or without notice or lapse of time, or both): (i) violate any provision of the organizational or governing documents of such Issuer; (ii) violate any law or order applicable to any member of the Mallinckrodt Group; or (iii) require any consent or approval under, violate, conflict with, result in any breach of, or constitute a violation ofdefault under, or result in termination or give to others any right of termination, amendment, acceleration or cancellation of any contract, agreement, arrangement or understanding that is binding on any member of the Mallinckrodt Group or on any of their respective properties or assets (including, without limitation, any lawindentures, credit facilities or agreements under which any order member of the Mallinckrodt Group has issued debt securities or decree has outstanding indebtedness), except, in the case of any court or arbiterclause (ii) and (iii) above, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation is where not reasonably likely to affect materially and adversely either have a material adverse effect on the ability of such Issuer the Issuers to perform its their respective obligations under this Agreement or the financial condition transactions contemplated hereby.
(d) The Offering Memorandum does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that, with respect to any projected information, such Issuer represents and warrants only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time.
(e) The New Notes to be issued by the Issuers to the Noteholder Parties pursuant to those certain indentures to be entered into in connection with the Exchange and the Exchange Offers (collectively, the “New Indentures”) will, upon issuance thereof, have been duly authorized for issuance and sale pursuant to this Agreement and the applicable New Indenture and, upon issuance thereof, will have been duly executed by the Issuers and, when authenticated in the manner to be provided for in the New Indenture and delivered in exchange for the Subject Notes or the Additional Notes (if any), will constitute valid and binding obligations of such Issuer;
(vii) No litigation is pending or, to such Issuer’s knowledge, threatened enforceable against such Issuer that in accordance with their respective terms, except as may be limited by (i) the effects of bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors generally, or (ii) general principles of equity (regardless of whether such enforceability is reasonably likely considered in a proceeding in equity or at law), and will be entitled to the benefits of the New Indenture.
(f) The New Indenture (including the guarantees set forth therein) and each Note Document to be determined adversely to entered into on the Settlement Date, will be duly authorized by such Issuer and, if determined adversely to such Issuer, would prohibit such Issuer from entering into this Agreement or that, in such Issuer’s good faith and reasonable judgment, is likely to materially guarantors party thereto and adversely affect either the ability will constitute a valid and binding agreement of such Issuer and guarantors party thereto, enforceable against such Issuer and guarantors party thereto in accordance with its terms, except as may be limited by (i) the effects of bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws relating to perform its obligations or affecting the rights and remedies of creditors generally, (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), (iii) the need for filings and registrations necessary to perfect any security granted thereby and (iv) the effect of any requirements of law as they relate to pledges of equity interests in any subsidiaries organized outside of the United States (other than pledges made under this Agreement or the financial condition laws of the jurisdiction of formation of the issuer of such Issuer;equity interests).
(viiig) No consent, approval, authorization or order under any court or governmental agency or body is required for the The execution, delivery and performance by such Issuer of, or the compliance by such Issuer with, and Mallinckrodt Parent of this Agreement or and the consummation of the transactions contemplated hereby, including commencement and consummation of the Exchange, the Additional Exchanges (if any), the Exchange Offers and the Consent Solicitations, do not and will not require any registration or filing with, the consent or approval of, notice to, or any other action with respect to (with or without due notice, lapse of time, or both), any governmental authority, other than (i) Current Reports on Form 8-K filed or furnished by Mallinckrodt plc with respect to the Exchange, the Additional Exchanges (if any), the Exchange Offers and the Consent Solicitations, (ii) such Issuer contemplated by this Agreementas have been made or obtained and are in full force and effect, except for any consent(iii) filings of Uniform Commercial Code financing statements and other registrations or filings in connection with the perfection of security interests granted pursuant to the Collateral Documents, approval(iv) filings with the United States Patent and Trademark Office and the United States Copyright Office and comparable offices in foreign jurisdiction and equivalent filings in foreign jurisdictions and (v) such registrations, authorization filings, consents, approvals, notices or order that has been obtained or that other actions that, if not obtained or made, would not reasonably be likely to have a material and adverse effect on the ability of such Issuer the Issuers to perform its their respective obligations hereunder;
(ix) Each officer and employee of such Issuer that has responsibilities concerning under this Agreement or the management, servicing and administration of the applicable Mortgaged Properties, Leases and Mortgage Loans is covered by errors and omissions insurance and the fidelity bond as and to the extent required by Section 3.07(c); and
(x) To such Issuer’s knowledge, each of the Mortgaged Properties owned by such Issuer or securing a Mortgage Loan owned by such Issuer is a commercial propertytransactions contemplated hereby.
(bh) The representations and warranties Following the Cleansing Disclosures (as defined below), Mallinckrodt Parent shall have disclosed all material, non-public information regarding the Mallinckrodt Group (if any) provided or made available to the Noteholder Parties or their Representatives (as defined in the Confidentiality Agreement (as defined below)) by Mallinckrodt Parent or any of each Issuer set forth its Representatives in Section 2.02(a) shall survive connection with the execution and delivery of transactions contemplated by this Agreement and shall inure or otherwise on or prior to the benefit date hereof. Notwithstanding anything contained in this Agreement to the contrary and without implication that the contrary would otherwise be true, after giving effect to the Cleansing Disclosures, Mallinckrodt Parent expressly acknowledges and agrees that the Noteholder Parties and their affiliates shall not have any duty of trust or confidence with respect to, or a duty not to trade on the basis of, any information regarding the Mallinckrodt Group provided (i) on or prior to the date of such Cleansing Disclosure in connection with the transactions contemplated by this Agreement or otherwise or (ii) in violation of the Persons last sentence of Section 4(g) below, in each case to whom and for whose benefit they were made for so long as such Issuer remains in existence. Upon discovery the Noteholder Parties or their Representatives by any party hereto of any breach of Mallinckrodt Parent, the Issuers or any of the foregoing representations and warranties, the party discovering such breach shall give prompt written notice to the other partiestheir respective Representatives.
Appears in 1 contract
Representations and Warranties of the Issuers. (a) Each Issuer hereby To induce the Noteholders to enter into this Amendment Agreement and to consent to the Amendments, each of the Issuers represents and warrants to each the holders of the other parties hereto and for the benefit Notes that as of the Indenture Trustee, on behalf date hereof and as of the Noteholders as of each Series Closing Date on or after the date on which such Issuer becomes a party to this AgreementAmendment Effective Date:
(ia) Such Issuer It is a limited liability company duly organized, validly existing, existing and in good standing under the laws of its jurisdiction of incorporation and it has taken all necessary action to authorize the State execution, delivery and performance of Delaware this Amendment Agreement. DB1/ 131897512.7
(b) This Amendment Agreement has been duly executed and is delivered by such Person and constitutes such Person’s legal, valid and binding obligation, enforceable in compliance accordance with its terms, except as such enforceability may be subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the laws enforcement of each state (within the United States of America) in which any applicable Mortgaged Property is located to the extent necessary for the Issuer to perform its obligations under this Agreement;
creditors’ rights generally and (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity).
(c) The execution representations and delivery by such Issuer of this Agreement and the consummation by such Issuer warranties set forth in Section 5 of the transactions provided Note Purchase Agreement are true and correct as of such date (except for in this Agreement have been duly authorized by all necessary action on the part of the Issuer;those which expressly relate to an earlier date).
(iiid) Both immediately before and immediately after giving effect to this Amendment Agreement, no Default or Event of Default shall have occurred and be continuing.
(e) The execution and delivery of this Amendment Agreement by such Issuer, and the performance by each of the Issuers of its obligations hereunder and compliance with under the terms of this Agreement by such Issuer, other documents executed in connection herewith to which it is a party do not violate its organizational documents or constitute an event thatconflict with, with notice or lapse of timeresult in any breach of, or both, would constitute a default under, or result in the breach creation of any Lien in respect of any property of such Issuer or any of its Subsidiaries or under the provisions of: (i) any charter document, any material constitutive document, agreement with shareholders or members, bylaws, operating agreement or any other organizational or governing agreement of such Issuer or any of its Subsidiaries, (ii) any other Material agreement or instrument to which it is a party or by which it is bound;
(iv) Such Issuer has the limited liability company power and authority to enter into and consummate all transactions to be performed by it contemplated by this Agreement, has duly authorized the execution, delivery and performance by it of this Agreement and any applicable Joinder Agreement, and has duly executed and delivered this Agreement and any applicable Joinder Agreement;
(v) This Agreement, assuming due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal and binding obligation of such Issuer, enforceable against such Issuer in accordance with the terms hereof (except as such enforceability or any of its Subsidiaries or any of their respective properties may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and bound or affected; or (iii) any statute or other similar laws affecting creditors’ rights generally rule or by general equitable principles, whether considered in a proceeding at law or in equity and by an implied covenant of good faith and fair dealing);
(vi) Such Issuer is not in violation of, and its execution and delivery of, this Agreement or any applicable Joinder Agreement and its performance and compliance with the terms of this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, regulation or any order, regulation judgment, decree or demand ruling of any federalcourt, state arbitrator or local governmental or regulatory authority, which violation is likely Governmental Authority applicable to affect materially and adversely either the ability of such Issuer or any of its Subsidiaries.
(f) No fee or other compensation is being provided to perform its obligations under this any holder of notes in respect of the 2020 Amendment Agreement or the financial condition of such Issuer;
(vii) No litigation is pending or, to such Issuer’s knowledge, threatened against such Issuer that is reasonably likely to be determined adversely to such Issuer and, if determined adversely to such Issuer, would prohibit such Issuer from entering into this Agreement or that, in such Issuer’s good faith and reasonable judgment, is likely to materially and adversely affect either the ability of such Issuer to perform its obligations under this Agreement or the financial condition of such Issuer;
(viii) No consent, approval, authorization or order under any court or governmental agency or body is required for the execution, delivery and performance by such Issuer of, or the compliance by such Issuer with, this Agreement or the consummation of the transactions of such Issuer contemplated by this 2011 Amendment Agreement, except for any consent, approval, authorization or order that has been obtained or that if not obtained would not have a material and adverse effect on the ability of such Issuer to perform its obligations hereunder;
(ix) Each officer and employee of such Issuer that has responsibilities concerning the management, servicing and administration of the applicable Mortgaged Properties, Leases and Mortgage Loans is covered by errors and omissions insurance and the fidelity bond as and to the extent required by Section 3.07(c); and
(x) To such Issuer’s knowledge, each of the Mortgaged Properties owned by such Issuer or securing a Mortgage Loan owned by such Issuer is a commercial property.
(b) The representations and warranties of each Issuer set forth in Section 2.02(a) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons to whom and for whose benefit they were made for so long as such Issuer remains in existence. Upon discovery by any party hereto of any breach of any of the foregoing representations and warranties, the party discovering such breach shall give prompt written notice to the other parties.
Appears in 1 contract
Representations and Warranties of the Issuers. (a) Each Issuer hereby To induce the Noteholders to enter into this Amendment Agreement and to consent to the Amendments, each of the Issuers represents and warrants to each the holders of the other parties hereto and for the benefit Notes that as of the Indenture Trustee, on behalf date hereof and as of the Noteholders as of each Series Closing Date on or after the date on which such Issuer becomes a party to this AgreementAmendment Effective Date:
(ia) Such Issuer It is a limited liability company duly organized, validly existing, existing and in good standing under the laws of its jurisdiction of incorporation and it has taken all necessary action to authorize the State execution, delivery and performance of Delaware this Amendment Agreement.
(b) This Amendment Agreement has been duly executed and is delivered by such Person and constitutes such Person’s legal, valid and binding obligation, enforceable in compliance accordance with its terms, except as such enforceability may be subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the laws enforcement of each state (within the United States of America) in which any applicable Mortgaged Property is located to the extent necessary for the Issuer to perform its obligations under this Agreement;
creditors’ rights generally and (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity). DB1/ 132192119.10
(c) The execution representations and delivery by such Issuer of this Agreement and the consummation by such Issuer warranties set forth in Section 5 of the transactions provided Note Purchase Agreement are true and correct as of such date (except for in this Agreement have been duly authorized by all necessary action on the part of the Issuer;those which expressly relate to an earlier date).
(iiid) Both immediately before and immediately after giving effect to this Amendment Agreement, no Default or Event of Default shall have occurred and be continuing.
(e) The execution and delivery of this Amendment Agreement by such Issuer, and the performance by each of the Issuers of its obligations hereunder and compliance with under the terms of this Agreement by such Issuer, other documents executed in connection herewith to which it is a party do not violate its organizational documents or constitute an event thatconflict with, with notice or lapse of timeresult in any breach of, or both, would constitute a default under, or result in the breach creation of any Lien in respect of any property of such Issuer or any of its Subsidiaries or under the provisions of: (i) any charter document, any material constitutive document, agreement with shareholders or members, bylaws, operating agreement or any other organizational or governing agreement of such Issuer or any of its Subsidiaries, (ii) any other Material agreement or instrument to which it is a party or by which it is bound;
(iv) Such Issuer has the limited liability company power and authority to enter into and consummate all transactions to be performed by it contemplated by this Agreement, has duly authorized the execution, delivery and performance by it of this Agreement and any applicable Joinder Agreement, and has duly executed and delivered this Agreement and any applicable Joinder Agreement;
(v) This Agreement, assuming due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal and binding obligation of such Issuer, enforceable against such Issuer in accordance with the terms hereof (except as such enforceability or any of its Subsidiaries or any of their respective properties may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and bound or affected; or (iii) any statute or other similar laws affecting creditors’ rights generally rule or by general equitable principles, whether considered in a proceeding at law or in equity and by an implied covenant of good faith and fair dealing);
(vi) Such Issuer is not in violation of, and its execution and delivery of, this Agreement or any applicable Joinder Agreement and its performance and compliance with the terms of this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, regulation or any order, regulation judgment, decree or demand ruling of any federalcourt, state arbitrator or local governmental or regulatory authority, which violation is likely Governmental Authority applicable to affect materially and adversely either the ability of such Issuer or any of its Subsidiaries.
(f) No fee or other compensation is being provided to perform its obligations under this any holder of notes in respect of the 2020 Amendment Agreement or the financial condition of such Issuer;
(vii) No litigation is pending or, to such Issuer’s knowledge, threatened against such Issuer that is reasonably likely to be determined adversely to such Issuer and, if determined adversely to such Issuer, would prohibit such Issuer from entering into this Agreement or that, in such Issuer’s good faith and reasonable judgment, is likely to materially and adversely affect either the ability of such Issuer to perform its obligations under this Agreement or the financial condition of such Issuer;
(viii) No consent, approval, authorization or order under any court or governmental agency or body is required for the execution, delivery and performance by such Issuer of, or the compliance by such Issuer with, this Agreement or the consummation of the transactions of such Issuer contemplated by this 2013 Amendment Agreement, except for any consent, approval, authorization or order that has been obtained or that if not obtained would not have a material and adverse effect on the ability of such Issuer to perform its obligations hereunder;
(ix) Each officer and employee of such Issuer that has responsibilities concerning the management, servicing and administration of the applicable Mortgaged Properties, Leases and Mortgage Loans is covered by errors and omissions insurance and the fidelity bond as and to the extent required by Section 3.07(c); and
(x) To such Issuer’s knowledge, each of the Mortgaged Properties owned by such Issuer or securing a Mortgage Loan owned by such Issuer is a commercial property.
(b) The representations and warranties of each Issuer set forth in Section 2.02(a) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons to whom and for whose benefit they were made for so long as such Issuer remains in existence. Upon discovery by any party hereto of any breach of any of the foregoing representations and warranties, the party discovering such breach shall give prompt written notice to the other parties.
Appears in 1 contract
Representations and Warranties of the Issuers. (a) Each Issuer hereby To induce the Noteholders to enter into this Agreement and to consent to the Amendment and Waiver each of the Issuers represents and warrants to each the holders of the other parties hereto and for the benefit Notes that as of the Indenture Trustee, on behalf date hereof and as of the Noteholders as of each Series Closing Date on or after the date on which such Issuer becomes a party to this AgreementEffective Date:
(ia) Such Issuer It is a limited liability company duly organized, validly existing, existing and in good standing under the laws of its jurisdiction of incorporation and it has taken all necessary action to authorize the State execution, delivery and performance of Delaware and is in compliance with the laws of each state (within the United States of America) in which any applicable Mortgaged Property is located to the extent necessary for the Issuer to perform its obligations under this Agreement;.
(b) This Agreement has been duly executed and delivered by such Person and constitutes such Person’s legal, valid and binding obligation, enforceable in accordance with its terms, except as such enforceability may be subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity).
(c) The execution representations and delivery by such Issuer of this Agreement and the consummation by such Issuer warranties set forth in Section 5 of the transactions provided Note Purchase Agreement are true and correct as of such date (except for in this Agreement have been duly authorized by all necessary action on the part of the Issuer;those which expressly relate to an earlier date).
(iiid) Both immediately before and immediately after giving effect to this Agreement, no Default or Event of Default (other than the Specified Event of Default) shall have occurred and be continuing.
(e) The execution and delivery of this Agreement by such Issuer, and the performance by each of the Issuers of its obligations hereunder and compliance with under the terms of this Agreement by such Issuer, other documents executed in connection herewith to which it is a party do not violate its organizational documents or constitute an event thatconflict with, with notice or lapse of timeresult in any breach of, or both, would constitute a default under, or result in the breach creation of any Lien in respect of any property of such Issuer or any of its Subsidiaries or under the provisions of: (i) any charter document, any material constitutive document, agreement with shareholders or members, bylaws, operating agreement or any other organizational or governing agreement of such Issuer or any of its Subsidiaries, (ii) any other Material agreement or instrument to which it is a party or by which it is bound;
(iv) Such Issuer has the limited liability company power and authority to enter into and consummate all transactions to be performed by it contemplated by this Agreement, has duly authorized the execution, delivery and performance by it of this Agreement and any applicable Joinder Agreement, and has duly executed and delivered this Agreement and any applicable Joinder Agreement;
(v) This Agreement, assuming due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal and binding obligation of such Issuer, enforceable against such Issuer in accordance with the terms hereof (except as such enforceability or any of its Subsidiaries or any of their respective properties may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and bound or affected; or (iii) any statute or other similar laws affecting creditors’ rights generally rule or by general equitable principles, whether considered in a proceeding at law or in equity and by an implied covenant of good faith and fair dealing);
(vi) Such Issuer is not in violation of, and its execution and delivery of, this Agreement or any applicable Joinder Agreement and its performance and compliance with the terms of this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, regulation or any order, regulation judgment, decree or demand ruling of any federalcourt, state arbitrator or local governmental or regulatory authority, which violation is likely Governmental Authority applicable to affect materially and adversely either the ability of such Issuer or any of its Subsidiaries. DB1/ 132778878.4
(f) No fee or other compensation is being provided to perform its obligations under this any holder of notes in respect of the 2020 Agreement or the financial condition of such Issuer;
(vii) No litigation is pending or, to such Issuer’s knowledge, threatened against such Issuer that is reasonably likely to be determined adversely to such Issuer and, if determined adversely to such Issuer, would prohibit such Issuer from entering into this Agreement or that, in such Issuer’s good faith and reasonable judgment, is likely to materially and adversely affect either the ability of such Issuer to perform its obligations under this Agreement or the financial condition of such Issuer;
(viii) No consent, approval, authorization or order under any court or governmental agency or body is required for the execution, delivery and performance by such Issuer of, or the compliance by such Issuer with, this Agreement or the consummation of the transactions of such Issuer contemplated by this 2011 Agreement, except for any consent, approval, authorization or order that has been obtained or that if not obtained would not have a material and adverse effect on the ability of such Issuer to perform its obligations hereunder;
(ix) Each officer and employee of such Issuer that has responsibilities concerning the management, servicing and administration of the applicable Mortgaged Properties, Leases and Mortgage Loans is covered by errors and omissions insurance and the fidelity bond as and to the extent required by Section 3.07(c); and
(x) To such Issuer’s knowledge, each of the Mortgaged Properties owned by such Issuer or securing a Mortgage Loan owned by such Issuer is a commercial property.
(b) The representations and warranties of each Issuer set forth in Section 2.02(a) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons to whom and for whose benefit they were made for so long as such Issuer remains in existence. Upon discovery by any party hereto of any breach of any of the foregoing representations and warranties, the party discovering such breach shall give prompt written notice to the other parties.
Appears in 1 contract
Representations and Warranties of the Issuers. (a) Each Issuer hereby To induce the Noteholders to enter into this Amendment Agreement and to consent to the Amendments, each of the Issuers represents and warrants to each the holders of the other parties hereto and for the benefit Notes that as of the Indenture Trustee, on behalf date hereof and as of the Noteholders as of each Series Closing Date on or after the date on which such Issuer becomes a party to this AgreementAmendment Effective Date:
(ia) Such Issuer It is a limited liability company duly organized, validly existing, existing and in good standing under the laws of its jurisdiction of incorporation and it has taken all necessary action to authorize the State execution, delivery and performance of Delaware this Amendment Agreement. DB1/ 131562847.8
(b) This Amendment Agreement has been duly executed and is delivered by such Person and constitutes such Person’s legal, valid and binding obligation, enforceable in compliance accordance with its terms, except as such enforceability may be subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the laws enforcement of each state (within the United States of America) in which any applicable Mortgaged Property is located to the extent necessary for the Issuer to perform its obligations under this Agreement;
creditors’ rights generally and (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity).
(c) The execution representations and delivery by such Issuer of this Agreement and the consummation by such Issuer warranties set forth in Section 5 of the transactions provided Note Purchase Agreement are true and correct as of such date (except for in this Agreement have been duly authorized by all necessary action on the part of the Issuer;those which expressly relate to an earlier date).
(iiid) Both immediately before and immediately after giving effect to this Amendment Agreement, no Default or Event of Default shall have occurred and be continuing.
(e) The execution and delivery of this Amendment Agreement by such Issuer, and the performance by each of the Issuers of its obligations hereunder and compliance with under the terms of this Agreement by such Issuer, other documents executed in connection herewith to which it is a party do not violate its organizational documents or constitute an event thatconflict with, with notice or lapse of timeresult in any breach of, or both, would constitute a default under, or result in the breach creation of any Lien in respect of any property of such Issuer or any of its Subsidiaries or under the provisions of: (i) any charter document, any material constitutive document, agreement with shareholders or members, bylaws, operating agreement or any other organizational or governing agreement of such Issuer or any of its Subsidiaries, (ii) any other Material agreement or instrument to which it is a party or by which it is bound;
(iv) Such Issuer has the limited liability company power and authority to enter into and consummate all transactions to be performed by it contemplated by this Agreement, has duly authorized the execution, delivery and performance by it of this Agreement and any applicable Joinder Agreement, and has duly executed and delivered this Agreement and any applicable Joinder Agreement;
(v) This Agreement, assuming due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal and binding obligation of such Issuer, enforceable against such Issuer in accordance with the terms hereof (except as such enforceability or any of its Subsidiaries or any of their respective properties may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and bound or affected; or (iii) any statute or other similar laws affecting creditors’ rights generally rule or by general equitable principles, whether considered in a proceeding at law or in equity and by an implied covenant of good faith and fair dealing);
(vi) Such Issuer is not in violation of, and its execution and delivery of, this Agreement or any applicable Joinder Agreement and its performance and compliance with the terms of this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, regulation or any order, regulation judgment, decree or demand ruling of any federalcourt, state arbitrator or local governmental or regulatory authority, which violation is likely Governmental Authority applicable to affect materially and adversely either the ability of such Issuer or any of its Subsidiaries.
(f) No fee or other compensation is being provided to perform its obligations under this any holder of notes in respect of the 2013 Amendment Agreement or the financial condition of such Issuer;
(vii) No litigation is pending or, to such Issuer’s knowledge, threatened against such Issuer that is reasonably likely to be determined adversely to such Issuer and, if determined adversely to such Issuer, would prohibit such Issuer from entering into this Agreement or that, in such Issuer’s good faith and reasonable judgment, is likely to materially and adversely affect either the ability of such Issuer to perform its obligations under this Agreement or the financial condition of such Issuer;
(viii) No consent, approval, authorization or order under any court or governmental agency or body is required for the execution, delivery and performance by such Issuer of, or the compliance by such Issuer with, this Agreement or the consummation of the transactions of such Issuer contemplated by this 2011 Amendment Agreement, except for any consent, approval, authorization or order that has been obtained or that if not obtained would not have a material and adverse effect on the ability of such Issuer to perform its obligations hereunder;
(ix) Each officer and employee of such Issuer that has responsibilities concerning the management, servicing and administration of the applicable Mortgaged Properties, Leases and Mortgage Loans is covered by errors and omissions insurance and the fidelity bond as and to the extent required by Section 3.07(c); and
(x) To such Issuer’s knowledge, each of the Mortgaged Properties owned by such Issuer or securing a Mortgage Loan owned by such Issuer is a commercial property.
(b) The representations and warranties of each Issuer set forth in Section 2.02(a) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons to whom and for whose benefit they were made for so long as such Issuer remains in existence. Upon discovery by any party hereto of any breach of any of the foregoing representations and warranties, the party discovering such breach shall give prompt written notice to the other parties.
Appears in 1 contract
Representations and Warranties of the Issuers. (a) Each The Issuer hereby represents and warrants to each as of the other parties hereto Closing Date and for each Funding Date, and upon execution of a Joinder Supplement, the benefit applicable Co-Issuers hereby represent and warrant as of the Indenture Trusteeapplicable Funding Date, on behalf of the Noteholders as of each Series Closing Date on or after the date on which such Issuer becomes a party to this Agreementthat:
(ia) Such Issuer It is a limited liability company duly organized, or other entity validly existing, existing and in good standing under the laws of the State of Delaware its formation or organization, as the case may be, with full power and authority under such laws to own its properties and conduct its business as such properties are currently owned and such business is in compliance with the laws of each state (within the United States of America) in which any applicable Mortgaged Property is located currently conducted and to the extent necessary for the Issuer to execute, deliver and perform its obligations under this Agreement;Agreement and the other Transaction Documents to which it is a party.
(iib) The execution It has the power, authority and right to make, execute, deliver and perform this Agreement and the other Transaction Documents to which it is a party and all the transactions contemplated hereby and thereby and has taken all necessary action to authorize the execution, delivery by such Issuer and performance of this Agreement and the consummation by such Issuer of the transactions provided for in this Agreement have been duly authorized by all necessary action on the part of the Issuer;
(iii) The execution other Transaction Documents to which it is a party. When executed and delivery delivered, each of this Agreement by such Issuer, and the performance other Transaction Documents to which it is a party will constitute its legal, valid and compliance binding obligations, enforceable in accordance with their respective terms, subject, as to such enforceability, to applicable bankruptcy, reorganization, insolvency, moratorium and other laws relating to or affecting creditors’ rights generally from time to time in effect. The enforceability of its obligations under such agreements may also be limited by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law.
(c) No statute, rule, regulation or order shall have been enacted, entered or deemed applicable by any government or governmental or administrative agency or court that would make the transactions contemplated by any of the Transaction Documents illegal or otherwise prevent the consummation thereof.
(d) No consent, license, approval or authorization of, or registration with, any Governmental Authority is required to be obtained in connection with the terms execution, delivery or performance of each of this Agreement and the other Transaction Documents to which it is a party that has not been duly obtained and that is not and will not be in full force and effect on the Closing Date, except such that may be required by such Issuerapplicable securities laws or UCC-1 financing statements as have been prepared for filing.
(e) The execution, delivery and performance of each of this Agreement and the other Transaction Documents to which it is a party do not violate any provision of its organizational documents Organizational Documents, any existing law or constitute an event thatregulation applicable to it, with notice any order or lapse decree of timeany court to which it is subject, or bothrequire any notices or consents to be given or received by any Governmental Authority or other Person (except those that have already been given or received) or violate, would breach or constitute a default under, or result in the breach ofany security agreement, any material agreement contract or other instrument agreement to which it is a party or by which it or any of its properties is bound;.
(ivf) Such Issuer has the limited liability company power and authority There is no litigation, investigation or administrative proceeding before any court, tribunal or governmental body pending or, to enter into and consummate all transactions its knowledge, threatened against it, with respect to be performed by it contemplated by this Agreement, the other Transaction Documents to which it is a party, the transactions contemplated hereby or thereby, the issuance of the Notes or which could reasonably have a material adverse effect on the ability of the Issuers to perform their respective obligations under the Transaction Documents.
(g) All reports, statements, exhibits or other written information furnished by it to the Lender or the Agent pursuant to this Agreement or the other Transaction Documents shall be true and correct in all material respects.
(h) The Notes shall have been duly and validly authorized, and, when executed in accordance with the terms of the Security Agreement and delivered to and paid for in accordance with this Agreement, will be duly and validly issued and outstanding, and will be entitled to the benefits of the Security Agreement, this Agreement and the other Transaction Documents.
(i) Each of the Transaction Documents to which it is a party is in full force and effect and no Funding Termination Event or Event of Default or other event or circumstance has duly authorized occurred thereunder or in connection therewith that could reasonably be expected to result in the termination of any such agreement or any other interruption of the ongoing performance by the Issuers of their respective obligations thereunder.
(j) Any taxes, fees and other charges of Governmental Authorities applicable to it, except for franchise fees or income taxes, including those in connection with the execution, delivery and performance by it of this Agreement and any the other Transaction Documents to which it is a party or otherwise applicable Joinder to it in connection with the transactions contemplated hereby or thereby have been paid or will be paid at or prior to the applicable Funding Date to the extent then due.
(k) With respect to each Co-Issuer, it is an Eligible Borrower.
(l) The Issuer and each applicable Co-Issuer repeat and reaffirm to the Lender and the Agent the representations and warranties set forth in Sections 12.9(f), (i) and (l) in the Security Agreement, and has duly executed represent that such representations and delivered this Agreement warranties are true and any applicable Joinder Agreement;correct in all material respects.
(vm) This AgreementSince the prior Funding Date, assuming due authorizationthere has been no change, execution and delivery by each development or event involving a change in the condition (financial or otherwise), business properties or results of operations of the other parties hereto, constitutes a valid, legal and binding obligation of such Issuer, enforceable against such Issuer in accordance with the terms hereof (except as such enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting creditors’ rights generally or by general equitable principles, whether considered in a proceeding at law or in equity and by an implied covenant of good faith and fair dealing);
(vi) Such Issuer is not in violation of, and its execution and delivery of, this Agreement or any applicable Joinder Agreement Co-Issuer which is material and its performance adverse and compliance makes it impractical or inadvisable to proceed with the terms of this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation is likely to affect materially and adversely either the ability of such Issuer to perform its obligations under this Agreement or the financial condition of such Issuer;
(vii) No litigation is pending or, to such Issuer’s knowledge, threatened against such Issuer that is reasonably likely to be determined adversely to such Issuer and, if determined adversely to such Issuer, would prohibit such Issuer from entering into this Agreement or that, in such Issuer’s good faith and reasonable judgment, is likely to materially and adversely affect either the ability of such Issuer to perform its obligations under this Agreement or the financial condition of such Issuer;
(viii) No consent, approval, authorization or order under any court or governmental agency or body is required for the execution, delivery and performance by such Issuer of, or the compliance by such Issuer with, this Agreement or the consummation of the transactions of such Issuer contemplated by this Agreement, except for any consent, approval, authorization Agreement or order that has been obtained or that if not obtained would not have a material and adverse effect on the ability of such Issuer to perform its obligations hereunder;
(ix) Each officer and employee of such Issuer that has responsibilities concerning the management, servicing and administration of the applicable Mortgaged Properties, Leases and Mortgage Loans is covered by errors and omissions insurance and the fidelity bond as and to the extent required by Section 3.07(c); and
(x) To such Issuer’s knowledge, each of the Mortgaged Properties owned by such Issuer or securing a Mortgage Loan owned by such Issuer is a commercial propertyTransaction Documents.
(b) The representations and warranties of each Issuer set forth in Section 2.02(a) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons to whom and for whose benefit they were made for so long as such Issuer remains in existence. Upon discovery by any party hereto of any breach of any of the foregoing representations and warranties, the party discovering such breach shall give prompt written notice to the other parties.
Appears in 1 contract
Representations and Warranties of the Issuers. Each of the Issuers and (aexcept as otherwise noted below in this Section 4) Each Issuer each Guarantor hereby represents and warrants to each of the other parties hereto and for the benefit of the Indenture Trustee, on behalf of the Noteholders as of each Series Closing Date on or after the date on which such Issuer becomes a party to this AgreementForbearing Holders that:
(ia) In the case of the Issuers, as of the date hereof, other than with respect to LEGAL_US_W # 86395767.9 the Specified Default, no Default or Event of Default exists under any Indenture;
(b) Such Issuer is a limited liability company duly organizedor such Guarantor, validly existingas applicable, has the power, and in good standing under the laws of the State of Delaware has been duly authorized by all requisite action, to execute, deliver and is in compliance with the laws of each state (within the United States of America) in which any applicable Mortgaged Property is located to the extent necessary for the Issuer to perform its obligations under this Agreement;
(iic) The execution and delivery by such Issuer of this This Agreement and the consummation by such Issuer of the transactions provided for in this Agreement have has been duly authorized by all necessary action on the part of the Issuer;
(iii) The execution and delivery of this Agreement by such Issuer, and the performance and compliance with the terms of this Agreement by such Issuer, do not violate its organizational documents or constitute an event that, with notice or lapse of time, or both, would constitute a default under, or result in the breach of, any material agreement or other instrument to which it is a party or by which it is bound;
(iv) Such Issuer has the limited liability company power and authority to enter into and consummate all transactions to be performed by it contemplated by this Agreement, has duly authorized the execution, delivery and performance by it of this Agreement and any applicable Joinder Agreement, and has duly executed and delivered this Agreement and any applicable Joinder Agreementby such Issuer or such Guarantor, as applicable;
(vd) This AgreementAgreement is the legal, assuming due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal valid and binding obligation of such IssuerIssuer or such Guarantor, as applicable, enforceable against such Issuer in accordance with the terms hereof (its terms, except as such enforceability may be limited by any applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other or similar laws of general applicability affecting the enforcement of creditors’ ' rights generally or by and subject to general equitable principles, whether considered in a proceeding at law or in equity and by an implied covenant of good faith and fair dealing);principles which may limit the right to obtain equitable remedies; and
(vie) Such Issuer is not in violation of, and its execution and delivery of, this Agreement or any applicable Joinder Agreement and its performance and compliance with the terms of this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation is likely to affect materially and adversely either the ability of such Issuer to perform its obligations under this Agreement or the financial condition of such Issuer;
(vii) No litigation is pending or, to such Issuer’s knowledge, threatened against such Issuer that is reasonably likely to be determined adversely to such Issuer and, if determined adversely to such Issuer, would prohibit such Issuer from entering into this Agreement or that, in such Issuer’s good faith and reasonable judgment, is likely to materially and adversely affect either the ability of such Issuer to perform its obligations under this Agreement or the financial condition of such Issuer;
(viii) No consent, approval, authorization or order under any court or governmental agency or body is required for the The execution, delivery and performance by such Issuer or such Guarantor, as applicable, of this Agreement do not and will not: (i) contravene the terms of any of such Issuer's or such Guarantor’s (as applicable) organizational documents; (ii) conflict with or result in any breach or contravention of, or result in or require the compliance by creation of any lien under, or require any payment to be made under (A) any material contractual obligation to which such Issuer withor such Guarantor, this Agreement as applicable, is a party or affecting such Issuer or such Guarantor, as applicable, or the consummation of the transactions properties of such Issuer contemplated by this Agreementor such Guarantor, except for as applicable, or any consentof its subsidiaries or (B) any order, approvalinjunction, authorization writ or order that has been obtained decree of any governmental authority or that if not obtained would not have a material and adverse effect on the ability of such Issuer any arbitral award to perform its obligations hereunder;
(ix) Each officer and employee of such Issuer that has responsibilities concerning the management, servicing and administration of the applicable Mortgaged Properties, Leases and Mortgage Loans is covered by errors and omissions insurance and the fidelity bond as and to the extent required by Section 3.07(c); and
(x) To such Issuer’s knowledge, each of the Mortgaged Properties owned by which such Issuer or securing a Mortgage Loan owned by such Guarantor, as applicable, or its property is subject; or (iii) violate any applicable law or court order. No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any governmental or regulatory authority or any other person or entity is necessary or required in connection with the execution, delivery or performance by, or enforcement against, such Issuer is a commercial property.
(b) The representations and warranties of each Issuer set forth in Section 2.02(a) shall survive the execution and delivery or such Guarantor, as applicable, of this Agreement and shall inure to the benefit of the Persons to whom and for whose benefit they were made for so long as such Issuer remains in existence. Upon discovery by any party hereto of any breach of any of the foregoing representations and warranties, the party discovering such breach shall give prompt written notice to the other partiesAgreement.
Appears in 1 contract
Representations and Warranties of the Issuers. Each Issuer (and, solely with respect to Section 4(d), Mallinckrodt Parent) hereby represents and warrants, severally and not jointly, to the Noteholder Parties that the following statements are true and correct as of the date hereof:
(a) Each Issuer hereby represents and warrants to each of the other parties hereto and for the benefit of the Indenture Trustee, on behalf of the Noteholders as of each Series Closing Date on or after the date on which such Issuer becomes a party to this Agreement:
(i) Such Issuer is a limited liability company duly organized, validly existing, has all necessary corporate or similar power and in good standing under the laws of the State of Delaware authority to execute and is in compliance with the laws of each state (within the United States of America) in which any applicable Mortgaged Property is located to the extent necessary for the Issuer deliver this Amendment and to perform its obligations under this Agreement;
(ii) hereunder. The execution and delivery of this Amendment by such Issuer of this Agreement and the consummation by such Issuer performance of the transactions provided for in this Agreement its obligations hereunder have been duly authorized by all necessary corporate or similar action on the part of such Issuer. No other votes, written consents, actions or proceedings by or on behalf of such Issuer are necessary to authorize this Amendment or the Issuer;performance of its obligations hereunder.
(iiib) The execution This Amendment has been duly and delivery of this Agreement validly executed and delivered by such Issuer, and . This Amendment constitutes the performance and compliance with the terms of this Agreement by such Issuer, do not violate its organizational documents or constitute an event that, with notice or lapse of time, or both, would constitute a default under, or result in the breach of, any material agreement or other instrument to which it is a party or by which it is bound;
(iv) Such Issuer has the limited liability company power and authority to enter into and consummate all transactions to be performed by it contemplated by this Agreement, has duly authorized the execution, delivery and performance by it of this Agreement and any applicable Joinder Agreement, and has duly executed and delivered this Agreement and any applicable Joinder Agreement;
(v) This Agreement, assuming due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal valid and binding obligation of such Issuer, enforceable against such Issuer in accordance with the terms hereof (its terms, except as such enforceability may be limited by (i) the effects of bankruptcy, insolvency, fraudulent conveyancetransfer, reorganization, moratorium and or other similar laws relating to or affecting creditors’ the rights and remedies of creditors generally or by (ii) general equitable principles, principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity and by an implied covenant of good faith and fair dealingor at law);.
(vic) Such The execution, delivery or performance of this Amendment by such Issuer is not in violation of, and its execution and delivery of, this Agreement or any applicable Joinder Agreement and its performance and such Issuer’s compliance with the terms of this Agreement provisions hereof will not (with or without notice or lapse of time, or both): (i) violate any provision of the organizational or governing documents of such Issuer; (ii) violate any law or order applicable to any member of the Mallinckrodt Group; or (iii) require any consent or approval under, violate, conflict with, result in any breach of, or constitute a violation ofdefault under, or result in termination or give to others any right of termination, amendment, acceleration or cancellation of any contract, agreement, arrangement or understanding that is binding on any member of the Mallinckrodt Group or on any of their respective properties or assets (including, without limitation, any lawindentures, credit facilities or agreements under which any order member of the Mallinckrodt Group has issued debt securities or decree has outstanding indebtedness), except, in the case of any court or arbiterclause (ii) and (iii) above, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, which violation is where not reasonably likely to affect materially and adversely either have a material adverse effect on the ability of such Issuer the Issuers to perform its their respective obligations under this Agreement Amendment or the financial condition of such Issuer;transactions contemplated hereby.
(viid) No litigation is pending or, to such Issuer’s knowledge, threatened against such Issuer that is reasonably likely to be determined adversely to such Issuer and, if determined adversely to such Issuer, would prohibit such Issuer from entering into this Agreement or that, in such Issuer’s good faith and reasonable judgment, is likely to materially and adversely affect either the ability of such Issuer to perform its obligations under this Agreement or the financial condition of such Issuer;
(viii) No consent, approval, authorization or order under any court or governmental agency or body is required for the The execution, delivery and performance by such Issuer of, or the compliance by such Issuer with, and Mallinckrodt Parent of this Agreement or Amendment and the consummation of the transactions contemplated hereby do not and will not require any registration or filing with, the consent or approval of, notice to, or any other action with respect to (with or without due notice, lapse of time, or both), any governmental authority, other than (i) Current Reports on Form 8-K filed or furnished by Mallinckrodt plc with respect to this Amendment, the Exchange, the Additional Exchanges (if any), the Exchange Offers and the Consent Solicitations, (ii) such Issuer contemplated by this Agreementas have been made or obtained and are in full force and effect, except for any consent(iii) filings of Uniform Commercial Code financing statements and other registrations or filings in connection with the perfection of security interests granted pursuant to the Collateral Documents, approval(iv) filings with the United States Patent and Trademark Office and the United States Copyright Office and comparable offices in foreign jurisdiction and equivalent filings in foreign jurisdictions and (v) such registrations, authorization filings, consents, approvals, notices or order that has been obtained or that other actions that, if not obtained or made, would not reasonably be likely to have a material and adverse effect on the ability of such Issuer the Issuers to perform its their respective obligations hereunder;
(ix) Each officer and employee of such Issuer that has responsibilities concerning under this Amendment or the management, servicing and administration of the applicable Mortgaged Properties, Leases and Mortgage Loans is covered by errors and omissions insurance and the fidelity bond as and to the extent required by Section 3.07(c); and
(x) To such Issuer’s knowledge, each of the Mortgaged Properties owned by such Issuer or securing a Mortgage Loan owned by such Issuer is a commercial propertytransactions contemplated hereby.
(b) The representations and warranties of each Issuer set forth in Section 2.02(a) shall survive the execution and delivery of this Agreement and shall inure to the benefit of the Persons to whom and for whose benefit they were made for so long as such Issuer remains in existence. Upon discovery by any party hereto of any breach of any of the foregoing representations and warranties, the party discovering such breach shall give prompt written notice to the other parties.
Appears in 1 contract
