Representations and Warranties of the Loan Parties. Each Loan Party represents and warrants as follows: (a) Each Loan Party and each general partner or managing member, if any, of each Loan Party (i) is a corporation, limited liability company or partnership duly incorporated, organized or formed, validly existing and in good standing (to the extent that a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) under the laws of the jurisdiction of its incorporation, organization or formation, (ii) is duly qualified and in good standing (to the extent that a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) as a foreign corporation, limited liability company or partnership in each other jurisdiction in which it owns or leases property or in which the conduct of its business requires it to so qualify or be licensed except where the failure to so qualify or be licensed would not be reasonably likely to have a Material Adverse Effect and (iii) has all requisite corporate, limited liability company or partnership power and authority (including, without limitation, all governmental licenses, permits and other approvals) to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted. The Parent Guarantor is organized in conformity with the requirements for qualification as a REIT under the Internal Revenue Code, and its method of operation enables it to Digital Realty – Yen Credit Agreement meet the requirements for qualification and taxation as a REIT under the Internal Revenue Code. All of the outstanding Equity Interests in the Parent Guarantor have been validly issued, are fully paid and non‑assessable, all of the general partner Equity Interests in the Operating Partnership are owned by the Parent Guarantor, and all such general partner Equity Interests are owned by the Parent Guarantor free and clear of all Liens. (b) All of the outstanding Equity Interests in each Loan Party’s Subsidiaries have been validly issued, are fully paid and non‑assessable and, to the extent owned by such Loan Party or one or more of its Subsidiaries, are owned by such Loan Party or Subsidiaries free and clear of all Liens (other than Liens on Equity Interests in Subsidiaries securing Debt that is not prohibited hereunder). (c) The execution and delivery by each Loan Party and of each general partner or managing member (if any) of each Loan Party of each Loan Document to which it is or is to be a party, and the performance of its obligations thereunder, and the consummation of the transactions contemplated by the Loan Documents, are within the corporate, limited liability company or partnership powers of such Loan Party, general partner or managing member, have been duly authorized by all necessary corporate, limited liability company or partnership action, and do not (i) contravene the charter or bylaws, memorandum and articles of association, operating agreement, partnership agreement or other governing document of such Loan Party, general partner or managing member, (ii) violate any law, rule, regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award, (iii) conflict with or result in the breach of, or constitute a default or require any payment to be made under, any Material Contract binding on or affecting any Loan Party or any of its Subsidiaries or any of their properties, or any general partner or managing member of any Loan Party or (iv) result in or require the creation or imposition of any Lien upon or with respect to any of the properties of any Loan Party or any of its Subsidiaries. No Loan Party or any of its Subsidiaries is in violation of any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of any such Material Contract, the violation or breach of which would be reasonably likely to have a Material Adverse Effect. (d) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery, recordation, filing or performance by any Loan Party or any general partner or managing member of any Loan Party of any Loan Document to which it is or is to be a party or for the consummation of the transactions contemplated by the Loan Documents and the exercise by the Administrative Agent or any Lender Party of its rights under the Loan Documents, except for authorizations, approvals, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect. (e) This Agreement has been, and each other Loan Document when delivered hereunder will have been, duly executed and delivered by each Loan Party and general partner or managing member (if any) of each Loan Party party thereto. This Agreement is, and each other Loan Document when delivered hereunder will be, the legal, valid and binding obligation of each Loan Party party thereto, enforceable against such Loan Party in accordance with its terms, except as such enforceability may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium, examinership or similar laws affecting creditors’ rights generally and by general principles of equity. (f) Except as set forth in the reports delivered to the Administrative Agent pursuant to Section 5.03(g), there is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries or any general partner or managing member (if any) of any Loan Party, Digital Realty – Yen Credit Agreement including any Environmental Action to any Loan Party’s knowledge, pending or threatened before any court, governmental agency or arbitrator that (i) would reasonably be expected to have a Material Adverse Effect or (ii) would reasonably be expected to affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated by the Loan Documents. (g) The Consolidated balance sheet of the Parent Guarantor and its Subsidiaries as at December 31, 2017 and the related Consolidated statement of income and Consolidated statement of cash flows of the Parent Guarantor and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of KPMG LLP, independent public accountants, and the Consolidated balance sheet of the Parent Guarantor as at June 30, 2018, and the related Consolidated statement of income and Consolidated statement of cash flows of the Parent Guarantor and its Subsidiaries for the six months then ended, copies of which have been furnished to each Lender Party, fairly present, subject, in the case of such balance sheet as at June 30, 2018, and such statements of income and cash flows for the six months then ended, to year‑end audit adjustments, the Consolidated financial condition of the Parent Guarantor and its Subsidiaries as at such dates and the Consolidated results of operations of the Parent Guarantor and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles applied on a consistent basis, and since December 31, 2017, there has been no Material Adverse Change. (h) The Consolidated forecasted balance sheets, statements of income and statements of cash flows of the Parent Guarantor and its Subsidiaries most recently delivered to the Lender Parties pursuant to Section 5.03 were prepared in good faith on the basis of the assumptions stated therein, which assumptions were fair in light of the conditions existing at the time of delivery of such forecasts. (i) No information, exhibit or report furnished by or on behalf of any Loan Party to the Administrative Agent or any Lender Party in connection with the negotiation and syndication of the Loan Documents or pursuant to the terms of the Loan Documents contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements made therein not materially misleading in light of the circumstances under which they were made. (j) No Loan Party is engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Advance or drawings under any Letter of Credit will be used, directly or indirectly, whether immediately, incidentally or ultimately to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock or to refund indebtedness originally incurred for such purpose. (k) Neither any Loan Party nor any of its Subsidiaries nor any general partner or managing member of any Loan Party, as applicable, is an “investment company”, or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company”, as such terms are defined in the Investment Company Act of 1940, as amended. Without limiting the generality of the foregoing, each Loan Party and each of its Subsidiaries and each general partner or managing member of any Loan Party, as applicable: (i) is primarily engaged, directly or through a wholly‑owned subsidiary or subsidiaries, in a business or businesses other than that of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (ii) is not engaged in, does not propose to engage in and does not hold itself out as being engaged in the business of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (iii) does not own or propose to acquire investment securities (as defined in the Investment Company Act of 1940, as amended) having a value exceeding forty percent (40%) of the value of such company’s total assets (exclusive of government securities and cash items) on an unconsolidated basis; (iv) has not in the past been engaged in the business of Digital Realty – Yen Credit Agreement issuing face‑amount certificates of the installment type; and (v) does not have any outstanding face‑amount certificates of the installment type. Neither the making of any Advances, nor the issuance of any Letters of Credit, nor the application of the proceeds or repayment thereof by any Borrower, nor the consummation of the other transactions contemplated by the Loan Documents, will violate any provision of any such Act or any rule, regulation or order of the Securities and Exchange Commission thereunder. (l) Each of the Assets listed on the schedule of Unencumbered Assets delivered to the Administrative Agent in connection with the Closing Date (as updated from time to time in accordance with Section 5.03(d)) satisfies all Unencumbered Asset Conditions, except to the extent as otherwise set forth herein or waived in writing by the Required Lenders. The Loan Parties are the legal and beneficial owners of the Unencumbered Assets free and clear of any Lien, except for the Liens permitted under the Loan Documents. (m) Neither any Loan Party nor any of its Subsidiaries nor any general partner or managing member of any Loan Party, as applicable, is an EEA Financial Institution. (n) Set forth on Schedule 4.01(n) hereto is a complete and accurate list of all Surviving Debt of each Loan Party and its Subsidiaries (other than intercompany Debt) as of the date set forth on Schedule 4.01(n) having a principal amount of at least $10,000,000 and showing as of such date the obligor and the principal amount outstanding thereunder, the maturity date thereof and the amortization schedule therefor, and from such date to the Closing Date except as set forth on Schedule 4.01(n) there has been no material change in the amounts, interest rates, sinking funds, installment payments or maturities of such Surviving Debt (other than payments of principal and interest in accordance with the documents governing such Debt). (o) Each Loan Party and its Subsidiaries has good, marketable and insurable fee simple title to, or valid trust beneficiary interests or leasehold interests in, all material Real Property owned or leased by such Loan Party or any such Subsidiary, free and clear of all Liens, other than Liens created or permitted by the Loan Documents. (i) The operations and properties of each Loan Party and each of its Subsidiaries comply in all material respects with all applicable Environmental Laws and Environmental Permits, there is no past non‑compliance with such Environmental Laws and Environmental Permits that has resulted in any ongoing material costs or obligations or that is reasonably expected to result in any future material costs or obligations, and no circumstances exist that (A) form the basis of an Environmental Action against any Loan Party or any of its Subsidiaries or any of their properties that would reasonably be expected to have a Material Adverse Effect or (B) cause any such property to be subject to any material restrictions on ownership, occupancy, use or transferability under any Environmental Law. (i) Except as would not reasonably be expected to have a Material Adverse Effect, (A) none of the properties currently or formerly owned or operated by any Loan Party or any of its Subsidiaries is listed or proposed for listing on the NPL or any analogous foreign, state or local list or is adjacent to any such property; (B) there are no and never have been any underground or above ground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed on any property currently or formerly owned or operated by any Loan Party or any of its Subsidiaries that is reasonably expected to result in material liability to any Loan Party or any of its Subsidiaries; (C) there is no asbestos or asbestos‑containing material on any property currently owned or operated by any Loan Party or any of its Subsidiaries; and Digital Realty – Yen Credit Agreement 66
Appears in 1 contract
Representations and Warranties of the Loan Parties. Each Loan Party represents and warrants as follows:
(a) Each Loan Party and each general partner or managing member, if any, of each Loan Party (i) is a corporation, limited liability company or partnership duly incorporated, organized or formedorganized, validly existing and in good standing (to the extent that a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) under the laws of the jurisdiction of its incorporation, organization incorporation or formationformation except where the failure to be in good standing is not reasonably likely to have a Material Adverse Effect, (ii) is duly qualified and in good standing (to the extent that a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) as a foreign corporation, limited liability company corporation (or partnership other entity) in each other jurisdiction in which it owns or leases property or in which the conduct of its business requires it to so qualify or be licensed licensed, except where the failure to so qualify or be licensed would is not be reasonably likely to have a Material Adverse Effect Effect, and (iii) has all requisite corporate, limited liability company or partnership constitutive power and authority (including, without limitation, all governmental licenses, permits and other approvals) to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted. The Parent Guarantor is organized in conformity with the requirements for qualification as a REIT under the Internal Revenue Code, and its method of operation enables it to Digital Realty – Yen Credit Agreement meet the requirements for qualification and taxation as a REIT under the Internal Revenue Code. All of the outstanding Equity Interests in capital stock of each Loan Party (other than the Parent Guarantor have Borrower) has been validly issued, are is fully paid and non‑assessable, all of the general partner Equity Interests in the Operating Partnership are non-assessable and is owned by the Parent Guarantor, and all such general partner Equity Interests are owned by Persons listed on Schedule 4.01 hereto in the Parent Guarantor percentages specified on Schedule II hereto free and clear of all Liens, except those created under the Collateral Documents or otherwise permitted under Section 5.02(a) hereof.
(b) All Set forth on Schedule 4.01 hereto is a complete and accurate list of all Subsidiaries of each Loan Party (other than Subsidiaries of any Loan Party that such Loan Party is required to maintain as “classified”), showing as of the outstanding date hereof (as to each such Subsidiary) the jurisdiction of its incorporation or organization, as the case may be, and the percentage of the Equity Interests in each Loan Party’s Subsidiaries have been validly issued, are fully paid and non‑assessable and, to the extent Interest owned (directly or indirectly) by such Loan Party or one or more of its Subsidiaries, are owned by such Loan Party or Subsidiaries free and clear of all Liens (other than Liens on Equity Interests in Subsidiaries securing Debt that is not prohibited hereunder)Party.
(c) The execution execution, delivery and delivery performance by each Loan Party of this Agreement, the Notes and of each general partner or managing member (if any) of each Loan Party of each other Loan Document to which it is or is to be a party, and the performance consummation of its obligations thereunder, and the consummation each aspect of the transactions contemplated by the Loan Documentshereby, are within the corporate, limited liability company or partnership powers of such Loan Party, general partner or managing member’s constitutive powers, have been duly authorized by all necessary corporate, limited liability company or partnership constitutive action, and do not (i) contravene the charter or bylaws, memorandum and articles of association, operating agreement, partnership agreement or other governing document of such Loan Party, general partner or managing member’s constitutive documents, (ii) subject to the entry of the Interim Order by the Bankruptcy Court, violate any lawlaw (including, without limitation, the Securities Exchange Act of 1934), rule, regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award, (iii) conflict with or result in the breach of, or constitute a default or require any payment to be made under, any Material Contract contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument binding on or affecting any Loan Party or Party, any of its Subsidiaries or any of their properties, or any general partner or managing member of any Loan Party properties entered after the Petition Date or (iv) except for the Liens created under the Loan Documents, the Interim Order and the Final Order, result in or require the creation or imposition of any Lien upon or with respect to any of the properties of any Loan Party or any of its Subsidiaries. No Except as set forth on Schedule 4.01(c) or any such violation or breach which is stayed, no Loan Party or any of its Subsidiaries is in violation of any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of any such Material Contractcontract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument, the violation or breach of which would be is reasonably likely to have a Material Adverse Effect.
(d) No authorization or Except for the entry of the DIP Financing Orders, no authorization, approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for (i) the due execution, delivery, recordation, filing or performance by any Loan Party of this Agreement, the Notes or any general partner or managing member of any Loan Party of any other Loan Document to which it is or is to be a party party, or for the consummation of each aspect of the transactions contemplated hereby, (ii) the grant by any Loan Party of the Loan Liens granted by it pursuant to the Collateral Documents, (iii) the perfection or maintenance of the Liens created under the Collateral Documents and (including the requisite priority set forth in the DIP Financing Orders) or (iv) the exercise by the Administrative Agent or any Lender Party of its rights under the Loan Documents or the remedies in respect of the Collateral pursuant to the Collateral Documents, except for authorizations, approvals, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect.
(e) This Agreement has been, and each of the Notes, if any, and each other Loan Document when delivered hereunder will have been, duly executed and delivered by each Loan Party and general partner or managing member (if any) of each Loan Party party thereto. This Agreement is, and each of the Notes and each other Loan Document when delivered hereunder will be, subject to the entry of the Interim Order by the Bankruptcy Court, the legal, valid and binding obligation of each Loan Party party thereto, enforceable against such Loan Party in accordance with its terms, except as such enforceability may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium, examinership or similar laws affecting creditors’ rights generally and by general principles of equity.
(f) Except as set forth in the reports delivered to the Administrative Agent pursuant to Section 5.03(g), there is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries or any general partner or managing member (if any) of any Loan Party, Digital Realty – Yen Credit Agreement including any Environmental Action to any Loan Party’s knowledge, pending or threatened before any court, governmental agency or arbitrator that (i) would reasonably be expected to have a Material Adverse Effect or (ii) would reasonably be expected to affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated by the Loan Documents.
(g) The Consolidated balance sheet of the Parent Guarantor Borrower and its Subsidiaries as at December 31, 2017 2001, and the related Consolidated statement statements of income and Consolidated statement of cash flows of the Parent Guarantor Borrower and its Subsidiaries for the fiscal year Fiscal Year then ended, accompanied by an opinion of KPMG LLP, independent public accountants, and the interim Consolidated balance sheet of the Parent Guarantor Borrower and its Subsidiaries as at June 30, 20182002, and the related Consolidated statement statements of income and Consolidated statement of cash flows of the Parent Guarantor Borrower and its Subsidiaries for the six months then ended, copies of ended which have been furnished to each Lender Party, Party present fairly present, subject, in the case of such balance sheet as at June 30, 2018, and such statements of income and cash flows for the six months then ended, to year‑end audit adjustments, the Consolidated financial condition of the Parent Guarantor and its Subsidiaries as at such dates and the Consolidated results of operations of the Parent Guarantor Borrower and its Subsidiaries as of such dates and for such periods (it being understood that the periods ended representation and warranty contained in this Section 4.01(f) shall not be made prior to the date on such dates, all which the financial statements described in accordance with generally accepted accounting principles applied on a consistent basis, and since December 31, 2017, there has been no Material Adverse ChangeSection 5.03(d)(ii) are delivered).
(hg) The DIP Budget and all projected Consolidated forecasted balance sheets, income statements and cash flow statements of income and statements of cash flows of the Parent Guarantor Borrower and its Subsidiaries most recently delivered to the Lender Parties pursuant to Section 5.03 5.03(e) were prepared and will be prepared, as applicable, in good faith on the basis of the assumptions stated therein, which assumptions were fair and will be fair in the light of the conditions existing at the time of delivery of such forecastsDIP Budget or projections, as the case may be, and represented and will represent, at the time of delivery, the Borrower’s best estimate of its future financial performance.
(ih) No Neither the Confidential Information Memorandum nor any other information, exhibit or report exhibits and reports furnished by or on behalf of any Loan Party to the Administrative Agent or any Lender Party or to the Bankruptcy Court in connection with any Loan Document (other than to the negotiation extent that any such information, exhibits and syndication reports constitute projections described in Section 4.01(g) above and any historical financial information delivered prior to the restatement thereof by the Borrower and its auditors) taken as a whole and in light of the Loan Documents or pursuant to the terms of the Loan Documents circumstances in which made, contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements made therein not materially misleading therein, in light of the circumstances under in which they any such statements were made, not misleading.
(i) Except as set forth on Schedule 3.01 or as disclosed in any SEC filings, there are no unstayed actions, suits, or proceeding affecting any Loan Party pending or, to the best knowledge of the Loan Parties, threatened before any court, governmental agency or arbitrator that (i) could be reasonably expected to be determined adversely to the Loan Party and, if so adversely determined, would be reasonably likely to have a Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability of this Agreement, any Note or any other Loan Document or the consummation of the transactions contemplated hereby.
(j) No Loan Party The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Advance or drawings any drawing under any Letter of Credit will be used, directly or indirectly, whether immediately, incidentally or ultimately used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock or to refund indebtedness originally incurred for such purposeStock.
(k) Neither Other than the filing of the Cases and events related to such filing, no ERISA Event has occurred or is reasonably expected to occur with respect to any Plan that has resulted in or is reasonably expected to result in a material liability of any Loan Party nor any of its Subsidiaries nor any general partner or managing member of any Loan Party, as applicable, is an “investment company”, or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company”, as such terms are defined in the Investment Company Act of 1940, as amended. Without limiting the generality of the foregoing, each Loan Party and each of its Subsidiaries and each general partner or managing member of any Loan Party, as applicable: (i) is primarily engaged, directly or through a wholly‑owned subsidiary or subsidiaries, in a business or businesses other than that of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (ii) is not engaged in, does not propose to engage in and does not hold itself out as being engaged in the business of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (iii) does not own or propose to acquire investment securities (as defined in the Investment Company Act of 1940, as amended) having a value exceeding forty percent (40%) of the value of such company’s total assets (exclusive of government securities and cash items) on an unconsolidated basis; (iv) has not in the past been engaged in the business of Digital Realty – Yen Credit Agreement issuing face‑amount certificates of the installment type; and (v) does not have any outstanding face‑amount certificates of the installment type. Neither the making of any Advances, nor the issuance of any Letters of Credit, nor the application of the proceeds or repayment thereof by any Borrower, nor the consummation of the other transactions contemplated by the Loan Documents, will violate any provision of any such Act or any rule, regulation or order of the Securities and Exchange Commission thereunderERISA Affiliate.
(l) Each As of the Assets listed on last annual actuarial valuation date, the schedule funded current liability percentage, as defined in Section 302(d)(8) of Unencumbered Assets delivered to ERISA, of each ERISA Plan exceeds 85%, and there has been no material adverse change in the Administrative Agent in connection with the Closing Date (as updated from time to time in accordance with Section 5.03(d)) satisfies all Unencumbered Asset Conditions, except to the extent as otherwise set forth herein or waived in writing by the Required Lenders. The Loan Parties are the legal and beneficial owners of the Unencumbered Assets free and clear funding status of any Lien, except for the Liens permitted under the Loan Documentssuch ERISA Plan since such date.
(m) Neither any Loan Party nor any of its Subsidiaries nor ERISA Affiliate has incurred or is reasonably expected to incur any general partner or managing member Withdrawal Liability to any Multiemployer Plan that could reasonably be expected to result in any material liability of any Loan Party, as applicable, is an EEA Financial InstitutionParty or any ERISA Affiliates.
(n) Set forth on Schedule 4.01(n) hereto is a complete and accurate list of all Surviving Debt of each Loan Party and its Subsidiaries (other than intercompany Debt) as of the date set forth on Schedule 4.01(n) having a principal amount of at least $10,000,000 and showing as of such date the obligor and the principal amount outstanding thereunder, the maturity date thereof and the amortization schedule therefor, and from such date to the Closing Date except as set forth on Schedule 4.01(n) there has been no material change in the amounts, interest rates, sinking funds, installment payments or maturities of such Surviving Debt (other than payments of principal and interest in accordance with the documents governing such Debt).
(o) Each Loan Party and its Subsidiaries has good, marketable and insurable fee simple title to, or valid trust beneficiary interests or leasehold interests in, all material Real Property owned or leased by such Loan Party or any such Subsidiary, free and clear of all Liens, other than Liens created or permitted by the Loan Documents.
(i) The operations and properties of each Loan Party and each of its Subsidiaries comply in all material respects with all applicable Environmental Laws and Environmental PermitsPermits except for non-compliance that would not be reasonably likely to have a Material Adverse Effect, there is no all past non‑compliance non-compliance with such Environmental Laws and Environmental Permits that has resulted in any been resolved without material ongoing material costs or obligations or that is reasonably expected costs, and, to result in any future material costs or obligationsthe knowledge of the Loan Parties after reasonable inquiry, and no circumstances exist that would be reasonably likely to (Ai) form the basis of an Environmental Action against any Loan Party or any of its Subsidiaries or any of their properties that would could be reasonably be expected likely to have a Material Adverse Effect or (Bii) cause any such property to be subject to any material restrictions on ownership, occupancy, use or transferability under any Environmental Law.
(i) Except as would not Law that could be reasonably be expected likely to have a Material Adverse Effect, .
(Ao) none The DIP Financing Orders and the Collateral Documents create a valid and perfected security interest in the Collateral having the priority set forth therein securing the payment of the properties currently Secured Obligations, and all filings and other actions necessary or formerly owned desirable, as determined in the reasonable discretion of the Initial Lenders, to perfect and protect such security interest have been duly taken. The Loan Parties are the legal and beneficial owners of the Collateral free and clear of any Lien, except for the liens and security interests created or operated by any permitted under the Loan Documents.
(p) No Loan Party nor any Subsidiary is subject to regulation under the Investment Company Act of 1940, as amended, the Public Utility Holding Company Act of 1935, as amended, or any other law (other than Regulations T, U and X of its Subsidiaries is listed the Board of Governors of the Federal Reserve System and the requirements of any public utility commission or proposed for listing on public service commission) which regulates the NPL or any analogous foreign, state or local list or is adjacent to any such property; incurrence of Debt.
(Bq) there are no and never The Interim Order shall not have been stayed, amended, vacated, reversed or rescinded in any underground respect that is adverse to the Lender Parties. On the date of the making of any Advance or above ground storage tanks issuance of any Letter of Credit, the Interim Order or any surface impoundmentsthe Final Order, septic tanksas the case may be, pits, sumps or lagoons in which Hazardous Materials are being or will have been treatedentered and will not have been amended, stored stayed, vacated or disposed on rescinded in any property currently respect that is adverse to the Lender Parties. Upon the maturity (whether by the acceleration or formerly owned otherwise) of any of the obligations of the Borrower and each Guarantor hereunder and under the other Loan Documents, the Lender Parties shall, subject to the provisions of Section 6.01, be entitled to immediate payment of such obligations, and to enforce the remedies provided for hereunder, without further application to or operated order by any Loan Party or any the Bankruptcy Court.
(r) The Borrower has caused each of its Subsidiaries that is reasonably expected a party to result in material liability a Case to any Loan Party or any of its Subsidiaries; (C) there is no asbestos or asbestos‑containing material on any property currently owned or operated by any Loan Party or any of its Subsidiaries; and Digital Realty – Yen Credit Agreement 66become a Guarantor hereunder.
Appears in 1 contract
Samples: Senior Secured Debtor in Possession Credit Agreement (Worldcom Inc)
Representations and Warranties of the Loan Parties. Each Loan Party represents and warrants as follows:
(a) Each Loan Party and each general partner or managing member, if any, of each Loan Party (i) is a corporation, limited liability company or partnership duly incorporated, organized or formed, validly existing and in good standing (to the extent that a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) under the laws of the jurisdiction of its incorporation, organization or formation, (ii) is duly qualified and in good standing (to the extent that a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) as a foreign corporation, limited liability company or partnership in each other jurisdiction in which it owns or leases property or in which the conduct of its business requires it to so qualify or be licensed except where the failure to so qualify or be licensed would not be reasonably likely to have a Material Adverse Effect and (iii) has all requisite corporate, limited liability company or partnership power and authority (including, without limitation, all governmental licenses, permits and other approvals) to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted. The Parent Guarantor is organized in conformity with the requirements for qualification as a REIT under the Internal Revenue Code, and its method of operation enables it to Digital Realty – Yen Credit Agreement meet the requirements for qualification and taxation as a REIT under the Internal Revenue Code. All of the outstanding Equity Interests in the Parent Guarantor have been validly issued, are fully paid and non‑assessablenon-assessable, all of the general partner Equity Interests in the Operating Partnership are owned by the Parent Guarantor, and all such general partner Equity Interests are owned by the Parent Guarantor free and clear of all Liens.
(b) All of the outstanding Equity Interests in each Loan Party’s Subsidiaries have been validly issued, are fully paid and non‑assessable non-assessable and, to the extent owned by such Loan Party or one or more of its Subsidiaries, are owned by such Loan Party or Subsidiaries free and clear of all Liens (other than Liens on Equity Interests in Subsidiaries securing Debt that is not prohibited hereunder).
(c) The execution and delivery by each Loan Party and of each general partner or managing member (if any) of each Loan Party of each Loan Document to which it is or is to be a party, and the performance of its obligations thereunder, and the consummation of the transactions contemplated by the Loan Documents, are within the corporate, limited liability company or partnership powers of such Loan Party, general partner or managing member, have been duly authorized by all necessary corporate, limited liability company or partnership action, and do not (i) contravene the charter or bylaws, memorandum and articles of association, operating agreement, partnership agreement or other governing document of such Loan Party, general partner or managing member, (ii) violate any law, rule, regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award, (iii) conflict with or result in the breach of, or constitute a default or require any payment to be made under, any Material Contract binding on or affecting any Loan Party or any of its Subsidiaries or any of their properties, or any general partner or managing member of any Loan Party or (iv) result in or require the creation or imposition of any Lien upon or with respect to any of the properties of any Loan Party or any of its Subsidiaries. No Loan Party or any of its Subsidiaries is in violation of any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of any such Material Contract, the violation or breach of which would be reasonably likely to have a Material Adverse Effect.
(d) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery, recordation, filing or performance by any Loan Party or any general partner or managing member of any Loan Party of any Loan Document to which it is or is to be a party or for the consummation of the transactions contemplated by the Loan Documents and the exercise by the Administrative Agent or any Lender Party of its rights under the Loan Documents, except for authorizations, approvals, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect.
(e) This Agreement has been, and each other Loan Document when delivered hereunder will have been, duly executed and delivered by each Loan Party and general partner or managing member (if any) of each Loan Party party thereto. This Agreement is, and each other Loan Document when delivered hereunder will be, the legal, valid and binding obligation of each Loan Party party thereto, enforceable against such Loan Party in accordance with its terms, except as such enforceability may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium, examinership or similar laws affecting creditors’ rights generally and by general principles of equity.
(f) Except as set forth in the reports delivered to the Administrative Agent pursuant to Section 5.03(g), there is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries or any general partner or managing member (if any) of any Loan Party, Digital Realty – Yen Credit Agreement including any Environmental Action to any Loan Party’s knowledge, pending or threatened before any court, governmental agency or arbitrator that (i) would reasonably be expected to have a Material Adverse Effect or (ii) would reasonably be expected to affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated by the Loan Documents.
(g) The Consolidated balance sheet of the Parent Guarantor and its Subsidiaries as at December 31, 2017 and the related Consolidated statement of income and Consolidated statement of cash flows of the Parent Guarantor and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of KPMG LLP, independent public accountants, and the Consolidated balance sheet of the Parent Guarantor as at June 30, 2018, and the related Consolidated statement of income and Consolidated statement of cash flows of the Parent Guarantor and its Subsidiaries for the six months then ended, copies of which have been furnished to each Lender Party, fairly present, subject, in the case of such balance sheet as at June 30, 2018, and such statements of income and cash flows for the six months then ended, to year‑end audit adjustments, the Consolidated financial condition of the Parent Guarantor and its Subsidiaries as at such dates and the Consolidated results of operations of the Parent Guarantor and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles applied on a consistent basis, and since December 31, 2017, there has been no Material Adverse Change.
(h) The Consolidated forecasted balance sheets, statements of income and statements of cash flows of the Parent Guarantor and its Subsidiaries most recently delivered to the Lender Parties pursuant to Section 5.03 were prepared in good faith on the basis of the assumptions stated therein, which assumptions were fair in light of the conditions existing at the time of delivery of such forecasts.
(i) No information, exhibit or report furnished by or on behalf of any Loan Party to the Administrative Agent or any Lender Party in connection with the negotiation and syndication of the Loan Documents or pursuant to the terms of the Loan Documents contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements made therein not materially misleading in light of the circumstances under which they were made.
(j) No Loan Party is engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Advance or drawings under any Letter of Credit will be used, directly or indirectly, whether immediately, incidentally or ultimately to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock or to refund indebtedness originally incurred for such purpose.
(k) Neither any Loan Party nor any of its Subsidiaries nor any general partner or managing member of any Loan Party, as applicable, is an “investment company”, or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company”, as such terms are defined in the Investment Company Act of 1940, as amended. Without limiting the generality of the foregoing, each Loan Party and each of its Subsidiaries and each general partner or managing member of any Loan Party, as applicable: (i) is primarily engaged, directly or through a wholly‑owned subsidiary or subsidiaries, in a business or businesses other than that of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (ii) is not engaged in, does not propose to engage in and does not hold itself out as being engaged in the business of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (iii) does not own or propose to acquire investment securities (as defined in the Investment Company Act of 1940, as amended) having a value exceeding forty percent (40%) of the value of such company’s total assets (exclusive of government securities and cash items) on an unconsolidated basis; (iv) has not in the past been engaged in the business of Digital Realty – Yen Credit Agreement issuing face‑amount certificates of the installment type; and (v) does not have any outstanding face‑amount certificates of the installment type. Neither the making of any Advances, nor the issuance of any Letters of Credit, nor the application of the proceeds or repayment thereof by any Borrower, nor the consummation of the other transactions contemplated by the Loan Documents, will violate any provision of any such Act or any rule, regulation or order of the Securities and Exchange Commission thereunder.
(l) Each of the Assets listed on the schedule of Unencumbered Assets delivered to the Administrative Agent in connection with the Closing Date (as updated from time to time in accordance with Section 5.03(d)) satisfies all Unencumbered Asset Conditions, except to the extent as otherwise set forth herein or waived in writing by the Required Lenders. The Loan Parties are the legal and beneficial owners of the Unencumbered Assets free and clear of any Lien, except for the Liens permitted under the Loan Documents.
(m) Neither any Loan Party nor any of its Subsidiaries nor any general partner or managing member of any Loan Party, as applicable, is an EEA Financial Institution.
(n) Set forth on Schedule 4.01(n) hereto is a complete and accurate list of all Surviving Debt of each Loan Party and its Subsidiaries (other than intercompany Debt) as of the date set forth on Schedule 4.01(n) having a principal amount of at least $10,000,000 and showing as of such date the obligor and the principal amount outstanding thereunder, the maturity date thereof and the amortization schedule therefor, and from such date to the Closing Date except as set forth on Schedule 4.01(n) there has been no material change in the amounts, interest rates, sinking funds, installment payments or maturities of such Surviving Debt (other than payments of principal and interest in accordance with the documents governing such Debt).
(o) Each Loan Party and its Subsidiaries has good, marketable and insurable fee simple title to, or valid trust beneficiary interests or leasehold interests in, all material Real Property owned or leased by such Loan Party or any such Subsidiary, free and clear of all Liens, other than Liens created or permitted by the Loan Documents.
(i) The operations and properties of each Loan Party and each of its Subsidiaries comply in all material respects with all applicable Environmental Laws and Environmental Permits, there is no past non‑compliance with such Environmental Laws and Environmental Permits that has resulted in any ongoing material costs or obligations or that is reasonably expected to result in any future material costs or obligations, and no circumstances exist that (A) form the basis of an Environmental Action against any Loan Party or any of its Subsidiaries or any of their properties that would reasonably be expected to have a Material Adverse Effect or (B) cause any such property to be subject to any material restrictions on ownership, occupancy, use or transferability under any Environmental Law.
(i) Except as would not reasonably be expected to have a Material Adverse Effect, (A) none of the properties currently or formerly owned or operated by any Loan Party or any of its Subsidiaries is listed or proposed for listing on the NPL or any analogous foreign, state or local list or is adjacent to any such property; (B) there are no and never have been any underground or above ground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed on any property currently or formerly owned or operated by any Loan Party or any of its Subsidiaries that is reasonably expected to result in material liability to any Loan Party or any of its Subsidiaries; (C) there is no asbestos or asbestos‑containing material on any property currently owned or operated by any Loan Party or any of its Subsidiaries; and Digital Realty – Yen Credit Agreement 66
Appears in 1 contract
Representations and Warranties of the Loan Parties. Each Loan Party represents and warrants as follows:
(a) Each Loan Party and each of its Subsidiaries and each general partner or managing member, if any, of each Loan Party (i) is a corporation, limited liability company or partnership duly incorporated, organized or formed, validly existing and in good standing (to the extent that a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) under the laws of the jurisdiction of its incorporation, organization or formation, (ii) is duly qualified and in good standing (to the extent that a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) as a foreign corporation, limited liability company or partnership in each other jurisdiction in which it owns or leases property or in which the conduct of its business requires it to so qualify or be licensed except where the failure to so qualify or be licensed would not be reasonably likely to have a Material Adverse Effect and (iii) has all requisite corporate, limited liability company or partnership power and authority (including, without limitation, all governmental licenses, permits and other approvals) to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted. The Since December 31, 1998, which is the date from which the Parent Guarantor is organized in conformity with the requirements for qualification first qualified as a REIT under the Internal Revenue Code, and the Parent Guarantor has at all times maintained its method of operation enables it to Digital Realty – Yen Credit Agreement meet the requirements for qualification and taxation as a REIT under the Internal Revenue Code. All of the outstanding Equity Interests in the Parent Guarantor have been validly issued, are fully paid and non‑assessablenon-assessable, all of the general partner Equity Interests in the Operating Partnership Borrower are owned by the Parent Guarantor, and all such general partner Equity Interests are owned by the Parent Guarantor free and clear of all Liens.
(b) Set forth on Schedule 4.01(b) hereto is a complete and accurate list of all Subsidiaries of each Loan Party, showing as of the date hereof (as to each such Subsidiary) the jurisdiction of its incorporation, organization or formation, the number of shares (or the equivalent thereof) of each class of its Equity Interests authorized, and the number outstanding, on the date hereof and the percentage of each such class of its Equity Interests owned (directly or indirectly) by such Loan Party and the number of shares (or the equivalent thereof) covered by all outstanding options, warrants, rights of conversion or purchase and similar rights at the date hereof. All of the outstanding Equity Interests in each Loan Party’s 's Subsidiaries have has been validly issued, are fully paid and non‑assessable and, to the extent non-assessable and are owned by such Loan Party or one or more of its Subsidiaries, are owned by such Loan Party or Subsidiaries free and clear of all Liens (other than Liens on Equity Interests in Subsidiaries securing Debt that is not prohibited hereunder)Liens.
(c) The execution and delivery by each Loan Party and of each general partner or managing member (if any) of each Loan Party of each Loan Document to which it is or is to be a party, and the performance of its obligations thereunder, and the consummation of the IPO, the Recapitalization and the transactions contemplated by the Loan Documents, are within the corporate, limited liability company or partnership powers of such Loan Party, general partner or managing member, have been duly authorized by all necessary corporate, limited liability company or partnership action, and do not (i) contravene the charter or bylaws, memorandum and articles of association, operating agreement, partnership agreement or other governing document of such Loan Party, general partner or managing member, (ii) violate any law, rule, regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award, (iii) conflict with or result in the breach of, or constitute a default or require any payment to be made under, any Material Contract material contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument binding on or affecting any Loan Party or Party, any of its Subsidiaries or any of their properties, or any general partner or managing member of any Loan Party or (iv) except for the Liens created under the Loan Documents, result in or require the creation or imposition of any Lien upon or with respect to any of the properties of any Loan Party or any of its Subsidiaries. No Loan Party or any of its Subsidiaries is in violation of any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of any such Material Contractcontract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument, the violation or breach of which would be reasonably likely to have a Material Adverse Effect.
(d) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery, recordation, filing or performance by any Loan Party or any general partner or managing member of any Loan Party of any Loan Document to which it is or is to be a party or for the consummation of the transactions contemplated by the Loan Documents and the exercise by the Administrative Agent or any Lender Party of its rights under the Loan Documents, except for authorizations, approvals, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect.
(e) This Agreement has been, and each other Loan Document when delivered hereunder will have been, duly executed and delivered by each Loan Party and general partner or managing member (if any) of each Loan Party party thereto. This Agreement is, and each other Loan Document when delivered hereunder will be, the legal, valid and binding obligation of each Loan Party party thereto, enforceable against such Loan Party in accordance with its terms, except as such enforceability may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium, examinership or similar laws affecting creditors’ rights generally and by general principles of equity.
(f) Except as set forth in the reports delivered to the Administrative Agent pursuant to Section 5.03(g), there is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries or any general partner or managing member (if any) of any Loan Party, Digital Realty – Yen Credit Agreement including any Environmental Action to any Loan Party’s knowledge, pending or threatened before any court, governmental agency or arbitrator that (i) would reasonably be expected to have a Material Adverse Effect or (ii) would reasonably be expected to affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated by the Loan Documents.
(g) The Consolidated balance sheet of the Parent Guarantor and its Subsidiaries as at December 31, 2017 and the related Consolidated statement of income and Consolidated statement of cash flows of the Parent Guarantor and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of KPMG LLP, independent public accountants, and the Consolidated balance sheet of the Parent Guarantor as at June 30, 2018, and the related Consolidated statement of income and Consolidated statement of cash flows of the Parent Guarantor and its Subsidiaries for the six months then ended, copies of which have been furnished to each Lender Party, fairly present, subject, in the case of such balance sheet as at June 30, 2018, and such statements of income and cash flows for the six months then ended, to year‑end audit adjustments, the Consolidated financial condition of the Parent Guarantor and its Subsidiaries as at such dates and the Consolidated results of operations of the Parent Guarantor and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles applied on a consistent basis, and since December 31, 2017, there has been no Material Adverse Change.
(h) The Consolidated forecasted balance sheets, statements of income and statements of cash flows of the Parent Guarantor and its Subsidiaries most recently delivered to the Lender Parties pursuant to Section 5.03 were prepared in good faith on the basis of the assumptions stated therein, which assumptions were fair in light of the conditions existing at the time of delivery of such forecasts.
(i) No information, exhibit or report furnished by or on behalf of any Loan Party to the Administrative Agent or any Lender Party in connection with the negotiation and syndication of the Loan Documents or pursuant to the terms of the Loan Documents contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements made therein not materially misleading in light of the circumstances under which they were made.
(j) No Loan Party is engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Advance or drawings under any Letter of Credit will be used, directly or indirectly, whether immediately, incidentally or ultimately to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock or to refund indebtedness originally incurred for such purpose.
(k) Neither any Loan Party nor any of its Subsidiaries nor any general partner or managing member of any Loan Party, as applicable, is an “investment company”, or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company”, as such terms are defined in the Investment Company Act of 1940, as amended. Without limiting the generality of the foregoing, each Loan Party and each of its Subsidiaries and each general partner or managing member of any Loan Party, as applicable: (i) is primarily engaged, directly or through a wholly‑owned subsidiary or subsidiaries, in a business or businesses other than that of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (ii) is not engaged in, does not propose to engage in and does not hold itself out as being engaged in the business of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (iii) does not own or propose to acquire investment securities (as defined in the Investment Company Act of 1940, as amended) having a value exceeding forty percent (40%) of the value of such company’s total assets (exclusive of government securities and cash items) on an unconsolidated basis; (iv) has not in the past been engaged in the business of Digital Realty – Yen Credit Agreement issuing face‑amount certificates of the installment type; and (v) does not have any outstanding face‑amount certificates of the installment type. Neither the making of any Advances, nor the issuance of any Letters of Credit, nor the application of the proceeds or repayment thereof by any Borrower, nor the consummation of the other transactions contemplated by the Loan Documents, will violate any provision of any such Act or any rule, regulation or order of the Securities and Exchange Commission thereunder.
(l) Each of the Assets listed on the schedule of Unencumbered Assets delivered to the Administrative Agent in connection with the Closing Date (as updated from time to time in accordance with Section 5.03(d)) satisfies all Unencumbered Asset Conditions, except to the extent as otherwise set forth herein or waived in writing by the Required Lenders. The Loan Parties are the legal and beneficial owners of the Unencumbered Assets free and clear of any Lien, except for the Liens permitted under the Loan Documents.
(m) Neither any Loan Party nor any of its Subsidiaries nor any general partner or managing member of any Loan Party, as applicable, is an EEA Financial Institution.
(n) Set forth on Schedule 4.01(n) hereto is a complete and accurate list of all Surviving Debt of each Loan Party and its Subsidiaries (other than intercompany Debt) as of the date set forth on Schedule 4.01(n) having a principal amount of at least $10,000,000 and showing as of such date the obligor and the principal amount outstanding thereunder, the maturity date thereof and the amortization schedule therefor, and from such date to the Closing Date except as set forth on Schedule 4.01(n) there has been no material change in the amounts, interest rates, sinking funds, installment payments or maturities of such Surviving Debt (other than payments of principal and interest in accordance with the documents governing such Debt).
(o) Each Loan Party and its Subsidiaries has good, marketable and insurable fee simple title to, or valid trust beneficiary interests or leasehold interests in, all material Real Property owned or leased by such Loan Party or any such Subsidiary, free and clear of all Liens, other than Liens created or permitted by the Loan Documents.
(i) The operations and properties of each Loan Party and each of its Subsidiaries comply in all material respects with all applicable Environmental Laws and Environmental Permits, there is no past non‑compliance with such Environmental Laws and Environmental Permits that has resulted in any ongoing material costs or obligations or that is reasonably expected to result in any future material costs or obligations, and no circumstances exist that (A) form the basis of an Environmental Action against any Loan Party or any of its Subsidiaries or any of their properties that would reasonably be expected to have a Material Adverse Effect or (B) cause any such property to be subject to any material restrictions on ownership, occupancy, use or transferability under any Environmental Law.
(i) Except as would not reasonably be expected to have a Material Adverse Effect, (A) none of the properties currently or formerly owned or operated by any Loan Party or any of its Subsidiaries is listed or proposed for listing on the NPL or any analogous foreign, state or local list or is adjacent to any such property; (B) there are no and never have been any underground or above ground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed on any property currently or formerly owned or operated by any Loan Party or any of its Subsidiaries that is reasonably expected to result in material liability to any Loan Party or any of its Subsidiaries; (C) there is no asbestos or asbestos‑containing material on any property currently owned or operated by any Loan Party or any of its Subsidiaries; and Digital Realty – Yen Credit Agreement 66
Appears in 1 contract
Samples: Credit Agreement (Affordable Residential Communities Inc)
Representations and Warranties of the Loan Parties. Each Loan Party represents and warrants as follows:
(a) Each Loan Party and each of its Subsidiaries and each general partner or managing member, if any, of each Loan Party (i) is a corporation, limited liability company or partnership duly incorporated, organized or formed, validly existing and in good standing (to the extent that a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) under the laws of the jurisdiction of its incorporation, organization or formation, (ii) is duly qualified and in good standing (to the extent that a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) as a foreign corporation, limited liability company or partnership in each other jurisdiction in which it owns or leases property or in which the conduct of its business requires it to so qualify or be licensed except where the failure to so qualify or be licensed would not be reasonably likely to have a Material Adverse Effect and (iii) has all requisite corporate, limited liability company or partnership power and authority (including, without limitation, all governmental licenses, permits and other approvals) to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted. The Commencing with its taxable year ending December 31,2003, the Parent Guarantor is will be organized in conformity with the requirements for qualification as a REIT under the Internal Revenue CodeREIT, and its proposed method of operation enables will enable it to Digital Realty – Yen Credit Agreement meet the requirements for qualification and taxation as a REIT under the Internal Revenue Code. All of the outstanding Equity Interests in the Parent Guarantor have been validly issued, are fully paid and non‑assessable, all of the general partner Equity Interests in the Operating Partnership non-assessable and are owned by the Parent Guarantor, and all such general partner Equity Interests are owned by the Parent Guarantor General Partner free and clear of all Liens.
(b) Set forth on Schedule 4.01(b) hereto is a complete and accurate list as of the date hereof of all Subsidiaries of each Loan Party, showing as of the date hereof (as to each such Subsidiary) the jurisdiction of its incorporation, organization or formation, the number of shares (or the equivalent thereof) of each class of its Equity Interests authorized, and the number outstanding, on the date hereof and the percentage of each such class of its Equity Interests owned (directly or indirectly) by such Loan Party and the number of shares (or the equivalent thereof) covered by all outstanding options, warrants, rights of conversion or purchase and similar rights at the date hereof. All of the outstanding Equity Interests in each Loan Party’s 's Subsidiaries have has been validly issued, are fully paid and non‑assessable and, to the extent non-assessable and are owned by such Loan Party or one or more of its Subsidiaries, are owned by such Loan Party or Subsidiaries free and clear of all Liens (other than Liens on Equity Interests in Subsidiaries securing Debt that is not prohibited hereunder)Liens.
(c) The execution execution, delivery and delivery performance by each Loan Party and of each general partner or managing member (if any) of each Loan Party of each Loan Document to which it is or is to be a party, and the performance of its obligations thereunder, and the consummation of the transactions contemplated by the Loan Documents, party are within the corporate, limited liability company or partnership powers of such Loan Party, general partner or managing member, have been duly authorized by all necessary corporate, limited liability company or partnership action, and do not (i) contravene the charter or bylaws, memorandum and articles of association, operating agreement, partnership agreement or other governing document of such Loan Party, general partner or managing member, (ii) violate any law, rule, regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award, (iii) conflict with or result in the breach of, or constitute a default or require any payment to be made under, any Material Contract material contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument binding on or affecting any Loan Party or Party, any of its Subsidiaries or any of their properties, or any general partner or managing member of any Loan Party or (iv) except for the Liens created under the Loan Documents, result in or require the creation or imposition of any Lien upon or with respect to any of the properties of any Loan Party or any of its Subsidiaries. No Loan Party or any of its Subsidiaries is in violation of any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of any such Material Contractcontract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument, the violation or breach of which would be reasonably likely to have a Material Adverse Effect.
(d) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for (i) the due execution, delivery, recordation, filing or performance by any Loan Party or any general partner or managing member of any Loan Party of any Loan Document to which it is or is to be a party or for the consummation of the transactions contemplated thereby, (ii) the grant by any Loan Party of the Loan Liens granted by it pursuant to the Collateral Documents, (iii) the perfection or maintenance of the Liens created under the Collateral Documents and (including the first priority nature thereof) or, (iv) the exercise by the Administrative Agent or any Lender Party of its rights under the Loan Documents or the remedies in respect of the Collateral pursuant to the Collateral Documents, except for the authorizations, approvals, actions, notices and filings listed on Schedule 4.0l(d) hereto, all of which have been duly obtained, taken, given or made and are in full force and effect.
(e) This Agreement has been, and each other Loan Document when delivered hereunder will have been, duly executed and delivered by each Loan Party and general partner or managing member (if any) of each Loan Party party thereto. This Agreement is, and each other Loan Document when delivered hereunder will be, the legal, valid and binding obligation of each Loan Party and general partner or managing member (if any) of each Loan Party party thereto, enforceable against such Loan Party Party, general partner or managing member, as the case may be, in accordance with its terms, except as such enforceability may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium, examinership or similar laws affecting creditors’ rights generally and by general principles of equity.
(f) Except as set forth in the reports delivered to the Administrative Agent pursuant to Section 5.03(g), there There is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries or any general partner or managing member (if any) of any Loan Party, Digital Realty – Yen Credit Agreement including any Environmental Action to any Loan Party’s knowledgeAction, pending or threatened before any court, governmental agency or arbitrator that (i) would be reasonably be expected likely to have a Material Adverse Effect (other than the Disclosed Litigation) or (ii) would reasonably be expected purports to affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated by thereby, and there has been no adverse change in the status, or financial effect on any Loan DocumentsParty or any of its Subsidiaries or any general partner or managing member (if any) of any Loan Party, of the Disclosed Litigation from that described on Schedule 4.0l(f) hereto.
(g) The Consolidated balance sheet sheets of the Parent Guarantor and its Subsidiaries as at December 31, 2017 2002 and the related Consolidated statement statements of income and Consolidated statement of cash flows of the Parent Guarantor and its Subsidiaries for the fiscal year then ended, accompanied by an unqualified opinion of KPMG LLP, independent public accountants, and the Consolidated balance sheet sheets of the Parent Guarantor and its Subsidiaries as at June 30, 2018March 31,2003, and the related Consolidated statement statements of income and Consolidated statement of cash flows of the Parent Guarantor and its Subsidiaries for the six three months then ended, duly certified by the Chief Financial Officer of the Parent Guarantor, copies of which have been furnished to each Lender Party, fairly present, subject, in the case of such said balance sheet as at June 30March 31, 20182003, and such said statements of income and cash flows for the six three months then ended, to year‑end year-end audit adjustments, the Consolidated financial condition of the Parent Guarantor and its Subsidiaries as at such dates and the Consolidated results of operations of the Parent Guarantor and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles applied on a consistent basis, and since December 31, 201731,2002, there has been no Material Adverse Change.
(h) The Consolidated forecasted balance sheets, statements of income and statements of cash flows of the Parent Guarantor and its Subsidiaries most recently delivered to the Lender Parties pursuant to Section 3.01(a)(ix) or 5.03 were prepared in good faith on the basis of the assumptions stated therein, which assumptions were fair in light of the conditions existing at the time of delivery of such forecasts, and represented, at the time of delivery, the Parent Guarantor's best estimate of its future financial performance.
(i) No Neither the Information Memorandum nor any other information, exhibit or report furnished by or on behalf of any Loan Party to the Administrative Agent or any Lender Party in connection with the negotiation and syndication of the Loan Documents or pursuant to the terms of the Loan Documents contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements made therein not materially misleading in light of the circumstances under which they were mademisleading.
(j) No Loan Party is engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Advance or drawings under any Letter of Credit will be used, directly or indirectly, whether immediately, incidentally or ultimately to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock or to refund indebtedness originally incurred for such purpose.
(k) Neither any Loan Party nor any of its Subsidiaries nor any general partner or managing member of any Loan Party, as applicable, is an “investment company”, or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company”, as such terms are defined in the Investment Company Act of 1940, as amended. Without limiting the generality of the foregoing, each Loan Party and each of its Subsidiaries and each general partner or managing member of any Loan Party, as applicable: (i) is primarily engaged, directly or through a wholly‑owned subsidiary or subsidiaries, in a business or businesses other than that of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (ii) is not engaged in, does not propose to engage in and does not hold itself out as being engaged in the business of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (iii) does not own or propose to acquire investment securities (as defined in the Investment Company Act of 1940, as amended) having a value exceeding forty percent (40%) of the value of such company’s total assets (exclusive of government securities and cash items) on an unconsolidated basis; (iv) has not in the past been engaged in the business of Digital Realty – Yen Credit Agreement issuing face‑amount certificates of the installment type; and (v) does not have any outstanding face‑amount certificates of the installment type. Neither the making of any Advances, nor the issuance of any Letters of Credit, nor the application of the proceeds or repayment thereof by any Borrower, nor the consummation of the other transactions contemplated by the Loan Documents, will violate any provision of any such Act or any rule, regulation or order of the Securities and Exchange Commission thereunder.
(l) Each of the Assets listed on the schedule of Unencumbered Assets delivered to the Administrative Agent in connection with the Closing Date (as updated from time to time in accordance with Section 5.03(d)) satisfies all Unencumbered Asset Conditions, except to the extent as otherwise set forth herein or waived in writing by the Required Lenders. The Loan Parties are the legal and beneficial owners of the Unencumbered Assets free and clear of any Lien, except for the Liens permitted under the Loan Documents.
(m) Neither any Loan Party nor any of its Subsidiaries nor any general partner or managing member of any Loan Party, as applicable, is an EEA Financial Institution.
(n) Set forth on Schedule 4.01(n) hereto is a complete and accurate list of all Surviving Debt of each Loan Party and its Subsidiaries (other than intercompany Debt) as of the date set forth on Schedule 4.01(n) having a principal amount of at least $10,000,000 and showing as of such date the obligor and the principal amount outstanding thereunder, the maturity date thereof and the amortization schedule therefor, and from such date to the Closing Date except as set forth on Schedule 4.01(n) there has been no material change in the amounts, interest rates, sinking funds, installment payments or maturities of such Surviving Debt (other than payments of principal and interest in accordance with the documents governing such Debt).
(o) Each Loan Party and its Subsidiaries has good, marketable and insurable fee simple title to, or valid trust beneficiary interests or leasehold interests in, all material Real Property owned or leased by such Loan Party or any such Subsidiary, free and clear of all Liens, other than Liens created or permitted by the Loan Documents.
(i) The operations and properties of each Loan Party and each of its Subsidiaries comply in all material respects with all applicable Environmental Laws and Environmental Permits, there is no past non‑compliance with such Environmental Laws and Environmental Permits that has resulted in any ongoing material costs or obligations or that is reasonably expected to result in any future material costs or obligations, and no circumstances exist that (A) form the basis of an Environmental Action against any Loan Party or any of its Subsidiaries or any of their properties that would reasonably be expected to have a Material Adverse Effect or (B) cause any such property to be subject to any material restrictions on ownership, occupancy, use or transferability under any Environmental Law.
(i) Except as would not reasonably be expected to have a Material Adverse Effect, (A) none of the properties currently or formerly owned or operated by any Loan Party or any of its Subsidiaries is listed or proposed for listing on the NPL or any analogous foreign, state or local list or is adjacent to any such property; (B) there are no and never have been any underground or above ground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed on any property currently or formerly owned or operated by any Loan Party or any of its Subsidiaries that is reasonably expected to result in material liability to any Loan Party or any of its Subsidiaries; (C) there is no asbestos or asbestos‑containing material on any property currently owned or operated by any Loan Party or any of its Subsidiaries; and Digital Realty – Yen Credit Agreement 66
Appears in 1 contract
Representations and Warranties of the Loan Parties. Each Loan Party represents and warrants as follows:
(a) Each Loan Party and each general partner or managing member, if any, of each Loan Party its Subsidiaries (i) is a corporation, limited partnership or limited liability company or partnership duly incorporated, organized or formedorganized, validly existing and in good standing (to the extent that good standing is a concept of good standing exists under recognized for a specific entity type in the laws of the jurisdiction of the incorporation, organization or formation of such Loan Partyapplicable jurisdiction) under the laws of the jurisdiction of its incorporation, organization incorporation or formation, as the case may be, (ii) is duly qualified and in good standing (to the extent that good standing is a concept of good standing exists under recognized for a specific entity type in the laws of the jurisdiction of the incorporation, organization or formation of such Loan Partyapplicable jurisdiction) as a foreign corporation, limited partnership or limited liability company or partnership in each other jurisdiction in which it owns or leases property or in which the conduct of its business requires it to so qualify or be licensed except where the failure to so qualify or be licensed would could not be reasonably likely to have a Material Adverse Effect and (iii) has all requisite corporate, limited liability company or partnership (as applicable) power and authority (including, without limitation, all governmental licenses, permits and other approvals) to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted. The Parent Guarantor is organized in conformity with ; and (iv) has all Governmental Authorizations necessary to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted except where the requirements for qualification as failure to have such Governmental Authorization could not be reasonably likely to have a REIT under the Internal Revenue Code, and its method of operation enables it to Digital Realty – Yen Credit Agreement meet the requirements for qualification and taxation as a REIT under the Internal Revenue Code. All of the outstanding Equity Interests in the Parent Guarantor have been validly issued, are fully paid and non‑assessable, all of the general partner Equity Interests in the Operating Partnership are owned by the Parent Guarantor, and all such general partner Equity Interests are owned by the Parent Guarantor free and clear of all LiensMaterial Adverse Effect.
(b) Set forth on Schedule 4.01(b) hereto is a complete and accurate list of all Subsidiaries of each Loan Party, showing as of the Effective Date (as to each such Subsidiary) the jurisdiction of its formation, the number of shares, membership interests or limited partnership interest (as applicable) of each class of its Equity Interests authorized, and the number outstanding, on the Effective Date and the percentage of each such class of its Equity Interests owned (directly or indirectly) by such Loan Party and the number of shares, units or partnership interests covered by all outstanding options, warrants, rights of conversion or purchase and similar rights at the Effective Date. All of the outstanding Equity Interests in each Loan Party’s Subsidiaries have been validly issued, are fully paid and non‑assessable andnon-assessable and except as indicated on Schedule 4.01(b) hereto, to the extent are owned by such Loan Party or one or more of its Subsidiaries, are owned by such Loan Party or Subsidiaries free and clear of all Liens (other than Liens on Equity Interests in Subsidiaries securing Debt that is not prohibited hereunder)Liens, except those created under the Loan Documents.
(c) The execution execution, delivery and delivery performance by each Loan Party and of each general partner or managing member (if any) of each Loan Party of each Loan Document to which it is or is to be a party, and the performance of its obligations thereunder, and the consummation of the transactions contemplated by the Loan DocumentsTransaction, are within the such Loan Party’s corporate, limited liability company or limited partnership powers of such Loan Party, general partner or managing member(as applicable) powers, have been duly authorized by all necessary corporate, limited liability company or limited partnership (as applicable) action, and do not (i) contravene the charter or such Loan Party’s charter, certificate of formation, bylaws, memorandum and articles of association, operating limited liability company agreement, partnership agreement or other governing document of such Loan Party, general partner or managing memberconstituent documents, (ii) violate any current law, rule, regulation (including, without limitation, Regulation Regulations T, U or X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award, (iii) conflict with or result in the breach of, or constitute a default or require any payment to be made under, any Material Contract contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument binding on or affecting any Loan Party or Party, any of its Subsidiaries or any of their properties, or any general partner or managing member of any Loan Party properties or (iv) except for the Liens created under the Loan Documents, result in or require the creation or imposition of any Lien upon or with respect to any of the properties of any Loan Party or any of its Subsidiaries. No Loan Party or any of its Subsidiaries is in violation of any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of any such Material Contractcontract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument, the violation or breach of which would could be reasonably likely to have a Material Adverse Effect.
(d) No authorization or approval or other action byGovernmental Authorization, and no notice to or filing with, with any governmental authority or regulatory body Governmental Authority or any other third party party, is required for (i) the due execution, delivery, recordation, filing or performance by any Loan Party or any general partner or managing member of any Loan Party of any Loan Document to which it is or is to be a party party, or for the consummation of the transactions contemplated Transaction, (ii) the grant by any Loan Party of the Loan Liens granted by it pursuant to the Collateral Documents, (iii) the perfection or maintenance of the Liens created under the Collateral Documents and (including the first priority nature thereof), or (iv) the exercise by the Administrative any Agent or any Lender Party of its rights under the Loan Documents or the remedies in respect of the Collateral pursuant to the Collateral Documents, except for the authorizations, approvals, actions, notices and filings listed on Schedule 4.01(d) hereto, all of which have been duly obtained, taken, given or made and are in full force and effect. All applicable waiting periods in connection with the Transaction have expired without any action having been taken by any competent authority restraining, preventing or imposing materially adverse conditions upon the Transaction or the rights of the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, any properties now owned or hereafter acquired by any of them.
(e) This Agreement has been, and each other Loan Document when delivered hereunder will have been, duly executed and delivered by each Loan Party and general partner or managing member (if any) of each Loan Party that is a party thereto. This Agreement is, and each other Loan Document when delivered hereunder will be, the legal, valid and binding obligation of each Loan Party that is a party thereto, enforceable against such Loan Party in accordance with its termsterms subject, except as such enforceability may be limited by any applicable to enforcement only, to bankruptcy, insolvency, reorganization, moratorium, examinership moratoriums or similar laws at the time in effect affecting creditors’ the enforceability of the rights generally and by general principles of equitycreditors generally.
(f) Except as set forth in the reports delivered to the Administrative Agent pursuant to Section 5.03(g), there There is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries or any general partner or managing member (if any) of any Loan PartySubsidiaries, Digital Realty – Yen Credit Agreement including any Environmental Action to any Loan Party’s knowledgeAction, pending or threatened before any court, governmental agency Governmental Authority or arbitrator that (i) would could reasonably be expected to have a Material Adverse Effect or (ii) would reasonably be expected purports to affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated by Transaction, and there has been no Material Adverse Change in the status, or financial effect on any Loan DocumentsParty or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto.
(g) The Consolidated consolidated balance sheet sheets of the Parent Guarantor Borrower and its Subsidiaries as at December 31July 30, 2017 2010, and the related Consolidated statement consolidated statements of income and Consolidated consolidated statement of cash flows of the Parent Guarantor Borrower and its Subsidiaries for the fiscal year then ended, accompanied by an unqualified opinion of KPMG Deloitte & Touche LLP, independent registered public accountants, and the Consolidated unaudited consolidated balance sheet sheets of the Parent Guarantor Borrower and its Subsidiaries as at June 30April 29, 20182011, and the related Consolidated statement unaudited consolidated statements of income and Consolidated consolidated statement of cash flows of the Parent Guarantor Borrower and its Subsidiaries for the six nine months then ended, duly certified by the chief financial officer of the Borrower, copies of which have been furnished to each Lender Party, fairly present, subject, in present the case of such balance sheet as at June 30, 2018, and such statements of income and cash flows for the six months then ended, to year‑end audit adjustments, the Consolidated consolidated financial condition of the Parent Guarantor Borrower and its Subsidiaries as at such dates and the Consolidated consolidated results of operations of the Parent Guarantor Borrower and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles GAAP applied on a consistent basis, and since December 31July 30, 20172010, there has been no event, development or occurrence that could have a Material Adverse ChangeEffect.
(h) The Consolidated forecasted consolidated pro forma balance sheetssheet of the Borrower and its Subsidiaries as at April 29, 2011, the related consolidated pro forma statements of income and statements cash flows of the Borrower and its Subsidiaries for the four-quarter period then ended, in each case certified by the chief financial officer of the Borrower, copies of which have been furnished to each Lender Party, fairly present the consolidated pro forma financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated pro forma results of operations of the Borrower and its Subsidiaries for the period ended on such dates, in each case giving effect to the Transaction, all in accordance with GAAP.
(i) The consolidated forecasted balance sheet, statement of income and statement of cash flows of the Parent Guarantor Borrower and its Subsidiaries most recently Subsidiaries, delivered to the Lender Parties pursuant to Section 5.03 Sections 3.01(a)(x) or 5.03, were prepared in good faith on the basis of the assumptions stated therein, which assumptions were fair reasonable in light of the conditions existing at the time of delivery of such forecasts, and represented, at the time of delivery, the Borrower’s reasonable best estimate of its future financial performance, based upon the assumptions set forth in such forecast.
(ij) No Neither the Information Memorandum nor any other information, exhibit or report furnished by or on behalf of any Loan Party to the Administrative any Agent or any Lender Party in connection with the negotiation and syndication of the Loan Documents or pursuant to the terms of the Loan Documents contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements made therein not materially misleading in light of the circumstances under which they were mademisleading.
(jk) No Loan Party The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Advance or drawings under any Letter of Credit will be used, directly or indirectly, whether immediately, incidentally or ultimately to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock or to refund indebtedness originally incurred for such purposeStock.
(kl) Neither any Loan Party nor any of its Subsidiaries nor any general partner or managing member of any Loan Party, as applicable, is an “investment company”, or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company”, as such terms are defined in the Investment Company Act of 1940, as amended. Without limiting the generality of the foregoing, each Loan Party and each of its Subsidiaries and each general partner or managing member of any Loan Party, as applicable: (i) is primarily engaged, directly or through a wholly‑owned subsidiary or subsidiaries, in a business or businesses other than that of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (ii) is not engaged in, does not propose to engage in and does not hold itself out as being engaged in the business of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (iii) does not own or propose to acquire investment securities (as defined in the Investment Company Act of 1940, as amended) having a value exceeding forty percent (40%) of the value of such company’s total assets (exclusive of government securities and cash items) on an unconsolidated basis; (iv) has not in the past been engaged in the business of Digital Realty – Yen Credit Agreement issuing face‑amount certificates of the installment type; and (v) does not have any outstanding face‑amount certificates of the installment type. Neither the making of any Advances, nor the issuance of any Letters of Credit, nor the application of the proceeds or repayment thereof by any the Borrower, nor the consummation of the other transactions contemplated by the Loan Documents, will violate any provision of any such Act or any rule, regulation or order of the Securities and Exchange Commission thereunder.
(lm) Each Neither any Loan Party nor any of its Subsidiaries is a party to any indenture, loan or credit agreement or any lease or other agreement or instrument or subject to any charter or corporate restriction that could be reasonably likely to have a Material Adverse Effect.
(n) The provisions of the Assets listed on Collateral Documents executed by the schedule Loan Parties are effective to create, in favor of Unencumbered Assets delivered to the Administrative Agent Lenders, legal, valid and enforceable security interests in connection with all right, title and interest of the Closing Date (as updated Loan Parties in any and all of the collateral described therein, securing the Notes and all other Obligations from time to time outstanding under the Loan Documents, and each of such Collateral Documents, upon the taking of possession of the Collateral as provided in accordance with Section 5.03(d)) satisfies the Pledge Agreement shall create a fully perfected security interest in all Unencumbered Asset Conditionsright, except title and interest of the Loan Parties in such collateral, superior in right to any liens, existing or future, which the extent as otherwise set forth herein Loan Parties or waived in writing by the Required Lendersany creditors of or purchasers from, or any other Person, may have against such collateral or interests therein. The Loan Parties are the legal and beneficial owners of the Unencumbered Assets Collateral free and clear of any Lien, except for the Liens liens and security interests created or permitted under the Loan Documents.
(mo) Neither any Each Loan Party nor any of is, individually and together with its Subsidiaries nor any general partner or managing member of any Loan PartySubsidiaries, as applicable, is an EEA Financial InstitutionSolvent.
(np) (i) Set forth on Schedule 4.01(n4.01(p) hereto is a complete and accurate list of all Surviving Debt of each Loan Party Plans, Multiemployer Plans and its Subsidiaries (other than intercompany Debt) as of the date set forth on Schedule 4.01(n) having a principal amount of at least $10,000,000 and showing as of such date the obligor and the principal amount outstanding thereunder, the maturity date thereof and the amortization schedule therefor, and from such date to the Closing Date except as set forth on Schedule 4.01(n) there has been no material change in the amounts, interest rates, sinking funds, installment payments or maturities of such Surviving Debt (other than payments of principal and interest in accordance with the documents governing such Debt)Welfare Plans.
(o) Each Loan Party and its Subsidiaries has good, marketable and insurable fee simple title to, or valid trust beneficiary interests or leasehold interests in, all material Real Property owned or leased by such Loan Party or any such Subsidiary, free and clear of all Liens, other than Liens created or permitted by the Loan Documents.
(i) The operations and properties of each Loan Party and each of its Subsidiaries comply in all material respects with all applicable Environmental Laws and Environmental Permits, there is no past non‑compliance with such Environmental Laws and Environmental Permits that has resulted in any ongoing material costs or obligations or that is reasonably expected to result in any future material costs or obligations, and no circumstances exist that (A) form the basis of an Environmental Action against any Loan Party or any of its Subsidiaries or any of their properties that would reasonably be expected to have a Material Adverse Effect or (B) cause any such property to be subject to any material restrictions on ownership, occupancy, use or transferability under any Environmental Law.
(i) Except as would not reasonably be expected to have a Material Adverse Effect, (A) none of the properties currently or formerly owned or operated by any Loan Party or any of its Subsidiaries is listed or proposed for listing on the NPL or any analogous foreign, state or local list or is adjacent to any such property; (B) there are no and never have been any underground or above ground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed on any property currently or formerly owned or operated by any Loan Party or any of its Subsidiaries that is reasonably expected to result in material liability to any Loan Party or any of its Subsidiaries; (C) there is no asbestos or asbestos‑containing material on any property currently owned or operated by any Loan Party or any of its Subsidiaries; and Digital Realty – Yen Credit Agreement 66
Appears in 1 contract
Samples: Credit Agreement (Cracker Barrel Old Country Store, Inc)
Representations and Warranties of the Loan Parties. Each Loan Party represents and warrants as follows:
(a) Each Loan Party and each general partner or managing member, if any, of each Loan Party its Subsidiaries (i) is a corporation, limited liability company or partnership duly incorporated, organized or formedorganized, validly existing and in good standing (to the extent that a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) under the laws of the jurisdiction of its incorporation, organization or formationorganization, (ii) is duly qualified and in good standing (to the extent that a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) as a foreign corporation, limited liability company or partnership corporation in each other jurisdiction in which it owns or leases property or in which the conduct of its business requires it to so qualify or be licensed except where the failure to so qualify or be licensed would could not be reasonably likely to have a Material Adverse Effect and (iii) has all requisite corporate, limited liability company or partnership corporate power and authority (including, without limitation, all governmental licenses, permits and other approvalsGovernmental Authorizations) to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted. The Parent Guarantor is organized in conformity with the requirements for qualification as a REIT under the Internal Revenue Code, and its method of operation enables it to Digital Realty – Yen Credit Agreement meet the requirements for qualification and taxation as a REIT under the Internal Revenue Code. All of the outstanding Equity Interests in the Parent Guarantor Borrower have been validly issued, are fully paid and non‑assessable, all of the general partner Equity Interests in the Operating Partnership are owned by the Parent Guarantor, and all such general partner Equity Interests are owned by the Parent Guarantor free and clear of all Liensnon-assessable.
(b) Set forth on Schedule 4.01(b) hereto is a complete and accurate list of all Subsidiaries of each Loan Party, showing as of the Amendment No. 5 Effective Date (giving pro forma effect to the CMC Acquisition as of such date) (as to each such Subsidiary) the jurisdiction of its organization, the number of shares of each class of its Equity Interests authorized, and the number outstanding, on the Amendment No. 5 Effective Date (giving pro forma effect to the CMC Acquisition as of such date) and the percentage of each such class of its Equity Interests owned (directly or indirectly) by such Loan Party and the number of shares covered by all outstanding options, warrants, rights of conversion or purchase and similar rights as of the Amendment No. 5 Effective Date (giving pro forma effect to the CMC Acquisition as of such date). All of the outstanding Equity Interests in each Loan Party’s Subsidiaries owned by such Loan Party have been validly issued, are fully paid and non‑assessable and, to the extent non-assessable and are owned by such Loan Party or one or more of its Subsidiaries, are owned by such Loan Party or Subsidiaries free and clear of all Liens (other than Liens on Equity Interests in Subsidiaries securing Debt that is not prohibited hereunder)Liens, except those created under the Collateral Documents.
(c) The execution execution, delivery and delivery performance by each Loan Party and of each general partner or managing member (if any) of each Loan Party of each Loan Document to which it is or is to be a party, and the performance of its obligations thereunder, and the consummation of the transactions contemplated by the Loan Documentshereby, are within the corporate, limited liability company or partnership powers of such Loan Party, general partner or managing member’s corporate powers, have been duly authorized by all necessary corporate, limited liability company or partnership corporate action, and do not (i) contravene the charter or bylaws, memorandum and articles of association, operating agreement, partnership agreement or other governing document of such Loan Party, general partner ’s constitutive or managing membergoverning documents, (ii) violate any law, rule, regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award, (iii) conflict with or result in the breach of, or constitute a default or require any payment to be made under, any Material Contract contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument binding on or affecting any Loan Party or Party, any of its Subsidiaries or any of their properties, including, without limitation, the Senior Subordinated Indenture or any general partner or managing member of any Loan Party the 2007 Senior Notes or (iv) except for the Liens created under the Loan Documents, result in or require the creation or imposition of any Lien upon or with respect to any of the properties of any Loan Party or any of its Subsidiaries. No Loan Party or any of its Subsidiaries is in violation of any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of any such Material Contractcontract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument, the violation or breach of which would could be reasonably likely to have a Material Adverse Effect.
(d) No authorization or approval or other action byGovernmental Authorization, and no notice to or filing with, any governmental authority or regulatory body Governmental Authority or any other third party in the United States is required for (i) the due execution, delivery, recordation, filing or performance by any Loan Party or any general partner or managing member of any Loan Party of any Loan Document to which it is or is to be a party party, or for the consummation of the transactions contemplated hereby, (ii) the grant by any Loan Party of the Loan Liens granted by it pursuant to the Collateral Documents, (iii) the perfection or maintenance of the Liens created under the Collateral Documents and (including the first priority nature thereof, except with respect to liens permitted under Section 5.02(a)(ii)), or (iv) the exercise by the Administrative any Agent or any Lender Party of its rights under the Loan Documents or the remedies in respect of the Collateral pursuant to the Collateral Documents, except for the authorizations, approvals, actions, notices and filings listed on Schedule 4.01(d) hereto, all of which have been duly obtained, taken, given or made and are in full force and effect. All applicable waiting periods in connection with the transactions contemplated hereby have expired without any action having been taken by any competent authority restraining, preventing or imposing materially adverse conditions upon the transactions contemplated hereby or the rights of the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, any properties now owned or hereafter acquired by any of them. The Acquisition has been consummated in accordance with the Acquisition Agreement and applicable law.
(e) This Agreement has been, and each other Loan Document when delivered hereunder will have been, duly executed and delivered by each Loan Party and general partner or managing member (if any) of each Loan Party party thereto. This Agreement is, and each other Loan Document when delivered hereunder will be, the legal, valid and binding obligation of each Loan Party party thereto, enforceable against such Loan Party in accordance with its terms, except as such enforceability may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium, examinership or similar laws affecting creditors’ rights generally and by general principles of equity.
(f) Except as set forth in the reports delivered to the Administrative Agent pursuant to Section 5.03(g), there There is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries or any general partner or managing member (if any) of any Loan PartySubsidiaries, Digital Realty – Yen Credit Agreement including any Environmental Action to any Loan Party’s knowledgeAction, pending or threatened before any court, governmental agency Governmental Authority or arbitrator that (i) would could be reasonably be expected likely to have a Material Adverse Effect or (ii) would reasonably be expected purports to affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated by the Loan Documentshereby.
(g) The Consolidated balance sheet of the Parent Guarantor Borrower and its Subsidiaries as at December 31October 25, 2017 2002, and the related Consolidated statement and consolidating statements of income and Consolidated statement of cash flows of the Parent Guarantor Borrower and its Subsidiaries for the fiscal year then ended, accompanied by (in the case of Consolidated statements) an unqualified opinion of KPMG LLPErnst & Young, independent public accountants, and the Consolidated balance sheet of the Parent Guarantor Borrower and its Subsidiaries as at June 30January 31, 20182003, and the related Consolidated statement and consolidating statements of income and Consolidated statement of cash flows of the Parent Guarantor Borrower and its Subsidiaries for the six three months then ended, duly certified by the Chief Financial Officer, copies of which have been furnished to each Lender Party, fairly present, subject, in the case of such balance sheet as at June 30, 2018, and such statements of income and cash flows for the six months then ended, to year‑end audit adjustments, present the Consolidated and consolidating financial condition of the Parent Guarantor Borrower and its Subsidiaries as at such dates and the Consolidated and consolidating results of operations of the Parent Guarantor Borrower and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles applied on a consistent basis, and (i) for the period through the Effective Date, since December 31October 25, 20172002, and (ii) for the period after the Effective Date, since the Effective Date, there has been no Material Adverse Change.
(h) The Consolidated forecasted pro forma balance sheetssheet of the Borrower and its Subsidiaries as at January 31, 2003, and the related Consolidated and consolidating pro forma statements of income and statements of cash flows of the Parent Guarantor Borrower and its Subsidiaries most recently delivered for the three months then ended, certified by the Chief Financial Officer, copies of which have been furnished to each Lender Party, fairly present the Consolidated and consolidating pro forma financial condition of the Borrower and its Subsidiaries as at such date and the Consolidated and consolidating pro forma results of operations of the Borrower and its Subsidiaries for the period ended on such date, in each case giving effect to the Lender Parties pursuant to Section 5.03 were prepared in good faith on Acquisition and the basis of the assumptions stated therein, which assumptions were fair in light of the conditions existing at the time of delivery of such forecasts.
(i) No information, exhibit or report furnished by or on behalf of any Loan Party to the Administrative Agent or any Lender Party in connection with the negotiation and syndication of the Loan Documents or pursuant to the terms of the Loan Documents contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements made therein not materially misleading in light of the circumstances under which they were made.
(j) No Loan Party is engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Advance or drawings under any Letter of Credit will be used, directly or indirectly, whether immediately, incidentally or ultimately to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock or to refund indebtedness originally incurred for such purpose.
(k) Neither any Loan Party nor any of its Subsidiaries nor any general partner or managing member of any Loan Party, as applicable, is an “investment company”, or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company”, as such terms are defined in the Investment Company Act of 1940, as amended. Without limiting the generality of the foregoing, each Loan Party and each of its Subsidiaries and each general partner or managing member of any Loan Party, as applicable: (i) is primarily engaged, directly or through a wholly‑owned subsidiary or subsidiaries, in a business or businesses other than that of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (ii) is not engaged in, does not propose to engage in and does not hold itself out as being engaged in the business of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (iii) does not own or propose to acquire investment securities (as defined in the Investment Company Act of 1940, as amended) having a value exceeding forty percent (40%) of the value of such company’s total assets (exclusive of government securities and cash items) on an unconsolidated basis; (iv) has not in the past been engaged in the business of Digital Realty – Yen Credit Agreement issuing face‑amount certificates of the installment type; and (v) does not have any outstanding face‑amount certificates of the installment type. Neither the making of any Advances, nor the issuance of any Letters of Credit, nor the application of the proceeds or repayment thereof by any Borrower, nor the consummation of the other transactions contemplated by the Loan Documentshereby, will violate any provision of any such Act or any rule, regulation or order of the Securities and Exchange Commission thereunder.
(l) Each of the Assets listed on the schedule of Unencumbered Assets delivered to the Administrative Agent in connection with the Closing Date (as updated from time to time all in accordance with Section 5.03(d)) satisfies all Unencumbered Asset Conditions, except to the extent as otherwise set forth herein or waived in writing by the Required Lenders. The Loan Parties are the legal and beneficial owners of the Unencumbered Assets free and clear of any Lien, except for the Liens permitted under the Loan DocumentsGAAP.
(m) Neither any Loan Party nor any of its Subsidiaries nor any general partner or managing member of any Loan Party, as applicable, is an EEA Financial Institution.
(n) Set forth on Schedule 4.01(n) hereto is a complete and accurate list of all Surviving Debt of each Loan Party and its Subsidiaries (other than intercompany Debt) as of the date set forth on Schedule 4.01(n) having a principal amount of at least $10,000,000 and showing as of such date the obligor and the principal amount outstanding thereunder, the maturity date thereof and the amortization schedule therefor, and from such date to the Closing Date except as set forth on Schedule 4.01(n) there has been no material change in the amounts, interest rates, sinking funds, installment payments or maturities of such Surviving Debt (other than payments of principal and interest in accordance with the documents governing such Debt).
(o) Each Loan Party and its Subsidiaries has good, marketable and insurable fee simple title to, or valid trust beneficiary interests or leasehold interests in, all material Real Property owned or leased by such Loan Party or any such Subsidiary, free and clear of all Liens, other than Liens created or permitted by the Loan Documents.
(i) The operations and properties of each Loan Party and each of its Subsidiaries comply in all material respects with all applicable Environmental Laws and Environmental Permits, there is no past non‑compliance with such Environmental Laws and Environmental Permits that has resulted in any ongoing material costs or obligations or that is reasonably expected to result in any future material costs or obligations, and no circumstances exist that (A) form the basis of an Environmental Action against any Loan Party or any of its Subsidiaries or any of their properties that would reasonably be expected to have a Material Adverse Effect or (B) cause any such property to be subject to any material restrictions on ownership, occupancy, use or transferability under any Environmental Law.
(i) Except as would not reasonably be expected to have a Material Adverse Effect, (A) none of the properties currently or formerly owned or operated by any Loan Party or any of its Subsidiaries is listed or proposed for listing on the NPL or any analogous foreign, state or local list or is adjacent to any such property; (B) there are no and never have been any underground or above ground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed on any property currently or formerly owned or operated by any Loan Party or any of its Subsidiaries that is reasonably expected to result in material liability to any Loan Party or any of its Subsidiaries; (C) there is no asbestos or asbestos‑containing material on any property currently owned or operated by any Loan Party or any of its Subsidiaries; and Digital Realty – Yen Credit Agreement 66
Appears in 1 contract
Representations and Warranties of the Loan Parties. Each Loan Party represents and warrants as follows:
(a) Each Loan Party and each general partner or managing member, if any, of each Loan Party (i) is a corporation, limited liability company or partnership duly incorporated, organized or formed, validly existing and in good standing (to the extent that a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) under the laws of the jurisdiction of its incorporation, organization or formation, (ii) is duly qualified and in good standing (to the extent that a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) as a foreign corporation, limited liability company or partnership in each other jurisdiction in which it owns or leases property or in which the conduct of its business requires it to so qualify or be licensed except where the failure to so qualify or be licensed would not be reasonably likely to have a Material Adverse Effect and (iii) has all requisite corporate, limited liability company or partnership power and authority (including, without limitation, all governmental licenses, permits and other approvals) to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted. The Parent Guarantor is organized in conformity with the requirements for qualification as a REIT under the Internal Revenue Code, and its method of operation enables it to Digital Realty – Yen Credit Agreement meet the requirements for qualification and taxation as a REIT under the Internal Revenue Code. All of the outstanding Equity Interests in the Parent Guarantor have been validly issued, are fully paid and non‑assessablenon-assessable, all of the general partner Equity Interests in the Operating Partnership are owned by the Parent Guarantor, and all such general partner Equity Interests are owned by the Parent Guarantor free and clear of all Liens.
(b) All of the outstanding Equity Interests in each Loan Party’s Subsidiaries have been validly issued, are fully paid and non‑assessable and, to the extent owned by such Loan Party or one or more of its Subsidiaries, are owned by such Loan Party or Subsidiaries free and clear of all Liens (other than Liens on Equity Interests in Subsidiaries securing Debt that is not prohibited hereunder).
(c) The execution and delivery by each Loan Party and of each general partner or managing member (if any) of each Loan Party of each Loan Document to which it is or is to be a party, and the performance of its obligations thereunder, and the consummation of the transactions contemplated by the Loan Documents, are within the corporate, limited liability company or 74 partnership powers of such Loan Party, general partner or managing member, have been duly authorized by all necessary corporate, limited liability company or partnership action, and do not (i) contravene the charter or bylaws, memorandum and articles of association, operating agreement, partnership agreement or other governing document of such Loan Party, general partner or managing member, (ii) violate any law, rule, regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award, (iii) conflict with or result in the breach of, or constitute a default or require any payment to be made under, any Material Contract binding on or affecting any Loan Party or any of its Subsidiaries or any of their properties, or any general partner or managing member of any Loan Party or (iv) result in or require the creation or imposition of any Lien upon or with respect to any of the properties of any Loan Party or any of its Subsidiaries. No Loan Party or any of its Subsidiaries is in violation of any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of any such Material Contract, the violation or breach of which would be reasonably likely to have a Material Adverse Effect.
(d) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery, recordation, filing or performance by any Loan Party or any general partner or managing member of any Loan Party of any Loan Document to which it is or is to be a party or for the consummation of the transactions contemplated by the Loan Documents and the exercise by the Administrative Agent or any Lender Party of its rights under the Loan Documents, except for authorizations, approvals, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect.
(e) This Agreement has been, and each other Loan Document when delivered hereunder will have been, duly executed and delivered by each Loan Party and general partner or managing member (if any) of each Loan Party party thereto. This Agreement is, and each other Loan Document when delivered hereunder will be, the legal, valid and binding obligation of each Loan Party party thereto, enforceable against such Loan Party in accordance with its terms, except as such enforceability may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium, examinership or similar laws affecting creditors’ rights generally and by general principles of equity.
(f) Except as set forth in the reports delivered to the Administrative Agent pursuant to Section 5.03(g), there is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries or any general partner or managing member (if any) of any Loan Party, Digital Realty – Yen Credit Agreement including any Environmental Action to any Loan Party’s knowledge, pending or threatened before any court, governmental agency or arbitrator that (i) would reasonably be expected to have a Material Adverse Effect or (ii) would reasonably be expected to affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated by the Loan Documents.
(g) The Consolidated balance sheet of the Parent Guarantor and its Subsidiaries as at December 31, 2017 and the related Consolidated statement of income and Consolidated statement of cash flows of the Parent Guarantor and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of KPMG LLP, independent public accountants, and the Consolidated balance sheet of the Parent Guarantor as at June 30, 2018, and the related Consolidated statement of income and Consolidated statement of cash flows of the Parent Guarantor and its Subsidiaries for the six months then ended, copies of which have been furnished to each Lender Party, fairly present, subject, in the case of such balance sheet as at June 30, 2018, and such statements of income and cash flows for the six months then ended, to year‑end audit adjustments, the Consolidated financial condition of the Parent Guarantor and its Subsidiaries as at such dates and the Consolidated results of operations of the Parent Guarantor and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles applied on a consistent basis, and since December 31, 2017, there has been no Material Adverse Change.
(h) The Consolidated forecasted balance sheets, statements of income and statements of cash flows of the Parent Guarantor and its Subsidiaries most recently delivered to the Lender Parties pursuant to Section 5.03 were prepared in good faith on the basis of the assumptions stated therein, which assumptions were fair in light of the conditions existing at the time of delivery of such forecasts.
(i) No information, exhibit or report furnished by or on behalf of any Loan Party to the Administrative Agent or any Lender Party in connection with the negotiation and syndication of the Loan Documents or pursuant to the terms of the Loan Documents contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements made therein not materially misleading in light of the circumstances under which they were made.
(j) No Loan Party is engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Advance or drawings under any Letter of Credit will be used, directly or indirectly, whether immediately, incidentally or ultimately to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock or to refund indebtedness originally incurred for such purpose.
(k) Neither any Loan Party nor any of its Subsidiaries nor any general partner or managing member of any Loan Party, as applicable, is an “investment company”, or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company”, as such terms are defined in the Investment Company Act of 1940, as amended. Without limiting the generality of the foregoing, each Loan Party and each of its Subsidiaries and each general partner or managing member of any Loan Party, as applicable: (i) is primarily engaged, directly or through a wholly‑owned subsidiary or subsidiaries, in a business or businesses other than that of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (ii) is not engaged in, does not propose to engage in and does not hold itself out as being engaged in the business of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (iii) does not own or propose to acquire investment securities (as defined in the Investment Company Act of 1940, as amended) having a value exceeding forty percent (40%) of the value of such company’s total assets (exclusive of government securities and cash items) on an unconsolidated basis; (iv) has not in the past been engaged in the business of Digital Realty – Yen Credit Agreement issuing face‑amount certificates of the installment type; and (v) does not have any outstanding face‑amount certificates of the installment type. Neither the making of any Advances, nor the issuance of any Letters of Credit, nor the application of the proceeds or repayment thereof by any Borrower, nor the consummation of the other transactions contemplated by the Loan Documents, will violate any provision of any such Act or any rule, regulation or order of the Securities and Exchange Commission thereunder.
(l) Each of the Assets listed on the schedule of Unencumbered Assets delivered to the Administrative Agent in connection with the Closing Date (as updated from time to time in accordance with Section 5.03(d)) satisfies all Unencumbered Asset Conditions, except to the extent as otherwise set forth herein or waived in writing by the Required Lenders. The Loan Parties are the legal and beneficial owners of the Unencumbered Assets free and clear of any Lien, except for the Liens permitted under the Loan Documents.
(m) Neither any Loan Party nor any of its Subsidiaries nor any general partner or managing member of any Loan Party, as applicable, is an EEA Financial Institution.
(n) Set forth on Schedule 4.01(n) hereto is a complete and accurate list of all Surviving Debt of each Loan Party and its Subsidiaries (other than intercompany Debt) as of the date set forth on Schedule 4.01(n) having a principal amount of at least $10,000,000 and showing as of such date the obligor and the principal amount outstanding thereunder, the maturity date thereof and the amortization schedule therefor, and from such date to the Closing Date except as set forth on Schedule 4.01(n) there has been no material change in the amounts, interest rates, sinking funds, installment payments or maturities of such Surviving Debt (other than payments of principal and interest in accordance with the documents governing such Debt).
(o) Each Loan Party and its Subsidiaries has good, marketable and insurable fee simple title to, or valid trust beneficiary interests or leasehold interests in, all material Real Property owned or leased by such Loan Party or any such Subsidiary, free and clear of all Liens, other than Liens created or permitted by the Loan Documents.
(i) The operations and properties of each Loan Party and each of its Subsidiaries comply in all material respects with all applicable Environmental Laws and Environmental Permits, there is no past non‑compliance with such Environmental Laws and Environmental Permits that has resulted in any ongoing material costs or obligations or that is reasonably expected to result in any future material costs or obligations, and no circumstances exist that (A) form the basis of an Environmental Action against any Loan Party or any of its Subsidiaries or any of their properties that would reasonably be expected to have a Material Adverse Effect or (B) cause any such property to be subject to any material restrictions on ownership, occupancy, use or transferability under any Environmental Law.
(i) Except as would not reasonably be expected to have a Material Adverse Effect, (A) none of the properties currently or formerly owned or operated by any Loan Party or any of its Subsidiaries is listed or proposed for listing on the NPL or any analogous foreign, state or local list or is adjacent to any such property; (B) there are no and never have been any underground or above ground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed on any property currently or formerly owned or operated by any Loan Party or any of its Subsidiaries that is reasonably expected to result in material liability to any Loan Party or any of its Subsidiaries; (C) there is no asbestos or asbestos‑containing material on any property currently owned or operated by any Loan Party or any of its Subsidiaries; and Digital Realty – Yen Credit Agreement 66
Appears in 1 contract
Representations and Warranties of the Loan Parties. Each Loan Party represents and warrants as follows:
(a) Each Loan Party and each general partner or managing member, if any, of each Loan Party its Subsidiaries (i) is a corporation, limited liability company or limited partnership duly incorporated, organized or formedorganized, validly existing and in good standing (to the extent that a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) under the laws of the jurisdiction of its incorporation, organization or formation, (ii) is duly qualified and in good standing (to the extent that a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) as a foreign corporation, limited liability corporation or company or partnership in each other jurisdiction in which it owns or leases property or in which the conduct of its business requires it to so qualify or be licensed licensed, except where the failure to so qualify or be licensed would could not be reasonably likely expected to have a Material Adverse Effect and (iii) has all requisite corporate, limited liability company or partnership (as applicable) power and authority (including, without limitation, all governmental licenses, permits and other approvalsGovernmental Authorizations) to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted. The Parent Guarantor is organized in conformity with , except where the requirements for qualification as lack of which could not reasonably be expected to have a REIT under the Internal Revenue Code, and its method of operation enables it to Digital Realty – Yen Credit Agreement meet the requirements for qualification and taxation as a REIT under the Internal Revenue Code. All of the outstanding Equity Interests in the Parent Guarantor have been validly issued, are fully paid and non‑assessable, all of the general partner Equity Interests in the Operating Partnership are owned by the Parent Guarantor, and all such general partner Equity Interests are owned by the Parent Guarantor free and clear of all LiensMaterial Adverse Effect.
(b) Set forth on Schedule 4.01(b) hereto is a complete and accurate list as of the date hereof of all Subsidiaries of each Loan Party, showing as of the date hereof (as to each such Subsidiary) the jurisdiction of its formation, the number of shares, membership interests or partnership interests (as applicable) of each class of its Equity Interests authorized, and the number outstanding, on the date hereof and the percentage of each such class of its Equity Interests owned (directly or indirectly) by such Loan Party on the date hereof and the number of shares covered by all outstanding options, warrants, rights of conversion or purchase and similar rights at the date hereof. All of the outstanding Equity Interests in each Loan Party’s 's Subsidiaries have been validly issued, are fully paid and non‑assessable and, to the extent non-assessable and are owned by such Loan Party or one or more of its Subsidiaries, are owned by such Loan Party or Subsidiaries free and clear of all Liens (other than Liens on Equity Interests in Subsidiaries securing Debt that is not prohibited hereunder)Liens.
(c) The execution execution, delivery and delivery performance by each Loan Party and of each general partner or managing member (if any) of each Loan Party of each Loan Document to which it is or is to be a party, and the performance of its obligations thereunder, and the consummation of the transactions contemplated by the Loan DocumentsTransaction, are within the such Loan Party's corporate, limited liability company or limited partnership powers of such Loan Party, general partner or managing member(as applicable) powers, have been duly authorized by all necessary corporate, limited liability company or limited partnership (as applicable) action, and do not (i) contravene the charter or such Loan Party's charter, bylaws, memorandum and articles of association, operating limited liability agreement, partnership agreement or other governing document of such Loan Party, general partner or managing memberconstituent documents, (ii) violate any law, rule, regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award, except for any such violation that could not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (iii) conflict with with, in any material respect, or result in the material breach of, or constitute a material default or require any payment to be made under, any Material Contract contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument binding on or affecting any Loan Party or Party, any of its Subsidiaries or any of their properties, except for any such conflict, breach, default or any general partner required payment that could not, either individually or managing member of any Loan Party in the aggregate, reasonably be expected to have a Material Adverse Effect, or (iv) except for the Liens created under the Loan Documents, result in or require the creation or imposition of any Lien upon or with respect to any of the properties of any Loan Party or any of its Subsidiaries. No Loan Party or any of its Subsidiaries is in violation of any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of any such Material Contractcontract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument, the violation or breach of which would could be reasonably likely to have a Material Adverse Effect.
(d) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery, recordation, filing or performance by any Loan Party or any general partner or managing member of any Loan Party of any Loan Document to which it is or is to be a party or for the consummation of the transactions contemplated by the Loan Documents and the exercise by the Administrative Agent or any Lender Party of its rights under the Loan Documents, except for authorizations, approvals, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect.
(e) This Agreement has been, and each other Loan Document when delivered hereunder will have been, duly executed and delivered by each Loan Party and general partner or managing member (if any) of each Loan Party party thereto. This Agreement is, and each other Loan Document when delivered hereunder will be, the legal, valid and binding obligation of each Loan Party party thereto, enforceable against such Loan Party in accordance with its terms, except as such enforceability may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium, examinership or similar laws affecting creditors’ rights generally and by general principles of equity.
(f) Except as set forth in the reports delivered to the Administrative Agent pursuant to Section 5.03(g), there is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries or any general partner or managing member (if any) of any Loan Party, Digital Realty – Yen Xxxxx Respiratory - Revolving Credit Agreement including any Environmental Action to any Loan Party’s knowledge, pending or threatened before any court, governmental agency or arbitrator that (i) would reasonably be expected to have a Material Adverse Effect or (ii) would reasonably be expected to affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated by the Loan Documents.
(g) The Consolidated balance sheet of the Parent Guarantor and its Subsidiaries as at December 31, 2017 and the related Consolidated statement of income and Consolidated statement of cash flows of the Parent Guarantor and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of KPMG LLP, independent public accountants, and the Consolidated balance sheet of the Parent Guarantor as at June 30, 2018, and the related Consolidated statement of income and Consolidated statement of cash flows of the Parent Guarantor and its Subsidiaries for the six months then ended, copies of which have been furnished to each Lender Party, fairly present, subject, in the case of such balance sheet as at June 30, 2018, and such statements of income and cash flows for the six months then ended, to year‑end audit adjustments, the Consolidated financial condition of the Parent Guarantor and its Subsidiaries as at such dates and the Consolidated results of operations of the Parent Guarantor and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles applied on a consistent basis, and since December 31, 2017, there has been no Material Adverse Change.
(h) The Consolidated forecasted balance sheets, statements of income and statements of cash flows of the Parent Guarantor and its Subsidiaries most recently delivered to the Lender Parties pursuant to Section 5.03 were prepared in good faith on the basis of the assumptions stated therein, which assumptions were fair in light of the conditions existing at the time of delivery of such forecasts.
(i) No information, exhibit or report furnished by or on behalf of any Loan Party to the Administrative Agent or any Lender Party in connection with the negotiation and syndication of the Loan Documents or pursuant to the terms of the Loan Documents contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements made therein not materially misleading in light of the circumstances under which they were made.
(j) No Loan Party is engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Advance or drawings under any Letter of Credit will be used, directly or indirectly, whether immediately, incidentally or ultimately to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock or to refund indebtedness originally incurred for such purpose.
(k) Neither any Loan Party nor any of its Subsidiaries nor any general partner or managing member of any Loan Party, as applicable, is an “investment company”, or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company”, as such terms are defined in the Investment Company Act of 1940, as amended. Without limiting the generality of the foregoing, each Loan Party and each of its Subsidiaries and each general partner or managing member of any Loan Party, as applicable: (i) is primarily engaged, directly or through a wholly‑owned subsidiary or subsidiaries, in a business or businesses other than that of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (ii) is not engaged in, does not propose to engage in and does not hold itself out as being engaged in the business of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (iii) does not own or propose to acquire investment securities (as defined in the Investment Company Act of 1940, as amended) having a value exceeding forty percent (40%) of the value of such company’s total assets (exclusive of government securities and cash items) on an unconsolidated basis; (iv) has not in the past been engaged in the business of Digital Realty – Yen Credit Agreement issuing face‑amount certificates of the installment type; and (v) does not have any outstanding face‑amount certificates of the installment type. Neither the making of any Advances, nor the issuance of any Letters of Credit, nor the application of the proceeds or repayment thereof by any Borrower, nor the consummation of the other transactions contemplated by the Loan Documents, will violate any provision of any such Act or any rule, regulation or order of the Securities and Exchange Commission thereunder.
(l) Each of the Assets listed on the schedule of Unencumbered Assets delivered to the Administrative Agent in connection with the Closing Date (as updated from time to time in accordance with Section 5.03(d)) satisfies all Unencumbered Asset Conditions, except to the extent as otherwise set forth herein or waived in writing by the Required Lenders. The Loan Parties are the legal and beneficial owners of the Unencumbered Assets free and clear of any Lien, except for the Liens permitted under the Loan Documents.
(m) Neither any Loan Party nor any of its Subsidiaries nor any general partner or managing member of any Loan Party, as applicable, is an EEA Financial Institution.
(n) Set forth on Schedule 4.01(n) hereto is a complete and accurate list of all Surviving Debt of each Loan Party and its Subsidiaries (other than intercompany Debt) as of the date set forth on Schedule 4.01(n) having a principal amount of at least $10,000,000 and showing as of such date the obligor and the principal amount outstanding thereunder, the maturity date thereof and the amortization schedule therefor, and from such date to the Closing Date except as set forth on Schedule 4.01(n) there has been no material change in the amounts, interest rates, sinking funds, installment payments or maturities of such Surviving Debt (other than payments of principal and interest in accordance with the documents governing such Debt).
(o) Each Loan Party and its Subsidiaries has good, marketable and insurable fee simple title to, or valid trust beneficiary interests or leasehold interests in, all material Real Property owned or leased by such Loan Party or any such Subsidiary, free and clear of all Liens, other than Liens created or permitted by the Loan Documents.
(i) The operations and properties of each Loan Party and each of its Subsidiaries comply in all material respects with all applicable Environmental Laws and Environmental Permits, there is no past non‑compliance with such Environmental Laws and Environmental Permits that has resulted in any ongoing material costs or obligations or that is reasonably expected to result in any future material costs or obligations, and no circumstances exist that (A) form the basis of an Environmental Action against any Loan Party or any of its Subsidiaries or any of their properties that would reasonably be expected to have a Material Adverse Effect or (B) cause any such property to be subject to any material restrictions on ownership, occupancy, use or transferability under any Environmental Law.
(i) Except as would not reasonably be expected to have a Material Adverse Effect, (A) none of the properties currently or formerly owned or operated by any Loan Party or any of its Subsidiaries is listed or proposed for listing on the NPL or any analogous foreign, state or local list or is adjacent to any such property; (B) there are no and never have been any underground or above ground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed on any property currently or formerly owned or operated by any Loan Party or any of its Subsidiaries that is reasonably expected to result in material liability to any Loan Party or any of its Subsidiaries; (C) there is no asbestos or asbestos‑containing material on any property currently owned or operated by any Loan Party or any of its Subsidiaries; and Digital Realty – Yen Credit Agreement 66Agreement
Appears in 1 contract
Samples: Senior Revolving Credit Agreement (Adams Respiratory Therapeutics, Inc.)
Representations and Warranties of the Loan Parties. Each Loan Party represents and warrants as follows:
(a) Each Loan Party and each general partner or managing member, if any, of each Loan Party its Subsidiaries (i) is a corporation, limited liability company corporation or partnership other entity duly incorporated, organized or formedorganized, validly existing and in good standing (to the extent that a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) under the laws of the jurisdiction of its incorporation, organization incorporation or formationorganization, (ii) is duly qualified and in good standing (to the extent that a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) as a foreign corporation, limited liability company corporation or partnership otherwise in each other jurisdiction in which it owns or leases property or in which the conduct of its business requires it to so qualify or be licensed except where the failure to so qualify or be licensed would not be reasonably likely to have a Material Adverse Effect and (iii) has all requisite corporate, limited liability company corporate (or partnership other) power and authority (including, without limitation, all material governmental licenses, permits and other approvals) to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted. The Parent Guarantor is organized in conformity with the requirements for qualification as a REIT under the Internal Revenue Code, and its method of operation enables it to Digital Realty – Yen Credit Agreement meet the requirements for qualification and taxation as a REIT under the Internal Revenue Code. All of the outstanding Equity Interests in the Parent Guarantor have been validly issued, are fully paid and non‑assessable, all of the general partner Equity Interests in the Operating Partnership are owned by the Parent Guarantor, and all such general partner Equity Interests are owned by the Parent Guarantor free and clear of all Liens.
(b) Set forth on Schedule 4.1(b) hereto is a complete and accurate list of all Subsidiaries of Group on the date hereof, showing (as to each such Subsidiary) the jurisdiction of its incorporation or organization, the number of shares of each class of its Equity Interests authorized, and the number outstanding, on the date hereof and the percentage of each such class of its Equity Interests owned (directly or indirectly) by such Loan Party and the number of shares covered by all outstanding options, warrants, rights of conversion or purchase and similar rights at the date hereof. Schedule 4.1(b) also identifies all Foreign Subsidiaries of Group in the Included Foreign Jurisdictions which (i) are classified as inactive or dormant (or other similar designation) under the applicable laws of any Included Foreign Jurisdiction or (ii) have assets with an aggregate fair market value of less than $150,000. All of the outstanding Equity Interests in each Loan Party’s 's Subsidiaries have been validly issued, are fully paid and non‑assessable and, to the extent non-assessable and are owned by such Loan Party or one or more of its Subsidiaries, are owned by such Loan Party or Subsidiaries (except as described on Schedule 4.1(b)) free and clear of all Liens (other than Liens on Equity Interests in Subsidiaries securing Debt that is not prohibited hereunder)Liens, except those created under the Collateral Documents.
(c) The execution execution, delivery and delivery performance by each Loan Party and of each general partner or managing member (if any) of each Loan Party of each Loan Document and each Covered Document to which it is or is to be a party, party and the performance of its obligations thereunder, and the consummation of the other transactions contemplated by the Loan Documents and the Covered Documents, are within the corporate, limited liability company or partnership powers of such Loan Party, general partner 's corporate or managing memberother powers, have been duly authorized by all necessary corporate, limited liability company corporate or partnership other action, and do not (i) contravene the charter or bylaws, memorandum and articles of association, operating agreement, partnership agreement or other governing document of such Loan Party, general partner 's charter or managing memberbylaws or other constitutive documents, (ii) violate any law, rule, regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award, (iii) conflict with or result in the breach of, or constitute a default or require any payment to be made under, any Material Contract binding on or affecting any Loan Party or any of its Subsidiaries or any of their properties, or any general partner or managing member of any Loan Party or (iv) result in or require the creation or imposition of any Lien upon or with respect to any of the properties of any Loan Party or any of its Subsidiaries. No Loan Party or any of its Subsidiaries is in violation of any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of any such Material Contract, the violation or breach of which would be reasonably likely to have a Material Adverse Effect.
(d) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery, recordation, filing or performance by any Loan Party or any general partner or managing member of any Loan Party of any Loan Document to which it is or is to be a party or for the consummation of the transactions contemplated by the Loan Documents and the exercise by the Administrative Agent or any Lender Party of its rights under the Loan Documents, except for authorizations, approvals, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect.
(e) This Agreement has been, and each other Loan Document when delivered hereunder will have been, duly executed and delivered by each Loan Party and general partner or managing member (if any) of each Loan Party party thereto. This Agreement is, and each other Loan Document when delivered hereunder will be, the legal, valid and binding obligation of each Loan Party party thereto, enforceable against such Loan Party in accordance with its terms, except as such enforceability may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium, examinership or similar laws affecting creditors’ rights generally and by general principles of equity.
(f) Except as set forth in the reports delivered to the Administrative Agent pursuant to Section 5.03(g), there is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries or any general partner or managing member (if any) of any Loan Party, Digital Realty – Yen Credit Agreement including any Environmental Action to any Loan Party’s knowledge, pending or threatened before any court, governmental agency or arbitrator that (i) would reasonably be expected to have a Material Adverse Effect or (ii) would reasonably be expected to affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated by the Loan Documents.
(g) The Consolidated balance sheet of the Parent Guarantor and its Subsidiaries as at December 31, 2017 and the related Consolidated statement of income and Consolidated statement of cash flows of the Parent Guarantor and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of KPMG LLP, independent public accountants, and the Consolidated balance sheet of the Parent Guarantor as at June 30, 2018, and the related Consolidated statement of income and Consolidated statement of cash flows of the Parent Guarantor and its Subsidiaries for the six months then ended, copies of which have been furnished to each Lender Party, fairly present, subject, in the case of such balance sheet as at June 30, 2018, and such statements of income and cash flows for the six months then ended, to year‑end audit adjustments, the Consolidated financial condition of the Parent Guarantor and its Subsidiaries as at such dates and the Consolidated results of operations of the Parent Guarantor and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles applied on a consistent basis, and since December 31, 2017, there has been no Material Adverse Change.
(h) The Consolidated forecasted balance sheets, statements of income and statements of cash flows of the Parent Guarantor and its Subsidiaries most recently delivered to the Lender Parties pursuant to Section 5.03 were prepared in good faith on the basis of the assumptions stated therein, which assumptions were fair in light of the conditions existing at the time of delivery of such forecasts.
(i) No information, exhibit or report furnished by or on behalf of any Loan Party to the Administrative Agent or any Lender Party in connection with the negotiation and syndication of the Loan Documents or pursuant to the terms of the Loan Documents contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements made therein not materially misleading in light of the circumstances under which they were made.
(j) No Loan Party is engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Advance or drawings under any Letter of Credit will be used, directly or indirectly, whether immediately, incidentally or ultimately to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock or to refund indebtedness originally incurred for such purpose.
(k) Neither any Loan Party nor any of its Subsidiaries nor any general partner or managing member of any Loan Party, as applicable, is an “investment company”, or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company”, as such terms are defined in the Investment Company Act of 1940, as amended. Without limiting the generality of the foregoing, each Loan Party and each of its Subsidiaries and each general partner or managing member of any Loan Party, as applicable: (i) is primarily engaged, directly or through a wholly‑owned subsidiary or subsidiaries, in a business or businesses other than that of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (ii) is not engaged in, does not propose to engage in and does not hold itself out as being engaged in the business of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (iii) does not own or propose to acquire investment securities (as defined in the Investment Company Act of 1940, as amended) having a value exceeding forty percent (40%) of the value of such company’s total assets (exclusive of government securities and cash items) on an unconsolidated basis; (iv) has not in the past been engaged in the business of Digital Realty – Yen Credit Agreement issuing face‑amount certificates of the installment type; and (v) does not have any outstanding face‑amount certificates of the installment type. Neither the making of any Advances, nor the issuance of any Letters of Credit, nor the application of the proceeds or repayment thereof by any Borrower, nor the consummation of the other transactions contemplated by the Loan Documents, will violate any provision of any such Act or any rule, regulation or order of the Securities and Exchange Commission thereunder.
(l) Each of the Assets listed on the schedule of Unencumbered Assets delivered to the Administrative Agent in connection with the Closing Date (as updated from time to time in accordance with Section 5.03(d)) satisfies all Unencumbered Asset Conditions, except to the extent as otherwise set forth herein or waived in writing by the Required Lenders. The Loan Parties are the legal and beneficial owners of the Unencumbered Assets free and clear of any Lien, except for the Liens permitted under the Loan Documents.
(m) Neither any Loan Party nor any of its Subsidiaries nor any general partner or managing member of any Loan Party, as applicable, is an EEA Financial Institution.
(n) Set forth on Schedule 4.01(n) hereto is a complete and accurate list of all Surviving Debt of each Loan Party and its Subsidiaries (other than intercompany Debt) as of the date set forth on Schedule 4.01(n) having a principal amount of at least $10,000,000 and showing as of such date the obligor and the principal amount outstanding thereunder, the maturity date thereof and the amortization schedule therefor, and from such date to the Closing Date except as set forth on Schedule 4.01(n) there has been no material change in the amounts, interest rates, sinking funds, installment payments or maturities of such Surviving Debt (other than payments of principal and interest in accordance with the documents governing such Debt).
(o) Each Loan Party and its Subsidiaries has good, marketable and insurable fee simple title to, or valid trust beneficiary interests or leasehold interests in, all material Real Property owned or leased by such Loan Party or any such Subsidiary, free and clear of all Liens, other than Liens created or permitted by the Loan Documents.
(i) The operations and properties of each Loan Party and each of its Subsidiaries comply in all material respects with all applicable Environmental Laws and Environmental Permits, there is no past non‑compliance with such Environmental Laws and Environmental Permits that has resulted in any ongoing material costs or obligations or that is reasonably expected to result in any future material costs or obligations, and no circumstances exist that (A) form the basis of an Environmental Action against any Loan Party or any of its Subsidiaries or any of their properties that would reasonably be expected to have a Material Adverse Effect or (B) cause any such property to be subject to any material restrictions on ownership, occupancy, use or transferability under any Environmental Law.
(i) Except as would not reasonably be expected to have a Material Adverse Effect, (A) none of the properties currently or formerly owned or operated by any Loan Party or any of its Subsidiaries is listed or proposed for listing on the NPL or any analogous foreign, state or local list or is adjacent to any such property; (B) there are no and never have been any underground or above ground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed on any property currently or formerly owned or operated by any Loan Party or any of its Subsidiaries that is reasonably expected to result in material liability to any Loan Party or any of its Subsidiaries; (C) there is no asbestos or asbestos‑containing material on any property currently owned or operated by any Loan Party or any of its Subsidiaries; and Digital Realty – Yen Credit Agreement 66,
Appears in 1 contract
Samples: Amendment, Modification, Restatement and General Provisions Agreement (Warnaco Group Inc /De/)
Representations and Warranties of the Loan Parties. Each Loan Party represents and warrants as follows:
(a) Each Loan Party and each general partner or managing member, if any, of each Such Loan Party (i) is a corporation, limited liability company or partnership corporation duly incorporated, organized or formedorganized, validly existing and in good standing (to the extent that a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) under the laws of the jurisdiction of its incorporation, organization or formation, (ii) is duly qualified and is in good standing (to the extent that a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) as a foreign corporation, limited liability company or partnership corporation in each other jurisdiction in which it owns or leases property or in which the conduct of its business requires it to so qualify or be licensed except where the failure to so qualify or be licensed would not be reasonably likely to have a Material Adverse Effect licensed, and (iii) has all requisite corporate, limited liability company or partnership corporate power and authority (including, without limitation, all governmental licenses, permits and other approvals) to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted. The Parent Guarantor is organized in conformity with the requirements for qualification as a REIT under the Internal Revenue Code, and its method of operation enables it to Digital Realty – Yen Credit Agreement meet the requirements for qualification and taxation as a REIT under the Internal Revenue Code. All of the outstanding Equity Interests except, in the Parent Guarantor case of (ii) and (iii), to the extent that such failure would not be reasonably likely to have been validly issued, are fully paid and non‑assessable, all of the general partner Equity Interests in the Operating Partnership are owned by the Parent Guarantor, and all such general partner Equity Interests are owned by the Parent Guarantor free and clear of all Liensa Material Adverse Effect.
(b) All of the outstanding Equity Interests in each Loan Party’s Subsidiaries have been validly issuedThe execution, are fully paid delivery and non‑assessable and, to the extent owned by such Loan Party or one or more of its Subsidiaries, are owned by such Loan Party or Subsidiaries free and clear of all Liens (other than Liens on Equity Interests in Subsidiaries securing Debt that is not prohibited hereunder).
(c) The execution and delivery performance by each Loan Party and of each general partner or managing member (if any) this Agreement, the Borrowing of each Loan Party of each Loan Document to which it is or is to be a party, Advances and the performance incurrence of its obligations thereunder, and the consummation Letters of the transactions contemplated by the Loan Documents, Credit are within the corporate, limited liability company or partnership powers of such Loan Party, general partner or managing member’s corporate powers, have been duly authorized by all necessary corporate, limited liability company or partnership corporate action, and do not (i) contravene the charter or bylaws, memorandum and articles of association, operating agreement, partnership agreement or other governing document of such Loan Party, general partner or managing member’s Constitutive Documents, (ii) violate any law, rule, regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination material applicable law or award, (iii) conflict with or result in the breach of, or constitute a default or require any payment to be made under, any Material Contract contractual restriction binding on or affecting any Loan Party or Party, any of its Subsidiaries or any of their properties, or any general partner or managing member of any Loan Party properties or (iviii) result in or require the creation or imposition of any Lien upon or with respect to any of the properties of any Loan Party or any of its Subsidiaries. No Loan Party or any of its Subsidiaries is in violation of any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of any such Material Contract, the violation or breach of which would be reasonably likely to have a Material Adverse Effect.
(dc) No authorization All authorizations or approval or approvals and other action actions by, and no notice all notices to or filing and filings with, any governmental authority or regulatory body or any other third party is that are required to be obtained or made by the Loan Parties for (i) the due execution, delivery, recordation, filing or performance by any Loan Party or any general partner or managing member of any Loan Party of any Loan Document to which it is or is to be a party this Agreement, or for the consummation of the other transactions contemplated by the Loan Documents and hereby or (ii) the exercise by the Administrative Designated Agent or any Lender Party of its rights under the Loan Documents, except for authorizations, approvals, actions, notices and filings which this Agreement have been duly obtained, taken, given or made and are in full force and effect.
(ed) This Agreement has been, and each other Loan Document when delivered hereunder will have been, been duly executed and delivered by each Loan Party and general partner or managing member (if any) of each Loan Party party theretohereto. This Agreement is, and each other Loan Document when delivered hereunder will be, is the legal, valid and binding obligation of each Loan Party party theretohereto, enforceable against such Loan Party in accordance with its terms, except as such enforceability may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium, examinership or similar laws affecting creditors’ rights generally and by general principles of equity.
(f) Except as set forth in the reports delivered to the Administrative Agent pursuant to Section 5.03(g), there is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries or any general partner or managing member (if any) of any Loan Party, Digital Realty – Yen Credit Agreement including any Environmental Action to any Loan Party’s knowledge, pending or threatened before any court, governmental agency or arbitrator that (i) would reasonably be expected to have a Material Adverse Effect or (ii) would reasonably be expected to affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated by the Loan Documents.
(ge) The Consolidated balance sheet of the Parent Guarantor and its Subsidiaries Borrower as at December 31June 30, 2017 2013, and the related Consolidated statement of income operations and Consolidated statement of cash flows flow of the Parent Guarantor and its Subsidiaries Borrower for the fiscal year then ended, accompanied by an opinion of KPMG LLPErnst & Young, independent public accountants, and the Consolidated balance sheet of the Parent Guarantor as at June 30, 2018, and the related Consolidated statement of income and Consolidated statement of cash flows of the Parent Guarantor and its Subsidiaries for the six months then ended, copies of which have been furnished to each Lender Partythe Designated Agent, fairly present, subject, in the case of such balance sheet as at June 30, 2018, and such statements of income and cash flows for the six months then ended, to year‑end audit adjustments, present the Consolidated financial condition of the Parent Guarantor and its Subsidiaries Borrower as at such dates date and the Consolidated results of the operations of the Parent Guarantor and its Subsidiaries Borrower for the periods period ended on such datesdate, all in accordance with generally accepted accounting principles applied on a consistent basis. Except as described in the SEC Filings prior to the Effective Date, and since December 31June 30, 20172013, there has been no Material Adverse Change.
(hf) The Consolidated forecasted balance sheets, statements of income and statements of cash flows of Neither the Parent Guarantor and its Subsidiaries most recently delivered to the Lender Parties pursuant to Section 5.03 were prepared in good faith on the basis of the assumptions stated therein, which assumptions were fair in light of the conditions existing at the time of delivery of such forecasts.
(i) No information, exhibit Information Memorandum nor any information provided or report furnished communicated by or on behalf of any Loan Party to the Administrative Agent or any Lender Party in connection with the negotiation and syndication of the Loan Documents or pursuant Revolving Credit Commitments prior to the terms of the Loan Documents Effective Date contained when made any untrue statement of a material fact or or, when taken together with the public filings of the Borrower, omitted to state a material fact necessary to make the statements made therein not materially misleading when made; provided that, with respect to forecasts or projected financial information, each applicable Loan Party represents only that such information was prepared in light good faith based upon assumptions believed by it to be reasonable at the time made and at the time so furnished (it being understood that (i) such forecasts and projections are as to future events and are not to be viewed as facts, (ii) such forecasts and projections are subject to significant uncertainties and contingencies, many of which are beyond the control of the circumstances under which they were madeBorrower and its Subsidiaries, (iii) no assurance can be given by such Loan Party that any particular forecasts or projections will be realized and (iv) actual results during the period or periods covered by any such forecasts and projections may differ significantly from the projected results and such differences may be material.
(jg) Except as described in the SEC Filings prior to the Effective Date, there is no action, suit, investigation known to the Borrower, litigation or proceeding affecting any Loan Party or any of their Subsidiaries, including any Environmental Action, pending or, to the best knowledge of each Loan Party, threatened before any court, governmental agency or arbitrator that would be reasonably likely to be adversely determined and if so to have a Material Adverse Effect.
(h) No Loan Party is engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Advance or drawings under any Letter of Credit will be used, directly or indirectly, whether immediately, incidentally or ultimately used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock or to refund indebtedness originally incurred for such purposeStock.
(ki) Neither Following application of the proceeds of each Advance, not more than 25 percent of the value of the assets (either of any Loan Party nor or of the Reporting Group on a Consolidated basis) subject to the provisions of Section 5.02(a) or subject to any of its Subsidiaries nor restriction contained in any general partner agreement or managing member instrument between any Loan Party and any Lender or any Affiliate of any Lender relating to Debt and within the scope of Section 6.01(e) will be Margin Stock.
(j) No Loan Party, as applicable, Party is an “investment company”, or an “affiliated person” of, or “promoter,” or “principal underwritercontrolled” for, by an “investment company”, ,” as such terms are defined in the U.S. Investment Company Act of 1940, as amended. Without limiting the generality .
(k) The Obligations of the foregoing, each Loan Party and each under this Agreement constitute unconditional general obligations of its Subsidiaries and each general partner or managing member such Loan Party ranking at least pari passu with all other Senior Debt of any such Loan Party, as applicable: (i) is primarily engaged, directly or through a wholly‑owned subsidiary or subsidiaries, in a business or businesses other than that of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (ii) is not engaged in, does not propose to engage in and does not hold itself out as being engaged in the business of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (iii) does not own or propose to acquire investment securities (as defined in the Investment Company Act of 1940, as amended) having a value exceeding forty percent (40%) of the value of such company’s total assets (exclusive of government securities and cash items) on an unconsolidated basis; (iv) has not in the past been engaged in the business of Digital Realty – Yen Credit Agreement issuing face‑amount certificates of the installment type; and (v) does not have any outstanding face‑amount certificates of the installment type. Neither the making of any Advances, nor the issuance of any Letters of Credit, nor the application of the proceeds or repayment thereof Senior Debt secured by any Borrower, nor the consummation of the other transactions contemplated by the Loan Documents, will violate any provision of any such Act or any rule, regulation or order of the Securities and Exchange Commission thereunderPermitted Liens.
(l) Each of the Assets listed on the schedule of Unencumbered Assets delivered to the Administrative Agent in connection with the Closing Date (as updated from time to time in accordance with Section 5.03(d)) satisfies all Unencumbered Asset Conditions, except to the extent as otherwise set forth herein or waived in writing The entry into and performance by the Required Lenders. The Loan Parties are the legal and beneficial owners of the Unencumbered Assets free and clear of any Lien, except for the Liens permitted under the Loan Documents.
(m) Neither any Loan Party nor any Borrower of its Subsidiaries nor any general partner or managing member of any Loan Party, as applicable, obligations under this Agreement is an EEA Financial Institution.
(n) Set forth on Schedule 4.01(n) hereto for its commercial benefit and is a complete and accurate list of all Surviving Debt of each Loan Party and in its Subsidiaries (other than intercompany Debt) as of the date set forth on Schedule 4.01(n) having a principal amount of at least $10,000,000 and showing as of such date the obligor and the principal amount outstanding thereunder, the maturity date thereof and the amortization schedule therefor, and from such date to the Closing Date except as set forth on Schedule 4.01(n) there has been no material change in the amounts, interest rates, sinking funds, installment payments or maturities of such Surviving Debt (other than payments of principal and interest in accordance with the documents governing such Debt).
(o) Each Loan Party and its Subsidiaries has good, marketable and insurable fee simple title to, or valid trust beneficiary interests or leasehold interests in, all material Real Property owned or leased by such Loan Party or any such Subsidiary, free and clear of all Liens, other than Liens created or permitted by the Loan Documentscommercial interests.
(i) None of the Borrower’s assets constitute property of, or are beneficially owned, directly or indirectly, by any Person targeted by economic or trade sanctions under U.S. law (“Embargoed Person”), including but not limited to, the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701 et seq., The operations and properties Trading with the Enemy Act, 50 U.S.C. App. 1 et seq. (the “Trading With the Enemy Act”), any of each Loan Party and each the foreign assets control regulations of its Subsidiaries comply in all material respects with all applicable Environmental Laws and Environmental Permitsthe Department of Treasury (31 C.F.R., there is no past non‑compliance with such Environmental Laws and Environmental Permits that has resulted in any ongoing material costs or obligations or that is reasonably expected to result in any future material costs or obligationsSubtitle B, and no circumstances exist that Chapter V, as amended) (Athe “Foreign Assets Control Regulations”) form the basis of an Environmental Action against any Loan Party or any of its Subsidiaries enabling legislation or any of their properties that would reasonably be expected to have a Material Adverse Effect regulations promulgated thereunder or executive order relating thereto (B) cause any such property to be subject to any material restrictions on ownershipwhich includes, occupancy, use or transferability under any Environmental Law.
(i) Except as would not reasonably be expected to have a Material Adverse Effectwithout limitation, (A) none Executive Order No. 13224, effective as of September 24, 2001, and relating to Blocking Property and Prohibiting Transaction With Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)) (the properties currently or formerly owned or operated by any Loan Party or any of its Subsidiaries is listed or proposed for listing on the NPL or any analogous foreign, state or local list or is adjacent to any such property; “Executive Order”) and (B) there are no and never have been the PATRIOT Act, if the result of such ownership would be that any underground or above ground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed on any property currently or formerly owned or operated Advance made by any Loan Party Lender would be in violation of law; (ii) no Embargoed Person has any interest of any nature whatsoever in the Borrower if the result of such interest would be that any Advance would be in violation of law; (iii) the Borrower has not engaged in business with Embargoed Persons if the result of such business would be that any Advance made by any Lender would be in violation of law; and (iv) neither the Borrower nor any Controlled Affiliate (A) is or will become a “blocked person” as described in the Executive Order, the Trading With the Enemy Act or the Foreign Assets Control Regulations, (B) engages or will engage in any of its Subsidiaries that is reasonably expected to result in material liability to dealings or transactions, or be otherwise associated, with any Loan Party such “blocked person” or any of its Subsidiaries; (C) there is no asbestos in violation of any Anti-Corruption Laws, except as set forth in Schedule 4.01(m). For purposes of determining whether or asbestos‑containing material on not a representation is true or a covenant is being complied with under this Section 4.01(m), the Borrower shall not be required to make any property currently owned investigation into (x) the ownership of publicly traded stock or operated by other publicly traded securities or (y) the beneficial ownership of any Loan Party or any of its Subsidiaries; and Digital Realty – Yen Credit Agreement 66collective investment fund.
Appears in 1 contract
Samples: Credit Agreement (News Corp)
Representations and Warranties of the Loan Parties. Each Loan Party represents and warrants as follows:
(a) Each Loan Party and each general partner or managing member, if any, of each Loan Party (i) is a corporation, limited liability company or partnership duly incorporated, organized or formed, validly existing and in good standing (to the extent that a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) under the laws of the jurisdiction of its incorporation, organization or formation, (ii) is duly qualified and in good standing (to the extent that a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) as a foreign corporation, limited liability company or partnership in each other jurisdiction in which it owns or leases property or in which the conduct of its business requires it to so qualify or be licensed except where the failure to so qualify or be licensed would not be reasonably likely to have a Material Adverse Effect and (iii) has all requisite corporate, limited liability company or partnership power and authority (including, without limitation, all governmental licenses, permits and other approvals) to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted. The Parent Guarantor is organized in conformity with the requirements for qualification as a REIT under the Internal Revenue Code, and its method of operation enables it to Digital Realty – Yen Credit Agreement meet the requirements for qualification and taxation as a REIT under the Internal Revenue Code. All of the outstanding Equity Interests in the Parent Guarantor have been validly issued, are fully paid and non‑assessablenon-assessable, all of the general partner Equity Interests in the Operating Partnership are owned by the Parent Guarantor, and all such general partner Equity Interests are owned by the Parent Guarantor free and clear of all Liens.
(b) All of the outstanding Equity Interests in each Loan Party’s Subsidiaries have been validly issued, are fully paid and non‑assessable non-assessable and, to the extent owned by such Loan Party or one or more of its Subsidiaries, are owned by such Loan Party or Subsidiaries free and clear of all Liens (other than Liens on Equity Interests in Subsidiaries securing Debt that is not prohibited hereunder).
(c) The execution and delivery by each Loan Party and of each general partner or managing member (if any) of each Loan Party of each Loan Document to which it is or is to be a party, and the performance of its obligations thereunder, and the consummation of the transactions contemplated by the Loan Documents, are within the corporate, limited liability company or partnership powers of such Loan Party, general partner or managing member, have been duly authorized by all necessary corporate, limited liability company or partnership action, and do not (i) contravene the charter or bylaws, memorandum and articles of association, operating agreement, partnership agreement or other governing document of such Loan Party, general partner or managing member, (ii) violate any law, rule, regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award, (iii) conflict with or result in the breach of, or constitute a default or require any payment to be made under, any Material Contract binding on or affecting any Loan Party or any of its Subsidiaries or any of their properties, or any general partner or managing member of any Loan Party or (iv) result in or require the creation or imposition of any Lien upon or with respect to any of the properties of any Loan Party or any of its Subsidiaries. No Loan Party or any of its Subsidiaries is in violation of any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of any such Material Contract, the violation or breach of which would be reasonably likely to have a Material Adverse Effect.
(d) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery, recordation, filing or performance by any Loan Party or any general partner or managing member of any Loan Party of any Loan Document to which it is or is to be a party or for the consummation of the transactions contemplated by the Loan Documents and the exercise by the Administrative Agent or any Lender Party of its rights under the Loan Documents, except for authorizations, approvals, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect.
(e) This Agreement has been, and each other Loan Document when delivered hereunder will have been, duly executed and delivered by each Loan Party and general partner or managing member (if any) of each Loan Party party thereto. This Agreement is, and each other Loan Document when delivered hereunder will be, the legal, valid and binding obligation of each Loan Party party thereto, enforceable against such Loan Party in accordance with its terms, except as such enforceability may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium, examinership or similar laws affecting creditors’ rights generally and by general principles of equity.
(f) Except as set forth in the reports delivered to the Administrative Agent pursuant to Section 5.03(g), there is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries or any general partner or managing member (if any) of any Loan Party, Digital Realty – Yen Credit Agreement including any Environmental Action to any Loan Party’s knowledge, pending or threatened before any court, governmental agency or arbitrator that (i) would reasonably be expected to have a Material Adverse Effect or (ii) would reasonably be expected to affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated by the Loan Documents.
(g) The Consolidated balance sheet of the Parent Guarantor and its Subsidiaries as at December 31, 2017 and the related Consolidated statement of income and Consolidated statement of cash flows of the Parent Guarantor and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of KPMG LLP, independent public accountants, and the Consolidated balance sheet of the Parent Guarantor as at June 30, 2018, and the related Consolidated statement of income and Consolidated statement of cash flows of the Parent Guarantor and its Subsidiaries for the six months then ended, copies of which have been furnished to each Lender Party, fairly present, subject, in the case of such balance sheet as at June 30, 2018, and such statements of income and cash flows for the six months then ended, to year‑end audit adjustments, the Consolidated financial condition of the Parent Guarantor and its Subsidiaries as at such dates and the Consolidated results of operations of the Parent Guarantor and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles applied on a consistent basis, and since December 31, 2017, there has been no Material Adverse Change.
(h) The Consolidated forecasted balance sheets, statements of income and statements of cash flows of the Parent Guarantor and its Subsidiaries most recently delivered to the Lender Parties pursuant to Section 5.03 were prepared in good faith on the basis of the assumptions stated therein, which assumptions were fair in light of the conditions existing at the time of delivery of such forecasts.
(i) No information, exhibit or report furnished by or on behalf of any Loan Party to the Administrative Agent or any Lender Party in connection with the negotiation and syndication of the Loan Documents or pursuant to the terms of the Loan Documents contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements made therein not materially misleading in light of the circumstances under which they were made.
(j) No Loan Party is engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Advance or drawings under any Letter of Credit will be used, directly or indirectly, whether immediately, incidentally or ultimately to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock or to refund indebtedness originally incurred for such purpose.
(k) Neither any Loan Party nor any of its Subsidiaries nor any general partner or managing member of any Loan Party, as applicable, is an “investment company”, or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company”, as such terms are defined in the Investment Company Act of 1940, as amended. Without limiting the generality of the foregoing, each Loan Party and each of its Subsidiaries and each general partner or managing member of any Loan Party, as applicable: (i) is primarily engaged, directly or through a wholly‑owned subsidiary or subsidiaries, in a business or businesses other than that of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (ii) is not engaged in, does not propose to engage in and does not hold itself out as being engaged in the business of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (iii) does not own or propose to acquire investment securities (as defined in the Investment Company Act of 1940, as amended) having a value exceeding forty percent (40%) of the value of such company’s total assets (exclusive of government securities and cash items) on an unconsolidated basis; (iv) has not in the past been engaged in the business of Digital Realty – Yen Credit Agreement issuing face‑amount certificates of the installment type; and (v) does not have any outstanding face‑amount certificates of the installment type. Neither the making of any Advances, nor the issuance of any Letters of Credit, nor the application of the proceeds or repayment thereof by any Borrower, nor the consummation of the other transactions contemplated by the Loan Documents, will violate any provision of any such Act or any rule, regulation or order of the Securities and Exchange Commission thereunder.
(l) Each of the Assets listed on the schedule of Unencumbered Assets delivered to the Administrative Agent in connection with the Closing Date (as updated from time to time in accordance with Section 5.03(d)) satisfies all Unencumbered Asset Conditions, except to the extent as otherwise set forth herein or waived in writing by the Required Lenders. The Loan Parties are the legal and beneficial owners of the Unencumbered Assets free and clear of any Lien, except for the Liens permitted under the Loan Documents.
(m) Neither any Loan Party nor any of its Subsidiaries nor any general partner or managing member of any Loan Party, as applicable, is an EEA Financial Institution.
(n) Set forth on Schedule 4.01(n) hereto is a complete and accurate list of all Surviving Debt of each Loan Party and its Subsidiaries (other than intercompany Debt) as of the date set forth on Schedule 4.01(n) having a principal amount of at least $10,000,000 and showing as of such date the obligor and the principal amount outstanding thereunder, the maturity date thereof and the amortization schedule therefor, and from such date to the Closing Date except as set forth on Schedule 4.01(n) there has been no material change in the amounts, interest rates, sinking funds, installment payments or maturities of such Surviving Debt (other than payments of principal and interest in accordance with the documents governing such Debt).
(o) Each Loan Party and its Subsidiaries has good, marketable and insurable fee simple title to, or valid trust beneficiary interests or leasehold interests in, all material Real Property owned or leased by such Loan Party or any such Subsidiary, free and clear of all Liens, other than Liens created or permitted by the Loan Documents.
(i) The operations and properties of each Loan Party and each of its Subsidiaries comply in all material respects with all applicable Environmental Laws and Environmental Permits, there is no past non‑compliance with such Environmental Laws and Environmental Permits that has resulted in any ongoing material costs or obligations or that is reasonably expected to result in any future material costs or obligations, and no circumstances exist that (A) form the basis of an Environmental Action against any Loan Party or any of its Subsidiaries or any of their properties that would reasonably be expected to have a Material Adverse Effect or (B) cause any such property to be subject to any material restrictions on ownership, occupancy, use or transferability under any Environmental Law.
(i) Except as would not reasonably be expected to have a Material Adverse Effect, (A) none of the properties currently or formerly owned or operated by any Loan Party or any of its Subsidiaries is listed or proposed for listing on the NPL or any analogous foreign, state or local list or is adjacent to any such property; (B) there are no and never have been any underground or above ground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed on any property currently or formerly owned or operated by any Loan Party or any of its Subsidiaries that is reasonably expected to result in material liability to any Loan Party or any of its Subsidiaries; (C) there is no asbestos or asbestos‑containing material on any property currently owned or operated by any Loan Party or any of its Subsidiaries; and Digital Realty – Yen Credit Agreement 66
Appears in 1 contract
Representations and Warranties of the Loan Parties. Each Loan Party represents and warrants as follows:
(a) Each Loan Party and each general partner or managing member, if any, of each Loan Party its Subsidiaries (i) is a corporation, limited liability company or partnership duly incorporated, organized or formedorganized, validly existing and in good standing (to the extent that a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) under the laws of the jurisdiction of its incorporation, organization or formationorganization, (ii) is duly qualified and in good standing (to the extent that a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) as a foreign corporation, limited liability company or partnership corporation in each other jurisdiction in which it owns or leases property or in which the conduct of its business requires it to so qualify or be licensed except where the failure to so qualify or be licensed would could not be reasonably likely to have a Material Adverse Effect and (iii) has all requisite corporate, limited liability company or partnership corporate power and authority (including, without limitation, all governmental licenses, permits and other approvalsGovernmental Authorizations) to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted. The Parent Guarantor is organized in conformity with the requirements for qualification as a REIT under the Internal Revenue Code, and its method of operation enables it to Digital Realty – Yen Credit Agreement meet the requirements for qualification and taxation as a REIT under the Internal Revenue Code. All of the outstanding Equity Interests in the Parent Guarantor Borrower have been validly issued, are fully paid and non‑assessable, all of the general partner Equity Interests in the Operating Partnership are owned by the Parent Guarantor, and all such general partner Equity Interests are owned by the Parent Guarantor free and clear of all Liensnon-assessable.
(b) Set forth on Schedule 4.01(b) hereto is a complete and accurate list of all Subsidiaries of each Loan Party, showing as of the date hereof (as to each such Subsidiary) the jurisdiction of its organization, the number of shares of each class of its Equity Interests authorized, and the number outstanding, on the date hereof and the percentage of each such class of its Equity Interests owned (directly or indirectly) by such Loan Party and the number of shares covered by all outstanding options, warrants, rights of conversion or purchase and similar rights at the date hereof. All of the outstanding Equity Interests in each Loan Party’s 's Subsidiaries owned by such Loan Party have been validly issued, are fully paid and non‑assessable and, to the extent non-assessable and are owned by such Loan Party or one or more of its Subsidiaries, are owned by such Loan Party or Subsidiaries free and clear of all Liens (other than Liens on Equity Interests in Subsidiaries securing Debt that is not prohibited hereunder)Liens, except those created under the Collateral Documents.
(c) The execution execution, delivery and delivery performance by each Loan Party and of each general partner or managing member (if any) of each Loan Party of each Loan Document to which it is or is to be a party, and the performance of its obligations thereunder, and the consummation of the transactions contemplated by the Loan Documentshereby, are within the corporate, limited liability company or partnership powers of such Loan Party, general partner or managing member's corporate powers, have been duly authorized by all necessary corporate, limited liability company or partnership corporate action, and do not (i) contravene the charter or bylaws, memorandum and articles of association, operating agreement, partnership agreement or other governing document of such Loan Party, general partner 's constitutive or managing membergoverning documents, (ii) violate any law, rule, regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award, (iii) conflict with or result in the breach of, or constitute a default or require any payment to be made under, any Material Contract contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument binding on or affecting any Loan Party or Party, any of its Subsidiaries or any of their properties, or any general partner or managing member of any Loan Party including, without limitation, the Senior Subordinated Indenture or (iv) except for the Liens created under the Loan Documents, result in or require the creation or imposition of any Lien upon or with respect to any of the properties of any Loan Party or any of its Subsidiaries. No Loan Party or any of its Subsidiaries is in violation of any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of any such Material Contractcontract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument, the violation or breach of which would could be reasonably likely to have a Material Adverse Effect.
(d) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery, recordation, filing or performance by any Loan Party or any general partner or managing member of any Loan Party of any Loan Document to which it is or is to be a party or for the consummation of the transactions contemplated by the Loan Documents and the exercise by the Administrative Agent or any Lender Party of its rights under the Loan Documents, except for authorizations, approvals, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect.
(e) This Agreement has been, and each other Loan Document when delivered hereunder will have been, duly executed and delivered by each Loan Party and general partner or managing member (if any) of each Loan Party party thereto. This Agreement is, and each other Loan Document when delivered hereunder will be, the legal, valid and binding obligation of each Loan Party party thereto, enforceable against such Loan Party in accordance with its terms, except as such enforceability may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium, examinership or similar laws affecting creditors’ rights generally and by general principles of equity.
(f) Except as set forth in the reports delivered to the Administrative Agent pursuant to Section 5.03(g), there is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries or any general partner or managing member (if any) of any Loan Party, Digital Realty – Yen Credit Agreement including any Environmental Action to any Loan Party’s knowledge, pending or threatened before any court, governmental agency or arbitrator that (i) would reasonably be expected to have a Material Adverse Effect or (ii) would reasonably be expected to affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated by the Loan Documents.
(g) The Consolidated balance sheet of the Parent Guarantor and its Subsidiaries as at December 31, 2017 and the related Consolidated statement of income and Consolidated statement of cash flows of the Parent Guarantor and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of KPMG LLP, independent public accountants, and the Consolidated balance sheet of the Parent Guarantor as at June 30, 2018, and the related Consolidated statement of income and Consolidated statement of cash flows of the Parent Guarantor and its Subsidiaries for the six months then ended, copies of which have been furnished to each Lender Party, fairly present, subject, in the case of such balance sheet as at June 30, 2018, and such statements of income and cash flows for the six months then ended, to year‑end audit adjustments, the Consolidated financial condition of the Parent Guarantor and its Subsidiaries as at such dates and the Consolidated results of operations of the Parent Guarantor and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles applied on a consistent basis, and since December 31, 2017, there has been no Material Adverse Change.
(h) The Consolidated forecasted balance sheets, statements of income and statements of cash flows of the Parent Guarantor and its Subsidiaries most recently delivered to the Lender Parties pursuant to Section 5.03 were prepared in good faith on the basis of the assumptions stated therein, which assumptions were fair in light of the conditions existing at the time of delivery of such forecasts.
(i) No information, exhibit or report furnished by or on behalf of any Loan Party to the Administrative Agent or any Lender Party in connection with the negotiation and syndication of the Loan Documents or pursuant to the terms of the Loan Documents contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements made therein not materially misleading in light of the circumstances under which they were made.
(j) No Loan Party is engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Advance or drawings under any Letter of Credit will be used, directly or indirectly, whether immediately, incidentally or ultimately to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock or to refund indebtedness originally incurred for such purpose.
(k) Neither any Loan Party nor any of its Subsidiaries nor any general partner or managing member of any Loan Party, as applicable, is an “investment company”, or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company”, as such terms are defined in the Investment Company Act of 1940, as amended. Without limiting the generality of the foregoing, each Loan Party and each of its Subsidiaries and each general partner or managing member of any Loan Party, as applicable: (i) is primarily engaged, directly or through a wholly‑owned subsidiary or subsidiaries, in a business or businesses other than that of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (ii) is not engaged in, does not propose to engage in and does not hold itself out as being engaged in the business of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (iii) does not own or propose to acquire investment securities (as defined in the Investment Company Act of 1940, as amended) having a value exceeding forty percent (40%) of the value of such company’s total assets (exclusive of government securities and cash items) on an unconsolidated basis; (iv) has not in the past been engaged in the business of Digital Realty – Yen Credit Agreement issuing face‑amount certificates of the installment type; and (v) does not have any outstanding face‑amount certificates of the installment type. Neither the making of any Advances, nor the issuance of any Letters of Credit, nor the application of the proceeds or repayment thereof by any Borrower, nor the consummation of the other transactions contemplated by the Loan Documents, will violate any provision of any such Act or any rule, regulation or order of the Securities and Exchange Commission thereunder.
(l) Each of the Assets listed on the schedule of Unencumbered Assets delivered to the Administrative Agent in connection with the Closing Date (as updated from time to time in accordance with Section 5.03(d)) satisfies all Unencumbered Asset Conditions, except to the extent as otherwise set forth herein or waived in writing by the Required Lenders. The Loan Parties are the legal and beneficial owners of the Unencumbered Assets free and clear of any Lien, except for the Liens permitted under the Loan Documents.
(m) Neither any Loan Party nor any of its Subsidiaries nor any general partner or managing member of any Loan Party, as applicable, is an EEA Financial Institution.
(n) Set forth on Schedule 4.01(n) hereto is a complete and accurate list of all Surviving Debt of each Loan Party and its Subsidiaries (other than intercompany Debt) as of the date set forth on Schedule 4.01(n) having a principal amount of at least $10,000,000 and showing as of such date the obligor and the principal amount outstanding thereunder, the maturity date thereof and the amortization schedule therefor, and from such date to the Closing Date except as set forth on Schedule 4.01(n) there has been no material change in the amounts, interest rates, sinking funds, installment payments or maturities of such Surviving Debt (other than payments of principal and interest in accordance with the documents governing such Debt).
(o) Each Loan Party and its Subsidiaries has good, marketable and insurable fee simple title to, or valid trust beneficiary interests or leasehold interests in, all material Real Property owned or leased by such Loan Party or any such Subsidiary, free and clear of all Liens, other than Liens created or permitted by the Loan Documents.
(i) The operations and properties of each Loan Party and each of its Subsidiaries comply in all material respects with all applicable Environmental Laws and Environmental Permits, there is no past non‑compliance with such Environmental Laws and Environmental Permits that has resulted in any ongoing material costs or obligations or that is reasonably expected to result in any future material costs or obligations, and no circumstances exist that (A) form the basis of an Environmental Action against any Loan Party or any of its Subsidiaries or any of their properties that would reasonably be expected to have a Material Adverse Effect or (B) cause any such property to be subject to any material restrictions on ownership, occupancy, use or transferability under any Environmental Law.
(i) Except as would not reasonably be expected to have a Material Adverse Effect, (A) none of the properties currently or formerly owned or operated by any Loan Party or any of its Subsidiaries is listed or proposed for listing on the NPL or any analogous foreign, state or local list or is adjacent to any such property; (B) there are no and never have been any underground or above ground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed on any property currently or formerly owned or operated by any Loan Party or any of its Subsidiaries that is reasonably expected to result in material liability to any Loan Party or any of its Subsidiaries; (C) there is no asbestos or asbestos‑containing material on any property currently owned or operated by any Loan Party or any of its Subsidiaries; and Digital Realty – Yen Credit Agreement 66
Appears in 1 contract
Representations and Warranties of the Loan Parties. Each Loan Party represents and warrants as follows:
(a) Each Loan Party and each of its Subsidiaries and each general partner or managing member, if any, of each Loan Party (i) is a corporation, limited liability company or partnership duly incorporated, organized or formed, validly existing and in good standing (to the extent that a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) under the laws of the jurisdiction of its incorporation, organization or formation, (ii) is duly qualified and in good standing (to the extent that a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) as a foreign corporation, limited liability company or partnership in each other jurisdiction in which it owns or leases property or in which the conduct of its business requires it to so qualify or be licensed except where the failure to so qualify or be licensed would not be reasonably likely to have a Material Adverse Effect and (iii) has all requisite corporate, limited liability company or partnership power and authority (including, without limitation, all governmental licenses, permits and other approvals) to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted. The Commencing with its taxable year ending December 31, 2003, the Parent Guarantor is will be organized in conformity with the requirements for qualification as a REIT under the Internal Revenue CodeREIT, and its proposed method of operation enables will enable it to Digital Realty – Yen Credit Agreement meet the requirements for qualification and taxation as a REIT under the Internal Revenue Code. All of the outstanding Equity Interests in the Parent Guarantor have been validly issued, are fully paid and non‑assessable, all of the general partner Equity Interests in the Operating Partnership non-assessable and are owned by the Parent Guarantor, and all such general partner Equity Interests are owned by the Parent Guarantor General Partner free and clear of all Liens.
(b) Set forth on Schedule 4.01(b) hereto is a complete and accurate list as of the date hereof of all Subsidiaries of each Loan Party, showing as of the date hereof (as to each such Subsidiary) the jurisdiction of its incorporation, organization or formation, the number of shares (or the equivalent thereof) of each class of its Equity Interests authorized, and the number outstanding, on the date hereof and the percentage of each such class of its Equity Interests owned (directly or indirectly) by such Loan Party and the number of shares (or the equivalent thereof) covered by all outstanding options, warrants, rights of conversion or purchase and similar rights at the date hereof. All of the outstanding Equity Interests in each Loan Party’s 's Subsidiaries have has been validly issued, are fully paid and non‑assessable and, to the extent non-assessable and are owned by such Loan Party or one or more of its Subsidiaries, are owned by such Loan Party or Subsidiaries free and clear of all Liens (other than Liens on Equity Interests in Subsidiaries securing Debt that is not prohibited hereunder)Liens.
(c) The execution and delivery by each Loan Party and of each general partner or managing member (if any) of each Loan Party of each Loan Document to which it is or is to be a party, and the performance of its obligations thereunder, and the consummation of the transactions contemplated by the Loan Documents, are within the corporate, limited liability company or partnership powers of such Loan Party, general partner or managing member, have been duly authorized by all necessary corporate, limited liability company or partnership action, and do not (i) contravene the charter or bylaws, memorandum and articles of association, operating agreement, partnership agreement or other governing document of such Loan Party, general partner or managing member, (ii) violate any law, rule, regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award, (iii) conflict with or result in the breach of, or constitute a default or require any payment to be made under, any Material Contract binding on or affecting any Loan Party or any of its Subsidiaries or any of their properties, or any general partner or managing member of any Loan Party or (iv) result in or require the creation or imposition of any Lien upon or with respect to any of the properties of any Loan Party or any of its Subsidiaries. No Loan Party or any of its Subsidiaries is in violation of any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of any such Material Contract, the violation or breach of which would be reasonably likely to have a Material Adverse Effect.
(d) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery, recordation, filing or performance by any Loan Party or any general partner or managing member of any Loan Party of any Loan Document to which it is or is to be a party or for the consummation of the transactions contemplated by the Loan Documents and the exercise by the Administrative Agent or any Lender Party of its rights under the Loan Documents, except for authorizations, approvals, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect.
(e) This Agreement has been, and each other Loan Document when delivered hereunder will have been, duly executed and delivered by each Loan Party and general partner or managing member (if any) of each Loan Party party thereto. This Agreement is, and each other Loan Document when delivered hereunder will be, the legal, valid and binding obligation of each Loan Party party thereto, enforceable against such Loan Party in accordance with its terms, except as such enforceability may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium, examinership or similar laws affecting creditors’ rights generally and by general principles of equity.
(f) Except as set forth in the reports delivered to the Administrative Agent pursuant to Section 5.03(g), there is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries or any general partner or managing member (if any) of any Loan Party, Digital Realty – Yen Credit Agreement including any Environmental Action to any Loan Party’s knowledge, pending or threatened before any court, governmental agency or arbitrator that (i) would reasonably be expected to have a Material Adverse Effect or (ii) would reasonably be expected to affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated by the Loan Documents.
(g) The Consolidated balance sheet of the Parent Guarantor and its Subsidiaries as at December 31, 2017 and the related Consolidated statement of income and Consolidated statement of cash flows of the Parent Guarantor and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of KPMG LLP, independent public accountants, and the Consolidated balance sheet of the Parent Guarantor as at June 30, 2018, and the related Consolidated statement of income and Consolidated statement of cash flows of the Parent Guarantor and its Subsidiaries for the six months then ended, copies of which have been furnished to each Lender Party, fairly present, subject, in the case of such balance sheet as at June 30, 2018, and such statements of income and cash flows for the six months then ended, to year‑end audit adjustments, the Consolidated financial condition of the Parent Guarantor and its Subsidiaries as at such dates and the Consolidated results of operations of the Parent Guarantor and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles applied on a consistent basis, and since December 31, 2017, there has been no Material Adverse Change.
(h) The Consolidated forecasted balance sheets, statements of income and statements of cash flows of the Parent Guarantor and its Subsidiaries most recently delivered to the Lender Parties pursuant to Section 5.03 were prepared in good faith on the basis of the assumptions stated therein, which assumptions were fair in light of the conditions existing at the time of delivery of such forecasts.
(i) No information, exhibit or report furnished by or on behalf of any Loan Party to the Administrative Agent or any Lender Party in connection with the negotiation and syndication of the Loan Documents or pursuant to the terms of the Loan Documents contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements made therein not materially misleading in light of the circumstances under which they were made.
(j) No Loan Party is engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Advance or drawings under any Letter of Credit will be used, directly or indirectly, whether immediately, incidentally or ultimately to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock or to refund indebtedness originally incurred for such purpose.
(k) Neither any Loan Party nor any of its Subsidiaries nor any general partner or managing member of any Loan Party, as applicable, is an “investment company”, or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company”, as such terms are defined in the Investment Company Act of 1940, as amended. Without limiting the generality of the foregoing, each Loan Party and each of its Subsidiaries and each general partner or managing member of any Loan Party, as applicable: (i) is primarily engaged, directly or through a wholly‑owned subsidiary or subsidiaries, in a business or businesses other than that of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (ii) is not engaged in, does not propose to engage in and does not hold itself out as being engaged in the business of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (iii) does not own or propose to acquire investment securities (as defined in the Investment Company Act of 1940, as amended) having a value exceeding forty percent (40%) of the value of such company’s total assets (exclusive of government securities and cash items) on an unconsolidated basis; (iv) has not in the past been engaged in the business of Digital Realty – Yen Credit Agreement issuing face‑amount certificates of the installment type; and (v) does not have any outstanding face‑amount certificates of the installment type. Neither the making of any Advances, nor the issuance of any Letters of Credit, nor the application of the proceeds or repayment thereof by any Borrower, nor the consummation of the other transactions contemplated by the Loan Documents, will violate any provision of any such Act or any rule, regulation or order of the Securities and Exchange Commission thereunder.
(l) Each of the Assets listed on the schedule of Unencumbered Assets delivered to the Administrative Agent in connection with the Closing Date (as updated from time to time in accordance with Section 5.03(d)) satisfies all Unencumbered Asset Conditions, except to the extent as otherwise set forth herein or waived in writing by the Required Lenders. The Loan Parties are the legal and beneficial owners of the Unencumbered Assets free and clear of any Lien, except for the Liens permitted under the Loan Documents.
(m) Neither any Loan Party nor any of its Subsidiaries nor any general partner or managing member of any Loan Party, as applicable, is an EEA Financial Institution.
(n) Set forth on Schedule 4.01(n) hereto is a complete and accurate list of all Surviving Debt of each Loan Party and its Subsidiaries (other than intercompany Debt) as of the date set forth on Schedule 4.01(n) having a principal amount of at least $10,000,000 and showing as of such date the obligor and the principal amount outstanding thereunder, the maturity date thereof and the amortization schedule therefor, and from such date to the Closing Date except as set forth on Schedule 4.01(n) there has been no material change in the amounts, interest rates, sinking funds, installment payments or maturities of such Surviving Debt (other than payments of principal and interest in accordance with the documents governing such Debt).
(o) Each Loan Party and its Subsidiaries has good, marketable and insurable fee simple title to, or valid trust beneficiary interests or leasehold interests in, all material Real Property owned or leased by such Loan Party or any such Subsidiary, free and clear of all Liens, other than Liens created or permitted by the Loan Documents.
(i) The operations and properties of each Loan Party and each of its Subsidiaries comply in all material respects with all applicable Environmental Laws and Environmental Permits, there is no past non‑compliance with such Environmental Laws and Environmental Permits that has resulted in any ongoing material costs or obligations or that is reasonably expected to result in any future material costs or obligations, and no circumstances exist that (A) form the basis of an Environmental Action against any Loan Party or any of its Subsidiaries or any of their properties that would reasonably be expected to have a Material Adverse Effect or (B) cause any such property to be subject to any material restrictions on ownership, occupancy, use or transferability under any Environmental Law.
(i) Except as would not reasonably be expected to have a Material Adverse Effect, (A) none of the properties currently or formerly owned or operated by any Loan Party or any of its Subsidiaries is listed or proposed for listing on the NPL or any analogous foreign, state or local list or is adjacent to any such property; (B) there are no and never have been any underground or above ground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed on any property currently or formerly owned or operated by any Loan Party or any of its Subsidiaries that is reasonably expected to result in material liability to any Loan Party or any of its Subsidiaries; (C) there is no asbestos or asbestos‑containing material on any property currently owned or operated by any Loan Party or any of its Subsidiaries; and Digital Realty – Yen Credit Agreement 66
Appears in 1 contract
Representations and Warranties of the Loan Parties. Each Loan Party represents and warrants as follows:
(a) Each Loan Party and each of its Subsidiaries and each general partner or managing member, if any, of each Loan Party (i) is a corporation, limited liability company or limited partnership duly incorporated, organized or formedorganized, validly existing and in good standing (to the extent that a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) under the laws of the jurisdiction of its incorporation, organization or formation, (ii) is duly qualified and in good standing (to the extent that a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) as a foreign corporation, limited liability corporation or company or partnership in each other jurisdiction in which it owns or leases property or in which the conduct of its business requires it to so qualify or be licensed except where the failure to so qualify or be licensed would could not be reasonably likely to have a Material Adverse Effect and (iii) has all requisite corporate, limited liability company or partnership (as applicable) power and authority (including, without limitation, all governmental licenses, permits and other approvalsGovernmental Authorizations) to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted. The Parent Guarantor is organized in conformity with the requirements for qualification as a REIT under the Internal Revenue Code, and its method General Partner meets all of operation enables it to Digital Realty – Yen Credit Agreement meet the requirements for qualification and taxation as a REIT under the Internal Revenue CodeREIT. All of the outstanding Equity Interests in the Parent Guarantor Revolving Credit Borrower have been validly issued, are fully paid and non‑assessable, non-assessable and all of the general partner Equity Interests in the Operating Partnership are such interests owned by the Parent Guarantor, and all such general partner Equity Interests General Partner are owned by the Parent Guarantor free and clear of all Liens.
(b) Set forth on Schedule 4.01(b) hereto is a complete and accurate list of all Subsidiaries of each Loan Party, showing as of the date hereof (as to each such Subsidiary) the jurisdiction of its formation, the number of shares, membership interests or partnership interests (as applicable) of each class of its Equity Interests authorized, and the number outstanding, on the date hereof and the percentage of each such class of its Equity Interests owned (directly or indirectly) by such Loan Party and the number of shares covered by all outstanding options, warrants, rights of conversion or purchase and similar rights at the date hereof. All of the outstanding Equity Interests in each Loan Party’s Subsidiaries have been validly issued, are fully paid and non‑assessable and, to the extent non-assessable and are owned by such Loan Party or one or more of its Subsidiaries, are owned by such Loan Party or Subsidiaries free and clear of all Liens, except for Liens (other than Liens on Equity Interests in Subsidiaries securing Debt that is not prohibited hereunder)permitted under Section 5.02(a) and those created under the Collateral Documents and, with respect to the Real Property Collateral, except for Permitted Encumbrances.
(c) The execution execution, delivery and delivery performance by each Loan Party and of each general partner or managing member (if any) of each Loan Party of each Loan Transaction Document to which it is or is to be a party, and the performance of its obligations thereunder, and the consummation of the transactions contemplated by the Loan Documents, party are within the corporate, limited liability company or partnership powers of such Loan Party, general partner or managing member, have been duly authorized by all necessary corporate, limited liability company or partnership action, and do not (i) contravene the charter or bylaws, memorandum and articles of association, operating agreement, partnership agreement or other governing document of such Loan Party, general partner or managing member, (ii) violate any law, rule, regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award, (iii) conflict with or result in the breach of, or constitute a default or require any payment to be made under, any Material Contract material contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument binding on or affecting any Loan Party or Party, any of its Subsidiaries or any of their properties, or any general partner or managing member of any Loan Party or (iv) except for the Liens created under the Loan Documents, result in or require the creation or imposition of any Lien upon or with respect to any of the properties of any Loan Party or any of its Subsidiaries, which in the case of clauses (ii) and (iii) above could be reasonably likely to have a Material Adverse Effect. No Loan Party or any of its Subsidiaries is in violation of any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of any such Material Contractcontract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument, the violation or breach of which would could be reasonably likely to have a Material Adverse Effect.
(d) No authorization or approval or other action byGovernmental Authorization, and no notice to or filing with, any governmental authority or regulatory body Governmental Authority or any other third party is required for (i) the due execution, delivery, recordation, filing or performance by any Loan Party or any general partner or managing member of any Loan Party of any Loan Transaction Document to which it is or is to be a party party, or for the consummation of the transactions contemplated Transaction, (ii) the grant by any Loan Party of the Loan Liens granted by it pursuant to the Collateral Documents, (iii) the perfection or maintenance of the Liens created under the Collateral Documents and (including the first priority nature thereof) or (iv) the exercise by the Administrative any Agent or any Lender Party of its rights under the Loan Documents or the remedies in respect of the Collateral pursuant to the Collateral Documents, except for authorizationsthe authorizations and notices listed on Schedule 4.01(d) hereto, approvals, actions, notices and filings all of which (except as noted thereon) have been or will be duly obtained, taken, given or made and are in full force and effect. All applicable waiting periods in connection with the Transaction have expired without any action having been taken by any competent authority restraining, preventing or imposing materially adverse conditions upon the Transaction or the rights of the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, any properties now owned or hereafter acquired by any of them. The Acquisition has been consummated in accordance in all material respects with the Purchase Agreement and applicable law.
(e) This Agreement has been, and each other Loan Document when delivered hereunder will have been, duly executed and delivered by each Loan Party and general partner or managing member (if any) of each Loan Party party thereto. This Agreement is, and each other Loan Transaction Document when delivered hereunder will be, the legal, valid and binding obligation of each Loan Party and general partner or managing member (if any) of each Loan Party party thereto, enforceable against such Loan Party Party, general partner or managing member, as the case may be, in accordance with its terms, except as such enforceability may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium, examinership or similar laws affecting creditors’ rights generally and by general principles of equity.
(f) Except as set forth in the reports delivered to the Administrative Agent pursuant to Section 5.03(g), there There is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries or any general partner or managing member (if any) of any Loan PartySubsidiaries, Digital Realty – Yen Credit Agreement including any Environmental Action Action, pending or, to any Loan Party’s our actual knowledge, pending or threatened before any court, governmental agency Governmental Authority or arbitrator that (i) would could be reasonably be expected likely to have a Material Adverse Effect (other than the matters described on Schedule 4.01(f) hereto (the “Disclosed Litigation”)) or (ii) would reasonably be expected purports to affect the legality, validity or enforceability of any Loan Transaction Document or the consummation of the transactions contemplated by Transaction, and there has been no adverse change in the status, or financial effect on any Loan DocumentsParty or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto.
(g) The Consolidated balance sheet of the Parent Guarantor General Partner and its Subsidiaries and, to the extent available on the Effective Date, the Acquired Properties, as at December 31, 2017 and the related Consolidated statement of income and Consolidated statement of cash flows of the Parent Guarantor and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of KPMG LLP, independent public accountants, and the Consolidated balance sheet of the Parent Guarantor as at June 30, 20182003, and the related Consolidated statement of income and Consolidated statement of cash flows of the Parent Guarantor General Partner and its Subsidiaries and, to the extent available on the Effective Date, the Acquired Properties, for the six fiscal year then ended, accompanied by an unqualified opinion of KPMG LLP, independent public accountants, and the Consolidated balance sheets of the General Partner and its Subsidiaries and, to the extent available, the Acquired Properties, as at as at the end of the most recently-ended fiscal quarter, and the related Consolidated statements of income, Consolidated statement of cash flows and stockholders’ equity of the General Partner and its Subsidiaries, in each case, for the three months then ended, duly certified by the chief financial officer of the General Partner, copies of which have been furnished to each Lender Party, fairly present, in the case of the General Partner and its Subsidiaries, and, on the Effective Date, to our actual knowledge fairly present, in the case of the Acquired Properties, subject, in the case of such said balance sheet as at June 30, 2018of the end of such three-month period, and such said statements of income and cash flows for the six three months then ended, to year‑end year-end audit adjustments, the Consolidated financial condition of the Parent Guarantor General Partner and its Subsidiaries and, if applicable, the Acquired Properties, as at such dates and the Consolidated results of operations of the Parent Guarantor General Partner and its Subsidiaries and, if applicable, the Acquired Properties, for the periods ended on such dates, all in accordance with generally accepted accounting principles applied on a consistent basis, and since December 31, 20172003, there has been no Material Adverse Change.
(h) The Consolidated forecasted pro forma balance sheetssheet of the General Partner and its Subsidiaries as at December 31, 2004, and the related Consolidated pro forma statements of income and statements of cash flows of the Parent Guarantor General Partner and its Subsidiaries most recently for the 12 months then ended, certified by the chief financial officer of the General Partner, copies of which have been furnished to each Lender Party, fairly present the Consolidated pro forma financial condition of the General Partner and its Subsidiaries as at such date and the Consolidated pro forma results of operations of the General Partner and its Subsidiaries for the period ended on such date, in each case giving effect to the Transaction, all in accordance with GAAP.
(i) The Consolidated forecasted balance sheet, statement of income, statement of cash flows and stockholders’ equity of the General Partner and its Subsidiaries delivered to the Lender Parties pursuant to Section 3.01(a)(x) or 5.03 were prepared in good faith on the basis of the assumptions stated therein, which assumptions were fair in light of the conditions existing at the time of delivery of such forecasts, and represented, at the time of delivery, the Revolving Credit Borrower’s best estimate of its future financial performance.
(ij) No Neither the Information Memorandum nor any other information, exhibit or report furnished by or on behalf of any Loan Party to the Administrative any Agent or any Lender Party in connection with the negotiation and syndication of the Loan Documents or pursuant to the terms of the Loan Documents contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements made therein not materially misleading in light of the circumstances under which they were mademisleading.
(jk) No Loan Party Neither Borrower is engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Advance or drawings under any Letter of Credit will be used, directly or indirectly, whether immediately, incidentally or ultimately used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock or to refund indebtedness originally incurred for such purposeStock.
(kl) Neither any Loan Party nor any of its Subsidiaries nor any general partner or managing member of any Loan Party, as applicable, is an “investment company”, ,” or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company”, ,” as such terms are defined in the Investment Company Act of 1940, as amended. Without limiting the generality of the foregoing, each Neither any Loan Party and each nor any of its Subsidiaries and each nor any general partner or of managing member of any Loan Party, as applicable: (i) , is primarily engaged, directly a “holding company,” or through a wholly‑owned “subsidiary company” of a “holding company,” or subsidiaries, in an “affiliate” of a business “holding company” or businesses other than that of (A) investing, reinvesting, owning, a “subsidiary company” of a “holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (ii) is not engaged in, does not propose to engage in and does not hold itself out company,” as being engaged in the business of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (iii) does not own or propose to acquire investment securities (as such terms are defined in the Investment Public Utility Holding Company Act of 19401935, as amended) having a value exceeding forty percent (40%) of the value of such company’s total assets (exclusive of government securities and cash items) on an unconsolidated basis; (iv) has not in the past been engaged in the business of Digital Realty – Yen Credit Agreement issuing face‑amount certificates of the installment type; and (v) does not have any outstanding face‑amount certificates of the installment type. Neither the making of any Advances, nor the issuance of any Letters of Credit, nor the application of the proceeds or repayment thereof by any Borrowerthe Borrowers, nor the consummation of the other transactions contemplated by the Loan Transaction Documents, will violate any provision of any such Act or any rule, regulation or order of the Securities and Exchange Commission thereunder.
(lm) Each All filings and other actions necessary or desirable to perfect and protect the security interest in the Collateral created under the Collateral Documents have been or will be duly made or taken and are or when made or taken will be in full force and effect, and the Collateral Documents create in favor of the Assets listed on Collateral Agent for the schedule benefit of Unencumbered Assets delivered the Secured Parties a valid and, together with such filings and other actions, perfected first priority security interest in the Collateral, securing the payment of the Secured Obligations, and all filings and other actions necessary to the Administrative Agent in connection with the Closing Date (as updated from time to time in accordance with Section 5.03(d)) satisfies all Unencumbered Asset Conditions, except to the extent as otherwise set forth herein or waived in writing by the Required Lendersperfect and protect such security interest have been duly taken. The Loan Parties are the legal and beneficial owners of the Unencumbered Assets Collateral free and clear of any Lien, except for the Liens liens and security interests created or permitted under the Loan Documents.
(m) Neither any Loan Party nor any of its Subsidiaries nor any general partner or managing member of any Loan Party, as applicable, is an EEA Financial InstitutionDocuments and Permitted Liens.
(n) Set forth on Schedule 4.01(n) hereto is a complete and accurate list of all Surviving Debt of each Each Loan Party is, individually and together with its Subsidiaries (other than intercompany Debt) as of the date set forth on Schedule 4.01(n) having a principal amount of at least $10,000,000 and showing as of such date the obligor and the principal amount outstanding thereunderSubsidiaries, the maturity date thereof and the amortization schedule therefor, and from such date to the Closing Date except as set forth on Schedule 4.01(n) there has been no material change in the amounts, interest rates, sinking funds, installment payments or maturities of such Surviving Debt (other than payments of principal and interest in accordance with the documents governing such Debt)Solvent.
(o) Each Loan Party and its Subsidiaries has goodExcept as otherwise set forth in the environmental reports listed on Schedule 4.01(o) hereto (correct copies of which have been made available to the Administrative Agent), marketable and insurable fee simple title to, or valid trust beneficiary interests or leasehold interests in, all material Real Property owned or leased by such Loan Party or any such Subsidiary, free and clear of all Liens, other than Liens created or permitted by the Loan Documents.
(i) The operations and properties of each Loan Party and each of its Subsidiaries comply in all material respects with all applicable Environmental Laws and Environmental Permits, there is no all past non‑compliance non-compliance with such Environmental Laws and Environmental Permits that has resulted in any been resolved without ongoing material costs or obligations or that is reasonably expected to result in any future material costs or obligationscosts, and no circumstances exist that could be reasonably likely to (Ai) form the basis of an Environmental Action against any Loan Party or any of its Subsidiaries or any of their properties that would could reasonably be expected to have a Material Adverse Effect or (Bii) cause any such property to be subject to any material restrictions on ownership, occupancy, use or transferability under any Environmental Law.
(ip) Except as would not reasonably be expected to have a Material Adverse Effect, (A) none of Neither the business nor the properties currently or formerly owned or operated by of any Loan Party or any of its Subsidiaries are affected by any fire, explosion, accident, strike, lockout or other labor dispute, drought, storm, hail, earthquake, embargo, act of God or of the public enemy or other casualty (whether or not covered by insurance) that could be reasonably likely to have a Material Adverse Effect.
(q) Set forth on Schedule 4.01(q) hereto is listed or proposed for listing a complete and accurate list of all Existing Debt (other than Surviving Debt) having a principal amount of at least $1,000,000, showing as of the date hereof the obligor and the principal amount outstanding thereunder.
(r) Set forth on Schedule 4.01(r) hereto is a complete and accurate list of all Surviving Debt having a principal amount of at least $1,000,000, showing as of the date hereof the obligor and the principal amount outstanding thereunder, the maturity date thereof and the amortization schedule therefor.
(s) Set forth on Schedule 4.01(s) hereto is a complete and accurate list of all Liens on the NPL property or any analogous foreign, state or local list or is adjacent to any such property; (B) there are no and never have been any underground or above ground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed on any property currently or formerly owned or operated by assets of any Loan Party or any of its Subsidiaries that is reasonably expected to result in material liability to any securing Debt for Borrowed Money or Obligations under acceptance, letter of credit or similar facilities, showing as of the date hereof the lienholder thereof, the principal amount of the obligations secured thereby and the property or assets of such Loan Party or any such Subsidiary subject thereto.
(t) Set forth on Schedule 4.01(t) hereto is a complete and accurate list of its Subsidiaries; (C) there is no asbestos all Owned Real Property with a value of $1,000,000 or asbestos‑containing material on any property currently owned more showing as of the date hereof the street address, county or operated by any other relevant jurisdiction, state, record owner and book value thereof. Each Loan Party or any such Subsidiary has good, marketable and insurable fee simple title to such Owned Real Property, free and clear of all Liens, other than Permitted Liens. (u) (1) Set forth on Schedule 4.01(u)(i) hereto is a complete and accurate list of all Real Property Leases (other than Real Property Leases of office space for building management and personnel of the General Partner and its Subsidiaries; ) showing as of the date hereof the lease, property, lessee, lessor, expiration date of the lease, and Digital Realty – Yen Credit Agreement 66annual rent. Each such Real Property Lease is the legal, valid and binding obligation of the applicable Loan Party or Subsidiary thereof, enforceable against such Loan Party or Subsidiary in accordance with its terms.
Appears in 1 contract
Representations and Warranties of the Loan Parties. Each Loan Party represents and warrants as follows:
(a) Each Loan Party and each general partner or managing member, if any, of each Loan Party its Subsidiaries (i) is a corporation, limited liability company or limited partnership duly incorporated, organized or formedorganized, validly existing and in good standing (to the extent that a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) under the laws of the jurisdiction of its incorporation, organization or formation, (ii) is duly qualified and in good standing (to the extent that a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) as a foreign corporation, limited liability corporation or company or partnership in each other jurisdiction in which it owns or leases property or in which the conduct of its business requires it to so qualify or be licensed licensed, except where the failure to so qualify or be licensed would could not be reasonably likely expected to have a Material Adverse Effect and (iii) has all requisite corporate, limited liability company or partnership (as applicable) power and authority (including, without limitation, all governmental licenses, permits and other approvalsGovernmental Authorizations) to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted. The Parent Guarantor All of the outstanding Equity Interests in the Borrower have been validly issued, are fully paid and non-assessable.
(b) Set forth on Schedule 4.01(b) hereto is organized in conformity with a complete and accurate list of all Subsidiaries of each Loan Party, showing as of the requirements for qualification date hereof (as a REIT under to each such Subsidiary) the Internal Revenue Codejurisdiction of its formation, the number of shares, membership interests or partnership interests (as applicable) of each class of its Equity Interests authorized, and the number outstanding, on the date hereof and the percentage of each such class of its method Equity Interests owned (directly or indirectly) by such Loan Party and the number of operation enables it to Digital Realty – Yen Credit Agreement meet shares covered by all outstanding options, warrants, rights of conversion or purchase and similar rights at the requirements for qualification and taxation as a REIT under the Internal Revenue Codedate hereof. All of the outstanding Equity Interests in the Parent each Subsidiary Guarantor have been validly issued, are fully paid and non‑assessable, all of the general partner Equity Interests in the Operating Partnership non-assessable and are owned by the Parent Guarantor, and all such general partner Equity Interests are owned by the Parent Guarantor free and clear of all Liens.
(bPersons set forth in Schedule 4.01(b) All of the outstanding Equity Interests in each Loan Party’s Subsidiaries have been validly issued, are fully paid and non‑assessable and, to the extent owned by such a Loan Party or one or more of its SubsidiariesParty, are owned by such Loan Party or Subsidiaries free and clear of all Liens (other than Liens on Equity Interests in Subsidiaries securing Debt that is not prohibited hereunder)Liens, except those created under the Collateral Documents.
(c) The execution execution, delivery and delivery performance by each Loan Party and of each general partner or managing member (if any) of each Loan Party of each Loan Transaction Document to which it is or is to be a party, and the performance of its obligations thereunder, and the consummation of the transactions contemplated by the Loan DocumentsTransaction, are within the such Loan Party’s corporate, limited liability company or limited partnership powers of such Loan Party, general partner or managing member(as applicable) powers, have been duly authorized by all necessary corporate, limited liability company or limited partnership (as applicable) action, and do not (i) contravene the charter or such Loan Party’s charter, bylaws, memorandum and articles of association, operating limited liability company agreement, partnership agreement or other governing document of such Loan Party, general partner or managing memberconstituent documents, (ii) violate any law, rule, regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve SystemSystem and Gaming Laws), order, writ, judgment, injunction, decree, determination or award, except for any such violation which could not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (iii) conflict with or result in the breach of, or constitute a default or require any payment to be made under, any Material Contract contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument binding on or affecting any Loan Party or Party, any of its Subsidiaries or any of their properties, except for any such conflict, breach, default or any general partner required payment which could not, either individually or managing member of any Loan Party in the aggregate reasonably be expected to have a Material Adverse Effect or (iv) except for the Liens created under the Loan Documents, result in or require the creation or imposition of any Lien upon or with respect to any of the properties of any Loan Party or any of its Subsidiaries. No Loan Party or any of its Subsidiaries is in violation of any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of any such Material Contractcontract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument, the violation or breach of which would could be reasonably likely to have a Material Adverse Effect.
(d) No authorization or approval or other action byGovernmental Authorization, and no notice to or filing with, any governmental authority or regulatory body Governmental Authority or any other third party is required for (i) the due execution, delivery, recordation, filing or performance by any Loan Party or any general partner or managing member of any Loan Party of any Loan Transaction Document to which it is or is to be a party party, or for the consummation of the transactions Transactions contemplated thereby, (ii) the grant by any Loan Party of the Loan Liens granted by it pursuant to the Collateral Documents, (iii) the perfection or maintenance of the Liens created under the Collateral Documents and (including the first priority nature thereof) or (iv) the exercise by the Administrative any Agent or any Lender Party of its rights under the Loan Documents or the remedies in respect of the Collateral pursuant to the Collateral Documents, except for the authorizations, approvals, actions, notices and filings specifically contemplated in the Collateral Documents or listed on Schedule 4.01(d) hereto, all of which (other than those specifically contemplated by the Collateral Documents) have been duly obtained, taken, given or made and are in full force and effect. All applicable waiting periods in connection with the Transaction have expired without any action having been taken by any competent authority restraining, preventing or imposing materially adverse conditions upon the Transaction or the rights of the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, any properties now owned or hereafter acquired by any of them.
(e) This Agreement has been, and each other Loan Transaction Document when delivered hereunder will have been, duly executed and delivered by each Loan Party and general partner or managing member (if any) of each Loan Party party thereto. This Agreement is, and each other Loan Transaction Document when delivered hereunder will be, the legal, valid and binding obligation of each Loan Party party thereto, enforceable against such Loan Party in accordance with its terms, except as such enforceability may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium, examinership or similar laws affecting creditors’ rights generally and by general principles of equity.
(f) Except as set forth in the reports delivered to the Administrative Agent pursuant to Section 5.03(g), there There is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries or any general partner or managing member (if any) of any Loan PartySubsidiaries, Digital Realty – Yen Credit Agreement including any Environmental Action to any Loan Party’s knowledgeAction, pending or threatened before any court, governmental agency Governmental Authority or arbitrator that (i) would could be reasonably be expected likely to have a Material Adverse Effect (other than the matters described in Schedule 4.01(f) hereto (the “DISCLOSED LITIGATION”) or (ii) would reasonably be expected purports to affect the legality, validity or enforceability of any Loan Transaction Document or the consummation of the transactions contemplated by Transaction, and there has been no adverse change in the status, or financial effect on any Loan DocumentsParty or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto.
(g) The Debtors’ Consolidated balance sheet of financial statements for the Parent Guarantor and its Subsidiaries as at year ended December 31, 2017 2009 included in the General Partner’s Annual Report on Form 10-K for the year ended December 31, 2009 and for the related Consolidated statement of income and Consolidated statement of cash flows of three months ended March 31, 2010 included in the Parent Guarantor and its Subsidiaries General Partner’s Quarterly Report on Form 10-Q for the fiscal year then endedquarter ended March 31, accompanied by an opinion of KPMG LLP, independent public accountants, and the Consolidated balance sheet of the Parent Guarantor as at June 30, 2018, and the related Consolidated statement of income and Consolidated statement of cash flows of the Parent Guarantor and its Subsidiaries for the six months then ended2010, copies of which have been furnished to each Lender Party, fairly present, subject, present in the case of such balance sheet as at June 30, 2018, and such statements of income and cash flows for the six months then ended, to year‑end audit adjustments, all material respects the Consolidated financial condition of the Parent Guarantor General Partner and its Subsidiaries as at such dates and the Consolidated results of operations of the Parent Guarantor General Partner and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles applied on a consistent basisGAAP, and since December 31, 20172009, there has been no Material Adverse Change, other than any change disclosed in publicly filed documents filed by the General Partner or any of its Subsidiaries not less than five Business Days prior to the Effective Date.
(h) The Consolidated forecasted balance sheets, statements of income and statements of cash flows of the Parent Guarantor and its Subsidiaries most recently delivered to the Lender Parties pursuant to Section 5.03 were prepared in good faith on the basis of the assumptions stated therein, which assumptions were fair in light of the conditions existing at the time of delivery of such forecasts[Reserved].
(i) No information, exhibit or report furnished by or on behalf of any Loan Party to the Administrative Agent or any Lender Party in connection with the negotiation and syndication of the Loan Documents or pursuant to the terms of the Loan Documents contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements made therein not materially misleading in light of the circumstances under which they were made[Reserved].
(j) All Gaming Licenses have been duly obtained and are in full force and effect without any known conflict with the rights of others and free from any unduly burdensome restrictions, except where any such failure to obtain such Gaming Licenses or any such conflict or restriction could not reasonably be expected to have a Material Adverse Effect. None of the Loan Parties has received any written notice or other written communications from any Gaming Authority regarding (A) any revocation, withdrawal, suspension, termination or modification of, or the imposition of any material conditions with respect to, any Gaming License, or (B) any other limitations on the conduct of business by any Loan Party, except where any such revocation, withdrawal, suspension, termination, modification, imposition or limitation could not reasonably be expected to have a Material Adverse Effect.
(k) No Loan Party is engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Advance Loan have been or drawings under any Letter of Credit will be used, directly or indirectly, whether immediately, incidentally or ultimately used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock or to refund indebtedness originally incurred for such purposeStock.
(kl) Neither any Loan Party nor any of its Subsidiaries nor any general partner or managing member of any Loan Party, as applicable, is an “investment company”, ,” or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company”, ,” as such terms are defined in the Investment Company Act of 1940, as amended. Without limiting the generality of the foregoing, each Loan Party and each of its Subsidiaries and each general partner or managing member of any Loan Party, as applicable: (i) is primarily engaged, directly or through a wholly‑owned subsidiary or subsidiaries, in a business or businesses other than that of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (ii) is not engaged in, does not propose to engage in and does not hold itself out as being engaged in the business of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (iii) does not own or propose to acquire investment securities (as defined in the Investment Company Act of 1940, as amended) having a value exceeding forty percent (40%) of the value of such company’s total assets (exclusive of government securities and cash items) on an unconsolidated basis; (iv) has not in the past been engaged in the business of Digital Realty – Yen Credit Agreement issuing face‑amount certificates of the installment type; and (v) does not have any outstanding face‑amount certificates of the installment type. Neither the making of any Advances, nor the issuance of any Letters of Credit, nor the application of the proceeds or repayment thereof by any Borrower, nor the consummation of the other transactions contemplated by the Loan Documents, will violate any provision of any such Act or any rule, regulation or order of the Securities and Exchange Commission thereunder.
(l) Each of the Assets listed on the schedule of Unencumbered Assets delivered to the Administrative Agent in connection with the Closing Date (as updated from time to time in accordance with Section 5.03(d)) satisfies all Unencumbered Asset Conditions, except to the extent as otherwise set forth herein or waived in writing by the Required Lenders. The Loan Parties are the legal and beneficial owners of the Unencumbered Assets free and clear of any Lien, except for the Liens permitted under the Loan Documents.
(m) Neither any Loan Party nor any of its Subsidiaries nor any general partner or managing member of any Loan Party, as applicable, is an EEA Financial Institution.
(n) Set forth on Schedule 4.01(n) hereto is a complete and accurate list of all Surviving Debt of each Loan Party and its Subsidiaries (other than intercompany Debt) as of the date set forth on Schedule 4.01(n) having a principal amount of at least $10,000,000 and showing as of such date the obligor and the principal amount outstanding thereunder, the maturity date thereof and the amortization schedule therefor, and from such date to the Closing Date except as set forth on Schedule 4.01(n) there has been no material change in the amounts, interest rates, sinking funds, installment payments or maturities of such Surviving Debt (other than payments of principal and interest in accordance with the documents governing such Debt).
(o) Each Loan Party and its Subsidiaries has good, marketable and insurable fee simple title to, or valid trust beneficiary interests or leasehold interests in, all material Real Property owned or leased by such Loan Party or any such Subsidiary, free and clear of all Liens, other than Liens created or permitted by the Loan Documents.
(i) The operations and properties of each Loan Party and each of its Subsidiaries comply in all material respects with all applicable Environmental Laws and Environmental Permits, there is no past non‑compliance with such Environmental Laws and Environmental Permits that has resulted in any ongoing material costs or obligations or that is reasonably expected to result in any future material costs or obligations, and no circumstances exist that (A) form the basis of an Environmental Action against any Loan Party or any of its Subsidiaries or any of their properties that would reasonably be expected to have a Material Adverse Effect or (B) cause any such property to be subject to any material restrictions on ownership, occupancy, use or transferability under any Environmental Law.
(i) Except as would not reasonably be expected to have a Material Adverse Effect, (A) none of the properties currently or formerly owned or operated by any Loan Party or any of its Subsidiaries is listed or proposed for listing on the NPL or any analogous foreign, state or local list or is adjacent to any such property; (B) there are no and never have been any underground or above ground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed on any property currently or formerly owned or operated by any Loan Party or any of its Subsidiaries that is reasonably expected to result in material liability to any Loan Party or any of its Subsidiaries; (C) there is no asbestos or asbestos‑containing material on any property currently owned or operated by any Loan Party or any of its Subsidiaries; and Digital Realty – Yen Credit Agreement 66as
Appears in 1 contract
Samples: Credit Agreement (Trump Entertainment Resorts, Inc.)
Representations and Warranties of the Loan Parties. Each Loan Party represents and warrants as follows:
(a) Each Loan Party and each general partner or managing member, if any, of each Loan Party its Subsidiaries (i) is a corporation, limited partnership or limited liability company or partnership duly incorporated, organized or formedorganized, validly existing and in good standing (to the extent that good standing is a concept of good standing exists under recognized for a specific entity type in the laws of the jurisdiction of the incorporation, organization or formation of such Loan Partyapplicable jurisdiction) under the laws of the jurisdiction of its incorporation, organization incorporation or formation, as the case may be, (ii) is duly qualified and in good standing (to the extent that good standing is a concept of good standing exists under recognized for a specific entity type in the laws of the jurisdiction of the incorporation, organization or formation of such Loan Partyapplicable jurisdiction) as a foreign corporation, limited partnership or limited liability company or partnership in each other jurisdiction in which it owns or leases property or in which the conduct of its business requires it to so qualify or be licensed except where the failure to so qualify or be licensed would could not be reasonably likely to have a Material Adverse Effect and (iii) has all requisite corporate, limited liability company or partnership (as applicable) power and authority (including, without limitation, all governmental licenses, permits and other approvals) to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted. The Parent Guarantor is organized in conformity with ; and (iv) has all Governmental Authorizations necessary to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted except where the requirements for qualification as failure to have such Governmental Authorization could not be reasonably likely to have a REIT under the Internal Revenue Code, and its method of operation enables it to Digital Realty – Yen Credit Agreement meet the requirements for qualification and taxation as a REIT under the Internal Revenue Code. All of the outstanding Equity Interests in the Parent Guarantor have been validly issued, are fully paid and non‑assessable, all of the general partner Equity Interests in the Operating Partnership are owned by the Parent Guarantor, and all such general partner Equity Interests are owned by the Parent Guarantor free and clear of all LiensMaterial Adverse Effect.
(b) Set forth on Schedule 4.01(b) hereto is a complete and accurate list of all Subsidiaries of each Loan Party, showing as of the Effective Date (as to each such Subsidiary) the jurisdiction of its formation, the number of shares, membership interests or limited partnership interest (as applicable) of each class of its Equity Interests authorized, and the number outstanding, on the Effective Date and the percentage of each such class of its Equity Interests owned (directly or indirectly) by such Loan Party and the number of shares, units or partnership interests covered by all outstanding options, warrants, rights of conversion or purchase and similar rights at the Effective Date. All of the outstanding Equity Interests in each Loan Party’s Subsidiaries have been validly issued, are fully paid and non‑assessable andnon-assessable and except as indicated on Schedule 4.01(b) hereto, to the extent are owned by such Loan Party or one or more of its Subsidiaries, are owned by such Loan Party or Subsidiaries free and clear of all Liens (other than Liens on Equity Interests in Subsidiaries securing Debt that is not prohibited hereunder)Liens, except those created under the Loan Documents.
(c) The execution execution, delivery and delivery performance by each Loan Party and of each general partner or managing member (if any) of each Loan Party of each Loan Document to which it is or is to be a party, and the performance of its obligations thereunder, and the consummation of the transactions contemplated by the Loan DocumentsTransaction, are within the such Loan Party’s corporate, limited liability company or limited partnership powers of such Loan Party, general partner or managing member(as applicable) powers, have been duly authorized by all necessary corporate, limited liability company or limited partnership (as applicable) action, and do not (i) contravene the charter or such Loan Party’s charter, certificate of formation, bylaws, memorandum and articles of association, operating limited liability company agreement, partnership agreement or other governing document of such Loan Party, general partner or managing memberconstituent documents, (ii) violate any current law, rule, regulation (including, without limitation, Regulation Regulations T, U or X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award, (iii) conflict with or result in the breach of, or constitute a default or require any payment to be made under, any Material Contract contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument binding on or affecting any Loan Party or Party, any of its Subsidiaries or any of their properties, or any general partner or managing member of any Loan Party properties or (iv) except for the Liens created under the Loan Documents, result in or require the creation or imposition of any Lien upon or with respect to any of the properties of any Loan Party or any of its Subsidiaries. No Loan Party or any of its Subsidiaries is in violation of any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of any such Material Contractcontract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument, the violation or breach of which would could be reasonably likely to have a Material Adverse Effect.
(d) No authorization or approval or other action byGovernmental Authorization, and no notice to or filing with, with any governmental authority or regulatory body Governmental Authority or any other third party party, is required for (i) the due execution, delivery, recordation, filing or performance by any Loan Party or any general partner or managing member of any Loan Party of any Loan Document to which it is or is to be a party party, or for the consummation of the transactions contemplated Transaction, (ii) the grant by any Loan Party of the Loan Liens granted by it pursuant to the Collateral Documents, (iii) the perfection or maintenance of the Liens created under the Collateral Documents and (including the first priority nature thereof), or (iv) the exercise by the Administrative any Agent or any Lender Party of its rights under the Loan Documents or the remedies in respect of the Collateral pursuant to the Collateral Documents, except for the authorizations, approvals, actions, notices and filings listed on Schedule 4.01(d) hereto, all of which have been duly obtained, taken, given or made and are in full force and effect. All applicable waiting periods in connection with the Transaction have expired without any action having been taken by any competent authority restraining, preventing or imposing materially adverse conditions upon the Transaction or the rights of the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, any properties now owned or hereafter acquired by any of them.
(e) This Agreement has been, and each other Loan Document when delivered hereunder will have been, duly executed and delivered by each Loan Party and general partner or managing member (if any) of each Loan Party that is a party thereto. This Agreement is, and each other Loan Document when delivered hereunder will be, the legal, valid and binding obligation of each Loan Party that is a party thereto, enforceable against such Loan Party in accordance with its termsterms subject, except as such enforceability may be limited by any applicable to enforcement only, to bankruptcy, insolvency, reorganization, moratorium, examinership moratoriums or similar laws at the time in effect affecting creditors’ the enforceability of the rights generally and by general principles of equitycreditors generally.
(f) Except as set forth in the reports delivered to the Administrative Agent pursuant to Section 5.03(g), there There is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries or any general partner or managing member (if any) of any Loan PartySubsidiaries, Digital Realty – Yen Credit Agreement including any Environmental Action to any Loan Party’s knowledgeAction, pending or threatened before any court, governmental agency Governmental Authority or arbitrator that (i) would could reasonably be expected to have a Material Adverse Effect or (ii) would reasonably be expected purports to affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated by the Loan DocumentsTransaction.
(g) The Consolidated consolidated balance sheet sheets of the Parent Guarantor Borrower and its Subsidiaries as at December 31July 30, 2017 2021, and the related Consolidated statement consolidated statements of income and Consolidated consolidated statement of cash flows of the Parent Guarantor Borrower and its Subsidiaries for the fiscal year then ended, accompanied by an unqualified opinion of KPMG Deloitte & Touche LLP, independent registered public accountants, and the Consolidated unaudited consolidated balance sheet sheets of the Parent Guarantor Borrower and its Subsidiaries as at June 30April 29, 20182022, and the related Consolidated statement unaudited consolidated statements of income and Consolidated consolidated statement of cash flows of the Parent Guarantor Borrower and its Subsidiaries for the six three months then ended, duly certified by the chief financial officer of the Borrower, copies of which have been furnished to each Lender Party, fairly present, subject, in present the case of such balance sheet as at June 30, 2018, and such statements of income and cash flows for the six months then ended, to year‑end audit adjustments, the Consolidated consolidated financial condition of the Parent Guarantor Borrower and its Subsidiaries as at such dates and the Consolidated consolidated results of operations of the Parent Guarantor Borrower and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles GAAP applied on a consistent basis, and since December 31July 30, 20172021, there has been no event, development or occurrence that could have a Material Adverse ChangeEffect.
(h) The Consolidated forecasted consolidated pro forma balance sheetssheet of the Borrower and its Subsidiaries as at April 29, 2022, the related consolidated pro forma statements of income and statements of cash flows of the Parent Guarantor Borrower and its Subsidiaries most recently for the four-quarter period then ended, in each case certified by the chief financial officer of the Borrower, copies of which have been furnished to each Lender Party, fairly present the consolidated pro forma financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated pro forma results of operations of the Borrower and its Subsidiaries for the period ended on such dates, in each case giving effect to the Transaction, all in accordance with GAAP.
(i) The consolidated forecasted balance sheet, statement of income and statement of cashflows of the Borrower and its Subsidiaries, delivered to the Lender Parties pursuant to Section 5.03 Sections 3.01(a)(x) or 5.03, were prepared in good faith on the basis of the assumptions stated therein, which assumptions were fair reasonable in light of the conditions existing at the time of delivery of such forecasts, and represented, at the time of delivery, the Borrower’s reasonable best estimate of its future financial performance, based upon the assumptions set forth in such forecast.
(ij) No information, exhibit or report furnished by or on behalf of any Loan Party to the Administrative any Agent or any Lender Party in connection with the negotiation and syndication of the Loan Documents or pursuant to the terms of the Loan Documents contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements made therein not materially misleading in light of the circumstances under which they were mademisleading.
(jk) No Loan Party The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Advance or drawings under any Letter of Credit will be used, directly or indirectly, whether immediately, incidentally or ultimately to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock or to refund indebtedness originally incurred for such purposeStock.
(kl) Neither any Loan Party nor any of its Subsidiaries nor any general partner or managing member of any Loan Party, as applicable, is an “investment company”, or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company”, as such terms are defined in the Investment Company Act of 1940, as amended. Without limiting the generality of the foregoing, each Loan Party and each of its Subsidiaries and each general partner or managing member of any Loan Party, as applicable: (i) is primarily engaged, directly or through a wholly‑owned subsidiary or subsidiaries, in a business or businesses other than that of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (ii) is not engaged in, does not propose to engage in and does not hold itself out as being engaged in the business of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (iii) does not own or propose to acquire investment securities (as defined in the Investment Company Act of 1940, as amended) having a value exceeding forty percent (40%) of the value of such company’s total assets (exclusive of government securities and cash items) on an unconsolidated basis; (iv) has not in the past been engaged in the business of Digital Realty – Yen Credit Agreement issuing face‑amount certificates of the installment type; and (v) does not have any outstanding face‑amount certificates of the installment type. Neither the making of any Advances, nor the issuance of any Letters of Credit, nor the application of the proceeds or repayment thereof by any the Borrower, nor the consummation of the other transactions contemplated by the Loan Documents, will violate any provision of any such Act or any rule, regulation or order of the Securities and Exchange Commission thereunder.
(lm) Each Neither any Loan Party nor any of its Subsidiaries is a party to any indenture, loan or credit agreement or any lease or other agreement or instrument or subject to any charter or corporate restriction that could be reasonably likely to have a Material Adverse Effect.
(n) The provisions of the Assets listed on Collateral Documents executed by the schedule Loan Parties are effective to create, in favor of Unencumbered Assets delivered to the Administrative Agent Lenders, legal, valid and enforceable security interests in connection with all right, title and interest of the Closing Date (as updated Loan Parties in any and all of the collateral described therein, securing the Notes and all other Obligations from time to time outstanding under the Loan Documents. Each of such Collateral Documents (but in accordance with Section 5.03(d)the case of the Pledge Agreement, upon the taking of possession of the Collateral as provided in the Pledge Agreement) satisfies creates a fully perfected security interest in all Unencumbered Asset Conditionsright, except title and interest of the Loan Parties in such collateral, superior in right to any liens, existing or future, which the extent as otherwise set forth herein Loan Parties or waived in writing by the Required Lendersany creditors of or purchasers from, or any other Person, may have against such collateral or interests therein. The Loan Parties are the legal and beneficial owners of the Unencumbered Assets Collateral free and clear of any Lien, except for the Liens liens and security interests created or permitted under the Loan Documents.
(mo) Neither any Each Loan Party nor any of is, individually and together with its Subsidiaries nor any general partner or managing member of any Loan PartySubsidiaries, as applicable, is an EEA Financial InstitutionSolvent.
(np) (i) Set forth on Schedule 4.01(n4.01(p) hereto is a complete and accurate list of all Surviving Debt of each Loan Party Plans and its Subsidiaries (other than intercompany Debt) as of the date set forth on Schedule 4.01(n) having a principal amount of at least $10,000,000 and showing as of such date the obligor and the principal amount outstanding thereunder, the maturity date thereof and the amortization schedule therefor, and from such date to the Closing Date except as set forth on Schedule 4.01(n) there has been no material change in the amounts, interest rates, sinking funds, installment payments or maturities of such Surviving Debt (other than payments of principal and interest in accordance with the documents governing such Debt)Multiemployer Plans.
(o) Each Loan Party and its Subsidiaries has good, marketable and insurable fee simple title to, or valid trust beneficiary interests or leasehold interests in, all material Real Property owned or leased by such Loan Party or any such Subsidiary, free and clear of all Liens, other than Liens created or permitted by the Loan Documents.
(i) The operations and properties of each Loan Party and each of its Subsidiaries comply in all material respects with all applicable Environmental Laws and Environmental Permits, there is no past non‑compliance with such Environmental Laws and Environmental Permits that has resulted in any ongoing material costs or obligations or that is reasonably expected to result in any future material costs or obligations, and no circumstances exist that (A) form the basis of an Environmental Action against any Loan Party or any of its Subsidiaries or any of their properties that would reasonably be expected to have a Material Adverse Effect or (B) cause any such property to be subject to any material restrictions on ownership, occupancy, use or transferability under any Environmental Law.
(i) Except as would not reasonably be expected to have a Material Adverse Effect, (A) none of the properties currently or formerly owned or operated by any Loan Party or any of its Subsidiaries is listed or proposed for listing on the NPL or any analogous foreign, state or local list or is adjacent to any such property; (B) there are no and never have been any underground or above ground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed on any property currently or formerly owned or operated by any Loan Party or any of its Subsidiaries that is reasonably expected to result in material liability to any Loan Party or any of its Subsidiaries; (C) there is no asbestos or asbestos‑containing material on any property currently owned or operated by any Loan Party or any of its Subsidiaries; and Digital Realty – Yen Credit Agreement 66
Appears in 1 contract
Samples: Credit Agreement (Cracker Barrel Old Country Store, Inc)
Representations and Warranties of the Loan Parties. Each Loan Party represents and warrants as follows:
(a) Each Loan Party and each general partner or managing member, if any, of each Loan Party (i) is a corporation, limited liability company or partnership duly incorporated, organized or formed, validly existing and in good standing (to the extent that a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) under the laws of the jurisdiction of its incorporation, organization or formation, (ii) is duly qualified and in good standing (to the extent that a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) as a foreign corporation, limited liability company or partnership in each other jurisdiction in which it owns or leases property or in which the conduct of its business requires it to so qualify or be licensed except where the failure to so qualify or be licensed would not be reasonably likely to have a Material Adverse Effect and (iii) has all requisite corporate, limited liability company or partnership power and authority (including, without limitation, all governmental licenses, permits and other approvals) to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted. The Parent Guarantor is organized in conformity with the requirements for qualification as a REIT under the Internal Revenue Code, and its method of operation enables it to Digital Realty – Yen Credit Agreement meet the requirements for qualification and taxation as a REIT under the Internal Revenue Code. All of the outstanding Equity Interests in the Parent Guarantor have been validly issued, are fully paid and non‑assessablenon-assessable, all of the general partner Equity Interests in the Operating Partnership are owned by the Parent Guarantor, and all such general partner Equity Interests are owned by the Parent Guarantor free and clear of all Liens.
(b) All of the outstanding Equity Interests in each Loan Party’s Subsidiaries have been validly issued, are fully paid and non‑assessable non-assessable and, to the extent owned by such Loan Party or one or more of its Subsidiaries, are owned by such Loan Party or Subsidiaries free and clear of all Liens (other than Liens on Equity Interests in Subsidiaries securing Debt that is not prohibited hereunder).
(c) The execution and delivery by each Loan Party and of each general partner or managing member (if any) of each Loan Party of each Loan Document to which it is or is to be a party, and the performance of its obligations thereunder, and the consummation of the transactions contemplated by the Loan Documents, are within the corporate, limited liability company or partnership powers of such Loan Party, general partner or managing member, have been duly authorized by all necessary corporate, limited liability company or partnership action, and do not (i) contravene the charter or bylaws, memorandum and articles of association, operating agreement, partnership agreement or other governing document of such Loan Party, general partner or managing member, (ii) violate any law, rule, regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award, (iii) conflict with or result in the breach of, or constitute a default or require any payment to be made under, any Material Contract binding on or affecting any Loan Party or any of its Subsidiaries or any of their properties, or any general partner or managing member of any Loan Party or (iv) result in or require the creation or imposition of any Lien upon or with respect to any of the properties of any Loan Party or any of its Subsidiaries. No Loan Party or any of its Subsidiaries is in violation of any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of any such Material Contract, the violation or breach of which would be reasonably likely to have a Material Adverse Effect.
(d) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery, recordation, filing or performance by any Loan Party or any general partner or managing member of any Loan Party of any Loan Document to which it is or is to be a party or for the consummation of the transactions contemplated by the Loan Documents and the exercise by the Administrative Agent or any Lender Party of its rights under the Loan Documents, except for authorizations, approvals, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect.
(e) This Agreement has been, and each other Loan Document when delivered hereunder will have been, duly executed and delivered by each Loan Party and general partner or managing member (if any) of each Loan Party party thereto. This Agreement is, and each other Loan Document when delivered hereunder will be, the legal, valid and binding obligation of each Loan Party party thereto, enforceable against such Loan Party in accordance with its terms, except as such enforceability may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium, examinership or similar laws affecting creditors’ rights generally and by general principles of equity.
(f) Except as set forth in the reports delivered to the Administrative Agent pursuant to Section 5.03(g), there is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries or any general partner or managing member (if any) of any Loan Party, Digital Realty – Yen Credit Agreement including any Environmental Action to any Loan Party’s knowledge, pending or threatened before any court, governmental agency or arbitrator that (i) would reasonably be expected to have a Material Adverse Effect or (ii) would reasonably be expected to affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated by the Loan Documents.
(g) The Consolidated balance sheet of the Parent Guarantor and its Subsidiaries as at December 31, 2017 and the related Consolidated statement of income and Consolidated statement of cash flows of the Parent Guarantor and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of KPMG LLP, independent public accountants, and the Consolidated balance sheet of the Parent Guarantor as at June 30, 2018, and the related Consolidated statement of income and Consolidated statement of cash flows of the Parent Guarantor and its Subsidiaries for the six months then ended, copies of which have been furnished to each Lender Party, fairly present, subject, in the case of such balance sheet as at June 30, 2018, and such statements of income and cash flows for the six months then ended, to year‑end audit adjustments, the Consolidated financial condition of the Parent Guarantor and its Subsidiaries as at such dates and the Consolidated results of operations of the Parent Guarantor and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles applied on a consistent basis, and since December 31, 2017, there has been no Material Adverse Change.
(h) The Consolidated forecasted balance sheets, statements of income and statements of cash flows of the Parent Guarantor and its Subsidiaries most recently delivered to the Lender Parties pursuant to Section 5.03 were prepared in good faith on the basis of the assumptions stated therein, which assumptions were fair in light of the conditions existing at the time of delivery of such forecasts.
(i) No information, exhibit or report furnished by or on behalf of any Loan Party to the Administrative Agent or any Lender Party in connection with the negotiation and syndication of the Loan Documents or pursuant to the terms of the Loan Documents contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements made therein not materially misleading in light of the circumstances under which they were made.
(j) No Loan Party is engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Advance or drawings under any Letter of Credit will be used, directly or indirectly, whether immediately, incidentally or ultimately to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock or to refund indebtedness originally incurred for such purpose.
(k) Neither any Loan Party nor any of its Subsidiaries nor any general partner or managing member of any Loan Party, as applicable, is an “investment company”, or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company”, as such terms are defined in the Investment Company Act of 1940, as amended. Without limiting the generality of the foregoing, each Loan Party and each of its Subsidiaries and each general partner or managing member of any Loan Party, as applicable: (i) is primarily engaged, directly or through a wholly‑owned subsidiary or subsidiaries, in a business or businesses other than that of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (ii) is not engaged in, does not propose to engage in and does not hold itself out as being engaged in the business of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (iii) does not own or propose to acquire investment securities (as defined in the Investment Company Act of 1940, as amended) having a value exceeding forty percent (40%) of the value of such company’s total assets (exclusive of government securities and cash items) on an unconsolidated basis; (iv) has not in the past been engaged in the business of Digital Realty – Yen Credit Agreement issuing face‑amount certificates of the installment type; and (v) does not have any outstanding face‑amount certificates of the installment type. Neither the making of any Advances, nor the issuance of any Letters of Credit, nor the application of the proceeds or repayment thereof by any Borrower, nor the consummation of the other transactions contemplated by the Loan Documents, will violate any provision of any such Act or any rule, regulation or order of the Securities and Exchange Commission thereunder.
(l) Each of the Assets listed on the schedule of Unencumbered Assets delivered to the Administrative Agent in connection with the Closing Date (as updated from time to time in accordance with Section 5.03(d)) satisfies all Unencumbered Asset Conditions, except to the extent as otherwise set forth herein or waived in writing by the Required Lenders. The Loan Parties are the legal and beneficial owners of the Unencumbered Assets free and clear of any Lien, except for the Liens permitted under the Loan Documents.
(m) Neither any Loan Party nor any of its Subsidiaries nor any general partner or managing member of any Loan Party, as applicable, is an EEA Financial Institution.
(n) Set forth on Schedule 4.01(n) hereto is a complete and accurate list of all Surviving Debt of each Loan Party and its Subsidiaries (other than intercompany Debt) as of the date set forth on Schedule 4.01(n) having a principal amount of at least $10,000,000 and showing as of such date the obligor and the principal amount outstanding thereunder, the maturity date thereof and the amortization schedule therefor, and from such date to the Closing Date except as set forth on Schedule 4.01(n) there has been no material change in the amounts, interest rates, sinking funds, installment payments or maturities of such Surviving Debt (other than payments of principal and interest in accordance with the documents governing such Debt).
(o) Each Loan Party and its Subsidiaries has good, marketable and insurable fee simple title to, or valid trust beneficiary interests or leasehold interests in, all material Real Property owned or leased by such Loan Party or any such Subsidiary, free and clear of all Liens, other than Liens created or permitted by the Loan Documents.
(i) The operations and properties of each Loan Party and each of its Subsidiaries comply in all material respects with all applicable Environmental Laws and Environmental Permits, there is no past non‑compliance with such Environmental Laws and Environmental Permits that has resulted in any ongoing material costs or obligations or that is reasonably expected to result in any future material costs or obligations, and no circumstances exist that (A) form the basis of an Environmental Action against any Loan Party or any of its Subsidiaries or any of their properties that would reasonably be expected to have a Material Adverse Effect or (B) cause any such property to be subject to any material restrictions on ownership, occupancy, use or transferability under any Environmental Law.
(i) Except as would not reasonably be expected to have a Material Adverse Effect, (A) none of the properties currently or formerly owned or operated by any Loan Party or any of its Subsidiaries is listed or proposed for listing on the NPL or any analogous foreign, state or local list or is adjacent to any such property; (B) there are no and never have been any underground or above ground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed on any property currently or formerly owned or operated by any Loan Party or any of its Subsidiaries that is reasonably expected to result in material liability to any Loan Party or any of its Subsidiaries; (C) there is no asbestos or asbestos‑containing material on any property currently owned or operated by any Loan Party or any of its Subsidiaries; and Digital Realty – Yen Credit Agreement 66
Appears in 1 contract
Representations and Warranties of the Loan Parties. Each Loan Party represents and warrants as follows:
(a) Each Loan Party and each general partner or managing member, if any, of each Loan Party its Subsidiaries (i) is a corporation, limited liability company or partnership duly incorporated, organized or formedorganized, validly existing and in good standing (to the extent that a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) under the laws of the jurisdiction of its incorporation, organization or formationorganization, (ii) is duly qualified and in good standing (to the extent that a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) as a foreign corporation, limited liability company or partnership corporation in each other jurisdiction in which it owns or leases property or in which the conduct of its business requires it to so qualify or be licensed except where the failure to so qualify or be licensed would could not be reasonably likely to have a Material Adverse Effect and (iii) has all requisite corporate, limited liability company or partnership corporate power and authority (including, without limitation, all governmental licenses, permits and other approvalsGovernmental Authorizations) to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted. The Parent Guarantor is organized in conformity with the requirements for qualification as a REIT under the Internal Revenue Code, and its method of operation enables it to Digital Realty – Yen Credit Agreement meet the requirements for qualification and taxation as a REIT under the Internal Revenue Code. All of the outstanding Equity Interests in the Parent Guarantor Borrower have been validly issued, are fully paid and non‑assessable, all of the general partner Equity Interests in the Operating Partnership are owned by the Parent Guarantor, and all such general partner Equity Interests are owned by the Parent Guarantor free and clear of all Liensnon-assessable.
(b) Set forth on Schedule 4.01(b) hereto is a complete and accurate list of all Subsidiaries of each Loan Party, showing as of the date hereof (as to each such Subsidiary) the jurisdiction of its organization, the number of shares of each class of its Equity Interests authorized, and the number outstanding, on the date hereof and the percentage of each such class of its Equity Interests owned (directly or indirectly) by such Loan Party and the number of shares covered by all outstanding options, warrants, rights of conversion or purchase and similar rights at the date hereof. All of the outstanding Equity Interests in each Loan Party’s 's Subsidiaries owned by such Loan Party have been validly issued, are fully paid and non‑assessable and, to the extent non-assessable and are owned by such Loan Party or one or more of its Subsidiaries, are owned by such Loan Party or Subsidiaries free and clear of all Liens (other than Liens on Equity Interests in Subsidiaries securing Debt that is not prohibited hereunder)Liens, except those created under the Collateral Documents.
(c) The execution execution, delivery and delivery performance by each Loan Party and of each general partner or managing member (if any) of each Loan Party of each Loan Document to which it is or is to be a party, and the performance of its obligations thereunder, and the consummation of the transactions contemplated by the Loan Documentshereby, are within the corporate, limited liability company or partnership powers of such Loan Party, general partner or managing member's corporate powers, have been duly authorized by all necessary corporate, limited liability company or partnership corporate action, and do not (i) contravene the charter or bylaws, memorandum and articles of association, operating agreement, partnership agreement or other governing document of such Loan Party, general partner 's constitutive or managing membergoverning documents, (ii) violate any law, rule, regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award, (iii) conflict with or result in the breach of, or constitute a default or require any payment to be made under, any Material Contract contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument binding on or affecting any Loan Party or Party, any of its Subsidiaries or any of their properties, or any general partner or managing member of any Loan Party including, without limitation, the Senior Subordinated Indenture or (iv) except for the Liens created under the Loan Documents, result in or require the creation or imposition of any Lien upon or with respect to any of the properties of any Loan Party or any of its Subsidiaries. No Loan Party or any of its Subsidiaries is in violation of any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of any such Material Contractcontract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument, the violation or breach of which would could be reasonably likely to have a Material Adverse Effect.
(d) No authorization or approval or other action byGovernmental Authorization, and no notice to or filing with, any governmental authority or regulatory body Governmental Authority or any other third party in the United States is required for (i) the due execution, delivery, recordation, filing or performance by any Loan Party or any general partner or managing member of any Loan Party of any Loan Document to which it is or is to be a party party, or for the consummation of the transactions contemplated hereby, (ii) the grant by any Loan Party of the Loan Liens granted by it pursuant to the Collateral Documents, (iii) the perfection or maintenance of the Liens created under the Collateral Documents and (including the first priority nature thereof, except with respect to liens permitted under Section 5.02(a)(ii)), or (iv) the exercise by the Administrative any Agent or any Lender Party of its rights under the Loan Documents or the remedies in respect of the Collateral pursuant to the Collateral Documents, except for the authorizations, approvals, actions, notices and filings listed on Schedule 4.01(d) hereto, all of which have been duly obtained, taken, given or made and are in full force and effect. All applicable waiting periods in connection with the transactions contemplated hereby have expired without any action having been taken by any competent authority restraining, preventing or imposing materially adverse conditions upon the transactions contemplated hereby or the rights of the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, any properties now owned or hereafter acquired by any of them. The Acquisition has been consummated in accordance with the Acquisition Agreement and applicable law.
(e) This Agreement has been, and each other Loan Document when delivered hereunder will have been, duly executed and delivered by each Loan Party and general partner or managing member (if any) of each Loan Party party thereto. This Agreement is, and each other Loan Document when delivered hereunder will be, the legal, valid and binding obligation of each Loan Party party thereto, enforceable against such Loan Party in accordance with its terms, except as such enforceability may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium, examinership or similar laws affecting creditors’ rights generally and by general principles of equity.
(f) Except as set forth in the reports delivered to the Administrative Agent pursuant to Section 5.03(g), there There is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries or any general partner or managing member (if any) of any Loan PartySubsidiaries, Digital Realty – Yen Credit Agreement including any Environmental Action to any Loan Party’s knowledgeAction, pending or threatened before any court, governmental agency Governmental Authority or arbitrator that (i) would could be reasonably be expected likely to have a Material Adverse Effect or (ii) would reasonably be expected purports to affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated by the Loan Documentshereby.
(g) The Consolidated balance sheet of the Parent Guarantor Borrower and its Subsidiaries as at December 31October 25, 2017 2002, and the related Consolidated statement and consolidating statements of income and Consolidated statement of cash flows of the Parent Guarantor Borrower and its Subsidiaries for the fiscal year then ended, accompanied by (in the case of Consolidated statements) an unqualified opinion of KPMG LLPErnst & Young, independent public accountants, and the Consolidated balance sheet of the Parent Guarantor Borrower and its Subsidiaries as at June 30January 31, 20182003, and the related Consolidated statement and consolidating statements of income and Consolidated statement of cash flows of the Parent Guarantor Borrower and its Subsidiaries for the six three months then ended, duly certified by the Chief Financial Officer, copies of which have been furnished to each Lender Party, fairly present, subject, in the case of such balance sheet as at June 30, 2018, and such statements of income and cash flows for the six months then ended, to year‑end audit adjustments, present the Consolidated and consolidating financial condition of the Parent Guarantor Borrower and its Subsidiaries as at such dates and the Consolidated and consolidating results of operations of the Parent Guarantor Borrower and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles applied on a consistent basis, and (i) for the period through the Effective Date, since December 31October 25, 20172002, and (ii) for the period after the Effective Date, since the Effective Date, there has been no Material Adverse Change.
(h) The Consolidated pro forma balance sheet of the Borrower and its Subsidiaries as at January 31, 2003, and the related Consolidated and consolidating pro forma statements of income and cash flows of the Borrower and its Subsidiaries for the three months then ended, certified by the Chief Financial Officer, copies of which have been furnished to each Lender Party, fairly present the Consolidated and consolidating pro forma financial condition of the Borrower and its Subsidiaries as at such date and the Consolidated and consolidating pro forma results of operations of the Borrower and its Subsidiaries for the period ended on such date, in each case giving effect to the Acquisition and the transactions contemplated hereby, all in accordance with GAAP.
(i) The Consolidated and consolidating forecasted balance sheets, statements of income and statements statement of cash flows of the Parent Guarantor Borrower and its Subsidiaries most recently delivered to the Lender Parties pursuant to Section 3.01(a)(xvii) or 5.03 were prepared in good faith on the basis of the assumptions stated therein, which assumptions were fair in light of the conditions existing at the time of delivery of such forecasts.
(i) No information, exhibit or report furnished by or on behalf of any Loan Party to the Administrative Agent or any Lender Party in connection with the negotiation and syndication of the Loan Documents or pursuant to the terms of the Loan Documents contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements made therein not materially misleading in light of the circumstances under which they were made.
(j) No Loan Party is engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds represented, at the time of any Advance or drawings under any Letter of Credit will be useddelivery, directly or indirectly, whether immediately, incidentally or ultimately to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock or to refund indebtedness originally incurred for such purpose.
(k) Neither any Loan Party nor any Borrower's best estimate of its Subsidiaries nor any general partner or managing member of any Loan Party, as applicable, is an “investment company”, or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company”, as such terms are defined in the Investment Company Act of 1940, as amended. Without limiting the generality of the foregoing, each Loan Party and each of its Subsidiaries and each general partner or managing member of any Loan Party, as applicable: (i) is primarily engaged, directly or through a wholly‑owned subsidiary or subsidiaries, in a business or businesses other than that of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (ii) is not engaged in, does not propose to engage in and does not hold itself out as being engaged in the business of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (iii) does not own or propose to acquire investment securities (as defined in the Investment Company Act of 1940, as amended) having a value exceeding forty percent (40%) of the value of such company’s total assets (exclusive of government securities and cash items) on an unconsolidated basis; (iv) has not in the past been engaged in the business of Digital Realty – Yen Credit Agreement issuing face‑amount certificates of the installment type; and (v) does not have any outstanding face‑amount certificates of the installment type. Neither the making of any Advances, nor the issuance of any Letters of Credit, nor the application of the proceeds or repayment thereof by any Borrower, nor the consummation of the other transactions contemplated by the Loan Documents, will violate any provision of any such Act or any rule, regulation or order of the Securities and Exchange Commission thereunderfuture financial performance.
(l) Each of the Assets listed on the schedule of Unencumbered Assets delivered to the Administrative Agent in connection with the Closing Date (as updated from time to time in accordance with Section 5.03(d)) satisfies all Unencumbered Asset Conditions, except to the extent as otherwise set forth herein or waived in writing by the Required Lenders. The Loan Parties are the legal and beneficial owners of the Unencumbered Assets free and clear of any Lien, except for the Liens permitted under the Loan Documents.
(m) Neither any Loan Party nor any of its Subsidiaries nor any general partner or managing member of any Loan Party, as applicable, is an EEA Financial Institution.
(n) Set forth on Schedule 4.01(n) hereto is a complete and accurate list of all Surviving Debt of each Loan Party and its Subsidiaries (other than intercompany Debt) as of the date set forth on Schedule 4.01(n) having a principal amount of at least $10,000,000 and showing as of such date the obligor and the principal amount outstanding thereunder, the maturity date thereof and the amortization schedule therefor, and from such date to the Closing Date except as set forth on Schedule 4.01(n) there has been no material change in the amounts, interest rates, sinking funds, installment payments or maturities of such Surviving Debt (other than payments of principal and interest in accordance with the documents governing such Debt).
(o) Each Loan Party and its Subsidiaries has good, marketable and insurable fee simple title to, or valid trust beneficiary interests or leasehold interests in, all material Real Property owned or leased by such Loan Party or any such Subsidiary, free and clear of all Liens, other than Liens created or permitted by the Loan Documents.
(i) The operations and properties of each Loan Party and each of its Subsidiaries comply in all material respects with all applicable Environmental Laws and Environmental Permits, there is no past non‑compliance with such Environmental Laws and Environmental Permits that has resulted in any ongoing material costs or obligations or that is reasonably expected to result in any future material costs or obligations, and no circumstances exist that (A) form the basis of an Environmental Action against any Loan Party or any of its Subsidiaries or any of their properties that would reasonably be expected to have a Material Adverse Effect or (B) cause any such property to be subject to any material restrictions on ownership, occupancy, use or transferability under any Environmental Law.
(i) Except as would not reasonably be expected to have a Material Adverse Effect, (A) none of the properties currently or formerly owned or operated by any Loan Party or any of its Subsidiaries is listed or proposed for listing on the NPL or any analogous foreign, state or local list or is adjacent to any such property; (B) there are no and never have been any underground or above ground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed on any property currently or formerly owned or operated by any Loan Party or any of its Subsidiaries that is reasonably expected to result in material liability to any Loan Party or any of its Subsidiaries; (C) there is no asbestos or asbestos‑containing material on any property currently owned or operated by any Loan Party or any of its Subsidiaries; and Digital Realty – Yen Credit Agreement 66
Appears in 1 contract
Representations and Warranties of the Loan Parties. Each Loan Party represents and warrants as follows:
(a) Each Loan Party and each general partner or managing member, if any, of each Loan Party its Subsidiaries (i) is a corporation, limited liability company or partnership duly incorporated, organized or formedorganized, validly existing and in good standing (to the extent that a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) under the laws of the jurisdiction of its incorporation, organization or formationorganization, (ii) is duly qualified and in good standing (to the extent that a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) as a foreign corporation, limited liability company or partnership corporation in each other jurisdiction in which it owns or leases property or in which the conduct of its business requires it to so qualify or be licensed except where the failure to so qualify or be licensed would could not be reasonably likely to have a Material Adverse Effect and (iii) has all requisite corporate, limited liability company or partnership corporate power and authority (including, without limitation, all governmental licenses, permits and other approvalsGovernmental Authorizations) to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted. The Parent Guarantor is organized in conformity with the requirements for qualification as a REIT under the Internal Revenue Code, and its method of operation enables it to Digital Realty – Yen Credit Agreement meet the requirements for qualification and taxation as a REIT under the Internal Revenue Code. All of the outstanding Equity Interests in the Parent Guarantor Borrower have been validly issued, are fully paid and non‑assessable, all of the general partner Equity Interests in the Operating Partnership are owned by the Parent Guarantor, and all such general partner Equity Interests are owned by the Parent Guarantor free and clear of all Liensnon-assessable.
(b) Set forth on Schedule 4.01(b) hereto is a complete and accurate list of all Subsidiaries of each Loan Party, showing as of the Amendment No. 5 Effective Date (giving pro forma effect to the CMC Acquisition as of such date) (as to each such Subsidiary) the jurisdiction of its organization, the number of shares of each class of its Equity Interests authorized, and the number outstanding, on the Amendment No. 5 Effective Date (giving pro forma effect to the CMC Acquisition as of such date) and the percentage of each such class of its Equity Interests owned (directly or indirectly) by such Loan Party and the number of shares covered by all outstanding options, warrants, rights of conversion or purchase and similar rights as of the Amendment No. 5 Effective Date (giving pro forma effect to the CMC Acquisition as of such date). All of the outstanding Equity Interests in each Loan Party’s Subsidiaries owned by such Loan Party have been validly issued, are fully paid and non‑assessable and, to the extent non-assessable and are owned by such Loan Party or one or more of its Subsidiaries, are owned by such Loan Party or Subsidiaries free and clear of all Liens (other than Liens on Equity Interests in Subsidiaries securing Debt that is not prohibited hereunder)Liens, except those created under the Collateral Documents.
(c) The execution execution, delivery and delivery performance by each Loan Party and of each general partner or managing member (if any) of each Loan Party of each Loan Document to which it is or is to be a party, and the performance of its obligations thereunder, and the consummation of the transactions contemplated by the Loan Documentshereby, are within the corporate, limited liability company or partnership powers of such Loan Party, general partner or managing member’s corporate powers, have been duly authorized by all necessary corporate, limited liability company or partnership corporate action, and do not (i) contravene the charter or bylaws, memorandum and articles of association, operating agreement, partnership agreement or other governing document of such Loan Party, general partner ’s constitutive or managing membergoverning documents, (ii) violate any law, rule, regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award, (iii) conflict with or result in the breach of, or constitute a default or require any payment to be made under, any Material Contract contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument binding on or affecting any Loan Party or Party, any of its Subsidiaries or any of their properties, including, without limitation, the Senior Subordinated Indenture or any general partner or managing member of any Loan Party the 2007 Senior Notes or (iv) except for the Liens created under the Loan Documents, result in or require the creation or imposition of any Lien upon or with respect to any of the properties of any Loan Party or any of its Subsidiaries. No Loan Party or any of its Subsidiaries is in violation of any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of any such Material Contractcontract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument, the violation or breach of which would could be reasonably likely to have a Material Adverse Effect.
(d) No authorization or approval or other action byGovernmental Authorization, and no notice to or filing with, any governmental authority or regulatory body Governmental Authority or any other third party in the United States is required for (i) the due execution, delivery, recordation, filing or performance by any Loan Party or any general partner or managing member of any Loan Party of any Loan Document to which it is or is to be a party party, or for the consummation of the transactions contemplated hereby, (ii) the grant by any Loan Party of the Loan Liens granted by it pursuant to the Collateral Documents, (iii) the perfection or maintenance of the Liens created under the Collateral Documents and (including the first priority nature thereof, except with respect to liens permitted under Section 5.02(a)(ii)), or (iv) the exercise by the Administrative any Agent or any Lender Party of its rights under the Loan Documents or the remedies in respect of the Collateral pursuant to the Collateral Documents, except for the authorizations, approvals, actions, notices and filings listed on Schedule 4.01(d) hereto, all of which have been duly obtained, taken, given or made and are in full force and effect. All applicable waiting periods in connection with the transactions contemplated hereby have expired without any action having been taken by any competent authority restraining, preventing or imposing materially adverse conditions upon the transactions contemplated hereby or the rights of the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, any properties now owned or hereafter acquired by any of them. The Acquisition has been consummated in accordance with the Acquisition Agreement and applicable law.
(e) This Agreement has been, and each other Loan Document when delivered hereunder will have been, duly executed and delivered by each Loan Party and general partner or managing member (if any) of each Loan Party party thereto. This Agreement is, and each other Loan Document when delivered hereunder will be, the legal, valid and binding obligation of each Loan Party party thereto, enforceable against such Loan Party in accordance with its terms, except as such enforceability may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium, examinership or similar laws affecting creditors’ rights generally and by general principles of equity.
(f) Except as set forth in the reports delivered to the Administrative Agent pursuant to Section 5.03(g), there There is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries or any general partner or managing member (if any) of any Loan PartySubsidiaries, Digital Realty – Yen Credit Agreement including any Environmental Action to any Loan Party’s knowledgeAction, pending or threatened before any court, governmental agency Governmental Authority or arbitrator that (i) would could be reasonably be expected likely to have a Material Adverse Effect or (ii) would reasonably be expected purports to affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated by the Loan Documentshereby.
(g) The Consolidated balance sheet of the Parent Guarantor Borrower and its Subsidiaries as at December 31October 25, 2017 2002, and the related Consolidated statement and consolidating statements of income and Consolidated statement of cash flows of the Parent Guarantor Borrower and its Subsidiaries for the fiscal year then ended, accompanied by (in the case of Consolidated statements) an unqualified opinion of KPMG LLPErnst & Young, independent public accountants, and the Consolidated balance sheet of the Parent Guarantor Borrower and its Subsidiaries as at June 30January 31, 20182003, and the related Consolidated statement and consolidating statements of income and Consolidated statement of cash flows of the Parent Guarantor Borrower and its Subsidiaries for the six three months then ended, duly certified by the Chief Financial Officer, copies of which have been furnished to each Lender Party, fairly present, subject, in the case of such balance sheet as at June 30, 2018, and such statements of income and cash flows for the six months then ended, to year‑end audit adjustments, present the Consolidated and consolidating financial condition of the Parent Guarantor Borrower and its Subsidiaries as at such dates and the Consolidated and consolidating results of operations of the Parent Guarantor Borrower and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles applied on a consistent basis, and (i) for the period through the Effective Date, since December 31October 25, 20172002, and (ii) for the period after the Effective Date, since the Effective Date, there has been no Material Adverse Change.
(h) The Consolidated forecasted pro forma balance sheetssheet of the Borrower and its Subsidiaries as at January 31, 2003, and the related Consolidated and consolidating pro forma statements of income and statements of cash flows of the Parent Guarantor Borrower and its Subsidiaries most recently delivered for the three months then ended, certified by the Chief Financial Officer, copies of which have been furnished to each Lender Party, fairly present the Consolidated and consolidating pro forma financial condition of the Borrower and its Subsidiaries as at such date and the Consolidated and consolidating pro forma results of operations of the Borrower and its Subsidiaries for the period ended on such date, in each case giving effect to the Lender Parties pursuant to Section 5.03 were prepared Acquisition and the transactions contemplated hereby, all in good faith on the basis of the assumptions stated therein, which assumptions were fair in light of the conditions existing at the time of delivery of such forecastsaccordance with GAAP.
(i) No information, exhibit or report furnished by or on behalf of any Loan Party to the Administrative Agent or any Lender Party in connection with the negotiation and syndication of the Loan Documents or pursuant to the terms of the Loan Documents contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements made therein not materially misleading in light of the circumstances under which they were madeReserved.
(j) No Loan Party is engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Advance or drawings under any Letter of Credit will be used, directly or indirectly, whether immediately, incidentally or ultimately to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock or to refund indebtedness originally incurred for such purpose.
(k) Neither any Loan Party nor any of its Subsidiaries nor any general partner or managing member of any Loan Party, as applicable, is an “investment company”, or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company”, as such terms are defined in the Investment Company Act of 1940, as amended. Without limiting the generality of the foregoing, each Loan Party and each of its Subsidiaries and each general partner or managing member of any Loan Party, as applicable: (i) is primarily engaged, directly or through a wholly‑owned subsidiary or subsidiaries, in a business or businesses other than that of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (ii) is not engaged in, does not propose to engage in and does not hold itself out as being engaged in the business of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (iii) does not own or propose to acquire investment securities (as defined in the Investment Company Act of 1940, as amended) having a value exceeding forty percent (40%) of the value of such company’s total assets (exclusive of government securities and cash items) on an unconsolidated basis; (iv) has not in the past been engaged in the business of Digital Realty – Yen Credit Agreement issuing face‑amount certificates of the installment type; and (v) does not have any outstanding face‑amount certificates of the installment type. Neither the making of any Advances, nor the issuance of any Letters of Credit, nor the application of the proceeds or repayment thereof by any Borrower, nor the consummation of the other transactions contemplated by the Loan Documents, will violate any provision of any such Act or any rule, regulation or order of the Securities and Exchange Commission thereunder.
(l) Each of the Assets listed on the schedule of Unencumbered Assets delivered to the Administrative Agent in connection with the Closing Date (as updated from time to time in accordance with Section 5.03(d)) satisfies all Unencumbered Asset Conditions, except to the extent as otherwise set forth herein or waived in writing by the Required Lenders. The Loan Parties are the legal and beneficial owners of the Unencumbered Assets free and clear of any Lien, except for the Liens permitted under the Loan Documents.
(m) Neither any Loan Party nor any of its Subsidiaries nor any general partner or managing member of any Loan Party, as applicable, is an EEA Financial Institution.
(n) Set forth on Schedule 4.01(n) hereto is a complete and accurate list of all Surviving Debt of each Loan Party and its Subsidiaries (other than intercompany Debt) as of the date set forth on Schedule 4.01(n) having a principal amount of at least $10,000,000 and showing as of such date the obligor and the principal amount outstanding thereunder, the maturity date thereof and the amortization schedule therefor, and from such date to the Closing Date except as set forth on Schedule 4.01(n) there has been no material change in the amounts, interest rates, sinking funds, installment payments or maturities of such Surviving Debt (other than payments of principal and interest in accordance with the documents governing such Debt).
(o) Each Loan Party and its Subsidiaries has good, marketable and insurable fee simple title to, or valid trust beneficiary interests or leasehold interests in, all material Real Property owned or leased by such Loan Party or any such Subsidiary, free and clear of all Liens, other than Liens created or permitted by the Loan Documents.
(i) The operations and properties of each Loan Party and each of its Subsidiaries comply in all material respects with all applicable Environmental Laws and Environmental Permits, there is no past non‑compliance with such Environmental Laws and Environmental Permits that has resulted in any ongoing material costs or obligations or that is reasonably expected to result in any future material costs or obligations, and no circumstances exist that (A) form the basis of an Environmental Action against any Loan Party or any of its Subsidiaries or any of their properties that would reasonably be expected to have a Material Adverse Effect or (B) cause any such property to be subject to any material restrictions on ownership, occupancy, use or transferability under any Environmental Law.
(i) Except as would not reasonably be expected to have a Material Adverse Effect, (A) none of the properties currently or formerly owned or operated by any Loan Party or any of its Subsidiaries is listed or proposed for listing on the NPL or any analogous foreign, state or local list or is adjacent to any such property; (B) there are no and never have been any underground or above ground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed on any property currently or formerly owned or operated by any Loan Party or any of its Subsidiaries that is reasonably expected to result in material liability to any Loan Party or any of its Subsidiaries; (C) there is no asbestos or asbestos‑containing material on any property currently owned or operated by any Loan Party or any of its Subsidiaries; and Digital Realty – Yen Credit Agreement 66
Appears in 1 contract
Representations and Warranties of the Loan Parties. Each Loan Party represents and warrants as follows:
(a) Each Loan Party and each general partner or managing member, if any, of each Loan Party its Subsidiaries (i) is a corporation, limited liability company or partnership corporation duly incorporated, organized or formedorganized, validly existing and in good standing (to the extent that a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) under the laws of the jurisdiction of its incorporation, organization or formation, (ii) is duly qualified and in good standing (to the extent that a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) as a foreign corporation, limited liability company or partnership corporation in each other jurisdiction in which it owns or leases property or in which the conduct of its business requires it to so qualify or be licensed except where the failure to so qualify or be licensed would could not be reasonably likely to have a Material Adverse Effect and (iii) has all requisite corporate, limited liability company or partnership corporate power and authority (including, without limitation, all governmental licenses, permits and other approvalsGovernmental Authorizations) to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted. The Parent Guarantor is organized in conformity with the requirements for qualification as a REIT under the Internal Revenue Code, and its method of operation enables it to Digital Realty – Yen Credit Agreement meet the requirements for qualification and taxation as a REIT under the Internal Revenue Code. All of the outstanding Equity Interests in the Parent Guarantor have been validly issued, are fully paid and non‑assessable, all of the general partner Equity Interests in the Operating Partnership are owned by the Parent Guarantor, and all such general partner Equity Interests are owned by the Parent Guarantor free and clear of all Liens.
(b) Set forth on Schedule VII hereto is a complete and accurate list of all Subsidiaries of each Loan Party, showing as of the date hereof (as to each such Subsidiary) the Second Amended and Restated Xxxxxxx Credit Agreement jurisdiction of its incorporation and the percentage ownership interests of each applicable Loan Party in such Subsidiary. All of the outstanding Equity Interests in each Loan Party’s 's Subsidiaries have been validly issued, are fully paid and non‑assessable and, to the extent non-assessable and are owned by such Loan Party or one or more of its Subsidiaries, are owned by such Loan Party or Subsidiaries free and clear of all Liens (other than Liens on Equity Interests in Subsidiaries securing Debt that is not prohibited hereunder)Liens, except those created under the Collateral Documents.
(c) The execution execution, delivery and delivery performance by each Loan Party and of each general partner or managing member (if any) of each Loan Party of each Loan Document to which it is or is to be a party, and the performance of its obligations thereunder, and the consummation of the transactions contemplated by the Loan Documents, party are within the corporate, limited liability company or partnership powers of such Loan Party, general partner or managing member's corporate powers, have been duly authorized by all necessary corporate, limited liability company or partnership corporate action, and do not (i) contravene the such Loan Party's charter or bylaws, memorandum and articles of association, operating agreement, partnership agreement or other governing document of such Loan Party, general partner or managing member, (ii) violate any law, rule, regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award, (iii) conflict with or result in the breach of, or constitute a default or require any payment to be made under, any Material Contract contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument binding on or affecting any Loan Party or Party, any of its Subsidiaries or any of their properties, or any general partner or managing member of any Loan Party properties or (iv) except for the Liens created under the Loan Documents, result in or require the creation or imposition of any Lien upon or with respect to any of the properties of any Loan Party or any of its SubsidiariesCollateral. No Loan Party or any of its Subsidiaries is in violation of any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of any such Material Contractcontract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument, the violation or breach of which would could be reasonably likely to have a Material Adverse Effect.
(d) No authorization or approval or other action byGovernmental Authorization, and no notice to or filing with, any governmental authority or regulatory body Governmental Authority or any other third party is required for (i) the due execution, delivery, recordation, filing or performance by any Loan Party or any general partner or managing member of any Loan Party of any Loan Document to which it is or is to be a party or for party, (ii) the consummation grant by any Loan Party of the transactions contemplated Liens granted by it pursuant to the Loan Collateral Documents, (iii) the perfection or maintenance of the Liens created under the Collateral Documents and (including the first priority nature thereof) or (iv) the exercise by the Administrative any Agent or any Lender Party of its rights under the Loan Documents or the remedies in respect of the Collateral pursuant to the Collateral Documents, except for authorizations, approvals, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect.
(e) This Agreement has been, and each other Loan Document when delivered hereunder will have been, duly executed and delivered by each Loan Party and general partner or managing member (if any) of each Loan Party party thereto. This Agreement is, and each other Loan Document when delivered hereunder will be, the legal, valid and binding obligation of each Loan Party party thereto, enforceable against such Loan Party in accordance with its terms, except as such enforceability may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium, examinership or similar laws affecting creditors’ rights generally and by general principles of equity.
(f) Except as set forth in the reports delivered to the Administrative Agent pursuant to Section 5.03(g), there There is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries or any general partner or managing member (if any) of any Loan PartySubsidiaries, Digital Realty – Yen Credit Agreement including any Environmental Action to any Loan Party’s knowledgeAction, pending or threatened before any court, governmental agency Governmental Authority or arbitrator that (i) would could be reasonably be expected likely to have a Material Adverse Effect (other than the Disclosed Litigation) or (ii) would reasonably be expected purports to affect the legality, validity or enforceability of any Loan Transaction Document or the consummation of the transactions contemplated by the Loan Documents.
(g) The Consolidated balance sheet of the Parent Guarantor and its Subsidiaries as at December 31, 2017 and the related Consolidated statement of income and Consolidated statement of cash flows of the Parent Guarantor and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of KPMG LLP, independent public accountantsTransaction, and the Consolidated balance sheet of the Parent Guarantor as at June 30, 2018, and the related Consolidated statement of income and Consolidated statement of cash flows of the Parent Guarantor and its Subsidiaries for the six months then ended, copies of which have been furnished to each Lender Party, fairly present, subject, in the case of such balance sheet as at June 30, 2018, and such statements of income and cash flows for the six months then ended, to year‑end audit adjustments, the Consolidated financial condition of the Parent Guarantor and its Subsidiaries as at such dates and the Consolidated results of operations of the Parent Guarantor and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles applied on a consistent basis, and since December 31, 2017, there has been no Material Adverse Change.
(h) The Consolidated forecasted balance sheets, statements of income and statements of cash flows of the Parent Guarantor and its Subsidiaries most recently delivered to the Lender Parties pursuant to Section 5.03 were prepared in good faith on the basis of the assumptions stated therein, which assumptions were fair in light of the conditions existing at the time of delivery of such forecasts.
(i) No information, exhibit or report furnished by or on behalf of any Loan Party to the Administrative Agent or any Lender Party in connection with the negotiation and syndication of the Loan Documents or pursuant to the terms of the Loan Documents contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements made therein not materially misleading in light of the circumstances under which they were made.
(j) No Loan Party is engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Advance or drawings under any Letter of Credit will be used, directly or indirectly, whether immediately, incidentally or ultimately to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock or to refund indebtedness originally incurred for such purpose.
(k) Neither any Loan Party nor any of its Subsidiaries nor any general partner or managing member of any Loan Party, as applicable, is an “investment company”, or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company”, as such terms are defined in the Investment Company Act of 1940, as amended. Without limiting the generality of the foregoing, each Loan Party and each of its Subsidiaries and each general partner or managing member of any Loan Party, as applicable: (i) is primarily engaged, directly or through a wholly‑owned subsidiary or subsidiaries, in a business or businesses other than that of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (ii) is not engaged in, does not propose to engage in and does not hold itself out as being engaged in the business of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (iii) does not own or propose to acquire investment securities (as defined in the Investment Company Act of 1940, as amended) having a value exceeding forty percent (40%) of the value of such company’s total assets (exclusive of government securities and cash items) on an unconsolidated basis; (iv) has not in the past been engaged in the business of Digital Realty – Yen Credit Agreement issuing face‑amount certificates of the installment type; and (v) does not have any outstanding face‑amount certificates of the installment type. Neither the making of any Advances, nor the issuance of any Letters of Credit, nor the application of the proceeds or repayment thereof by any Borrower, nor the consummation of the other transactions contemplated by the Loan Documents, will violate any provision of any such Act or any rule, regulation or order of the Securities and Exchange Commission thereunder.
(l) Each of the Assets listed on the schedule of Unencumbered Assets delivered to the Administrative Agent in connection with the Closing Date (as updated from time to time in accordance with Section 5.03(d)) satisfies all Unencumbered Asset Conditions, except to the extent as otherwise set forth herein or waived in writing by the Required Lenders. The Loan Parties are the legal and beneficial owners of the Unencumbered Assets free and clear of any Lien, except for the Liens permitted under the Loan Documents.
(m) Neither any Loan Party nor any of its Subsidiaries nor any general partner or managing member of any Loan Party, as applicable, is an EEA Financial Institution.
(n) Set forth on Schedule 4.01(n) hereto is a complete and accurate list of all Surviving Debt of each Loan Party and its Subsidiaries (other than intercompany Debt) as of the date set forth on Schedule 4.01(n) having a principal amount of at least $10,000,000 and showing as of such date the obligor and the principal amount outstanding thereunder, the maturity date thereof and the amortization schedule therefor, and from such date to the Closing Date except as set forth on Schedule 4.01(n) there has been no material adverse change in the amounts, interest rates, sinking funds, installment payments or maturities of such Surviving Debt (other than payments of principal and interest in accordance with the documents governing such Debt).
(o) Each Loan Party and its Subsidiaries has good, marketable and insurable fee simple title tostatus, or valid trust beneficiary interests or leasehold interests in, all material Real Property owned or leased by such Loan Party or any such Subsidiary, free and clear of all Liens, other than Liens created or permitted by the Loan Documents.
(i) The operations and properties of each Loan Party and each of its Subsidiaries comply in all material respects with all applicable Environmental Laws and Environmental Permits, there is no past non‑compliance with such Environmental Laws and Environmental Permits that has resulted in any ongoing material costs or obligations or that is reasonably expected to result in any future material costs or obligations, and no circumstances exist that (A) form the basis of an Environmental Action against any Loan Party or any of its Subsidiaries or any of their properties that would reasonably be expected to have a Material Adverse Effect or (B) cause any such property to be subject to any material restrictions financial effect on ownership, occupancy, use or transferability under any Environmental Law.
(i) Except as would not reasonably be expected to have a Material Adverse Effect, (A) none of the properties currently or formerly owned or operated by any Loan Party or any of its Subsidiaries is listed or proposed for listing on the NPL or any analogous foreign, state or local list or is adjacent to any such property; (B) there are no and never have been any underground or above ground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed on any property currently or formerly owned or operated by any Loan Party or any of its Subsidiaries that is reasonably expected to result in material liability to any Loan Party or any of its Subsidiaries; (C) there is no asbestos or asbestos‑containing material , of the Disclosed Litigation from that described on any property currently owned or operated by any Loan Party or any of its Subsidiaries; and Digital Realty – Yen Credit Agreement 66Schedule VI hereto.
Appears in 1 contract
Representations and Warranties of the Loan Parties. Each of the Loan Party Parties represents and warrants as follows:
(a) Each Loan Party and each general partner or managing member, if any, of each Loan Party (i) is a corporation, limited liability company or partnership corporation duly incorporated, organized or formedorganized, validly existing and in good standing (to the extent that a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) under the laws of the jurisdiction of its incorporation, organization or formation, (ii) is duly qualified and in good standing (to the extent that a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) as a foreign corporation, limited liability company or partnership corporation in each other jurisdiction in which it owns or leases property or in which the conduct of its business requires it to so qualify or be licensed except where the failure to so qualify or be licensed would could not be reasonably likely to have a Material Adverse Effect and (iii) has all requisite corporate, limited liability company or partnership corporate power and authority (including, without limitation, all governmental licenses, permits and other approvals) to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted. All of the outstanding capital stock of Glenoit Assets Corp. and Tarboro Ltd. has been validly issued, is fully paid and non-assessable and is owned by Xxxxx in the amounts and types specified on Schedule 4.01(a) free and clear of all Liens. The Parent Guarantor outstanding capital stock of Xxxxx has been validly issued, is organized fully paid and non-assessable and is owned by the Borrower, in conformity with the requirements for qualification as a REIT under the Internal Revenue Code, amounts and its method types specified on Schedule 4.01(a) free and clear of operation enables it to Digital Realty – Yen Credit Agreement meet the requirements for qualification and taxation as a REIT under the Internal Revenue Codeall Liens. All of the outstanding Equity Interests in capital stock of the Parent Guarantor have Borrower has been validly issued, are is fully paid and non‑assessable, non-assessable and is owned by Universal in the amounts and types specified on Schedule 4.01(a) free and clear of all Liens. All of the general partner Equity Interests in the Operating Partnership are outstanding capital stock of Universal has been validly issued, is fully paid and non-assessable and is owned by the Parent GuarantorInvestor Group, in the amounts and all such general partner Equity Interests are owned by the Parent Guarantor types specified on Schedule 4.01(a) free and clear of all Liens.
(b) Set forth on Schedule 4.01(b) hereto is a complete and accurate list of all Subsidiaries of each Loan Party, showing as of the Second Restatement Date (as to each such Subsidiary) the jurisdiction of its incorporation, the number of shares of each class of capital stock authorized, and the number outstanding, on the Second Restatement Date and the percentage of the outstanding shares of each such class owned (directly or indirectly) by such Loan Party and the number of shares covered by all outstanding options, warrants, rights of conversion or purchase and similar rights at the Second Restatement Date. All of the outstanding Equity Interests in each Loan Party’s capital stock of all of such Subsidiaries have has been validly issued, are is fully paid and non‑assessable and, to the extent non-assessable and is owned by such Loan Party or one or more of its Subsidiaries, are owned by such Loan Party or Subsidiaries free and clear of all Liens Liens, except those created under the Loan Documents. Each such Subsidiary (i) is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation, (ii) is duly qualified and in good standing as a foreign corporation in each other than Liens jurisdiction in which it owns or leases property or in which the conduct of its business requires it to so qualify or be licensed except where the failure to so qualify or be licensed could not have a Material Adverse Effect and (iii) has all requisite corporate power and authority (including, without limitation, all governmental licenses, permits and other approvals) to own or lease and operate its properties and to carry on Equity Interests in Subsidiaries securing Debt that is not prohibited hereunder)its business as now conducted and as proposed to be conducted.
(c) The execution execution, delivery and delivery performance by each Loan Party and of this Agreement, the Notes, each general partner or managing member (if any) of each Loan Party of each other Loan Document and each of the Related Documents to which it is or is to be a party, and the performance of its obligations thereunder, and the consummation of the transactions contemplated by the Loan Documentshereby and thereby, are within the corporate, limited liability company or partnership powers of such Loan Party, general partner or managing member's corporate powers, have been duly authorized by all necessary corporate, limited liability company or partnership corporate action, and do not (i) contravene the such Loan Party's charter or bylaws, memorandum and articles of association, operating agreement, partnership agreement or other governing document of such Loan Party, general partner or managing member, (ii) violate any lawlaw (including, without limitation, the Securities Exchange Act of 1934 and the Racketeer Influenced and Corrupt Organizations Chapter of the Organized Crime Control Act of 1970), rule, regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award, (iii) conflict with or result in the breach of, or constitute a default or require any payment to be made under, any Material Contract material contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument binding on or affecting any Loan Party or Party, any of its Subsidiaries or any of their properties, or any general partner or managing member of any Loan Party properties or (iv) except for the Liens created under the Loan Documents, result in or require the creation or imposition of any Lien upon or with respect to any of the properties of any Loan Party or any of its Subsidiaries. No Loan Party or any of its Subsidiaries is in violation of any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of any such Material Contractcontract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument, the violation or breach of which would be reasonably likely to could have a Material Adverse Effect.
(d) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for (i) the due execution, delivery, recordation, filing or performance by any Loan Party of this Agreement, the Notes, any other Loan Document or any general partner or managing member of any Loan Party of any Loan Related Document to which it is or is to be a party party, or for the consummation of the transactions contemplated hereby or thereby, (ii) the grant by any Loan Party of the Liens granted by it pursuant to the Collateral Documents, (iii) the perfection or maintenance of the Liens created by the Loan Collateral Documents and (including the first priority nature thereof) or (iv) the exercise by the Administrative Agent or any Lender Party of its rights under the Loan Documents or the remedies in respect of the Collateral pursuant to the Collateral Documents, except for the authorizations, approvals, actions, notices and filings listed on Schedule 4.01(d), all of which have been duly obtained, taken, given or made and are in full force and effecteffect (other than filings with the patent, trademark and copyright offices of the United States and the relevant foreign countries). All applicable waiting periods in connection with the transactions contemplated hereby and thereby have expired without any action having been taken by any competent authority restraining, preventing or imposing materially adverse conditions upon the rights of the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, any properties now owned or hereafter acquired by any of them.
(e) This Agreement has been, and each of the Notes, each other Loan Document and each Related Document when delivered hereunder will have been, duly executed and delivered by each Loan Party and general partner or managing member (if any) of each Loan Party party thereto. This Agreement is, and each of the Notes, each other Loan Document and each Related Document when delivered hereunder will be, the legal, valid and binding obligation of each Loan Party party thereto, enforceable against such Loan Party in accordance with its terms, terms except as such enforceability may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium, examinership moratorium or similar other laws affecting relating to or limiting creditors’ ' rights generally and or by general equitable principles of equitygenerally.
(f) Except as set forth in the reports delivered to the Administrative Agent pursuant to Section 5.03(g), there is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries or any general partner or managing member (if any) of any Loan Party, Digital Realty – Yen Credit Agreement including any Environmental Action to any Loan Party’s knowledge, pending or threatened before any court, governmental agency or arbitrator that (i) would reasonably be expected to have a Material Adverse Effect or (ii) would reasonably be expected to affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated by the Loan Documents.
(g) The Consolidated balance sheet sheets of the Parent Guarantor Borrower and its Subsidiaries as at December 31January 4, 2017 1997, and the related Consolidated statements of income and cash flows of the Borrower and its Subsidiaries for the Fiscal Year then ended, accompanied by an opinion of Coopers & Xxxxxxx, independent public accountants, and the Consolidated and consolidating balance sheets of the Borrower and its Subsidiaries as at March 1, 1997, and the related Consolidated and consolidating statement of income and Consolidated statement of cash flows of the Parent Guarantor Borrower and its Subsidiaries for the fiscal year two Fiscal Months then ended, accompanied duly certified by an opinion of KPMG LLP, independent public accountants, and the Consolidated balance sheet chief financial officer of the Parent Guarantor as at June 30, 2018, and the related Consolidated statement of income and Consolidated statement of cash flows of the Parent Guarantor and its Subsidiaries for the six months then endedBorrower, copies of which have been furnished to each Lender Party, fairly present, subject, in the case of such said balance sheet as at June 30March 1, 20181997, and such said statements of income and cash flows for the six months two Fiscal Months then ended, to year‑end year-end audit adjustmentsadjustments and the absence of financial statement footnotes, the Consolidated financial condition of the Parent Guarantor Borrower and its Subsidiaries as at such dates and the Consolidated results of the operations of the Parent Guarantor Borrower and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles applied on a consistent basis, and since December 31January 4, 2017, 1997 there has been no Material Adverse Change.
(g) The Consolidated pro forma balance sheet of the Borrower and its Subsidiaries, as at March 1, 1997, certified by the chief financial officer of the Borrower, copies of which have been furnished to each Lender Party, fairly present the Consolidated pro forma financial condition of the Borrower and its Subsidiaries as at such date after giving effect to the transactions contemplated hereby, all in accordance with GAAP.
(h) The Consolidated forecasted balance sheets, income statements and cash flows statements of income and statements of cash flows of the Parent Guarantor Borrower and its Subsidiaries most recently delivered to the Lender Parties pursuant to Section 5.03 were prepared in good faith on the basis of the assumptions stated therein, which assumptions were fair in light of the conditions existing at the time of delivery of such forecasts.
(i3.01(g)(xiii) No information, exhibit or report furnished by or on behalf of any Loan Party to the Administrative Agent or any Lender Party in connection with the negotiation and syndication of the Loan Documents or pursuant to the terms of the Loan Documents contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements made therein not materially misleading in light of the circumstances under which they were made.
(j) No Loan Party is engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Advance or drawings under any Letter of Credit will be used, directly or indirectly, whether immediately, incidentally or ultimately to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock or to refund indebtedness originally incurred for such purpose.
(k) Neither any Loan Party nor any of its Subsidiaries nor any general partner or managing member of any Loan Party, as applicable, is an “investment company”, or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company”, as such terms are defined in the Investment Company Act of 1940, as amended. Without limiting the generality of the foregoing, each Loan Party and each of its Subsidiaries and each general partner or managing member of any Loan Party, as applicable: (i) is primarily engaged, directly or through a wholly‑owned subsidiary or subsidiaries, in a business or businesses other than that of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (ii) is not engaged in, does not propose to engage in and does not hold itself out as being engaged in the business of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (iii) does not own or propose to acquire investment securities (as defined in the Investment Company Act of 1940, as amended) having a value exceeding forty percent (40%) of the value of such company’s total assets (exclusive of government securities and cash items) on an unconsolidated basis; (iv) has not in the past been engaged in the business of Digital Realty – Yen Credit Agreement issuing face‑amount certificates of the installment type; and (v) does not have any outstanding face‑amount certificates of the installment type. Neither the making of any Advances, nor the issuance of any Letters of Credit, nor the application of the proceeds or repayment thereof by any Borrower, nor the consummation of the other transactions contemplated by the Loan Documents, will violate any provision of any such Act or any rule, regulation or order of the Securities and Exchange Commission thereunder.
(l) Each of the Assets listed on the schedule of Unencumbered Assets delivered to the Administrative Agent in connection with the Closing Date (as updated from time to time in accordance with Section 5.03(d)) satisfies all Unencumbered Asset Conditions, except to the extent as otherwise set forth herein or waived in writing by the Required Lenders. The Loan Parties are the legal and beneficial owners of the Unencumbered Assets free and clear of any Lien, except for the Liens permitted under the Loan Documents.
(m) Neither any Loan Party nor any of its Subsidiaries nor any general partner or managing member of any Loan Party, as applicable, is an EEA Financial Institution.
(n) Set forth on Schedule 4.01(n) hereto is a complete and accurate list of all Surviving Debt of each Loan Party and its Subsidiaries (other than intercompany Debt) as of the date set forth on Schedule 4.01(n) having a principal amount of at least $10,000,000 and showing as of such date the obligor and the principal amount outstanding thereunder, the maturity date thereof and the amortization schedule therefor, and from such date to the Closing Date except as set forth on Schedule 4.01(n) there has been no material change in the amounts, interest rates, sinking funds, installment payments or maturities of such Surviving Debt (other than payments of principal and interest in accordance with the documents governing such Debt).
(o) Each Loan Party and its Subsidiaries has good, marketable and insurable fee simple title to, or valid trust beneficiary interests or leasehold interests in, all material Real Property owned or leased by such Loan Party or any such Subsidiary, free and clear of all Liens, other than Liens created or permitted by the Loan Documents.
(i) The operations and properties of each Loan Party and each of its Subsidiaries comply in all material respects with all applicable Environmental Laws and Environmental Permits, there is no past non‑compliance with such Environmental Laws and Environmental Permits that has resulted in any ongoing material costs or obligations or that is reasonably expected to result in any future material costs or obligations, and no circumstances exist that (A) form the basis of an Environmental Action against any Loan Party or any of its Subsidiaries or any of their properties that would reasonably be expected to have a Material Adverse Effect or (B) cause any such property to be subject to any material restrictions on ownership, occupancy, use or transferability under any Environmental Law.
(i) Except as would not reasonably be expected to have a Material Adverse Effect, (A) none of the properties currently or formerly owned or operated by any Loan Party or any of its Subsidiaries is listed or proposed for listing on the NPL or any analogous foreign, state or local list or is adjacent to any such property; (B) there are no and never have been any underground or above ground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed on any property currently or formerly owned or operated by any Loan Party or any of its Subsidiaries that is reasonably expected to result in material liability to any Loan Party or any of its Subsidiaries; (C) there is no asbestos or asbestos‑containing material on any property currently owned or operated by any Loan Party or any of its Subsidiaries; and Digital Realty – Yen Credit Agreement 665.03
Appears in 1 contract
Representations and Warranties of the Loan Parties. Each Loan Party represents and warrants as follows:
(a) Each Loan Party and each general partner or managing member, if any, of each Loan Party its Subsidiaries (i) is a corporation, limited liability company or limited partnership duly incorporated, organized or formedorganized, validly existing and in good standing (to the extent that a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) under the laws of the jurisdiction of its incorporation, organization or formation, (ii) is duly qualified and in good standing (to the extent that a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) as a foreign corporation, limited liability corporation or company or partnership in each other jurisdiction in which it owns or leases property or in which the conduct of its business requires it to so qualify or be licensed except where the failure to so qualify or be licensed would could not be reasonably likely to have a Material Adverse Effect and (iii) has all requisite corporate, limited liability company or limited partnership (as applicable) power and authority (including, without limitation, all governmental licenses, permits and other approvalsGovernmental Authorizations) to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted. The Parent Guarantor is organized in conformity with the requirements for qualification as a REIT under the Internal Revenue Code, and its method of operation enables it to Digital Realty – Yen Credit Agreement meet the requirements for qualification and taxation as a REIT under the Internal Revenue Code. All of the outstanding Equity Interests in the Parent Guarantor have been validly issued, are fully paid and non‑assessable, all of the general partner Equity Interests in the Operating Partnership are owned by the Parent Guarantor, and all such general partner Equity Interests are owned by the Parent Guarantor free and clear of all Liensnon-assessable.
(b) Set forth on Schedule 4.01(b) hereto is a complete and accurate list of all Loan Parties, showing as of the date hereof (as to each Loan Party) the jurisdiction of its incorporation, the address of its principal place of business and its U.S. taxpayer identification number or, in the case of any non-U.S. Loan Party that does not have a U.S. taxpayer identification number, its unique identification number issued to it by the jurisdiction of its incorporation. The copy of the charter of each Loan Party and each amendment thereto provided pursuant to Section 3.01(a)(iv) is a true and correct copy of each such document, each of which is valid and in full force and effect.
(c) Set forth on Schedule 4.01(c) hereto is a complete and accurate list of all Subsidiaries of each Loan Party, showing as of the date hereof (as to each such Subsidiary) the jurisdiction of its formation, the number of shares, membership interests or partnership interests (as applicable) of each class of its Equity Interests authorized, and the number outstanding, on the date hereof and the percentage of each such class of its Equity Interests owned by such Loan Party and the number of shares covered by all outstanding options, warrants, rights of conversion or purchase and similar rights at the date hereof. All of the outstanding Equity Interests in each Loan Party’s Subsidiaries have been validly issued, are fully paid and non‑assessable and, to the extent non-assessable and are owned by such Loan Party or one or more of its Subsidiaries, are owned by such Loan Party or Subsidiaries free and clear of all Liens (other than Liens on Equity Interests in Subsidiaries securing Debt that is not prohibited hereunder)Liens, except those created under the Collateral Documents.
(cd) The execution execution, delivery and delivery performance by each Loan Party and of each general partner or managing member (if any) of each Loan Party of each Loan Transaction Document to which it is or is to be a party, and the performance of its obligations thereunder, and the consummation of the transactions contemplated by the Loan DocumentsTransaction, are within the such Loan Party’s corporate, limited liability company or limited partnership powers of such Loan Party(as applicable), general partner or managing memberpowers, have been duly authorized by all necessary corporate, limited liability company or limited partnership (as applicable), action, and do not (i) contravene the charter or such Loan Party’s charter, bylaws, memorandum and articles of association, operating limited liability company agreement, partnership agreement or other governing document of such Loan Party, general partner or managing memberconstituent documents, (ii) violate violate, in any material respect, any law, rule, regulation (including, without limitation, Regulation U and Regulation X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award, (iii) conflict with or result in the material breach of, or constitute a default or require any payment to be made under, any Material Contract material contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument binding on or affecting any Loan Party or Party, any of its Subsidiaries or any of their properties, or any general partner or managing member of any Loan Party properties or (iv) except for the Liens created under the Loan Documents, result in or require the creation or imposition of any Lien upon or with respect to any of the properties of any Loan Party or any of its Subsidiaries. No Loan Party or any of its Subsidiaries is in violation of any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of any such Material Contractcontract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument, the violation or breach of which would could be reasonably likely to have a Material Adverse Effect.
(de) No authorization or approval or other action byGovernmental Authorization, and no notice to or filing with, with any governmental authority or regulatory body Governmental Authority or any other third party party, is required for (i) the due execution, delivery, recordation, filing or performance by any Loan Party or any general partner or managing member of any Loan Party of any Loan Document to which it is or is to be a party or for party, (ii) the consummation grant by any Loan Party of the transactions contemplated Liens granted by it pursuant to the Loan Collateral Documents, (iii) the perfection or maintenance of the Liens created under the Collateral Documents and (including the second priority (subject only to the Lien of the First Lien Collateral Agent in favor of the holders of the First Lien Obligations) nature thereof) or (iv) the exercise by the Administrative any Agent or any Lender Party of its rights under the Loan Documents or the remedies in respect of the Collateral pursuant to the Collateral Documents, except for the authorizations, approvals, actions, notices and filings already obtained, taken, given or made and which are in full force and effect. No Governmental Authorization, and no notice or a filing with any Governmental Authority or any other third party, is required for the due execution, delivery or performance by any Loan Party of any Transaction Document (other than any Loan Documents) to which it is or is to be a party, or for the consummation of the Transaction, except for the authorization, approvals, actions, notices and filings set forth in the Related Documents, all of which have been duly obtained, taken, given or made and which are in full force and effecteffect or for those required to be taken, given or made following the Effective Date in accordance with such Related Documents. All applicable waiting periods in connection with the Transaction have expired without any action having been taken by any competent authority restraining, preventing or imposing materially adverse conditions upon the Transaction or the rights of the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, any properties now owned or hereafter acquired by any of them. The Spin-Off and the Merger have been consummated, in all material respects, in accordance with the Separation and Distribution Agreement and the Merger Agreement (without any modifications thereof or waivers thereunder) and applicable law.
(ef) There is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries, including any Environmental Action, pending or to the Loan Parties’ knowledge threatened before any Governmental Authority or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction.
(g) This Agreement has been, and each other Loan Transaction Document when delivered hereunder will have been, duly executed and delivered by each Loan Party and general partner or managing member (if any) of each Loan Party party thereto. This Agreement is, and each other Loan Transaction Document when delivered hereunder will be, the legal, valid and binding obligation of each Loan Party party thereto, enforceable against such Loan Party in accordance with its terms, except as such enforceability may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium, examinership or similar laws affecting creditors’ rights generally and by general principles of equity.
(f) Except as set forth in the reports delivered to the Administrative Agent pursuant to Section 5.03(g), there is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries or any general partner or managing member (if any) of any Loan Party, Digital Realty – Yen Credit Agreement including any Environmental Action to any Loan Party’s knowledge, pending or threatened before any court, governmental agency or arbitrator that (i) would reasonably be expected to have a Material Adverse Effect or (ii) would reasonably be expected to affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated by the Loan Documents.
(gh) The Consolidated balance sheet of the Parent Guarantor and its Subsidiaries Gxxx Businesses as at December 31, 2017 and the related Consolidated statement of income and Consolidated statement of cash flows of the Parent Guarantor and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of KPMG LLP, independent public accountants, and the Consolidated balance sheet of the Parent Guarantor as at June 30, 20182004, and the related Consolidated statement of income and Consolidated statement of cash flows of the Parent Guarantor and its Subsidiaries Gxxx Businesses for the six fiscal year then ended, duly certified by the Chief Financial Officer of Gxxx, and the Consolidated balance sheet of the Gxxx Businesses as at September 30, 2005, and the related Consolidated statement of income and Consolidated statement of cash flows of the Gxxx Businesses for the nine months then ended, duly certified by the Chief Financial Officer of Gxxx, copies of which have been furnished to each Lender PartyLender, fairly present, subject, in the case of such balance sheet as at June 30, 2018, and such statements of income and cash flows for the six months then ended, to year‑end audit adjustmentsall material respects, the Consolidated financial condition of the Parent Guarantor Gxxx Businesses as at such dates and the Consolidated results of operations of the Gxxx Businesses for the periods ended on such dates, all in accordance with generally accepted accounting principles applied on a consistent basis, and since December 31, 2004, there has been no Material Adverse Change and no Internal Control Event has occurred. Such financial statements set forth all material liabilities, actual or contingent, of the Gxxx Businesses as of the date of such financial statements. The Consolidated balance sheet of Bull Run and its Subsidiaries as at August 31, 2005, and the related Consolidated statement of income and Consolidated statement of cash flows of Bull Run and its Subsidiaries for the fiscal year then ended, accompanied by an unqualified opinion of PricewaterhouseCoopers LLP, independent public accountants, and the Consolidated balance sheet of Bull Run and its Subsidiaries as at September 30, 2005, and the related Consolidated statement of income and Consolidated statement of cash flows of Bull Run and its Subsidiaries for the one month then ended, duly certified by the Chief Financial Officer of Bull Run, copies of which have been furnished to each Lender, fairly present, in all material respects, the Consolidated financial condition of Bull Run and its Subsidiaries as at such dates and the Consolidated results of operations of the Parent Guarantor Bull Run and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles applied on a consistent basis, and since December August 31, 20172005, there has been no Material Adverse ChangeChange and no Internal Control Event has occurred. Such financial statements set forth all material liabilities, actual or contingent, of Bull Run and its consolidated Subsidiaries as of the date of such financial statements.
(hi) The Consolidated pro forma balance sheet of the Parent and its Subsidiaries as at September 30, 2005, and related Consolidated pro forma statements of income and cash flows of Bull Run and its Subsidiaries for the twelve months then ended, certified by the Chief Financial Officer of the Parent, copies of which have been furnished to each Lender, fairly present, in all material respects, the Consolidated pro forma financial condition of the Parent and its Subsidiaries as at such date and the Consolidated pro forma results of operations of the Parent and its Subsidiaries for the period ended on such date, in each case giving effect to the Transaction, all in accordance with GAAP. The Consolidated pro forma balance sheet of the Parent and its Subsidiaries as at the Effective Date, certified by the Chief Financial Officer of the Parent, copies of which have been furnished to each Lender, fairly present, in all material respects, the Consolidated pro forma financial condition of the Parent and its Subsidiaries as at such date after giving effect to the Transaction, all in accordance with GAAP.
(j) The Consolidated forecasted balance sheetssheet, statements statement of income and statements statement of cash flows of the Parent Guarantor and its Subsidiaries most recently delivered to the Lender Parties Lenders pursuant to Section 3.01(d)(ii) or 5.03 were prepared in good faith on the basis of the assumptions stated therein, which assumptions were fair in light of the conditions existing at the time of delivery of such forecasts, and represented, at the time of delivery, the Borrower’s best estimate of its future financial performance. It is acknowledged and understood that the projections as they relate to future events are not to be reviewed as representations and warranties that such events will occur and that actual results may differ significantly from the projected results.
(ik) No Neither the Information Memorandum nor the Registration Statement nor any other information, exhibit or report furnished by or on behalf of any Loan Party to the Administrative any Agent or any Lender Party in connection with the negotiation and syndication of the Loan Documents or pursuant to the terms of the Loan Documents Documents, taken as a whole, contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements made therein not materially misleading in light of the circumstances under which they were mademisleading.
(jl) No Loan Party The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Advance or drawings under any Letter of Credit will be used, directly or indirectly, whether immediately, incidentally or ultimately to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock or to refund indebtedness originally incurred for such purposeStock.
(km) Neither any Loan Party nor any of its Subsidiaries nor any general partner or managing member of any Loan Party, as applicable, is an “investment company”, or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company”, as such terms are defined in the Investment Company Act of 1940, as amended. Without limiting the generality of the foregoing, each Loan Party and each of its Subsidiaries and each general partner or managing member of any Loan Party, as applicable: (i) is primarily engaged, directly or through a wholly‑owned subsidiary or subsidiaries, in a business or businesses other than that of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (ii) is not engaged in, does not propose to engage in and does not hold itself out as being engaged in the business of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (iii) does not own or propose to acquire investment securities (as defined in the Investment Company Act of 1940, as amended) having a value exceeding forty percent (40%) of the value of such company’s total assets (exclusive of government securities and cash items) on an unconsolidated basis; (iv) has not in the past been engaged in the business of Digital Realty – Yen Credit Agreement issuing face‑amount certificates of the installment type; and (v) does not have any outstanding face‑amount certificates of the installment type. Neither the making of any Advances, nor the issuance of any Letters of Credit, nor the application of the proceeds or repayment thereof by any the Borrower, nor the consummation of the other transactions contemplated by the Loan Transaction Documents, will violate any provision of any such Act or any rule, regulation or order of the Securities and Exchange Commission SEC thereunder.
(ln) Each Neither any Loan Party nor any of its Subsidiaries is a party to any indenture, loan or credit agreement or any lease or other agreement or instrument or subject to any charter or corporate restriction that could be reasonably likely to have a Material Adverse Effect.
(o) All filings and other actions necessary or desirable to perfect and protect the security interest in the Collateral created under the Collateral Documents have been duly made or taken and are in full force and effect, and the Collateral Documents create in favor of the Assets listed on Collateral Agent for the schedule benefit of Unencumbered Assets delivered the Secured Parties a valid and, together with such filings and other actions, perfected first priority security interest in the Collateral, securing the payment of the Secured Obligations, and all filings and other actions necessary or desirable to the Administrative Agent in connection with the Closing Date (as updated from time to time in accordance with Section 5.03(d)) satisfies all Unencumbered Asset Conditions, except to the extent as otherwise set forth herein or waived in writing by the Required Lendersperfect and protect such security interest have been duly taken. The Loan Parties are the legal and beneficial owners of the Unencumbered Assets Collateral free and clear of any Lien, except for the Liens liens and security interests created or permitted under the Loan Documents.
(mp) Neither any Each Loan Party nor any of is, individually and together with its Subsidiaries nor any general partner or managing member of any Loan PartySubsidiaries, as applicable, is an EEA Financial InstitutionSolvent.
(nq) (i) Set forth on Schedule 4.01(n4.01(q) hereto is a complete and accurate list of all Surviving Debt of each Loan Party Plans and its Subsidiaries (other than intercompany Debt) as of the date set forth on Schedule 4.01(n) having a principal amount of at least $10,000,000 and showing as of such date the obligor and the principal amount outstanding thereunder, the maturity date thereof and the amortization schedule therefor, and from such date to the Closing Date except as set forth on Schedule 4.01(n) there has been no material change in the amounts, interest rates, sinking funds, installment payments or maturities of such Surviving Debt (other than payments of principal and interest in accordance with the documents governing such Debt)Multiemployer Plans.
(oii) Each Loan Party and its Subsidiaries No ERISA Event has good, marketable and insurable fee simple title to, occurred or valid trust beneficiary interests or leasehold interests in, all material Real Property owned or leased by such Loan Party or is reasonably expected to occur with respect to any such Subsidiary, free and clear of all Liens, other than Liens created or permitted by the Loan Documents.
(i) The operations and properties of each Loan Party and each of its Subsidiaries comply in all material respects with all applicable Environmental Laws and Environmental Permits, there is no past non‑compliance with such Environmental Laws and Environmental Permits Plan that has resulted in any ongoing material costs or obligations or that is reasonably expected to result in any future a material costs or obligations, and no circumstances exist that (A) form the basis liability of an Environmental Action against any Loan Party or any of its Subsidiaries or any of their properties that would reasonably be expected to have a Material Adverse Effect or (B) cause any such property to be subject to any material restrictions on ownership, occupancy, use or transferability under any Environmental LawERISA Affiliate.
(iiii) Except as would not reasonably be expected Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) for each Plan, copies of which have a Material Adverse Effectbeen filed with the Employee Benefits Security Administration and furnished to the Lenders, is complete and accurate and fairly presents the funding status of such Plan, and since the date of such Schedule B there has been no material adverse change in such funding status.
(Aiv) none of the properties currently or formerly owned or operated by Neither any Loan Party nor any ERISA Affiliate has incurred or any of its Subsidiaries is listed or proposed for listing on the NPL or any analogous foreign, state or local list or is adjacent to any such property; (B) there are no and never have been any underground or above ground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed on any property currently or formerly owned or operated by any Loan Party or any of its Subsidiaries that is reasonably expected to result in material liability incur any Withdrawal Liability exceeding $600,000 to any Loan Party or any of its Subsidiaries; (C) there is no asbestos or asbestos‑containing material on any property currently owned or operated by any Loan Party or any of its Subsidiaries; and Digital Realty – Yen Credit Agreement 66Multiemployer Plan.
Appears in 1 contract
Representations and Warranties of the Loan Parties. Each Loan Party represents and warrants as follows:
(a) Each Loan Party and each general partner or managing member, if any, of each Loan Party (i) is a corporation, limited partnership or limited liability company or partnership duly incorporated, organized or formedorganized, validly existing and in good standing (to the extent that a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) under the laws of the jurisdiction of its incorporation, organization or formationorganization, (ii) is duly qualified and in good standing (to the extent that a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) as a foreign corporation, limited partnership or limited liability company or partnership in each other jurisdiction in which it owns or leases property or in which the conduct of its business requires it to so qualify or be licensed except where the failure to so qualify or be licensed would could not be reasonably likely to have a Material Adverse Effect Effect, and (iii) has all requisite corporate, limited liability company or partnership power and authority (including, without limitation, all governmental licenses, permits and other approvals) to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted. The Parent Guarantor is organized in conformity with the requirements for qualification as a REIT under the Internal Revenue Code, and its method of operation enables it to Digital Realty – Yen Credit Agreement meet the requirements for qualification and taxation as a REIT under the Internal Revenue Code. All of the outstanding Equity Interests in the Parent Guarantor Subsidiary Guarantors and the Borrower have been validly issued, are fully paid and non‑assessablenon-assessable, all of the general partner Equity Interests in the Operating Partnership and are owned by the Parent Guarantor, and all such general partner Equity Interests are owned by Persons in the Parent Guarantor amounts specified on SCHEDULE 4.01(a) hereto free and clear of all Liens, except with respect to the non-managing general partner interest in BRHCLP, as to which no representation is being made, and those created under the Collateral Documents.
(b) Set forth on SCHEDULE 4.01(b) hereto is a complete and accurate list of Subsidiaries of the Parent Guarantor (including the Borrower), showing as of the date hereof (as to each such Subsidiary) the jurisdiction of its organization, the number of shares of each class of its Equity Interests authorized, and the number outstanding, on the date hereof and the percentage of the outstanding shares of each such class of its Equity Interests owned (directly or indirectly) by the Loan Party or other Person indicated on such SCHEDULE and the number of shares covered by all outstanding options, warrants, rights of conversion or purchase and similar rights at the date hereof, and indicating as to each Subsidiary whether such Subsidiary is a Domestic Subsidiary, Foreign Subsidiary, Restricted Subsidiary or Non-Controlled Subsidiary, as applicable. All of the outstanding Equity Interests in each such Subsidiary owned by a Loan Party’s Subsidiaries Party have been validly issued, are fully paid and non‑assessable and, to non-assessable. All of the extent outstanding Equity Interests in each such Subsidiary owned by such a Loan Party or one or more of its Subsidiaries, are owned by such Loan Party or Subsidiaries designated on SCHEDULE 4.01(b) free and clear of all Liens Liens, except those created under the Collateral Documents. Each Restricted Subsidiary (i) is a corporation, limited partnership or limited liability company duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (ii) is duly qualified and in good standing as a foreign corporation, limited partnership or limited liability company, as the case may be, in each other jurisdiction in which it owns or leases property or in which the conduct of its business requires it to so qualify or be licensed except where the failure to so qualify or be licensed could not be reasonably likely to have a Material Adverse Effect and (iii) has all requisite power and authority (including, without limitation, all governmental licenses, permits and other approvals) to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted. All Equity Interests in the Restricted Subsidiaries (other than Liens on the Equity Interests of any Non-Controlled Subsidiary in BRHCLP) and the Borrower have been pledged to the Administrative Agent for the benefit of the Secured Parties, and the Operating Subsidiaries securing Debt that is not prohibited hereunder)own either in fee or pursuant to a ground lease, collectively, the Borrower Properties.
(c) The execution execution, delivery and delivery performance by each Loan Party and of each general partner or managing member (if any) of each Loan Party of each Loan Transaction Document to which it is or is to be a party, party and the performance of its obligations thereunder, and the consummation of the other transactions contemplated by the Loan Transaction Documents, are within the corporate, limited liability company or partnership powers of such Loan Party, general partner or managing member's powers, have been duly authorized by all necessary corporate, limited liability company or partnership action, and do not (i) contravene the charter or bylaws, memorandum and articles of association, operating agreement, partnership agreement or other governing document of such Loan Party's charter, general partner bylaws, partnership agreement, limited liability company operating or managing membermembers agreement or similar organizational documents or agreements, (ii) violate any law, rule, regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award, (iii) conflict with or result in the breach of, or constitute a default or require any payment to be made under, any Material Contract contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument binding on or affecting any Loan Party or Party, any of its the Restricted Subsidiaries or any of their properties, or any general partner or managing member of any Loan Party properties or (iv) except for the Liens created under the Loan Documents, result in or require the creation or imposition of any Lien upon or with respect to any of the properties of any Loan Party or any of its the Restricted Subsidiaries. No Loan Party or any of its Subsidiaries is in violation of any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award (including, without limitation, the Racketeer Influenced and Corrupt Organizations Chapter of the Organized Crime Control Act of 1970, and the Patriot Act and all other laws and regulations relating to money laundering and terrorist activities) or in breach of any such Material Contractcontract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument, the violation or breach of which would could be reasonably likely to have a Material Adverse Effect.
(d) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for (i) the due execution, delivery, recordation, filing or performance by any Loan Party or any general partner or managing member of any Loan Party of any Loan Transaction Document to which it is or is to be a party party, or for the consummation of the Transaction or the other transactions contemplated by the Transaction Documents, (ii) the grant by any Loan Party of the Liens granted by it pursuant to the Collateral Documents, (iii) the perfection or maintenance of the Liens created under the Collateral Documents and (including the first priority nature thereof) or (iv) the exercise by the Administrative any Agent or any Lender Party of its rights under the Loan Documents or the remedies in respect of the Collateral pursuant to the Collateral Documents, except for the authorizations, approvals, actions, notices and filings listed on SCHEDULE 4.01(d) hereto, all of which have been duly obtained, taken, given or made and are in full force and effect. All applicable waiting periods in connection with the Transaction or the transactions contemplated by the Transaction Documents have expired without any action having been taken by any competent authority restraining, preventing or imposing materially adverse conditions upon the Transaction and the other transactions contemplated by the Transaction Documents or the rights of the Loan Parties freely to transfer or otherwise dispose of, or to create any Lien on, any properties now owned or hereafter acquired by any of them.
(e) This Agreement has been, and each other Loan Transaction Document when delivered hereunder will have been, duly executed and delivered by each Loan Party and general partner or managing member (if any) of each Loan Party party thereto. This Agreement is, and each other Loan Transaction Document when delivered hereunder will be, the legal, valid and binding obligation of each Loan Party party thereto, enforceable against such Loan Party in accordance with its terms, except as such enforceability may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium, examinership or similar laws affecting creditors’ rights generally and by general principles of equity.
(f) Except as set forth in the reports delivered to the Administrative Agent pursuant to Section 5.03(g), there is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries or any general partner or managing member (if any) of any Loan Party, Digital Realty – Yen Credit Agreement including any Environmental Action to any Loan Party’s knowledge, pending or threatened before any court, governmental agency or arbitrator that (i) would reasonably be expected to have a Material Adverse Effect or (ii) would reasonably be expected to affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated by the Loan Documents.
(gw) The Consolidated balance sheet of the Parent Guarantor and its Subsidiaries as at December 31June 30, 2017 2003 and the related Consolidated statement statements of income and Consolidated statement of cash flows flow of the Parent Guarantor and its Subsidiaries for the fiscal year then ended, accompanied by an unqualified opinion of KPMG Ernst & Young LLP, independent public accountants, and (x) the Consolidated balance sheet of the Parent Guarantor as and its Subsidiaries at June 30, 20182004, and the related Consolidated statement statements of income and Consolidated statement of cash flows flow of the Parent Guarantor and its Subsidiaries for the six nine months then ended, (y) the Consolidated balance sheet of the Borrower and its Subsidiaries at June 30, 2004 and the related Consolidated statements of income and cash flow for the twelve months then ended, and (z) the balance sheets of each of the Operating Subsidiaries at June 30, 2004 and the related statements of income and cash flow for the twelve months then ended, in each case duly certified by the Chief Financial Officer or Chief Accounting Officer of the Parent Guarantor, copies of which have been furnished to each Lender Party, fairly present, subject, in the case of such balance sheet as at June 30the unaudited statements referred to in clauses (i)(x), 2018, (i)(y) and such statements of income and cash flows for the six months then ended(i)(z), to year‑end year-end audit adjustments, the Consolidated financial condition of the Parent Guarantor and its Subsidiaries, the Borrower and its Subsidiaries as and of each of the Operating Subsidiaries at such dates and the Consolidated results of the operations of the Parent Guarantor and its Subsidiaries, the Borrower and its Subsidiaries and of each of the Operating Subsidiaries for the periods ended on such dates, respectively, all in accordance with generally accepted accounting principles applied on a consistent basis, and since December 31, 2017, there has been no Material Adverse Change.
(h) The Consolidated forecasted balance sheets, statements of income and statements of cash flows of the Parent Guarantor and its Subsidiaries most recently delivered to the Lender Parties pursuant to Section 5.03 were prepared in good faith on the basis of the assumptions stated therein, which assumptions were fair in light of the conditions existing at the time of delivery of such forecasts.
(i) No information, exhibit or report furnished by or on behalf of any Loan Party to the Administrative Agent or any Lender Party in connection with the negotiation and syndication of the Loan Documents or pursuant to the terms of the Loan Documents contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements made therein not materially misleading in light of the circumstances under which they were made.
(j) No Loan Party is engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Advance or drawings under any Letter of Credit will be used, directly or indirectly, whether immediately, incidentally or ultimately to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock or to refund indebtedness originally incurred for such purpose.
(k) Neither any Loan Party nor any of its Subsidiaries nor any general partner or managing member of any Loan Party, as applicable, is an “investment company”, or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company”, as such terms are defined in the Investment Company Act of 1940, as amended. Without limiting the generality of the foregoing, each Loan Party and each of its Subsidiaries and each general partner or managing member of any Loan Party, as applicable: (i) is primarily engaged, directly or through a wholly‑owned subsidiary or subsidiaries, in a business or businesses other than that of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (ii) is not engaged in, does not propose to engage in and does not hold itself out as being engaged in the business of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (iii) does not own or propose to acquire investment securities (as defined in the Investment Company Act of 1940, as amended) having a value exceeding forty percent (40%) of the value of such company’s total assets (exclusive of government securities and cash items) on an unconsolidated basis; (iv) has not in the past been engaged in the business of Digital Realty – Yen Credit Agreement issuing face‑amount certificates of the installment type; and (v) does not have any outstanding face‑amount certificates of the installment type. Neither the making of any Advances, nor the issuance of any Letters of Credit, nor the application of the proceeds or repayment thereof by any Borrower, nor the consummation of the other transactions contemplated by the Loan Documents, will violate any provision of any such Act or any rule, regulation or order of the Securities and Exchange Commission thereunder.
(l) Each of the Assets listed on the schedule of Unencumbered Assets delivered to the Administrative Agent in connection with the Closing Date (as updated from time to time in accordance with Section 5.03(d)) satisfies all Unencumbered Asset Conditions, except to the extent as otherwise set forth herein or waived in writing by the Required Lenders. The Loan Parties are the legal and beneficial owners of the Unencumbered Assets free and clear of any Lien, except for the Liens permitted under the Loan Documents.
(m) Neither any Loan Party nor any of its Subsidiaries nor any general partner or managing member of any Loan Party, as applicable, is an EEA Financial Institution.
(n) Set forth on Schedule 4.01(n) hereto is a complete and accurate list of all Surviving Debt of each Loan Party and its Subsidiaries (other than intercompany Debt) as of the date set forth on Schedule 4.01(n) having a principal amount of at least $10,000,000 and showing as of such date the obligor and the principal amount outstanding thereunder, the maturity date thereof and the amortization schedule therefor, and from such date to the Closing Date except as set forth on Schedule 4.01(n) there has been no material change in the amounts, interest rates, sinking funds, installment payments or maturities of such Surviving Debt (other than payments of principal and interest in accordance with the documents governing such Debt).
(o) Each Loan Party and its Subsidiaries has good, marketable and insurable fee simple title to, or valid trust beneficiary interests or leasehold interests in, all material Real Property owned or leased by such Loan Party or any such Subsidiary, free and clear of all Liens, other than Liens created or permitted by the Loan Documents.
(i) The operations and properties of each Loan Party and each of its Subsidiaries comply in all material respects with all applicable Environmental Laws and Environmental Permits, there is no past non‑compliance with such Environmental Laws and Environmental Permits that has resulted in any ongoing material costs or obligations or that is reasonably expected to result in any future material costs or obligations, and no circumstances exist that (A) form the basis of an Environmental Action against any Loan Party or any of its Subsidiaries or any of their properties that would reasonably be expected to have a Material Adverse Effect or (B) cause any such property to be subject to any material restrictions on ownership, occupancy, use or transferability under any Environmental Law.
(i) Except as would not reasonably be expected to have a Material Adverse Effect, (A) none of the properties currently or formerly owned or operated by any Loan Party or any of its Subsidiaries is listed or proposed for listing on the NPL or any analogous foreign, state or local list or is adjacent to any such property; (B) there are no and never have been any underground or above ground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed on any property currently or formerly owned or operated by any Loan Party or any of its Subsidiaries that is reasonably expected to result in material liability to any Loan Party or any of its Subsidiaries; (C) there is no asbestos or asbestos‑containing material on any property currently owned or operated by any Loan Party or any of its Subsidiaries; and Digital Realty – Yen Credit Agreement 66
Appears in 1 contract
Samples: Credit Agreement (Boca Resorts Inc)
Representations and Warranties of the Loan Parties. Each Subject to the Closing Condition Limitations, each Loan Party represents and warrants as follows:
(a) Each Loan Party and each of its Subsidiaries and each general partner or managing member, if any, of each Loan Party (i) is a corporation, limited liability company or limited partnership duly incorporated, organized or formedorganized, validly existing and in good standing (to the extent that a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) under the laws of the jurisdiction of its incorporation, organization or formation, (ii) is duly qualified and in good standing (to the extent that a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) as a foreign corporation, limited liability corporation or company or partnership in each other jurisdiction in which it owns or leases property or in which the conduct of its business requires it to so qualify or be licensed except where the failure to so qualify or be licensed would could not be reasonably likely to have a Material Adverse Effect and (iii) has all requisite corporate, limited liability company or partnership (as applicable) power and authority (including, without limitation, all governmental licenses, permits and other approvalsGovernmental Authorizations) to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted. The Parent Guarantor is organized in conformity with the requirements for qualification as a REIT under the Internal Revenue Code, and its method General Partner meets all of operation enables it to Digital Realty – Yen Credit Agreement meet the requirements for qualification and taxation as a REIT under the Internal Revenue CodeREIT. All of the outstanding Equity Interests in the Parent Guarantor Revolving Credit Borrower have been validly issued, are fully paid and non‑assessable, non-assessable and all of the general partner Equity Interests in the Operating Partnership are such interests owned by the Parent Guarantor, and all such general partner Equity Interests General Partner are owned by the Parent Guarantor free and clear of all Liens.
(b) Set forth on Schedule 4.01(b) hereto is a complete and accurate list of all Subsidiaries of each Loan Party, showing as of the date hereof (as to each such Subsidiary) the jurisdiction of its formation, the number of shares, membership interests or partnership interests (as applicable) of each class of its Equity Interests authorized, and the number outstanding, on the date hereof and, except in the case of the General Partner, the percentage of each such class of its Equity Interests owned (directly or indirectly) by such Loan Party and the number of shares covered by all outstanding options, warrants, rights of conversion or purchase and similar rights at the date hereof. All of the outstanding Equity Interests in each Loan Party’s Subsidiaries have been validly issued, are fully paid and non‑assessable and, to the extent non-assessable and are owned by such Loan Party or one or more of its Subsidiaries, are owned by such Loan Party or Subsidiaries free and clear of all Liens, except for Liens (other than Liens on Equity Interests in Subsidiaries securing Debt that is not prohibited hereunder)permitted under Section 5.02(a) and those created under the Collateral Documents and, with respect to the Real Property Collateral, except for Permitted Encumbrances.
(c) The execution execution, delivery and delivery performance by each Loan Party and of each general partner or managing member (if any) of each Loan Party of each Loan Transaction Document to which it is or is to be a party, and the performance of its obligations thereunder, and the consummation of the transactions contemplated by the Loan Documents, party are within the corporate, limited liability company or partnership powers of such Loan Party, general partner or managing member, have been duly authorized by all necessary corporate, limited liability company or partnership action, and do not (i) contravene the charter or bylaws, memorandum and articles of association, operating agreement, partnership agreement or other governing document of such Loan Party, general partner or managing member, (ii) violate any law, rule, regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award, (iii) conflict with or result in the breach of, or constitute a default or require any payment to be made under, any Material Contract material contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument binding on or affecting any Loan Party or Party, any of its Subsidiaries or any of their properties, or any general partner or managing member of any Loan Party or (iv) except for the Liens created under the Loan Documents, result in or require the creation or imposition of any Lien upon or with respect to any of the properties of any Loan Party or any of its Subsidiaries, which in the case of clauses (ii) and (iii) above could be reasonably likely to have a Material Adverse Effect. No Loan Party or any of its Subsidiaries is in violation of any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of any such Material Contractcontract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument, the violation or breach of which would could be reasonably likely to have a Material Adverse Effect.
(d) No authorization or approval or other action byGovernmental Authorization, and no notice to or filing with, any governmental authority or regulatory body Governmental Authority or any other third party is required for (i) the due execution, delivery, recordation, filing or performance by any Loan Party or any general partner or managing member of any Loan Party of any Loan Transaction Document to which it is or is to be a party party, or for the consummation of the transactions contemplated Transaction, (ii) the grant by any Loan Party of the Loan Liens granted by it pursuant to the Collateral Documents, (iii) the perfection or maintenance of the Liens created under the Collateral Documents and (including the first priority nature thereof) or (iv) the exercise by the Administrative any Agent or any Lender Party of its rights under the Loan Documents or the remedies in respect of the Collateral pursuant to the Collateral Documents, except for authorizationsthe authorizations and notices listed on Schedule 4.01(d) hereto, approvals, actions, notices and filings all of which (except as noted thereon) have been or will be duly obtained, taken, given or made and are in full force and effect. All applicable waiting periods in connection with the Transaction have expired without any action having been taken by any competent authority restraining, preventing or imposing materially adverse conditions upon the Transaction or the rights of the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, any properties now owned or hereafter acquired by any of them. The Acquisition has been consummated in accordance in all material respects with the Purchase Agreement and applicable law.
(e) This Agreement has been, and each other Loan Document when delivered hereunder will have been, duly executed and delivered by each Loan Party and general partner or managing member (if any) of each Loan Party party thereto. This Agreement is, and each other Loan Transaction Document when delivered hereunder will be, the legal, valid and binding obligation of each Loan Party and general partner or managing member (if any) of each Loan Party party thereto, enforceable against such Loan Party Party, general partner or managing member, as the case may be, in accordance with its terms, except as such enforceability may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium, examinership or similar laws affecting creditors’ rights generally and by general principles of equity.
(f) Except as set forth in the reports delivered to the Administrative Agent pursuant to Section 5.03(g), there There is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries or any general partner or managing member (if any) of any Loan PartySubsidiaries, Digital Realty – Yen Credit Agreement including any Environmental Action Action, pending or, to any Loan Party’s our actual knowledge, pending or threatened before any court, governmental agency Governmental Authority or arbitrator that (i) would could be reasonably be expected likely to have a Material Adverse Effect (other than the matters described on Schedule 4.01(f) hereto (the “Disclosed Litigation”)) or (ii) would reasonably be expected purports to affect the legality, validity or enforceability of any Loan Transaction Document or the consummation of the transactions contemplated by Transaction, and there has been no adverse change in the status, or financial effect on any Loan DocumentsParty or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto.
(g) The Consolidated balance sheet of the Parent Guarantor General Partner and its Subsidiaries and, to the extent available on the Effective Date, the Acquired Properties, as at December 31, 2017 and the related Consolidated statement of income and Consolidated statement of cash flows of the Parent Guarantor and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of KPMG LLP, independent public accountants, and the Consolidated balance sheet of the Parent Guarantor as at June 30, 20182006, and the related Consolidated statement of income and Consolidated statement of cash flows of the Parent Guarantor General Partner and its Subsidiaries and, to the extent available on the Effective Date, the Acquired Properties, for the six fiscal year then ended, accompanied by an unqualified opinion of KPMG LLP, independent public accountants, and the Consolidated balance sheets of the General Partner and its Subsidiaries and, to the extent available, the Acquired Properties, as at as at the end of the most recently-ended fiscal quarter, and the related Consolidated statements of income, Consolidated statement of cash flows and stockholders’ equity of the General Partner and its Subsidiaries, in each case, for the three months then ended, duly certified by the chief financial officer of the General Partner, copies of which have been furnished to each Lender Party, fairly present, in the case of the General Partner and its Subsidiaries, and, on the Effective Date, to our actual knowledge fairly present, in the case of the Acquired Properties, subject, in the case of such said balance sheet as at June 30, 2018of the end of such three-month period, and such said statements of income and cash flows for the six three months then ended, to year‑end year-end audit adjustments, the Consolidated financial condition of the Parent Guarantor General Partner and its Subsidiaries and, if applicable, the Acquired Properties, as at such dates and the Consolidated results of operations of the Parent Guarantor General Partner and its Subsidiaries and, if applicable, the Acquired Properties, for the periods ended on such dates, all in accordance with generally accepted accounting principles applied on a consistent basis, and and, as to any determination following the Initial Extension of Credit, since December 31, 20172006, there has been no Material Adverse Change.
(h) The Consolidated forecasted pro forma balance sheetssheet of the General Partner and its Subsidiaries as at December 31, 2006, and the related Consolidated pro forma statements of income and statements of cash flows of the Parent Guarantor General Partner and its Subsidiaries most recently for the 12 months then ended, certified by the chief financial officer of the General Partner, copies of which have been furnished to each Lender Party, fairly present the Consolidated pro forma financial condition of the General Partner and its Subsidiaries as at such date and the Consolidated pro forma results of operations of the General Partner and its Subsidiaries for the period ended on such date, in each case giving effect to the Transaction, all in accordance with GAAP.
(i) The Consolidated forecasted balance sheet, statement of income, statement of cash flows and stockholders’ equity of the General Partner and its Subsidiaries delivered to the Lender Parties pursuant to Section 3.01(a)(x) or 5.03 were prepared in good faith on the basis of the assumptions stated therein, which assumptions were fair in light of the conditions existing at the time of delivery of such forecasts, and represented, at the time of delivery, the Revolving Credit Borrower’s best estimate of its future financial performance.
(ij) No Neither the Information Memorandum nor any other information, exhibit or report furnished by or on behalf of any Loan Party to the Administrative any Agent or any Lender Party in connection with the negotiation and syndication of the Loan Documents or pursuant to the terms of the Loan Documents contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements made therein not materially misleading in light of the circumstances under which they were mademisleading.
(jk) No Loan Party Neither Borrower is engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Advance or drawings under any Letter of Credit will be used, directly or indirectly, whether immediately, incidentally or ultimately used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock or to refund indebtedness originally incurred for such purposeStock.
(kl) Neither any Loan Party nor any of its Subsidiaries nor any general partner or managing member of any Loan Party, as applicable, is an “investment company”, ,” or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company”, ,” as such terms are defined in the Investment Company Act of 1940, as amended. Without limiting the generality of the foregoing, each Loan Party and each of its Subsidiaries and each general partner or managing member of any Loan Party, as applicable: (i) is primarily engaged, directly or through a wholly‑owned subsidiary or subsidiaries, in a business or businesses other than that of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (ii) is not engaged in, does not propose to engage in and does not hold itself out as being engaged in the business of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (iii) does not own or propose to acquire investment securities (as defined in the Investment Company Act of 1940, as amended) having a value exceeding forty percent (40%) of the value of such company’s total assets (exclusive of government securities and cash items) on an unconsolidated basis; (iv) has not in the past been engaged in the business of Digital Realty – Yen Credit Agreement issuing face‑amount certificates of the installment type; and (v) does not have any outstanding face‑amount certificates of the installment type. Neither the making of any Advances, nor the issuance of any Letters of Credit, nor the application of the proceeds or repayment thereof by any Borrowerthe Borrowers, nor the consummation of the other transactions contemplated by the Loan Transaction Documents, will violate any provision of any such Act or any rule, regulation or order of the Securities and Exchange Commission thereunder.
(lm) Each All filings and other actions necessary or desirable to perfect and protect the security interest in the Collateral created under the Collateral Documents have been or will be duly made or taken and are or when made or taken will be in full force and effect, and the Collateral Documents create in favor of the Assets listed on Collateral Agent for the schedule benefit of Unencumbered Assets delivered the Secured Parties a valid and, together with such filings and other actions, perfected first priority security interest in the Collateral, securing the payment of the Secured Obligations, and all filings and other actions necessary to the Administrative Agent in connection with the Closing Date (as updated from time to time in accordance with Section 5.03(d)) satisfies all Unencumbered Asset Conditions, except to the extent as otherwise set forth herein or waived in writing by the Required Lendersperfect and protect such security interest have been duly taken. The Loan Parties are the legal and beneficial owners of the Unencumbered Assets Collateral free and clear of any Lien, except for the Liens liens and security interests created or permitted under the Loan Documents.
(m) Neither any Loan Party nor any of its Subsidiaries nor any general partner or managing member of any Loan Party, as applicable, is an EEA Financial InstitutionDocuments and Permitted Liens.
(n) Set forth on Schedule 4.01(n) hereto is a complete and accurate list of all Surviving Debt of each Each Loan Party is, individually and together with its Subsidiaries (other than intercompany Debt) as of the date set forth on Schedule 4.01(n) having a principal amount of at least $10,000,000 and showing as of such date the obligor and the principal amount outstanding thereunderSubsidiaries, the maturity date thereof and the amortization schedule therefor, and from such date to the Closing Date except as set forth on Schedule 4.01(n) there has been no material change in the amounts, interest rates, sinking funds, installment payments or maturities of such Surviving Debt (other than payments of principal and interest in accordance with the documents governing such Debt)Solvent.
(o) Each Loan Party and its Subsidiaries has goodExcept as otherwise set forth in the environmental reports listed on Schedule 4.01(o) hereto (correct copies of which have been made available to the Administrative Agent), marketable and insurable fee simple title to, or valid trust beneficiary interests or leasehold interests in, all material Real Property owned or leased by such Loan Party or any such Subsidiary, free and clear of all Liens, other than Liens created or permitted by the Loan Documents.
(i) The operations and properties of each Loan Party and each of its Subsidiaries comply in all material respects with all applicable Environmental Laws and Environmental Permits, there is no all past non‑compliance non-compliance with such Environmental Laws and Environmental Permits that has resulted in any been resolved without ongoing material costs or obligations or that is reasonably expected to result in any future material costs or obligationscosts, and no circumstances exist that could be reasonably likely to (Ai) form the basis of an Environmental Action against any Loan Party or any of its Subsidiaries or any of their properties that would could reasonably be expected to have a Material Adverse Effect or (Bii) cause any such property to be subject to any material restrictions on ownership, occupancy, use or transferability under any Environmental Law.
(ip) Except as would not reasonably be expected to have a Material Adverse Effect, (A) none of Neither the business nor the properties currently or formerly owned or operated by of any Loan Party or any of its Subsidiaries are affected by any fire, explosion, accident, strike, lockout or other labor dispute, drought, storm, hail, earthquake, embargo, act of God or of the public enemy or other casualty (whether or not covered by insurance) that could be reasonably likely to have a Material Adverse Effect.
(q) Set forth on Schedule 4.01(q) hereto is listed or proposed for listing a complete and accurate list of all Existing Debt (other than Surviving Debt) having a principal amount of at least $1,000,000, showing as of the date hereof the obligor and the principal amount outstanding thereunder.
(r) Set forth on Schedule 4.01(r) hereto is a complete and accurate list of all Surviving Debt having a principal amount of at least $1,000,000, showing as of the date hereof the obligor and the principal amount outstanding thereunder, the maturity date thereof and the amortization schedule therefor.
(s) Set forth on Schedule 4.01(s) hereto is a complete and accurate list of all Liens on the NPL property or any analogous foreign, state or local list or is adjacent to any such property; (B) there are no and never have been any underground or above ground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed on any property currently or formerly owned or operated by assets of any Loan Party or any of its Subsidiaries that is reasonably expected to result in material liability to any securing Debt for Borrowed Money or Obligations under acceptance, letter of credit or similar facilities, showing as of the date hereof the lienholder thereof, the principal amount of the obligations secured thereby and the property or assets of such Loan Party or any such Subsidiary subject thereto.
(t) Set forth on Schedule 4.01(t) hereto is a complete and accurate list of its Subsidiaries; (C) there is no asbestos all Owned Real Property with a value of $1,000,000 or asbestos‑containing material on any property currently owned more showing as of the date hereof the street address, county or operated by any other relevant jurisdiction, state, record owner and book value thereof. Each Loan Party or any such Subsidiary has good, marketable and insurable fee simple title to such Owned Real Property, free and clear of all Liens, other than Permitted Liens.
(u) (1) Set forth on Schedule 4.01(u)(i) hereto is a complete and accurate list of all Real Property Leases (other than Real Property Leases of office space for building management and personnel of the General Partner and its Subsidiaries; ) showing as of the date hereof the lease, property, lessee, lessor, expiration date of the lease, and Digital Realty – Yen Credit Agreement 66annual rent. Each such Real Property Lease is the legal, valid and binding obligation of the applicable Loan Party or Subsidiary thereof, enforceable against such Loan Party or Subsidiary in accordance with its terms.
Appears in 1 contract
Representations and Warranties of the Loan Parties. Each Loan Party represents and warrants as follows:
(a) Each Loan Party and each general partner or managing member, if any, of each Loan Party (i) is a corporation, limited liability company or partnership duly incorporated, organized or formed, validly existing and in good standing (to the extent that a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) under the laws of the jurisdiction of its incorporation, organization or formation, (ii) is duly qualified and in good standing (to the extent that a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) as a foreign corporation, limited liability company or partnership in each other jurisdiction in which it owns or leases property or in which the conduct of its business requires it to so qualify or be licensed except where the failure to so qualify or be licensed would not be reasonably likely to have a Material Adverse Effect and (iii) has all requisite corporate, limited liability company or partnership power and authority (including, without limitation, all governmental licenses, permits and other approvals) to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted. The Parent Guarantor is organized in conformity with the requirements for qualification as a REIT under the Internal Revenue Code, and its method of operation enables it to Digital Realty – Yen Credit Agreement meet the requirements for qualification and taxation as a REIT under the Internal Revenue Code. All of the outstanding Equity Interests in the Parent Guarantor have been validly issued, are fully paid and non‑assessablenon-assessable, all of the general partner Equity Interests in the Operating Partnership are owned by the Parent Guarantor, and all such general partner Equity Interests are owned by the Parent Guarantor free and clear of all Liens.
(b) All of the outstanding Equity Interests in each Loan Party’s Subsidiaries have been validly issued, are fully paid and non‑assessable non-assessable and, to the extent owned by such Loan Party or one or more of its Subsidiaries, are owned by such Loan Party or Subsidiaries free and clear of all Liens (other than Liens on Equity Interests in Subsidiaries securing Debt that is not prohibited hereunder).
(c) The execution and delivery by each Loan Party and of each general partner or managing member (if any) of each Loan Party of each Loan Document to which it is or is to be a party, and the performance of its obligations thereunder, and the consummation of the transactions contemplated by the Loan Documents, are within the corporate, limited liability company or partnership powers of such Loan Party, general partner or managing member, have been duly authorized by all necessary corporate, limited liability company or partnership action, and do not (i) contravene the charter or bylaws, memorandum and articles of association, operating agreement, partnership agreement or other governing document of such Loan Party, general partner or managing member, (ii) violate any law, rule, regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award, (iii) conflict with or result in the breach of, or constitute a default or require any payment to be made under, any Material Contract binding on or affecting any Loan Party or any of its Subsidiaries or any of their properties, or any general partner or managing member of any Loan Party or (iv) result in or require the creation or imposition of any Lien upon or with respect to any of the properties of any Loan Party or any of its Subsidiaries. No Loan Party or any of its Subsidiaries is in violation of any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of any such Material Contract, the violation or breach of which would be reasonably likely to have a Material Adverse Effect.
(d) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery, recordation, filing or performance by any Loan Party or any general partner or managing member of any Loan Party of any Loan Document to which it is or is to be a party or for the consummation of the transactions contemplated by the Loan Documents and the exercise by the Administrative Agent or any Lender Party of its rights under the Loan Documents, except for authorizations, approvals, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect.
(e) This Agreement has been, and each other Loan Document when delivered hereunder will have been, duly executed and delivered by each Loan Party and general partner or managing member (if any) of each Loan Party party thereto. This Agreement is, and each other Loan Document when delivered hereunder will be, the legal, valid and binding obligation of each Loan Party party thereto, enforceable against such Loan Party in accordance with its terms, except as such enforceability may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium, examinership or similar laws affecting creditors’ rights generally and by general principles of equity.
(f) Except as set forth in the reports delivered to the Administrative Agent pursuant to Section 5.03(g5.03(h), there is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries or any general partner or managing member (if any) of any Loan Party, Digital Realty – Yen Credit Agreement including any Environmental Action to any Loan Party’s knowledge, pending or threatened before any court, governmental agency or arbitrator that (i) would reasonably be expected to have a Material Adverse Effect or (ii) would reasonably be expected to affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated by the Loan Documents.
(g) The Consolidated balance sheet of the Parent Guarantor and its Subsidiaries as at December 31, 2017 2011 and the related Consolidated statement of income and Consolidated statement of cash flows of the Parent Guarantor and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of KPMG LLP, independent public accountants, and the Consolidated balance sheet of the Parent Guarantor as at June 30, 2018, and the related Consolidated statement of income and Consolidated statement of cash flows of the Parent Guarantor and its Subsidiaries for the six months then ended, copies of which have been furnished to each Lender PartyLender, fairly present, subject, in the case of such balance sheet as at June 30, 2018, and such statements of income and cash flows for the six months then ended, to year‑end audit adjustments, present the Consolidated financial condition of the Parent Guarantor and its Subsidiaries as at such dates and the Consolidated results of operations of the Parent Guarantor and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles applied on a consistent basis, and since December 31, 20172011, there has been no Material Adverse Change.
(h) The Consolidated forecasted balance sheets, statements of income and statements of cash flows of the Parent Guarantor and its Subsidiaries most recently delivered to the Lender Parties Lenders pursuant to Section 5.03 were prepared in good faith on the basis of the assumptions stated therein, which assumptions were fair in light of the conditions existing at the time of delivery of such forecasts.
(i) No Neither the Information Memorandum nor any other information, exhibit or report furnished by or on behalf of any Loan Party to the Administrative Agent or any Lender Party in connection with the negotiation and syndication of the Loan Documents or pursuant to the terms of the Loan Documents contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements made therein not materially misleading in light of the circumstances under which they were made.
(j) No Loan Party is engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Advance or drawings under any Letter of Credit will be used, directly or indirectly, whether immediately, incidentally or ultimately to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock or to refund indebtedness originally incurred for such purpose.
(k) Neither any Loan Party nor any of its Subsidiaries nor any general partner or managing member of any Loan Party, as applicable, is an “investment company”, or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company”, as such terms are defined in the Investment Company Act of 1940, as amended. Without limiting the generality of the foregoing, each Loan Party and each of its Subsidiaries and each general partner or managing member of any Loan Party, as applicable: (i) is primarily engaged, directly or through a wholly‑owned wholly-owned subsidiary or subsidiaries, in a business or businesses other than that of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount face-amount certificates of the installment type; (ii) is not engaged in, does not propose to engage in and does not hold itself out as being engaged in the business of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount face-amount certificates of the installment type; (iii) does not own or propose to acquire investment securities (as defined in the Investment Company Act of 1940, as amended) having a value exceeding forty percent (40%) of the value of such company’s total assets (exclusive of government securities and cash items) on an unconsolidated basis; (iv) has not in the past been engaged in the business of Digital Realty – Yen Credit Agreement issuing face‑amount face-amount certificates of the installment type; and (v) does not have any outstanding face‑amount face-amount certificates of the installment type. Neither the making of any Advances, nor the issuance of any Letters of Credit, nor the application of the proceeds or repayment thereof by any Borrower, nor the consummation of the other transactions contemplated by the Loan Documents, will violate any provision of any such Act or any rule, regulation or order of the Securities and Exchange Commission thereunder.
(l) Each of the Assets listed on the schedule of Unencumbered Assets delivered to the Administrative Agent in connection with the Closing Date (as updated from time to time in accordance with Section 5.03(d)) satisfies all Unencumbered Asset Conditions, except to the extent as otherwise set forth herein or waived in writing by the Required Lenders. The Loan Parties are the legal and beneficial owners of the Unencumbered Assets free and clear of any Lien, except for the Liens permitted under the Loan Documents.
(m) Neither any Loan Party nor any of its Subsidiaries nor any general partner or managing member of any Loan Party, as applicable, is an EEA Financial Institution[Reserved].
(n) Set forth on Schedule 4.01(n) hereto is a complete and accurate list of all Surviving Debt of each Loan Party and its Subsidiaries (other than intercompany Debt) as of the date set forth on Schedule 4.01(n) December 31, 2011 having a principal amount of at least $10,000,000 and showing as of such date the obligor and the principal amount outstanding thereunder, the maturity date thereof and the amortization schedule therefor, and from such date December 31, 2011 to the Closing Date except as set forth on Schedule 4.01(n) there has been no material change in the amounts, interest rates, sinking funds, installment payments or maturities of such Surviving Debt (other than payments of principal and interest in accordance with the documents governing such Debt).
(o) Each Loan Party and its Subsidiaries has good, marketable and insurable fee simple title to, or valid trust beneficiary interests or leasehold interests in, all material Real Property owned or leased by such Loan Party or any such Subsidiary, free and clear of all Liens, other than Liens created or permitted by the Loan Documents.
(i) The operations and properties of each Loan Party and each of its Subsidiaries comply in all material respects with all applicable Environmental Laws and Environmental Permits, there is no past non‑compliance non-compliance with such Environmental Laws and Environmental Permits that has resulted in any ongoing material costs or obligations or that is reasonably expected to result in any future material costs or obligations, and no circumstances exist that (A) form the basis of an Environmental Action against any Loan Party or any of its Subsidiaries or any of their properties that would reasonably be expected to have a Material Adverse Effect or (B) cause any such property to be subject to any material restrictions on ownership, occupancy, use or transferability under any Environmental Law.
(iii) Except as would not reasonably be expected to have a Material Adverse Effect, (A) none of the properties currently or formerly owned or operated by any Loan Party or any of its Subsidiaries is listed or proposed for listing on the NPL or any analogous foreign, state or local list or is adjacent to any such property; (B) there are no and never have been any underground or above ground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed on any property currently or formerly owned or operated by any Loan Party or any of its Subsidiaries that is reasonably expected to result in material liability to any Loan Party or any of its Subsidiaries; (C) there is no asbestos or asbestos‑containing asbestos-containing material on any property currently owned or operated by any Loan Party or any of its Subsidiaries; and Digital Realty – Yen Credit Hazardous Materials have not been released, discharged or disposed of on any property currently or formerly owned or operated by any Loan Party or any of its Subsidiaries.
(iii) Except as would not reasonably be expected to have a Material Adverse Effect, neither any Loan Party nor any of its Subsidiaries is undertaking, and has not completed, either individually or together with other potentially responsible parties, any investigation or assessment or remedial or response action relating to any actual or threatened release, discharge or disposal of Hazardous Materials at any site, location or operation, either voluntarily or pursuant to the order of any governmental or regulatory authority or the requirements of any Environmental Law; and all Hazardous Materials generated, used, treated, handled or stored at, or transported to or from, any property currently or formerly owned or operated by any Loan Party or any of its Subsidiaries have been disposed of in a manner not reasonably expected to result in material liability to any Loan Party or any of its Subsidiaries.
(q) Each Loan Party and each Subsidiary is in compliance with the requirements of all Laws (including, without limitation, the Securities Act and the Securities Exchange Act, and the applicable rules and regulations thereunder, state securities law and “Blue Sky” laws) applicable to it and its business, where the failure to so comply would reasonably be expected to have a Material Adverse Effect.
(r) Neither the business nor the properties of any Loan Party or any of its Subsidiaries are affected by any fire, explosion, accident, strike, lockout or other labor dispute, drought, storm, hail, earthquake, embargo, act of God or of the public enemy or other casualty (whether or not covered by insurance) that would reasonably be expected to have a Material Adverse Effect.
(s) Each Loan Party has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement 66(and in the case of the Guarantors, to give the guaranty under this Agreement) and each other Loan Document to which it is or is to be a party, and each Loan Party has established adequate means of obtaining from each other Loan Party on a continuing basis information pertaining to, and is now and on a continuing basis will be completely familiar with, the business and financial condition of such other Loan Party.
(t) The Parent Guarantor is, individually and together with its Subsidiaries, Solvent and each Borrower is Solvent.
(u) (i) No ERISA Event has occurred or is reasonably expected to occur with respect to any Plan that has resulted in or would reasonably be expected to result in a Material Adverse Effect.
Appears in 1 contract
Representations and Warranties of the Loan Parties. Each Loan Party represents and warrants as follows:
(a) Each Loan Party and each general partner or managing member, if any, of each Loan Party its Subsidiaries (i) is a corporation, limited liability company or limited partnership duly incorporated, organized or formedorganized, validly existing and in good standing (to the extent that a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Partyits equivalent) under the laws of the jurisdiction of its incorporation, organization incorporation or formation, except where the failure to be so duly organized, validly existing or in good standing in the case of a Foreign Subsidiary has not had, or couldwould not reasonably be expected to have, a Material Adverse Effect, (ii) is duly qualified and in good standing (to the extent that a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) as a foreign corporation, limited liability corporation or company or partnership in each other jurisdiction in which it owns or leases property or in which the conduct of its business requires it to so qualify or be licensed except where the failure to so qualify or be licensed would not be reasonably likely to have a Material Adverse Effect Effect, and (iii) subject to the entry by the Bankruptcy Court of (x) the Interim Order at any time prior to the entry of the Final Order and (y) the Final Order at any time thereafter, has all requisite corporate, limited liability company or partnership power and authority (including, without limitation, all governmental licenses, permits and other approvals) to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted. The Parent Guarantor is organized , except where the failure to have such power or authority, individually or in conformity with the requirements for qualification as aggregate, couldwould not reasonably be expected to result in a REIT under the Internal Revenue Code, and its method of operation enables it to Digital Realty – Yen Credit Agreement meet the requirements for qualification and taxation as a REIT under the Internal Revenue CodeMaterial Adverse Effect. All of the outstanding Equity Interests in capital stock of each Loan Party (other than the Parent Guarantor have Borrower) has been validly issued, are is fully paid and non‑assessable, all of the general partner Equity Interests in the Operating Partnership are non-assessable and is owned by the Parent Guarantor, and all such general partner Equity Interests are owned by Persons listed on Schedule 4.01(a) hereto in the Parent Guarantor percentages specified on Schedule 4.01(a) hereto free and clear of all Liens, except those created under the Collateral Documents or otherwise permitted under Section 5.02(a) hereof.
(b) All Set forth on Schedule 4.01(a) hereto is a complete and accurate list of all Subsidiaries of the outstanding Borrower, showing as of the Effective Date (as to each such Subsidiary) the jurisdiction of its incorporation or organization, as the case may be, and the percentage of the Equity Interests in owned (directly or indirectly) by the Borrower or its Subsidiaries. Set forth on Schedule 4.01(b) hereto is a complete and accurate list of all Loan Parties, showing as of the date hereof (as to each Loan Party’s Subsidiaries have been validly issued, are fully paid ) the jurisdiction of its incorporation and non‑assessable and, to its U.S. taxpayer identification number. The copy of the extent owned by such charter of each Loan Party or one or more and each amendment thereto provided pursuant to Section 3.01(a)(iii) is a true and correct copy of its Subsidiarieseach such document as of the Effective Date, are owned by such Loan Party or Subsidiaries free each of which is valid and clear of all Liens (other than Liens on Equity Interests in Subsidiaries securing Debt that is not prohibited hereunder)full force and effect.
(c) The execution Subject to the entry of the Interim Order by the Bankruptcy Court, the execution, delivery and delivery performance by each Loan Party of this Agreement, the Notes and of each general partner or managing member (if any) of each Loan Party of each other Loan Document to which it is or is to be a party, and the performance consummation of its obligations thereunder, and the consummation each aspect of the transactions contemplated by the Loan Documentshereby, are within the corporate, limited liability company or partnership powers of such Loan Party, general partner or managing member’s constitutive powers, have been duly authorized by all necessary corporate, limited liability company or partnership constitutive action, and do not (i) contravene the charter or bylaws, memorandum and articles of association, operating agreement, partnership agreement or other governing document of such Loan Party, general partner or managing member’s constitutive documents, (ii) violate any lawlaw (including, without limitation, the Securities Exchange Act of 1934), rule, regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or awardaward applicable to such Loan Party, (iii) conflict with or result in the breach of, or constitute a default or require any payment to be made under, any Material Contract contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument binding on or affecting any Loan Party or any of its Subsidiaries Party, or any of their properties, or any general partner or managing member of any Loan Party properties to the extent the same is enforceable after the Petition Date or (iv) except for the Liens created under the Loan Documents, the Interim Order and the Final Order, result in or require the creation or imposition of any Lien upon or with respect to any of the properties of any Loan Party or any of its Subsidiaries. No Loan Party or any of its Subsidiaries is in violation of any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of any such Material Contract, the violation or breach of which would be reasonably likely to have a Material Adverse Effect.
(d) No authorization or Except for the entry of the DIP FinancingRefinancing Orders, no authorization, approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for (i) the due execution, delivery, recordation, filing or performance by any Loan Party of this Agreement, the Notes or any general partner or managing member of any Loan Party of any other Loan Document to which it is or is to be a party party, or for the consummation of each aspect of the transactions contemplated hereby, (ii) the grant by any Loan Party of the Liens granted by it pursuant to the Collateral Documents, (iii) the perfection or maintenance of the Liens created under the Collateral Documents (including the requisite priority set forth in the DIP FinancingRefinancing Orders, if and to the extent perfection was achieved by the Loan Documents and entry of the DIP FinancingRefinancing Orders) or (iv) subject to the DIP FinancingRefinancing Orders, the exercise by the Administrative Agent or any Lender Party of its rights under the Loan Documents or the remedies in respect of the Collateral pursuant to the Collateral Documents, except for those authorizations, approvals, actions, notices and filings which have been duly obtained, taken, given given, waived or made and are in full force and effect.
(e) This Agreement has been, and each of the Notes, if any, and each other Loan Document when delivered hereunder will have been, duly executed and delivered by each Loan Party and general partner or managing member (if any) of each Loan Party party thereto. This Agreement is, and each of the Notes and each other Loan Document when delivered hereunder will be, subject to (x) the entry of the Interim Order and the terms thereof at any time prior to the entry of the Final Order and (y) the entry of the Final Order and the terms thereof at any time thereafter, the legal, valid and binding obligation of each Loan Party party thereto, enforceable against such Loan Party in accordance with its termsterms and the terms of the DIP FinancingRefinancing Orders, except as such enforceability may be limited by any applicable bankruptcythe effect of foreign laws, insolvency, reorganization, moratorium, examinership or similar laws affecting creditors’ rights generally rules and by general principles of equityregulations as they relate to Pledged Equity in Foreign Subsidiaries.
(f) Except as set forth in the reports delivered to the Administrative Agent pursuant to Section 5.03(g), there is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries or any general partner or managing member (if any) of any Loan Party, Digital Realty – Yen Credit Agreement including any Environmental Action to any Loan Party’s knowledge, pending or threatened before any court, governmental agency or arbitrator that (i) would reasonably be expected to have a Material Adverse Effect or (ii) would reasonably be expected to affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated by the Loan Documents.
(g) The Consolidated balance sheet of the Parent Guarantor Borrower and its Subsidiaries as at December 31, 2017 2008, and the related Consolidated statement statements of income and Consolidated statement of cash flows of the Parent Guarantor Borrower and its Subsidiaries for the fiscal year Fiscal Year then ended, accompanied by an opinion of KPMG LLP, independent public accountants, and the Consolidated balance sheet of the Parent Guarantor as at June 30, 2018, and the related Consolidated statement of income and Consolidated statement of cash flows of the Parent Guarantor and its Subsidiaries for the six months then ended, copies of which have been furnished to each Lender Party, present fairly present, subject, in the case of such balance sheet as at June 30, 2018, and such statements of income and cash flows for the six months then ended, to year‑end audit adjustments, the Consolidated financial condition of the Parent Guarantor and its Subsidiaries as at such dates and the Consolidated results of operations of the Parent Guarantor Borrower and its Subsidiaries as of such date and for the periods ended on such datesperiod, all in accordance with generally accepted accounting principles applied on a consistent basis, and since GAAP consistently applied. Since December 31, 20172008, other than the commencement of the Cases and the matters disclosed in the Borrower’s annual report on Form 10-K for the fiscal year ended December 31, 2008,2008 or pursuant to the requirements of the Existing DIP Agreement, there has been no not occurred a Material Adverse Change.
(hg) The DIP Budget and all projected Consolidated forecasted balance sheets, income statements and cash flow statements of income and statements of cash flows of the Parent Guarantor Borrower and its Subsidiaries most recently delivered to the Lender Parties pursuant to Section 5.03 were prepared in good faith on the basis of the assumptions stated therein, which assumptions were fair in light of the conditions existing at the time of delivery of such forecastsDIP Budget or projections, as the case may be, it being understood that projections are subject to significant uncertainties and contingencies many of which are beyond the Borrower’s control, and that no guarantees can be given that the forecasts will be realized.
(ih) No information, exhibit or report furnished by or on behalf of any Loan Party the Borrower to the Administrative Agent or any Lender Party in connection with the negotiation and syndication of the Loan Documents or pursuant to the terms of the Loan Documents contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements statements, taken as a whole, made therein not materially misleading in any material respect in light of the circumstances under which they such statements were made.
(j) No Loan Party is engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Advance or drawings under any Letter of Credit will be used, directly or indirectly, whether immediately, incidentally or ultimately to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock or to refund indebtedness originally incurred for such purpose.
(k) Neither any Loan Party nor any of its Subsidiaries nor any general partner or managing member of any Loan Party, as applicable, is an “investment company”, or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company”, as such terms are defined in the Investment Company Act of 1940, as amended. Without limiting the generality of the foregoing, each Loan Party and each of its Subsidiaries and each general partner or managing member of any Loan Party, as applicable: (i) is primarily engaged, directly or through a wholly‑owned subsidiary or subsidiaries, in a business or businesses other than that of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (ii) is not engaged in, does not propose to engage in and does not hold itself out as being engaged in the business of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (iii) does not own or propose to acquire investment securities (as defined in the Investment Company Act of 1940, as amended) having a value exceeding forty percent (40%) of the value of such company’s total assets (exclusive of government securities and cash items) on an unconsolidated basis; (iv) has not in the past been engaged in the business of Digital Realty – Yen Credit Agreement issuing face‑amount certificates of the installment type; and (v) does not have any outstanding face‑amount certificates of the installment type. Neither the making of any Advances, nor the issuance of any Letters of Credit, nor the application of the proceeds or repayment thereof by any Borrower, nor the consummation of the other transactions contemplated by the Loan Documents, will violate any provision of any such Act or any rule, regulation or order of the Securities and Exchange Commission thereunder.
(l) Each of the Assets listed on the schedule of Unencumbered Assets delivered to the Administrative Agent in connection with the Closing Date (as updated from time to time in accordance with Section 5.03(d)) satisfies all Unencumbered Asset Conditions, except to the extent as otherwise set forth herein or waived in writing by the Required Lenders. The Loan Parties are the legal and beneficial owners of the Unencumbered Assets free and clear of any Lien, except for the Liens permitted under the Loan Documents.
(m) Neither any Loan Party nor any of its Subsidiaries nor any general partner or managing member of any Loan Party, as applicable, is an EEA Financial Institution.
(n) Set forth on Schedule 4.01(n) hereto is a complete and accurate list of all Surviving Debt of each Loan Party and its Subsidiaries (other than intercompany Debt) as of the date set forth on Schedule 4.01(n) having a principal amount of at least $10,000,000 and showing as of such date the obligor and the principal amount outstanding thereunder, the maturity date thereof and the amortization schedule therefor, and from such date to the Closing Date except as set forth on Schedule 4.01(n) there has been no material change in the amounts, interest rates, sinking funds, installment payments or maturities of such Surviving Debt (other than payments of principal and interest in accordance with the documents governing such Debt).
(o) Each Loan Party and its Subsidiaries has good, marketable and insurable fee simple title to, or valid trust beneficiary interests or leasehold interests in, all material Real Property owned or leased by such Loan Party or any such Subsidiary, free and clear of all Liens, other than Liens created or permitted by the Loan Documents.
(i) The operations and properties of each Loan Party and each of its Subsidiaries comply in all material respects with all applicable Environmental Laws and Environmental Permits, there is no past non‑compliance with such Environmental Laws and Environmental Permits that has resulted in any ongoing material costs or obligations or that is reasonably expected to result in any future material costs or obligations, and no circumstances exist that (A) form the basis of an Environmental Action against any Loan Party or any of its Subsidiaries or any of their properties that would reasonably be expected to have a Material Adverse Effect or (B) cause any such property to be subject to any material restrictions on ownership, occupancy, use or transferability under any Environmental Law.
(i) Except as would not reasonably be expected to have a Material Adverse Effect, (A) none of the properties currently or formerly owned or operated by any Loan Party or any of its Subsidiaries is listed or proposed for listing on the NPL or any analogous foreign, state or local list or is adjacent to any such property; (B) there are no and never have been any underground or above ground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed on any property currently or formerly owned or operated by any Loan Party or any of its Subsidiaries that is reasonably expected to result in material liability to any Loan Party or any of its Subsidiaries; (C) there is no asbestos or asbestos‑containing material on any property currently owned or operated by any Loan Party or any of its Subsidiaries; and Digital Realty – Yen Credit Agreement 66
Appears in 1 contract
Samples: Senior Secured Debtor in Possession Credit Agreement
Representations and Warranties of the Loan Parties. Each Loan Party represents and warrants as follows:
(a) Each Loan Party and each general partner or managing member, if any, of each Loan Party (i) is a corporation, limited liability company or partnership duly incorporated, organized or formed, validly existing and in good standing (to the extent that a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) under the laws of the jurisdiction of its incorporation, organization or formation, (ii) is duly qualified and in good standing (to the extent that a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) as a foreign corporation, limited liability company or partnership in each other jurisdiction in which it owns or leases property or in which the conduct of its business requires it to so qualify or be licensed except where the failure to so qualify or be licensed would not be reasonably likely to have a Material Adverse Effect and (iii) has all requisite corporate, limited liability company or partnership power and authority (including, without limitation, all governmental licenses, permits and other approvals) to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted. The Parent Guarantor is organized in conformity with the requirements for qualification as a REIT under the Internal Revenue Code, and its method of operation enables it to Digital Realty – Yen Credit Agreement meet the requirements for qualification and taxation as a REIT under the Internal Revenue Code. All of the outstanding Equity Interests in the Parent Guarantor have been validly issued, are fully paid and non‑assessablenon-assessable, all of the general partner Equity Interests in the Operating Partnership are owned by the Parent Guarantor, and all such general partner Equity Interests are owned by the Parent Guarantor free and clear of all Liens..
(b) All of the outstanding Equity Interests in each Loan Party’s Subsidiaries have been validly issued, are fully paid and non‑assessable non-assessable and, to the extent owned by such Loan Party or one or more of its Subsidiaries, are owned by such Loan Party or Subsidiaries free and clear of all Liens (other than Liens on Equity Interests in Subsidiaries securing Debt that is not prohibited hereunder).
(c) The execution and delivery by each Loan Party and of each general partner or managing member (if any) of each Loan Party of each Loan Document to which it is or is to be a party, and the performance of its obligations thereunder, and the consummation of the transactions contemplated by the Loan Documents, are within the corporate, limited liability company or partnership powers of such Loan Party, general partner or managing member, have been duly authorized by all necessary corporate, limited liability company or partnership action, and do not (i) contravene the charter or bylaws, memorandum and articles of association, operating agreement, partnership agreement, shareholders agreement or other governing document of such Loan Party, general partner or managing member, (ii) violate any law, rule, regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award, (iii) conflict with or result in the breach of, or constitute a default or require any payment to be made under, any Material Contract binding on or affecting any Loan Party or any of its Subsidiaries or any of their properties, or any general partner or managing member of any Loan Party or (iv) result in or require the creation or imposition of any Lien (other than Permitted Liens) upon or with respect to any of the properties of any Loan Party or any of its Subsidiaries. No Loan Party or any of its Subsidiaries is in violation of any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of any such Material Contract, the violation or breach of which would be reasonably likely to have a Material Adverse Effect.
(d) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery, recordation, filing or performance by any Loan Party or any general partner or managing member of any Loan Party of any Loan Document to which it is or is to be a party or for the consummation of the transactions contemplated by the Loan Documents and the exercise by the Administrative Agent or any Lender Party of its rights under the Loan Documents, except for authorizations, approvals, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect. Notwithstanding the above, (i) the reporting to and filing of, this Agreement by the relevant IDR Borrowers with Bank Indonesia and the Minister of Finance of Indonesia may be required in relation to the reporting of an offshore loan obtained by the IDR Borrower (if applicable) under the Loan Documents and (ii) the registration of the Loan Documents (and any document in connection therewith) with the Administration de l’Enregistrement et des Domaines in Luxembourg may be required in the case of legal proceedings before Luxembourg courts or in the case that any Loan Document (and any document in connection therewith) must be produced before an official Luxembourg authority (autorité constituée).
(e) This Agreement has been, and each other Loan Document when delivered hereunder will have been, duly executed and delivered by each Loan Party and general partner or managing member (if any) of each Loan Party party thereto. This Agreement is, and each other Loan Document when delivered hereunder will be, the legal, valid and binding obligation of each Loan Party party thereto, enforceable against such Loan Party in accordance with its terms, except as such enforceability may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium, examinership or similar laws affecting creditors’ rights generally and by general principles of equity.
(f) Except as set forth in the reports delivered to the Administrative Agent pursuant to Section 5.03(g5.03(h), there is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries or any general partner or managing member (if any) of any Loan Party, Digital Realty – Yen Credit Agreement including any Environmental Action to any Loan Party’s knowledge, pending or threatened before any court, governmental agency or arbitrator that (i) would reasonably be expected to have a Material Adverse Effect or (ii) would reasonably be expected to affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated by the Loan Documents.
(g) The Consolidated balance sheet of the Parent Guarantor and its Subsidiaries as at December 31, 2017 and the related Consolidated statement of income and Consolidated statement of cash flows of the Parent Guarantor and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of KPMG LLP, independent public accountants, and the Consolidated balance sheet of the Parent Guarantor as at June 30, 2018, and the related Consolidated statement of income and Consolidated statement of cash flows of the Parent Guarantor and its Subsidiaries for the six months then ended, copies of which have been furnished to each Lender Party, fairly present, subject, in the case of such balance sheet as at June 30, 2018, and such statements of income and cash flows for the six months then ended, to year‑end audit adjustments, the Consolidated financial condition of the Parent Guarantor and its Subsidiaries as at such dates and the Consolidated results of operations of the Parent Guarantor and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles applied on a consistent basis, and since December 31, 2017, there has been no Material Adverse Change.
(h) The Consolidated forecasted balance sheets, statements of income and statements of cash flows of the Parent Guarantor and its Subsidiaries most recently delivered to the Lender Parties pursuant to Section 5.03 were prepared in good faith on the basis of the assumptions stated therein, which assumptions were fair in light of the conditions existing at the time of delivery of such forecasts.
(i) No information, exhibit or report furnished by or on behalf of any Loan Party to the Administrative Agent or any Lender Party in connection with the negotiation and syndication of the Loan Documents or pursuant to the terms of the Loan Documents contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements made therein not materially misleading in light of the circumstances under which they were made.
(j) No Loan Party is engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Advance or drawings under any Letter of Credit will be used, directly or indirectly, whether immediately, incidentally or ultimately to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock or to refund indebtedness originally incurred for such purpose.
(k) Neither any Loan Party nor any of its Subsidiaries nor any general partner or managing member of any Loan Party, as applicable, is an “investment company”, or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company”, as such terms are defined in the Investment Company Act of 1940, as amended. Without limiting the generality of the foregoing, each Loan Party and each of its Subsidiaries and each general partner or managing member of any Loan Party, as applicable: (i) is primarily engaged, directly or through a wholly‑owned subsidiary or subsidiaries, in a business or businesses other than that of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (ii) is not engaged in, does not propose to engage in and does not hold itself out as being engaged in the business of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (iii) does not own or propose to acquire investment securities (as defined in the Investment Company Act of 1940, as amended) having a value exceeding forty percent (40%) of the value of such company’s total assets (exclusive of government securities and cash items) on an unconsolidated basis; (iv) has not in the past been engaged in the business of Digital Realty – Yen Credit Agreement issuing face‑amount certificates of the installment type; and (v) does not have any outstanding face‑amount certificates of the installment type. Neither the making of any Advances, nor the issuance of any Letters of Credit, nor the application of the proceeds or repayment thereof by any Borrower, nor the consummation of the other transactions contemplated by the Loan Documents, will violate any provision of any such Act or any rule, regulation or order of the Securities and Exchange Commission thereunder.
(l) Each of the Assets listed on the schedule of Unencumbered Assets delivered to the Administrative Agent in connection with the Closing Date (as updated from time to time in accordance with Section 5.03(d)) satisfies all Unencumbered Asset Conditions, except to the extent as otherwise set forth herein or waived in writing by the Required Lenders. The Loan Parties are the legal and beneficial owners of the Unencumbered Assets free and clear of any Lien, except for the Liens permitted under the Loan Documents.
(m) Neither any Loan Party nor any of its Subsidiaries nor any general partner or managing member of any Loan Party, as applicable, is an EEA Financial Institution.
(n) Set forth on Schedule 4.01(n) hereto is a complete and accurate list of all Surviving Debt of each Loan Party and its Subsidiaries (other than intercompany Debt) as of the date set forth on Schedule 4.01(n) having a principal amount of at least $10,000,000 and showing as of such date the obligor and the principal amount outstanding thereunder, the maturity date thereof and the amortization schedule therefor, and from such date to the Closing Date except as set forth on Schedule 4.01(n) there has been no material change in the amounts, interest rates, sinking funds, installment payments or maturities of such Surviving Debt (other than payments of principal and interest in accordance with the documents governing such Debt).
(o) Each Loan Party and its Subsidiaries has good, marketable and insurable fee simple title to, or valid trust beneficiary interests or leasehold interests in, all material Real Property owned or leased by such Loan Party or any such Subsidiary, free and clear of all Liens, other than Liens created or permitted by the Loan Documents.
(i) The operations and properties of each Loan Party and each of its Subsidiaries comply in all material respects with all applicable Environmental Laws and Environmental Permits, there is no past non‑compliance with such Environmental Laws and Environmental Permits that has resulted in any ongoing material costs or obligations or that is reasonably expected to result in any future material costs or obligations, and no circumstances exist that (A) form the basis of an Environmental Action against any Loan Party or any of its Subsidiaries or any of their properties that would reasonably be expected to have a Material Adverse Effect or (B) cause any such property to be subject to any material restrictions on ownership, occupancy, use or transferability under any Environmental Law.
(i) Except as would not reasonably be expected to have a Material Adverse Effect, (A) none of the properties currently or formerly owned or operated by any Loan Party or any of its Subsidiaries is listed or proposed for listing on the NPL or any analogous foreign, state or local list or is adjacent to any such property; (B) there are no and never have been any underground or above ground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed on any property currently or formerly owned or operated by any Loan Party or any of its Subsidiaries that is reasonably expected to result in material liability to any Loan Party or any of its Subsidiaries; (C) there is no asbestos or asbestos‑containing material on any property currently owned or operated by any Loan Party or any of its Subsidiaries; and Digital Realty – Yen Credit Agreement 66
Appears in 1 contract
Samples: Global Senior Credit Agreement (Digital Realty Trust, L.P.)
Representations and Warranties of the Loan Parties. Each Loan Party represents and warrants as follows:
(a) Each Loan Party and each general partner or managing member, if any, of each Loan Party its Subsidiaries (i) is a corporation, limited partnership or limited liability company or partnership duly incorporated, organized or formedorganized, validly existing and in good standing (to the extent that good standing is a concept of good standing exists under recognized for a specific entity type in the laws of the jurisdiction of the incorporation, organization or formation of such Loan Partyapplicable jurisdiction) under the laws of the jurisdiction of its incorporation, organization incorporation or formation, as the case may be, (ii) is duly qualified and in good standing (to the extent that good standing is a concept of good standing exists under recognized for a specific entity type in the laws of the jurisdiction of the incorporation, organization or formation of such Loan Partyapplicable jurisdiction) as a foreign corporation, limited partnership or limited liability company or partnership in each other jurisdiction in which it owns or leases property or in which the conduct of its business requires it to so qualify or be licensed except where the failure to so qualify or be licensed would could not be reasonably likely to have a Material Adverse Effect and (iii) has all requisite corporate, limited liability company or partnership (as applicable) power and authority (including, without limitation, all governmental licenses, permits and other approvals) to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted. The Parent Guarantor is organized in conformity with ; and (iv) has all Governmental Authorizations necessary to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted except where the requirements for qualification as failure to have such Governmental Authorization could not be reasonably likely to have a REIT under the Internal Revenue Code, and its method of operation enables it to Digital Realty – Yen Credit Agreement meet the requirements for qualification and taxation as a REIT under the Internal Revenue Code. All of the outstanding Equity Interests in the Parent Guarantor have been validly issued, are fully paid and non‑assessable, all of the general partner Equity Interests in the Operating Partnership are owned by the Parent Guarantor, and all such general partner Equity Interests are owned by the Parent Guarantor free and clear of all LiensMaterial Adverse Effect.
(b) Set forth on Schedule 4.01(b) hereto is a complete and accurate list of all Subsidiaries of each Loan Party, showing as of the Effective Date (as to each such Subsidiary) the jurisdiction of its formation, the number of shares, membership interests or limited partnership interest (as applicable) of each class of its Equity Interests authorized, and the number outstanding, on the Effective Date and the percentage of each such class of its Equity Interests owned (directly or indirectly) by such Loan Party and the number of shares, units or partnership interests covered by all outstanding options, warrants, rights of conversion or purchase and similar rights at the Effective Date. All of the outstanding Equity Interests in each Loan Party’s Subsidiaries have been validly issued, are fully paid and non‑assessable andnon-assessable and except as indicated on Schedule 4.01(b) hereto, to the extent are owned by such Loan Party or one or more of its Subsidiaries, are owned by such Loan Party or Subsidiaries free and clear of all Liens (other than Liens on Equity Interests in Subsidiaries securing Debt that is not prohibited hereunder)Liens, except those created under the Loan Documents.
(c) The execution execution, delivery and delivery performance by each Loan Party and of each general partner or managing member (if any) of each Loan Party of each Loan Document to which it is or is to be a party, and the performance of its obligations thereunder, and the consummation of the transactions contemplated by the Loan DocumentsTransaction, are within the such Loan Party’s corporate, limited liability company or limited partnership powers of such Loan Party, general partner or managing member(as applicable) powers, have been duly authorized by all necessary corporate, limited liability company or limited partnership (as applicable) action, and do not (i) contravene the charter or such Loan Party’s charter, certificate of formation, bylaws, memorandum and articles of association, operating limited liability company agreement, partnership agreement or other governing document of such Loan Party, general partner or managing memberconstituent documents, (ii) violate any current law, rule, regulation (including, without limitation, Regulation Regulations T, U or X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award, (iii) conflict with or result in the breach of, or constitute a default or require any payment to be made under, any Material Contract contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument binding on or affecting any Loan Party or Party, any of its Subsidiaries or any of their properties, or any general partner or managing member of any Loan Party properties or (iv) except for the Liens created under the Loan Documents, result in or require the creation or imposition of any Lien upon or with respect to any of the properties of any Loan Party or any of its Subsidiaries. No Loan Party or any of its Subsidiaries is in violation of any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of any such Material Contractcontract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument, the violation or breach of which would could be reasonably likely to have a Material Adverse Effect.
(d) No authorization or approval or other action byGovernmental Authorization, and no notice to or filing with, with any governmental authority or regulatory body Governmental Authority or any other third party party, is required for (i) the due execution, delivery, recordation, filing or performance by any Loan Party or any general partner or managing member of any Loan Party of any Loan Document to which it is or is to be a party party, or for the consummation of the transactions contemplated Transaction, (ii) the grant by any Loan Party of the Loan Liens granted by it pursuant to the Collateral Documents, (iii) the perfection or maintenance of the Liens created under the Collateral Documents and (including the first priority nature thereof), or (iv) the exercise by the Administrative any Agent or any Lender Party of its rights under the Loan Documents or the remedies in respect of the Collateral pursuant to the Collateral Documents, except for the authorizations, approvals, actions, notices and filings listed on Schedule 4.01(d) hereto, all of which have been duly obtained, taken, given or made and are in full force and effect. All applicable waiting periods in connection with the Transaction have expired without any action having been taken by any competent authority restraining, preventing or imposing materially adverse conditions upon the Transaction or the rights of the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, any properties now owned or hereafter acquired by any of them.
(e) This Agreement has been, and each other Loan Document when delivered hereunder will have been, duly executed and delivered by each Loan Party and general partner or managing member (if any) of each Loan Party that is a party thereto. This Agreement is, and each other Loan Document when delivered hereunder will be, the legal, valid and binding obligation of each Loan Party that is a party thereto, enforceable against such Loan Party in accordance with its termsterms subject, except as such enforceability may be limited by any applicable to enforcement only, to bankruptcy, insolvency, reorganization, moratorium, examinership moratoriums or similar laws at the time in effect affecting creditors’ the enforceability of the rights generally and by general principles of equitycreditors generally.
(f) Except as set forth in the reports delivered to the Administrative Agent pursuant to Section 5.03(g), there There is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries or any general partner or managing member (if any) of any Loan PartySubsidiaries, Digital Realty – Yen Credit Agreement including any Environmental Action to any Loan Party’s knowledgeAction, pending or threatened before any court, governmental agency Governmental Authority or arbitrator that (i) would could reasonably be expected to have a Material Adverse Effect or (ii) would reasonably be expected purports to affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated by Transaction, and there has been no Material Adverse Change in the status, or financial effect on any Loan DocumentsParty or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto.
(g) The Consolidated consolidated balance sheet sheets of the Parent Guarantor Borrower and its Subsidiaries as at December 31August 1, 2017 2014, and the related Consolidated statement consolidated statements of income and Consolidated consolidated statement of cash flows of the Parent Guarantor Borrower and its Subsidiaries for the fiscal year then ended, accompanied by an unqualified opinion of KPMG Deloitte & Touche LLP, independent registered public accountants, and the Consolidated unaudited consolidated balance sheet sheets of the Parent Guarantor Borrower and its Subsidiaries as at June 30October 31, 20182014, and the related Consolidated statement unaudited consolidated statements of income and Consolidated consolidated statement of cash flows of the Parent Guarantor Borrower and its Subsidiaries for the six three months then ended, duly certified by the chief financial officer of the Borrower, copies of which have been furnished to each Lender Party, fairly present, subject, in present the case of such balance sheet as at June 30, 2018, and such statements of income and cash flows for the six months then ended, to year‑end audit adjustments, the Consolidated consolidated financial condition of the Parent Guarantor Borrower and its Subsidiaries as at such dates and the Consolidated consolidated results of operations of the Parent Guarantor Borrower and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles GAAP applied on a consistent basis, and since December 31August 1, 20172014, there has been no event, development or occurrence that could have a Material Adverse ChangeEffect.
(h) The Consolidated forecasted consolidated pro forma balance sheetssheet of the Borrower and its Subsidiaries as at October 31, 2014, the related consolidated pro forma statements of income and statements of cash flows of the Parent Guarantor Borrower and its Subsidiaries most recently for the four-quarter period then ended, in each case certified by the chief financial officer of the Borrower, copies of which have been furnished to each Lender Party, fairly present the consolidated pro forma financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated pro forma results of operations of the Borrower and its Subsidiaries for the period ended on such dates, in each case giving effect to the Transaction, all in accordance with GAAP.
(i) The consolidated forecasted balance sheet, statement of income and statement of cashflows of the Borrower and its Subsidiaries, delivered to the Lender Parties pursuant to Section 5.03 Sections 3.01(a)(x) or 5.03, were prepared in good faith on the basis of the assumptions stated therein, which assumptions were fair reasonable in light of the conditions existing at the time of delivery of such forecasts, and represented, at the time of delivery, the Borrower’s reasonable best estimate of its future financial performance, based upon the assumptions set forth in such forecast.
(ij) No information, exhibit or report furnished by or on behalf of any Loan Party to the Administrative any Agent or any Lender Party in connection with the negotiation and syndication of the Loan Documents or pursuant to the terms of the Loan Documents contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements made therein not materially misleading in light of the circumstances under which they were mademisleading.
(jk) No Loan Party The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Advance or drawings under any Letter of Credit will be used, directly or indirectly, whether immediately, incidentally or ultimately to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock or to refund indebtedness originally incurred for such purposeStock.
(kl) Neither any Loan Party nor any of its Subsidiaries nor any general partner or managing member of any Loan Party, as applicable, is an “investment company”, or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company”, as such terms are defined in the Investment Company Act of 1940, as amended. Without limiting the generality of the foregoing, each Loan Party and each of its Subsidiaries and each general partner or managing member of any Loan Party, as applicable: (i) is primarily engaged, directly or through a wholly‑owned subsidiary or subsidiaries, in a business or businesses other than that of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (ii) is not engaged in, does not propose to engage in and does not hold itself out as being engaged in the business of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (iii) does not own or propose to acquire investment securities (as defined in the Investment Company Act of 1940, as amended) having a value exceeding forty percent (40%) of the value of such company’s total assets (exclusive of government securities and cash items) on an unconsolidated basis; (iv) has not in the past been engaged in the business of Digital Realty – Yen Credit Agreement issuing face‑amount certificates of the installment type; and (v) does not have any outstanding face‑amount certificates of the installment type. Neither the making of any Advances, nor the issuance of any Letters of Credit, nor the application of the proceeds or repayment thereof by any the Borrower, nor the consummation of the other transactions contemplated by the Loan Documents, will violate any provision of any such Act or any rule, regulation or order of the Securities and Exchange Commission thereunder.
(lm) Each Neither any Loan Party nor any of its Subsidiaries is a party to any indenture, loan or credit agreement or any lease or other agreement or instrument or subject to any charter or corporate restriction that could be reasonably likely to have a Material Adverse Effect.
(n) The provisions of the Assets listed on Collateral Documents executed by the schedule Loan Parties are effective to create, in favor of Unencumbered Assets delivered to the Administrative Agent Lenders, legal, valid and enforceable security interests in connection with all right, title and interest of the Closing Date (as updated Loan Parties in any and all of the collateral described therein, securing the Notes and all other Obligations from time to time outstanding under the Loan Documents, and each of such Collateral Documents, upon the taking of possession of the Collateral as provided in accordance with Section 5.03(d)) satisfies the Pledge Agreement shall create a fully perfected security interest in all Unencumbered Asset Conditionsright, except title and interest of the Loan Parties in such collateral, superior in right to any liens, existing or future, which the extent as otherwise set forth herein Loan Parties or waived in writing by the Required Lendersany creditors of or purchasers from, or any other Person, may have against such collateral or interests therein. The Loan Parties are the legal and beneficial owners of the Unencumbered Assets Collateral free and clear of any Lien, except for the Liens liens and security interests created or permitted under the Loan Documents.
(mo) Neither any Each Loan Party nor any of is, individually and together with its Subsidiaries nor any general partner or managing member of any Loan PartySubsidiaries, as applicable, is an EEA Financial InstitutionSolvent.
(np) (i) Set forth on Schedule 4.01(n4.01(p) hereto is a complete and accurate list of all Surviving Debt of each Loan Party Plans and its Subsidiaries (other than intercompany Debt) as of the date set forth on Schedule 4.01(n) having a principal amount of at least $10,000,000 and showing as of such date the obligor and the principal amount outstanding thereunder, the maturity date thereof and the amortization schedule therefor, and from such date to the Closing Date except as set forth on Schedule 4.01(n) there has been no material change in the amounts, interest rates, sinking funds, installment payments or maturities of such Surviving Debt (other than payments of principal and interest in accordance with the documents governing such Debt)Multiemployer Plans.
(o) Each Loan Party and its Subsidiaries has good, marketable and insurable fee simple title to, or valid trust beneficiary interests or leasehold interests in, all material Real Property owned or leased by such Loan Party or any such Subsidiary, free and clear of all Liens, other than Liens created or permitted by the Loan Documents.
(i) The operations and properties of each Loan Party and each of its Subsidiaries comply in all material respects with all applicable Environmental Laws and Environmental Permits, there is no past non‑compliance with such Environmental Laws and Environmental Permits that has resulted in any ongoing material costs or obligations or that is reasonably expected to result in any future material costs or obligations, and no circumstances exist that (A) form the basis of an Environmental Action against any Loan Party or any of its Subsidiaries or any of their properties that would reasonably be expected to have a Material Adverse Effect or (B) cause any such property to be subject to any material restrictions on ownership, occupancy, use or transferability under any Environmental Law.
(i) Except as would not reasonably be expected to have a Material Adverse Effect, (A) none of the properties currently or formerly owned or operated by any Loan Party or any of its Subsidiaries is listed or proposed for listing on the NPL or any analogous foreign, state or local list or is adjacent to any such property; (B) there are no and never have been any underground or above ground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed on any property currently or formerly owned or operated by any Loan Party or any of its Subsidiaries that is reasonably expected to result in material liability to any Loan Party or any of its Subsidiaries; (C) there is no asbestos or asbestos‑containing material on any property currently owned or operated by any Loan Party or any of its Subsidiaries; and Digital Realty – Yen Credit Agreement 66
Appears in 1 contract
Samples: Credit Agreement (Cracker Barrel Old Country Store, Inc)
Representations and Warranties of the Loan Parties. Each Loan Party represents and warrants as follows:
(a) Each Loan Party and each general partner or managing member, if any, of each Loan Party its Subsidiaries (i) is a corporation, limited partnership or limited liability company or partnership duly incorporated, organized or formedorganized, validly existing and in good standing (to the extent that good standing is a concept of good standing exists under recognized for a specific entity type in the laws of the jurisdiction of the incorporation, organization or formation of such Loan Partyapplicable jurisdiction) under the laws of the jurisdiction of its incorporation, organization incorporation or formation, as the case may be, (ii) is duly qualified and in good standing (to the extent that good standing is a concept of good standing exists under recognized for a specific entity type in the laws of the jurisdiction of the incorporation, organization or formation of such Loan Partyapplicable jurisdiction) as a foreign corporation, limited partnership or limited liability company or partnership in each other jurisdiction in which it owns or leases property or in which the conduct of its business requires it to so qualify or be licensed except where the failure to so qualify or be licensed would could not be reasonably likely to have a Material Adverse Effect and (iii) has all requisite corporate, limited liability company or partnership (as applicable) power and authority (including, without limitation, all governmental licenses, permits and other approvals) to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted. The Parent Guarantor is organized in conformity with ; and (iv) has all Governmental Authorizations necessary to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted except where the requirements for qualification as failure to have such Governmental Authorization could not be reasonably likely to have a REIT under the Internal Revenue Code, and its method of operation enables it to Digital Realty – Yen Credit Agreement meet the requirements for qualification and taxation as a REIT under the Internal Revenue Code. All of the outstanding Equity Interests in the Parent Guarantor have been validly issued, are fully paid and non‑assessable, all of the general partner Equity Interests in the Operating Partnership are owned by the Parent Guarantor, and all such general partner Equity Interests are owned by the Parent Guarantor free and clear of all LiensMaterial Adverse Effect.
(b) Set forth on Schedule 4.01(b) hereto is a complete and accurate list of all Subsidiaries of each Loan Party, showing as of the Effective Date (as to each such Subsidiary) the jurisdiction of its formation, the number of shares, membership interests or limited partnership interest (as applicable) of each class of its Equity Interests authorized, and the number outstanding, on the Effective Date and the percentage of each such class of its Equity Interests owned (directly or indirectly) by such Loan Party and the number of shares, units or partnership interests covered by all outstanding options, warrants, rights of conversion or purchase and similar rights at the Effective Date. All of the outstanding Equity Interests in each Loan Party’s Subsidiaries have been validly issued, are fully paid and non‑assessable andnon-assessable and except as indicated on Schedule 4.01(b) hereto, to the extent are owned by such Loan Party or one or more of its Subsidiaries, are owned by such Loan Party or Subsidiaries free and clear of all Liens (other than Liens on Equity Interests in Subsidiaries securing Debt that is not prohibited hereunder)Liens, except those created under the Loan Documents.
(c) The execution execution, delivery and delivery performance by each Loan Party and of each general partner or managing member (if any) of each Loan Party of each Loan Document to which it is or is to be a party, and the performance of its obligations thereunder, and the consummation of the transactions contemplated by the Loan DocumentsTransaction, are within the such Loan Party’s corporate, limited liability company or limited partnership powers of such Loan Party, general partner or managing member(as applicable) powers, have been duly authorized by all necessary corporate, limited liability company or limited partnership (as applicable) action, and do not (i) contravene the charter or such Loan Party’s charter, certificate of formation, bylaws, memorandum and articles of association, operating limited liability company agreement, partnership agreement or other governing document of such Loan Party, general partner or managing memberconstituent documents, (ii) violate any current law, rule, regulation (including, without limitation, Regulation Regulations T, U or X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award, (iii) conflict with or result in the breach of, or constitute a default or require any payment to be made under, any Material Contract contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument binding on or affecting any Loan Party or Party, any of its Subsidiaries or any of their properties, or any general partner or managing member of any Loan Party properties or (iv) except for the Liens created under the Loan Documents, result in or require the creation or imposition of any Lien upon or with respect to any of the properties of any Loan Party or any of its Subsidiaries. No Loan Party or any of its Subsidiaries is in violation of any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of any such Material Contractcontract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument, the violation or breach of which would could be reasonably likely to have a Material Adverse Effect.
(d) No authorization or approval or other action byGovernmental Authorization, and no notice to or filing with, with any governmental authority or regulatory body Governmental Authority or any other third party party, is required for (i) the due execution, delivery, recordation, filing or performance by any Loan Party or any general partner or managing member of any Loan Party of any Loan Document to which it is or is to be a party party, or for the consummation of the transactions contemplated Transaction, (ii) the grant by any Loan Party of the Loan Liens granted by it pursuant to the Collateral Documents, (iii) the perfection or maintenance of the Liens created under the Collateral Documents and (including the first priority nature thereof), or (iv) the exercise by the Administrative any Agent or any Lender Party of its rights under the Loan Documents or the remedies in respect of the Collateral pursuant to the Collateral Documents, except for the authorizations, approvals, actions, notices and filings listed on Schedule 4.01(d) hereto, all of which have been duly obtained, taken, given or made and are in full force and effect. All applicable waiting periods in connection with the Transaction have expired without any action having been taken by any competent authority restraining, preventing or imposing materially adverse conditions upon the Transaction or the rights of the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, any properties now owned or hereafter acquired by any of them.
(e) This Agreement has been, and each other Loan Document when delivered hereunder will have been, duly executed and delivered by each Loan Party and general partner or managing member (if any) of each Loan Party that is a party thereto. This Agreement is, and each other Loan Document when delivered hereunder will be, the legal, valid and binding obligation of each Loan Party that is a party thereto, enforceable against such Loan Party in accordance with its termsterms subject, except as such enforceability may be limited by any applicable to enforcement only, to bankruptcy, insolvency, reorganization, moratorium, examinership moratoriums or similar laws at the time in effect affecting creditors’ the enforceability of the rights generally and by general principles of equitycreditors generally.
(f) Except as set forth in the reports delivered to the Administrative Agent pursuant to Section 5.03(g), there There is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries or any general partner or managing member (if any) of any Loan PartySubsidiaries, Digital Realty – Yen Credit Agreement including any Environmental Action to any Loan Party’s knowledgeAction, pending or threatened before any court, governmental agency Governmental Authority or arbitrator that (i) would could reasonably be expected to have a Material Adverse Effect or (ii) would reasonably be expected purports to affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated by Transaction, and there has been no Material Adverse Change in the status, or financial effect on any Loan DocumentsParty or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto.
(g) The Consolidated consolidated balance sheet sheets of the Parent Guarantor Borrower and its Subsidiaries as at December 31July 28, 2017 2017, and the related Consolidated statement consolidated statements of income and Consolidated consolidated statement of cash flows of the Parent Guarantor Borrower and its Subsidiaries for the fiscal year then ended, accompanied by an unqualified opinion of KPMG Deloitte & Touche LLP, independent registered public accountants, and the Consolidated unaudited consolidated balance sheet sheets of the Parent Guarantor Borrower and its Subsidiaries as at June 30April 27, 2018, and the related Consolidated statement unaudited consolidated statements of income and Consolidated consolidated statement of cash flows of the Parent Guarantor Borrower and its Subsidiaries for the six three months then ended, duly certified by the chief financial officer of the Borrower, copies of which have been furnished to each Lender Party, fairly present, subject, in present the case of such balance sheet as at June 30, 2018, and such statements of income and cash flows for the six months then ended, to year‑end audit adjustments, the Consolidated consolidated financial condition of the Parent Guarantor Borrower and its Subsidiaries as at such dates and the Consolidated consolidated results of operations of the Parent Guarantor Borrower and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles GAAP applied on a consistent basis, and since December 31July 28, 2017, there has been no event, development or occurrence that could have a Material Adverse ChangeEffect.
(h) The Consolidated forecasted consolidated pro forma balance sheetssheet of the Borrower and its Subsidiaries as at April 27, 2018, the related consolidated pro forma statements of income and statements of cash flows of the Parent Guarantor Borrower and its Subsidiaries most recently for the four-quarter period then ended, in each case certified by the chief financial officer of the Borrower, copies of which have been furnished to each Lender Party, fairly present the consolidated pro forma financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated pro forma results of operations of the Borrower and its Subsidiaries for the period ended on such dates, in each case giving effect to the Transaction, all in accordance with GAAP.
(i) The consolidated forecasted balance sheet, statement of income and statement of cashflows of the Borrower and its Subsidiaries, delivered to the Lender Parties pursuant to Section 5.03 Sections 3.01(a)(x) or 5.03, were prepared in good faith on the basis of the assumptions stated therein, which assumptions were fair reasonable in light of the conditions existing at the time of delivery of such forecasts, and represented, at the time of delivery, the Borrower’s reasonable best estimate of its future financial performance, based upon the assumptions set forth in such forecast.
(ij) No information, exhibit or report furnished by or on behalf of any Loan Party to the Administrative any Agent or any Lender Party in connection with the negotiation and syndication of the Loan Documents or pursuant to the terms of the Loan Documents contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements made therein not materially misleading in light of the circumstances under which they were mademisleading.
(jk) No Loan Party The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Advance or drawings under any Letter of Credit will be used, directly or indirectly, whether immediately, incidentally or ultimately to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock or to refund indebtedness originally incurred for such purposeStock.
(kl) Neither any Loan Party nor any of its Subsidiaries nor any general partner or managing member of any Loan Party, as applicable, is an “investment company”, or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company”, as such terms are defined in the Investment Company Act of 1940, as amended. Without limiting the generality of the foregoing, each Loan Party and each of its Subsidiaries and each general partner or managing member of any Loan Party, as applicable: (i) is primarily engaged, directly or through a wholly‑owned subsidiary or subsidiaries, in a business or businesses other than that of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (ii) is not engaged in, does not propose to engage in and does not hold itself out as being engaged in the business of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (iii) does not own or propose to acquire investment securities (as defined in the Investment Company Act of 1940, as amended) having a value exceeding forty percent (40%) of the value of such company’s total assets (exclusive of government securities and cash items) on an unconsolidated basis; (iv) has not in the past been engaged in the business of Digital Realty – Yen Credit Agreement issuing face‑amount certificates of the installment type; and (v) does not have any outstanding face‑amount certificates of the installment type. Neither the making of any Advances, nor the issuance of any Letters of Credit, nor the application of the proceeds or repayment thereof by any the Borrower, nor the consummation of the other transactions contemplated by the Loan Documents, will violate any provision of any such Act or any rule, regulation or order of the Securities and Exchange Commission thereunder.
(lm) Each Neither any Loan Party nor any of its Subsidiaries is a party to any indenture, loan or credit agreement or any lease or other agreement or instrument or subject to any charter or corporate restriction that could be reasonably likely to have a Material Adverse Effect.
(n) The provisions of the Assets listed on Collateral Documents executed by the schedule Loan Parties are effective to create, in favor of Unencumbered Assets delivered to the Administrative Agent Lenders, legal, valid and enforceable security interests in connection with all right, title and interest of the Closing Date (as updated Loan Parties in any and all of the collateral described therein, securing the Notes and all other Obligations from time to time outstanding under the Loan Documents. Each of such Collateral Documents (but in accordance with Section 5.03(d)the case of the Pledge Agreement, upon the taking of possession of the Collateral as provided in the Pledge Agreement) satisfies creates a fully perfected security interest in all Unencumbered Asset Conditionsright, except title and interest of the Loan Parties in such collateral, superior in right to any liens, existing or future, which the extent as otherwise set forth herein Loan Parties or waived in writing by the Required Lendersany creditors of or purchasers from, or any other Person, may have against such collateral or interests therein. The Loan Parties are the legal and beneficial owners of the Unencumbered Assets Collateral free and clear of any Lien, except for the Liens liens and security interests created or permitted under the Loan Documents.
(mo) Neither any Each Loan Party nor any of is, individually and together with its Subsidiaries nor any general partner or managing member of any Loan PartySubsidiaries, as applicable, is an EEA Financial InstitutionSolvent.
(np) (i) Set forth on Schedule 4.01(n4.01(p) hereto is a complete and accurate list of all Surviving Debt of each Loan Party Plans and its Subsidiaries (other than intercompany Debt) as of the date set forth on Schedule 4.01(n) having a principal amount of at least $10,000,000 and showing as of such date the obligor and the principal amount outstanding thereunder, the maturity date thereof and the amortization schedule therefor, and from such date to the Closing Date except as set forth on Schedule 4.01(n) there has been no material change in the amounts, interest rates, sinking funds, installment payments or maturities of such Surviving Debt (other than payments of principal and interest in accordance with the documents governing such Debt)Multiemployer Plans.
(o) Each Loan Party and its Subsidiaries has good, marketable and insurable fee simple title to, or valid trust beneficiary interests or leasehold interests in, all material Real Property owned or leased by such Loan Party or any such Subsidiary, free and clear of all Liens, other than Liens created or permitted by the Loan Documents.
(i) The operations and properties of each Loan Party and each of its Subsidiaries comply in all material respects with all applicable Environmental Laws and Environmental Permits, there is no past non‑compliance with such Environmental Laws and Environmental Permits that has resulted in any ongoing material costs or obligations or that is reasonably expected to result in any future material costs or obligations, and no circumstances exist that (A) form the basis of an Environmental Action against any Loan Party or any of its Subsidiaries or any of their properties that would reasonably be expected to have a Material Adverse Effect or (B) cause any such property to be subject to any material restrictions on ownership, occupancy, use or transferability under any Environmental Law.
(i) Except as would not reasonably be expected to have a Material Adverse Effect, (A) none of the properties currently or formerly owned or operated by any Loan Party or any of its Subsidiaries is listed or proposed for listing on the NPL or any analogous foreign, state or local list or is adjacent to any such property; (B) there are no and never have been any underground or above ground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed on any property currently or formerly owned or operated by any Loan Party or any of its Subsidiaries that is reasonably expected to result in material liability to any Loan Party or any of its Subsidiaries; (C) there is no asbestos or asbestos‑containing material on any property currently owned or operated by any Loan Party or any of its Subsidiaries; and Digital Realty – Yen Credit Agreement 66
Appears in 1 contract
Samples: Credit Agreement (Cracker Barrel Old Country Store, Inc)
Representations and Warranties of the Loan Parties. Each Loan Party represents and warrants as follows:
(a) Each Loan Party and each general partner or managing member, if any, of each Loan Party its Subsidiaries (i) is a corporation, limited partnership or limited liability company or partnership duly incorporated, organized or formedorganized, validly existing and in good standing (to the extent that good standing is a concept of good standing exists under recognized for a specific entity type in the laws of the jurisdiction of the incorporation, organization or formation of such Loan Partyapplicable jurisdiction) under the laws of the jurisdiction of its incorporation, organization incorporation or formation, as the case may be, (ii) is duly qualified and in good standing (to the extent that good standing is a concept of good standing exists under recognized for a specific entity type in the laws of the jurisdiction of the incorporation, organization or formation of such Loan Partyapplicable jurisdiction) as a foreign corporation, limited partnership or limited liability company or partnership in each other jurisdiction in which it owns or leases property or in which the conduct of its business requires it to so qualify or be licensed except where the failure to so qualify or be licensed would could not be reasonably likely to have a Material Adverse Effect and (iii) has all requisite corporate, limited liability company or partnership (as applicable) power and authority (including, without limitation, all governmental licenses, permits and other approvals) to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted. The Parent Guarantor is organized in conformity with ; and (iv) has all Governmental Authorizations necessary to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted except where the requirements for qualification as failure to have such Governmental Authorization could not be reasonably likely to have a REIT under the Internal Revenue Code, and its method of operation enables it to Digital Realty – Yen Credit Agreement meet the requirements for qualification and taxation as a REIT under the Internal Revenue Code. All of the outstanding Equity Interests in the Parent Guarantor have been validly issued, are fully paid and non‑assessable, all of the general partner Equity Interests in the Operating Partnership are owned by the Parent Guarantor, and all such general partner Equity Interests are owned by the Parent Guarantor free and clear of all LiensMaterial Adverse Effect.
(b) Set forth on Schedule 4.01(b) hereto is a complete and accurate list of all Subsidiaries of each Loan Party, showing as of the Effective Date (as to each such Subsidiary) the jurisdiction of its formation, the number of shares, membership interests or limited partnership interest (as applicable) of each class of its Equity Interests authorized, and the number outstanding, on the Effective Date and the percentage of each such class of its Equity Interests owned (directly or indirectly) by such Loan Party and the number of shares, units or partnership interests covered by all outstanding options, warrants, rights of conversion or purchase and similar rights at the Effective Date. All of the outstanding Equity Interests in each Loan Party’s Subsidiaries have been validly issued, are fully paid and non‑assessable andnon-assessable and except as indicated on Schedule 4.01(b) hereto, to the extent are owned by such Loan Party or one or more of its Subsidiaries, are owned by such Loan Party or Subsidiaries free and clear of all Liens (other than Liens on Equity Interests in Subsidiaries securing Debt that is not prohibited hereunder).
(c) The execution and delivery by each Loan Party and of each general partner or managing member (if any) of each Loan Party of each Loan Document to which it is or is to be a party, and the performance of its obligations thereunder, and the consummation of the transactions contemplated by the Loan Documents, are within the corporate, limited liability company or partnership powers of such Loan Party, general partner or managing member, have been duly authorized by all necessary corporate, limited liability company or partnership action, and do not (i) contravene the charter or bylaws, memorandum and articles of association, operating agreement, partnership agreement or other governing document of such Loan Party, general partner or managing member, (ii) violate any law, rule, regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award, (iii) conflict with or result in the breach of, or constitute a default or require any payment to be made under, any Material Contract binding on or affecting any Loan Party or any of its Subsidiaries or any of their properties, or any general partner or managing member of any Loan Party or (iv) result in or require the creation or imposition of any Lien upon or with respect to any of the properties of any Loan Party or any of its Subsidiaries. No Loan Party or any of its Subsidiaries is in violation of any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of any such Material Contract, the violation or breach of which would be reasonably likely to have a Material Adverse Effect.
(d) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery, recordation, filing or performance by any Loan Party or any general partner or managing member of any Loan Party of any Loan Document to which it is or is to be a party or for the consummation of the transactions contemplated by the Loan Documents and the exercise by the Administrative Agent or any Lender Party of its rights under the Loan Documents, except for authorizations, approvals, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect.
(e) This Agreement has been, and each other Loan Document when delivered hereunder will have been, duly executed and delivered by each Loan Party and general partner or managing member (if any) of each Loan Party party thereto. This Agreement is, and each other Loan Document when delivered hereunder will be, the legal, valid and binding obligation of each Loan Party party thereto, enforceable against such Loan Party in accordance with its terms, except as such enforceability may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium, examinership or similar laws affecting creditors’ rights generally and by general principles of equity.
(f) Except as set forth in the reports delivered to the Administrative Agent pursuant to Section 5.03(g), there is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries or any general partner or managing member (if any) of any Loan Party, Digital Realty – Yen Credit Agreement including any Environmental Action to any Loan Party’s knowledge, pending or threatened before any court, governmental agency or arbitrator that (i) would reasonably be expected to have a Material Adverse Effect or (ii) would reasonably be expected to affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated by the Loan Documents.
(g) The Consolidated balance sheet of the Parent Guarantor and its Subsidiaries as at December 31, 2017 and the related Consolidated statement of income and Consolidated statement of cash flows of the Parent Guarantor and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of KPMG LLP, independent public accountants, and the Consolidated balance sheet of the Parent Guarantor as at June 30, 2018, and the related Consolidated statement of income and Consolidated statement of cash flows of the Parent Guarantor and its Subsidiaries for the six months then ended, copies of which have been furnished to each Lender Party, fairly present, subject, in the case of such balance sheet as at June 30, 2018, and such statements of income and cash flows for the six months then ended, to year‑end audit adjustments, the Consolidated financial condition of the Parent Guarantor and its Subsidiaries as at such dates and the Consolidated results of operations of the Parent Guarantor and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles applied on a consistent basis, and since December 31, 2017, there has been no Material Adverse Change.
(h) The Consolidated forecasted balance sheets, statements of income and statements of cash flows of the Parent Guarantor and its Subsidiaries most recently delivered to the Lender Parties pursuant to Section 5.03 were prepared in good faith on the basis of the assumptions stated therein, which assumptions were fair in light of the conditions existing at the time of delivery of such forecasts.
(i) No information, exhibit or report furnished by or on behalf of any Loan Party to the Administrative Agent or any Lender Party in connection with the negotiation and syndication of the Loan Documents or pursuant to the terms of the Loan Documents contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements made therein not materially misleading in light of the circumstances under which they were made.
(j) No Loan Party is engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Advance or drawings under any Letter of Credit will be used, directly or indirectly, whether immediately, incidentally or ultimately to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock or to refund indebtedness originally incurred for such purpose.
(k) Neither any Loan Party nor any of its Subsidiaries nor any general partner or managing member of any Loan Party, as applicable, is an “investment company”, or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company”, as such terms are defined in the Investment Company Act of 1940, as amended. Without limiting the generality of the foregoing, each Loan Party and each of its Subsidiaries and each general partner or managing member of any Loan Party, as applicable: (i) is primarily engaged, directly or through a wholly‑owned subsidiary or subsidiaries, in a business or businesses other than that of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (ii) is not engaged in, does not propose to engage in and does not hold itself out as being engaged in the business of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (iii) does not own or propose to acquire investment securities (as defined in the Investment Company Act of 1940, as amended) having a value exceeding forty percent (40%) of the value of such company’s total assets (exclusive of government securities and cash items) on an unconsolidated basis; (iv) has not in the past been engaged in the business of Digital Realty – Yen Credit Agreement issuing face‑amount certificates of the installment type; and (v) does not have any outstanding face‑amount certificates of the installment type. Neither the making of any Advances, nor the issuance of any Letters of Credit, nor the application of the proceeds or repayment thereof by any Borrower, nor the consummation of the other transactions contemplated by the Loan Documents, will violate any provision of any such Act or any rule, regulation or order of the Securities and Exchange Commission thereunder.
(l) Each of the Assets listed on the schedule of Unencumbered Assets delivered to the Administrative Agent in connection with the Closing Date (as updated from time to time in accordance with Section 5.03(d)) satisfies all Unencumbered Asset Conditions, except to the extent as otherwise set forth herein or waived in writing by the Required Lenders. The Loan Parties are the legal and beneficial owners of the Unencumbered Assets free and clear of any Lien, except for the Liens permitted under the Loan Documents.
(m) Neither any Loan Party nor any of its Subsidiaries nor any general partner or managing member of any Loan Party, as applicable, is an EEA Financial Institution.
(n) Set forth on Schedule 4.01(n) hereto is a complete and accurate list of all Surviving Debt of each Loan Party and its Subsidiaries (other than intercompany Debt) as of the date set forth on Schedule 4.01(n) having a principal amount of at least $10,000,000 and showing as of such date the obligor and the principal amount outstanding thereunder, the maturity date thereof and the amortization schedule therefor, and from such date to the Closing Date except as set forth on Schedule 4.01(n) there has been no material change in the amounts, interest rates, sinking funds, installment payments or maturities of such Surviving Debt (other than payments of principal and interest in accordance with the documents governing such Debt).
(o) Each Loan Party and its Subsidiaries has good, marketable and insurable fee simple title to, or valid trust beneficiary interests or leasehold interests in, all material Real Property owned or leased by such Loan Party or any such Subsidiary, free and clear of all Liens, other than Liens except those created or permitted by under the Loan Documents.
(i) The operations and properties of each Loan Party and each of its Subsidiaries comply in all material respects with all applicable Environmental Laws and Environmental Permits, there is no past non‑compliance with such Environmental Laws and Environmental Permits that has resulted in any ongoing material costs or obligations or that is reasonably expected to result in any future material costs or obligations, and no circumstances exist that (A) form the basis of an Environmental Action against any Loan Party or any of its Subsidiaries or any of their properties that would reasonably be expected to have a Material Adverse Effect or (B) cause any such property to be subject to any material restrictions on ownership, occupancy, use or transferability under any Environmental Law.
(i) Except as would not reasonably be expected to have a Material Adverse Effect, (A) none of the properties currently or formerly owned or operated by any Loan Party or any of its Subsidiaries is listed or proposed for listing on the NPL or any analogous foreign, state or local list or is adjacent to any such property; (B) there are no and never have been any underground or above ground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed on any property currently or formerly owned or operated by any Loan Party or any of its Subsidiaries that is reasonably expected to result in material liability to any Loan Party or any of its Subsidiaries; (C) there is no asbestos or asbestos‑containing material on any property currently owned or operated by any Loan Party or any of its Subsidiaries; and Digital Realty – Yen Credit Agreement 66
Appears in 1 contract
Samples: Credit Agreement (Cracker Barrel Old Country Store, Inc)
Representations and Warranties of the Loan Parties. Each Loan Party represents and warrants as follows:
(a) Each Loan Party and each general partner or managing member, if any, of each Loan Party its Subsidiaries (i) is a corporation, limited partnership or limited liability company or partnership duly incorporated, organized or formedorganized, validly existing and in good standing (to the extent that a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) under the laws of the jurisdiction of its incorporation, organization or formation, (ii) is duly qualified and in good standing (to the extent that a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) as a foreign corporation, limited partnership or limited liability company or partnership in each other jurisdiction in which it owns or leases property or in which the conduct of its business requires it to so qualify or be licensed except where the failure to so qualify or be licensed would could not be reasonably likely to have a Material Adverse Effect and (iii) has all requisite corporate, limited liability company or partnership (as applicable) power and authority (including, without limitation, all governmental licenses, permits and other approvals) to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted. The Parent Guarantor is organized in conformity with ; and (iv) has all Governmental Authorizations necessary to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted except where the requirements for qualification as failure to have such Governmental Authorization could not be reasonably likely to have a REIT under the Internal Revenue Code, and its method of operation enables it to Digital Realty – Yen Credit Agreement meet the requirements for qualification and taxation as a REIT under the Internal Revenue Code. All of the outstanding Equity Interests in the Parent Guarantor have been validly issued, are fully paid and non‑assessable, all of the general partner Equity Interests in the Operating Partnership are owned by the Parent Guarantor, and all such general partner Equity Interests are owned by the Parent Guarantor free and clear of all LiensMaterial Adverse Effect.
(b) Set forth on Schedule 4.01(b) hereto is a complete and accurate list of all Subsidiaries of each Loan Party, showing as of the date hereof (as to each such Subsidiary) the jurisdiction of its formation, the number of shares, membership interests or limited partnership interest (as applicable) of each class of its Equity Interests authorized, and the number outstanding, on the date hereof and the percentage of each such class of its Equity Interests owned (directly or indirectly) by such Loan Party and the number of shares, units or partnership interests covered by all outstanding options, warrants, rights of conversion or purchase and similar rights at the date hereof. All of the outstanding Equity Interests in each Loan Party’s Subsidiaries have been validly issued, are fully paid and non‑assessable andnon-assessable and except as indicated on Schedule 4.01(b) hereto, to the extent are owned by such Loan Party or one or more of its Subsidiaries, are owned by such Loan Party or Subsidiaries free and clear of all Liens (other than Liens on Equity Interests in Subsidiaries securing Debt that is not prohibited hereunder)Liens, except those created under the Loan Documents.
(c) The execution execution, delivery and delivery performance by each Loan Party and of each general partner or managing member (if any) of each Loan Party of each Loan Transaction Document to which it is or is to be a party, and the performance of its obligations thereunder, and the consummation of the transactions contemplated by the Loan DocumentsTransaction, are within the such Loan Party’s corporate, limited liability company or limited partnership powers of such Loan Party, general partner or managing member(as applicable) powers, have been duly authorized by all necessary corporate, limited liability company or limited partnership (as applicable) action, and do not (i) contravene the charter or such Loan Party’s charter, certificate of formation, bylaws, memorandum and articles of association, operating limited liability company agreement, partnership agreement or other governing document of such Loan Party, general partner or managing memberconstituent documents, (ii) violate any current law, rule, regulation (including, without limitation, Regulation Regulations U or X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award, (iii) conflict with or result in the breach of, or constitute a default or require any payment to be made under, any Material Contract contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument binding on or affecting any Loan Party or Party, any of its Subsidiaries or any of their properties, or any general partner or managing member of any Loan Party properties or (iv) except for the Liens created under the Loan Documents, result in or require the creation or imposition of any Lien upon or with respect to any of the properties of any Loan Party or any of its Subsidiaries. No Loan Party or any of its Subsidiaries is in violation of any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of any such Material Contractcontract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument, the violation or breach of which would could be reasonably likely to have a Material Adverse Effect.
(d) No authorization or approval or other action byGovernmental Authorization, and no notice to or filing with, with any governmental authority or regulatory body Governmental Authority or any other third party party, is required for (i) the due execution, delivery, recordation, filing or performance by any Loan Party or any general partner or managing member of any Loan Party of any Loan Transaction Document to which it is or is to be a party party, or for the consummation of the transactions contemplated Transaction, (ii) the grant by any Loan Party of the Loan Liens granted by it pursuant to the Collateral Documents, (iii) the perfection or maintenance of the Liens created under the Collateral Documents and (including the first priority nature thereof), or (iv) the exercise by the Administrative any Agent or any Lender Party of its rights under the Loan DocumentsDocuments or the remedies in respect of the Collateral pursuant to the Collateral Documents , except for the authorizations, approvals, actions, notices and filings listed on Schedule 4.01(d) hereto, all of which have been duly obtained, taken, given or made and are in full force and effect. All applicable waiting periods in connection with the Transaction have expired without any action having been taken by any competent authority restraining, preventing or imposing materially adverse conditions upon the Transaction or the rights of the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, any properties now owned or hereafter acquired by any of them. The Repurchase has been consummated or will be consummated simultaneously with the Initial Extension of Credit in accordance with the Tender Offer Documents and applicable law.
(e) This Agreement has been, and each other Loan Document when delivered hereunder will have been, duly executed and delivered by each Loan Party and general partner or managing member (if any) of each Loan Party that is a party thereto. This Agreement is, and each other Loan Document when delivered hereunder will be, the legal, valid and binding obligation of each Loan Party that is a party thereto, enforceable against such Loan Party in accordance with its termsterms subject, except as such enforceability may be limited by any applicable to enforcement only, to bankruptcy, insolvency, reorganization, moratorium, examinership moratoriums or similar laws at the time in effect affecting creditors’ the enforceability of the rights generally and by general principles of equitycreditors generally.
(f) Except as set forth in the reports delivered to the Administrative Agent pursuant to Section 5.03(g), there There is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries or any general partner or managing member (if any) of any Loan PartySubsidiaries, Digital Realty – Yen Credit Agreement including any Environmental Action to any Loan Party’s knowledgeAction, pending or threatened before any court, governmental agency Governmental Authority or arbitrator that (i) would could reasonably be expected to have a Material Adverse Effect or (ii) would reasonably be expected purports to affect the legality, validity or enforceability of any Loan Transaction Document or the consummation of the transactions contemplated by Transaction, and there has been no Material Adverse Change in the status, or financial effect on any Loan DocumentsParty or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto.
(g) The Consolidated consolidated balance sheet sheets of the Parent Guarantor Borrower and its Subsidiaries as at December 31July 29, 2017 2005, and the related Consolidated statement consolidated statements of income and Consolidated consolidated statement of cash flows of the Parent Guarantor Borrower and its Subsidiaries for the fiscal year then ended, accompanied by an unqualified opinion of KPMG Deloitte & Touche LLP, independent registered public accountants, and the Consolidated unaudited consolidated balance sheet sheets of the Parent Guarantor Borrower and its Subsidiaries as at June 30January 27, 20182006, and the related Consolidated statement unaudited consolidated statements of income and Consolidated consolidated statement of cash flows of the Parent Guarantor Borrower and its Subsidiaries for the six months then ended, duly certified by the chief financial officer of the Borrower, copies of which have been furnished to each Lender Party, fairly present, subject, in present the case of such balance sheet as at June 30, 2018, and such statements of income and cash flows for the six months then ended, to year‑end audit adjustments, the Consolidated consolidated financial condition of the Parent Guarantor Borrower and its Subsidiaries as at such dates and the Consolidated consolidated results of operations of the Parent Guarantor Borrower and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles applied on a consistent basis, except (insofar as consistency is concerned) as related to the adoption on July 30, 2005 of Statement of Financial Accounting Standards No. 123 (Revised 2004), “Share-Based Payment”, and since December 31July 29, 20172005, there has been no event, development or occurrence that could have a Material Adverse ChangeEffect.
(h) The Consolidated forecasted consolidated pro forma balance sheetssheet of the Borrower and its Subsidiaries as at January 27, 2006, the related consolidated pro forma statements of income and statements cash flows of the Borrower and its Subsidiaries for the four-quarter period then ended, in each case certified by the chief financial officer of the Borrower, copies of which have been furnished to each Lender Party, fairly present the consolidated pro forma financial condition of the Borrower and its Subsidiaries as at such dates and the consolidated pro forma results of operations of the Borrower and its Subsidiaries for the period ended on such dates, in each case giving effect to the Transaction, all in accordance with GAAP.
(i) The consolidated forecasted balance sheet, statement of income and statement of cash flows of the Parent Guarantor Borrower and its Subsidiaries most recently Subsidiaries, delivered to the Lender Parties pursuant to Section 5.03 3.01(a)(xi) or 5.03, were prepared in good faith on the basis of the assumptions stated therein, which assumptions were fair reasonable in light of the conditions existing at the time of delivery of such forecasts, and represented, at the time of delivery, the Borrower’s reasonable best estimate of its future financial performance, based upon the assumptions set forth in such forecast.
(ij) No Neither the Information Memorandum, the Tender Offer Documents nor any other information, exhibit or report furnished by or on behalf of any Loan Party to the Administrative any Agent or any Lender Party in connection with the negotiation and syndication of the Loan Documents or pursuant to the terms of the Loan Documents contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements made therein not materially misleading in light of the circumstances under which they were mademisleading.
(jk) No Loan Party The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Advance or drawings under any Letter of Credit will be used, directly or indirectly, whether immediately, incidentally or ultimately to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock or to refund indebtedness originally incurred for such purposeStock.
(kl) Neither any Loan Party nor any of its Subsidiaries nor any general partner or managing member of any Loan Party, as applicable, is an “investment company”, or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company”, as such terms are defined in the Investment Company Act of 1940, as amended. Without limiting the generality of the foregoing, each Loan Party and each of its Subsidiaries and each general partner or managing member of any Loan Party, as applicable: (i) is primarily engaged, directly or through a wholly‑owned subsidiary or subsidiaries, in a business or businesses other than that of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (ii) is not engaged in, does not propose to engage in and does not hold itself out as being engaged in the business of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (iii) does not own or propose to acquire investment securities (as defined in the Investment Company Act of 1940, as amended) having a value exceeding forty percent (40%) of the value of such company’s total assets (exclusive of government securities and cash items) on an unconsolidated basis; (iv) has not in the past been engaged in the business of Digital Realty – Yen Credit Agreement issuing face‑amount certificates of the installment type; and (v) does not have any outstanding face‑amount certificates of the installment type. Neither the making of any Advances, nor the issuance of any Letters of Credit, nor the application of the proceeds or repayment thereof by any the Borrower, nor the consummation of the other transactions contemplated by the Loan Transaction Documents, will violate any provision of any such Act or any rule, regulation or order of the Securities and Exchange Commission thereunder.
(lm) Each Neither any Loan Party nor any of its Subsidiaries is a party to any indenture, loan or credit agreement or any lease or other agreement or instrument or subject to any charter or corporate restriction that could be reasonably likely to have a Material Adverse Effect.
(n) The provisions of the Assets listed on Collateral Documents executed by the schedule Loan Parties are effective to create, in favor of Unencumbered Assets delivered to the Administrative Agent Lenders, legal, valid and enforceable security interests in connection with all right, title and interest of the Closing Date (as updated Loan Parties in any and all of the collateral described therein, securing the Notes and all other Obligations from time to time outstanding under the Loan Documents, and each of such Collateral Documents, upon the taking of possession of the Security Collateral as provided in accordance with Section 5.03(d)) satisfies the Pledge Agreement shall create a fully perfected security interest in all Unencumbered Asset Conditionsright, except title and interest of the Loan Parties in such collateral, superior in right to any liens, existing or future, which the extent as otherwise set forth herein Loan Parties or waived in writing by the Required Lendersany creditors of or purchasers from, or any other Person, may have against such collateral or interests therein. The Loan Parties are the legal and beneficial owners of the Unencumbered Assets Collateral free and clear of any Lien, except for the Liens liens and security interests created or permitted under the Loan Documents.
(mo) Neither any Each Loan Party nor any of is, individually and together with its Subsidiaries nor any general partner or managing member of any Loan PartySubsidiaries, as applicable, is an EEA Financial Institution.
Solvent. (np) (i) Set forth on Schedule 4.01(n4.01(p) hereto is a complete and accurate list of all Surviving Debt of each Loan Party Plans, Multiemployer Plans and its Subsidiaries (other than intercompany Debt) as of the date set forth on Schedule 4.01(n) having a principal amount of at least $10,000,000 and showing as of such date the obligor and the principal amount outstanding thereunder, the maturity date thereof and the amortization schedule therefor, and from such date to the Closing Date except as set forth on Schedule 4.01(n) there has been no material change in the amounts, interest rates, sinking funds, installment payments or maturities of such Surviving Debt (other than payments of principal and interest in accordance with the documents governing such Debt)Welfare Plans.
(o) Each Loan Party and its Subsidiaries has good, marketable and insurable fee simple title to, or valid trust beneficiary interests or leasehold interests in, all material Real Property owned or leased by such Loan Party or any such Subsidiary, free and clear of all Liens, other than Liens created or permitted by the Loan Documents.
(i) The operations and properties of each Loan Party and each of its Subsidiaries comply in all material respects with all applicable Environmental Laws and Environmental Permits, there is no past non‑compliance with such Environmental Laws and Environmental Permits that has resulted in any ongoing material costs or obligations or that is reasonably expected to result in any future material costs or obligations, and no circumstances exist that (A) form the basis of an Environmental Action against any Loan Party or any of its Subsidiaries or any of their properties that would reasonably be expected to have a Material Adverse Effect or (B) cause any such property to be subject to any material restrictions on ownership, occupancy, use or transferability under any Environmental Law.
(i) Except as would not reasonably be expected to have a Material Adverse Effect, (A) none of the properties currently or formerly owned or operated by any Loan Party or any of its Subsidiaries is listed or proposed for listing on the NPL or any analogous foreign, state or local list or is adjacent to any such property; (B) there are no and never have been any underground or above ground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed on any property currently or formerly owned or operated by any Loan Party or any of its Subsidiaries that is reasonably expected to result in material liability to any Loan Party or any of its Subsidiaries; (C) there is no asbestos or asbestos‑containing material on any property currently owned or operated by any Loan Party or any of its Subsidiaries; and Digital Realty – Yen Credit Agreement 66
Appears in 1 contract
Samples: Credit Agreement (CBRL Group Inc)
Representations and Warranties of the Loan Parties. Each Loan Party of the Borrower and its Restricted Subsidiaries represents and warrants as follows:
(a) Each Loan Party The Borrower and each general partner or managing member, if any, of each Loan Party its Restricted Subsidiaries (i) is a corporation, limited liability company or partnership corporation duly incorporated, organized or formedorganized, validly existing and in good standing (to the extent that a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) under the laws of the jurisdiction of its incorporation, organization or formationorganization, (ii) is duly qualified and in good standing (to the extent that a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) as a foreign corporation, limited liability company or partnership corporation in each other jurisdiction in which it owns or leases property or in which the conduct of its business requires it to so qualify or be licensed except where the failure to so qualify or be licensed would not be reasonably likely to have a Material Adverse Effect and (iii) has all requisite corporate, limited liability company or partnership corporate power and authority (including, without limitation, all governmental licenses, permits and other approvalsGovernmental Authorizations) to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted. The Parent Guarantor is organized in conformity with the requirements for qualification as a REIT under the Internal Revenue Code, and its method of operation enables it to Digital Realty – Yen Credit Agreement meet the requirements for qualification and taxation as a REIT under the Internal Revenue Code. All of the outstanding Equity Interests in the Parent Guarantor Borrower have been validly issued, are fully paid and non‑assessable, all of the general partner Equity Interests in the Operating Partnership are owned by the Parent Guarantor, non-assessable and all such general partner Equity Interests are owned by the Parent Guarantor free and clear of all Liens, except those created under the Collateral Documents.
(b) Set forth on Schedule 4.01(b) hereto is a complete and accurate list of all Subsidiaries of each Loan Party, showing as of the date hereof (as to each such Subsidiary) the jurisdiction of its organization, whether it is a Restricted Subsidiary or Unrestricted Subsidiary, the number of shares of each class of its Equity Interests authorized, and the number outstanding, on the date hereof and the percentage of each such class of its Equity Interests owned (directly or indirectly) by such Loan Party and the number of shares covered by all outstanding options, warrants, rights of conversion or purchase and similar rights at the date hereof. All of the outstanding Equity Interests in each Loan Party’s Subsidiaries have been validly issued, are fully paid and non‑assessable and, to the extent non-assessable and are owned by such Loan Party or one or more of its Subsidiaries, are owned by such Loan Party or Subsidiaries free and clear of all Liens (other than Liens on Equity Interests in Subsidiaries securing Debt that is not prohibited hereunder)Liens, except those created under the Collateral Documents.
(c) The execution execution, delivery and delivery performance by each Loan Party and of each general partner or managing member (if any) of each such Loan Party of each Loan Document to which it is or is to be a party, and the performance of its obligations thereunder, and the consummation of the transactions contemplated by the Loan Documentshereby, are within the corporate, limited liability company or partnership powers of such Loan Party, general partner or managing member’s corporate powers, have been duly authorized by all necessary corporate, limited liability company or partnership corporate action, and do not (i) contravene the charter or bylaws, memorandum and articles of association, operating agreement, partnership agreement or other governing document of such Loan Party, general partner ’s constitutive or managing membergoverning documents, (ii) violate any law, rule, regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award, (iii) conflict with or result in the breach of, or constitute a default or require any payment to be made under, any Material Contract material contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument binding on or affecting any Loan Party or Party, any of its Subsidiaries or any of their properties, or any general partner or managing member of any Loan Party properties or (iv) except for the Liens created under the Loan Documents, result in or require the creation or imposition of any Lien upon or with respect to any of the properties of any Loan Party or any of its Subsidiaries. No None of such Loan Party Parties or any of its Restricted Subsidiaries is in violation of any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of any such Material Contractcontract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument, the violation or breach of which would be reasonably likely to have a Material Adverse Effect.
(d) No authorization or approval or other action byGovernmental Authorization, and no notice to or filing with, any governmental authority or regulatory body Governmental Authority or any other third party is required for (i) the due execution, delivery, recordation, filing or performance by any Loan Party or any general partner or managing member of any such Loan Party of any Loan Document to which it is or is to be a party party, or for the consummation of the transactions contemplated hereby, (ii) the grant by such Loan Party of the Liens granted by it pursuant to the Collateral Documents, (iii) the perfection or maintenance of the Liens created under the Collateral Documents (including the second priority nature thereof in the Equity Interests in the Unrestricted Subsidiaries to the extent not prohibited by the Loan Documents terms of financing arrangements of the Unrestricted Subsidiaries and the first priority nature thereof in all other Collateral, except routine UCC and real property filings) or (iv) the exercise by the Administrative any Agent or any Lender Party of its rights under the Loan Documents or the remedies in respect of the Collateral pursuant to the Collateral Documents. All applicable waiting periods in connection with the transactions contemplated hereby have expired without any action having been taken by any competent authority restraining, except for authorizationspreventing or imposing materially adverse conditions upon the transactions contemplated hereby or the rights of such Loan Parties or its Restricted Subsidiaries freely to transfer or otherwise dispose of, approvalsor to create any Lien on, actions, notices and filings which have been duly obtained, taken, given any properties now owned or made and are in full force and effecthereafter acquired by any of them.
(e) This Agreement has been, and each other Loan Document when delivered hereunder will have been, duly executed and delivered by each Loan Party and general partner or managing member (if any) of each such Loan Party party thereto. This Agreement is, and each other Loan Document when delivered hereunder will be, the legal, valid and binding obligation of each such Loan Party party thereto, enforceable against such Loan Party in accordance with its terms, except as such enforceability may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium, examinership or similar laws affecting creditors’ rights generally and by general principles of equity.
(f) Except as set forth in the reports delivered to the Administrative Agent pursuant to Section 5.03(g), there There is no action, suit, investigation, litigation or proceeding affecting any such Loan Party or any of its Subsidiaries or any general partner or managing member (if any) of any Loan PartyRestricted Subsidiaries, Digital Realty – Yen Credit Agreement including any Environmental Action to any Loan Party’s knowledgeAction, pending or threatened before any court, governmental agency Governmental Authority or arbitrator that (i) would be reasonably be expected likely to have a Material Adverse Effect or (ii) would reasonably be expected purports to affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated by the Loan Documentshereby.
(g) The Consolidated balance sheet of the Parent Guarantor Borrower and its Subsidiaries as at December 31, 2017 2003 and the related Consolidated statement of income and Consolidated statement of cash flows of the Parent Guarantor Borrower and its Subsidiaries for the fiscal year Fiscal Year then ended, accompanied by an unqualified opinion of KPMG Ernst & Young LLP, independent public accountants, and the Consolidated balance sheet of the Parent Guarantor Borrower and its Subsidiaries as at June September 30, 20182004, and the related Consolidated statement of income and Consolidated statement of cash flows of the Parent Guarantor Borrower and its Subsidiaries for the six nine months then ended, duly certified by the Chief Financial Officer of the Borrower, copies of which have been furnished to each Lender Party, fairly present, subject, in the case of such balance sheet as at June 30, 2018, and such statements of income and cash flows for the six months then ended, to year‑end audit adjustments, present the Consolidated financial condition of the Parent Guarantor Borrower and its Subsidiaries as at such dates and the Consolidated results of operations of the Parent Guarantor Borrower and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles GAAP applied on a consistent basisbasis and, and since December 31, 20172003, there has been no Material Adverse Change.
(h) The Consolidated forecasted pro forma balance sheetssheet of the Borrower and its Subsidiaries as at September 30, 2004, and the related Consolidated pro forma statements of income and statements cash flows of the Borrower and its Subsidiaries for the nine months then ended, certified by the Chief Financial Officer of the Borrower, copies of which have been furnished to each Lender Party, fairly present the Consolidated pro forma financial condition of the Borrower and its Subsidiaries as at such date and the Consolidated pro forma results of operations of the Borrower and its Subsidiaries for the period ended on such date, in each case giving effect to the transactions contemplated hereby, all in accordance with GAAP.
(i) The Consolidated projections, forecasted balance sheet, statement of income and statement of cash flows of the Parent Guarantor Borrower and its Subsidiaries most recently delivered to the Lender Parties pursuant to Section 5.03 3.01(a)(viii), and of each of the Borrower and its Subsidiaries and of the Borrower and its Restricted Subsidiaries delivered to the Lender Parties pursuant to Section 5.03, were prepared in good faith on the basis of the assumptions stated therein, which assumptions were fair in light of the conditions existing at the time of delivery of such forecasts, and represented, at the time of delivery, the Borrower’s best estimate of its future financial performance.
(ij) No information, exhibit The Information Memorandum and all other written information (other than projections) taken as a whole that has been or report furnished by or on behalf of any Loan Party will hereafter be made available to the Administrative Agent Agent, any Arranger, any other Lender Party or any potential Lender Party in connection with by the negotiation Borrower or any of its representatives pertaining to the Loan Parties is and syndication will be, as of the Loan Documents dates on which such information was provided or pursuant to the terms which such information relates, correct in all material respects and does not and will not, as of the Loan Documents contained dates on which such information was or is to be provided or to which such information relates, contain any untrue statement of a material fact or omitted omit to state a material fact necessary in order to make the statements made contained therein not materially misleading in light of the circumstances under which they such statements were madeor are made and all projections, if any, that have been or will be prepared by the Borrower and made available to the Administrative Agent, any Arranger, any other Lender Party or any potential Lender Party in connection with the Loan Documents have been or will be prepared in good faith based upon reasonable assumptions (it being understood that such projections are subject to significant uncertainties and contingencies, many of which are beyond the Borrower’s control, and that no assurance can be given that the projections will be realized).
(jk) No Loan Party The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Advance or drawings under any Letter of Credit will be used, used directly or indirectly, whether immediately, incidentally or ultimately indirectly to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock or to refund indebtedness originally incurred for such purposeStock.
(kl) Neither any Loan Party nor any of its Restricted Subsidiaries nor any general partner or managing member of any Loan Party, as applicable, is an “investment company”, or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company”, as such terms are defined in the Investment Company Act of 1940, as amended. Without limiting the generality Each of the foregoingLoan Parties and their Restricted Subsidiaries is not subject to, each Loan Party and each or is exempt from, regulation as a “holding company”, or a “subsidiary company” of its Subsidiaries and each general partner a “holding company”, or managing member an “affiliate” of any Loan Partya “holding company” or of a “subsidiary company” of a “holding company”, as applicable: (i) is primarily engaged, directly or through a wholly‑owned subsidiary or subsidiaries, in a business or businesses other than that of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (ii) is not engaged in, does not propose to engage in and does not hold itself out as being engaged in the business of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (iii) does not own or propose to acquire investment securities (as such terms are defined in the Investment Public Utility Holding Company Act of 19401935, as amended) having a value exceeding forty percent (40%) of the value of such company’s total assets (exclusive of government securities and cash items) on an unconsolidated basis; (iv) has not in the past been engaged in the business of Digital Realty – Yen Credit Agreement issuing face‑amount certificates of the installment type; and (v) does not have any outstanding face‑amount certificates of the installment type. Neither the making of any Advances, nor the issuance of any Letters of Credit, nor the application of the proceeds or repayment thereof by any the Borrower, nor the consummation of the other transactions contemplated by the Loan Documents, will violate any provision of any such Act or any rule, regulation or order of the Securities and Exchange Commission thereunder.
(lm) Each Neither any Loan Party nor any of its Restricted Subsidiaries is a party to any indenture, loan or credit agreement or any lease or other agreement or instrument or subject to any charter or constitutive or corporate restriction that would be reasonably likely to have a Material Adverse Effect.
(n) All filings and other actions necessary or desirable to perfect and protect the Assets listed on security interest in the schedule of Unencumbered Assets delivered Collateral created under the Collateral Documents have been duly made or taken or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent and are in connection full force and effect, and the Collateral Documents create in favor of the Collateral Agent for the benefit of the Secured Parties a valid and, together with such filings and other actions, perfected first priority security interest in the Closing Date Collateral (as updated from time to time other than Equity Interests in accordance with Section 5.03(d)Unrestricted Subsidiaries) satisfies all Unencumbered Asset Conditions, except and perfected second priority security interest in Equity Interests issued by Unrestricted Subsidiaries to the extent as otherwise set forth herein or waived in writing not prohibited by the Required Lendersterms of financing arrangements of the Unrestricted Subsidiaries, in each case subject to Permitted Liens and securing the payment of the Secured Obligations, and all filings and other actions necessary or desirable to perfect and protect such security interest have been duly taken or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent. The Loan Parties are the legal and beneficial owners of the Unencumbered Assets Collateral free and clear of any Lien, except for the Liens liens and security interests created or permitted under the Loan Documents.
(mo) Neither any Loan Party nor Immediately following the making of Initial Extension of Credit and after giving effect to the application of the proceeds of the Initial Extension of Credit, the Borrower and its Restricted Subsidiaries on a Consolidated basis will be Solvent. The Borrower does not intend to, or to permit any of its Restricted Subsidiaries nor any general partner or managing member of any Loan Party, as applicable, is an EEA Financial Institution.
(n) Set forth on Schedule 4.01(n) hereto is a complete and accurate list of all Surviving Debt of each Loan Party and its Subsidiaries (other than intercompany Debt) as of the date set forth on Schedule 4.01(n) having a principal amount of at least $10,000,000 and showing as of such date the obligor and the principal amount outstanding thereunder, the maturity date thereof and the amortization schedule thereforto, and from does not believe that it or any of its Restricted Subsidiaries will, incur debts beyond its ability to pay such date debts as they mature, taking into account the timing of and amounts of cash anticipated to the Closing Date except as set forth on Schedule 4.01(n) there has been no material change in the amounts, interest rates, sinking funds, installment payments or maturities of such Surviving Debt (other than payments of principal and interest in accordance with the documents governing such Debt).
(o) Each Loan Party and its Subsidiaries has good, marketable and insurable fee simple title to, or valid trust beneficiary interests or leasehold interests in, all material Real Property owned or leased be received by such Loan Party it or any such Restricted Subsidiary and the timing of the amounts of cash anticipated to be payable on or in respect of its Debt or the Debt of any such Restricted Subsidiary, free and clear of all Liens, other than Liens created or permitted by the Loan Documents.
(i) The operations and properties of each Loan Party and each of its Restricted Subsidiaries comply in all material respects with all applicable Environmental Laws and Environmental Permits, there is no all past non‑compliance non-compliance with such Environmental Laws and Environmental Permits that has resulted in any been resolved without material ongoing material costs or obligations or that is reasonably expected to result in any future material costs or obligationscosts, and no circumstances exist that would be reasonably likely to (A) form the basis of an Environmental Action against any Loan Party or any of its Restricted Subsidiaries or any of their properties that would reasonably be expected to have a Material Adverse Effect or (B) cause any such property to be subject to any material restrictions on ownership, occupancy, use or transferability under any Environmental Law.
(iii) Except as would not reasonably be expected to have a Material Adverse Effect, (A) none None of the properties currently or formerly owned or operated by any Loan Party or any of its Restricted Subsidiaries is listed or proposed for listing on the NPL or on the CERCLIS or any analogous foreign, state or local list or is adjacent to any such property; (B) there are no and never have been any underground or above ground aboveground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed on any property currently owned or operated by any Loan Party or any of its Restricted Subsidiaries or, to the best of its knowledge, on any property formerly owned or operated by any Loan Party or any of its Subsidiaries that is reasonably expected to result in material liability to any Loan Party or any of its Restricted Subsidiaries; (C) there is no asbestos or asbestos‑containing asbestos-containing material on any property currently owned or operated by any Loan Party or any of its Restricted Subsidiaries; and Digital Realty – Yen Credit Agreement 66Hazardous Materials have not been released, discharged or disposed of on any property currently or formerly owned or operated by any Loan Party or any of its Restricted Subsidiaries.
(iii) Neither any Loan Party nor any of its Restricted Subsidiaries is undertaking, and has not completed, either individually or together with other potentially responsible parties, any investigation or assessment or remedial or response action relating to any actual or threatened release, discharge or disposal of Hazardous Materials at any site, location or operation, either voluntarily or pursuant to the order of any governmental or regulatory authority or the requirements of any Environmental Law; and all Hazardous Materials generated, used, treated, handled or stored at, or transported to or from, any property currently or formerly owned or operated by any Loan Party or any of its Restricted Subsidiaries have been disposed of in a manner not reasonably expected to result in material liability to any Loan Party or any of its Restricted Subsidiaries.
(q) (i) Neither any Loan Party nor any of its Restricted Subsidiaries is party to any tax sharing agreement other than a tax sharing agreement approved by the Required Lenders.
Appears in 1 contract
Representations and Warranties of the Loan Parties. Each Loan Party represents and warrants as follows:
(a) Each Loan Party and each general partner or managing member, if any, of each Loan Party (i) is a corporation, limited liability company or partnership duly incorporated, organized or formed, validly existing and in good standing (to the extent that a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) under the laws of the jurisdiction of its incorporation, organization or formation, (ii) is duly qualified and in good standing (to the extent that a concept of good standing exists under 74 Digital Realty – Second Amended and Restated Yen Credit Agreement the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) as a foreign corporation, limited liability company or partnership in each other jurisdiction in which it owns or leases property or in which the conduct of its business requires it to so qualify or be licensed except where the failure to so qualify or be licensed would not be reasonably likely to have a Material Adverse Effect and (iii) has all requisite corporate, limited liability company or partnership power and authority (including, without limitation, all governmental licenses, permits and other approvals) to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted. The Parent Guarantor is organized in conformity with the requirements for qualification as a REIT under the Internal Revenue Code, and its method of operation enables it to Digital Realty – Yen Credit Agreement meet the requirements for qualification and taxation as a REIT under the Internal Revenue Code. All of the outstanding Equity Interests in the Parent Guarantor have been validly issued, are fully paid and non‑assessablenon-assessable, all of the general partner Equity Interests in the Operating Partnership are owned by the Parent Guarantor, and all such general partner Equity Interests are owned by the Parent Guarantor free and clear of all Liens.
(b) All of the outstanding Equity Interests in each Loan Party’s Subsidiaries have been validly issued, are fully paid and non‑assessable non-assessable and, to the extent owned by such Loan Party or one or more of its Subsidiaries, are owned by such Loan Party or Subsidiaries free and clear of all Liens (other than Liens on Equity Interests in Subsidiaries securing Debt that is not prohibited hereunder).
(c) The execution and delivery by each Loan Party and of each general partner or managing member (if any) of each Loan Party of each Loan Document to which it is or is to be a party, and the performance of its obligations thereunder, and the consummation of the transactions contemplated by the Loan Documents, are within the corporate, limited liability company or partnership powers of such Loan Party, general partner or managing member, have been duly authorized by all necessary corporate, limited liability company or partnership action, and do not (i) contravene the charter or bylaws, memorandum and articles of association, operating agreement, partnership agreement, shareholders agreement or other governing document of such Loan Party, general partner or managing member, (ii) violate any law, rule, regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award, (iii) conflict with or result in the breach of, or constitute a default or require any payment to be made under, any Material Contract binding on or affecting any Loan Party or any of its Subsidiaries or any of their properties, or any general partner or managing member of any Loan Party or (iv) result in or require the creation or imposition of any Lien (other than Permitted Liens) upon or with respect to any of the properties of any Loan Party or any of its Subsidiaries. No Loan Party or any of its Subsidiaries is in violation of any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of any such Material Contract, the violation or breach of which would be reasonably likely to have a Material Adverse Effect.
(d) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery, recordation, filing or performance by any Loan Party or any general partner or managing member of any Loan Party of any Loan Document to which it is or is to be a party or for the consummation of the transactions contemplated by the Loan Documents and the exercise by the Administrative Agent or any Lender Party of its rights under the Loan Documents, except for authorizations, approvals, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect.
(e) This Agreement has been, and each other Loan Document when delivered hereunder will have been, duly executed and delivered by each Loan Party and general partner or Digital Realty – Second Amended and Restated Yen Credit Agreement managing member (if any) of each Loan Party party thereto. This Agreement is, and each other Loan Document when delivered hereunder will be, the legal, valid and binding obligation of each Loan Party party thereto, enforceable against such Loan Party in accordance with its terms, except as such enforceability may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium, examinership or similar laws affecting creditors’ rights generally and by general principles of equity.
(f) Except as set forth in the reports delivered to the Administrative Agent pursuant to Section 5.03(g5.03(h), there is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries or any general partner or managing member (if any) of any Loan Party, Digital Realty – Yen Credit Agreement including any Environmental Action to any Loan Party’s knowledge, pending or threatened before any court, governmental agency or arbitrator that (i) would reasonably be expected to have a Material Adverse Effect or (ii) would reasonably be expected to affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated by the Loan Documents.
(g) The Consolidated balance sheet of the Parent Guarantor and its Subsidiaries as at December 31, 2017 and the related Consolidated statement of income and Consolidated statement of cash flows of the Parent Guarantor and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of KPMG LLP, independent public accountants, and the Consolidated balance sheet of the Parent Guarantor as at June 30, 2018, and the related Consolidated statement of income and Consolidated statement of cash flows of the Parent Guarantor and its Subsidiaries for the six months then ended, copies of which have been furnished to each Lender Party, fairly present, subject, in the case of such balance sheet as at June 30, 2018, and such statements of income and cash flows for the six months then ended, to year‑end audit adjustments, the Consolidated financial condition of the Parent Guarantor and its Subsidiaries as at such dates and the Consolidated results of operations of the Parent Guarantor and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles applied on a consistent basis, and since December 31, 2017, there has been no Material Adverse Change.
(h) The Consolidated forecasted balance sheets, statements of income and statements of cash flows of the Parent Guarantor and its Subsidiaries most recently delivered to the Lender Parties pursuant to Section 5.03 were prepared in good faith on the basis of the assumptions stated therein, which assumptions were fair in light of the conditions existing at the time of delivery of such forecasts.
(i) No information, exhibit or report furnished by or on behalf of any Loan Party to the Administrative Agent or any Lender Party in connection with the negotiation and syndication of the Loan Documents or pursuant to the terms of the Loan Documents contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements made therein not materially misleading in light of the circumstances under which they were made.
(j) No Loan Party is engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Advance or drawings under any Letter of Credit will be used, directly or indirectly, whether immediately, incidentally or ultimately to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock or to refund indebtedness originally incurred for such purpose.
(k) Neither any Loan Party nor any of its Subsidiaries nor any general partner or managing member of any Loan Party, as applicable, is an “investment company”, or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company”, as such terms are defined in the Investment Company Act of 1940, as amended. Without limiting the generality of the foregoing, each Loan Party and each of its Subsidiaries and each general partner or managing member of any Loan Party, as applicable: (i) is primarily engaged, directly or through a wholly‑owned subsidiary or subsidiaries, in a business or businesses other than that of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (ii) is not engaged in, does not propose to engage in and does not hold itself out as being engaged in the business of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (iii) does not own or propose to acquire investment securities (as defined in the Investment Company Act of 1940, as amended) having a value exceeding forty percent (40%) of the value of such company’s total assets (exclusive of government securities and cash items) on an unconsolidated basis; (iv) has not in the past been engaged in the business of Digital Realty – Yen Credit Agreement issuing face‑amount certificates of the installment type; and (v) does not have any outstanding face‑amount certificates of the installment type. Neither the making of any Advances, nor the issuance of any Letters of Credit, nor the application of the proceeds or repayment thereof by any Borrower, nor the consummation of the other transactions contemplated by the Loan Documents, will violate any provision of any such Act or any rule, regulation or order of the Securities and Exchange Commission thereunder.
(l) Each of the Assets listed on the schedule of Unencumbered Assets delivered to the Administrative Agent in connection with the Closing Date (as updated from time to time in accordance with Section 5.03(d)) satisfies all Unencumbered Asset Conditions, except to the extent as otherwise set forth herein or waived in writing by the Required Lenders. The Loan Parties are the legal and beneficial owners of the Unencumbered Assets free and clear of any Lien, except for the Liens permitted under the Loan Documents.
(m) Neither any Loan Party nor any of its Subsidiaries nor any general partner or managing member of any Loan Party, as applicable, is an EEA Financial Institution.
(n) Set forth on Schedule 4.01(n) hereto is a complete and accurate list of all Surviving Debt of each Loan Party and its Subsidiaries (other than intercompany Debt) as of the date set forth on Schedule 4.01(n) having a principal amount of at least $10,000,000 and showing as of such date the obligor and the principal amount outstanding thereunder, the maturity date thereof and the amortization schedule therefor, and from such date to the Closing Date except as set forth on Schedule 4.01(n) there has been no material change in the amounts, interest rates, sinking funds, installment payments or maturities of such Surviving Debt (other than payments of principal and interest in accordance with the documents governing such Debt).
(o) Each Loan Party and its Subsidiaries has good, marketable and insurable fee simple title to, or valid trust beneficiary interests or leasehold interests in, all material Real Property owned or leased by such Loan Party or any such Subsidiary, free and clear of all Liens, other than Liens created or permitted by the Loan Documents.
(i) The operations and properties of each Loan Party and each of its Subsidiaries comply in all material respects with all applicable Environmental Laws and Environmental Permits, there is no past non‑compliance with such Environmental Laws and Environmental Permits that has resulted in any ongoing material costs or obligations or that is reasonably expected to result in any future material costs or obligations, and no circumstances exist that (A) form the basis of an Environmental Action against any Loan Party or any of its Subsidiaries or any of their properties that would reasonably be expected to have a Material Adverse Effect or (B) cause any such property to be subject to any material restrictions on ownership, occupancy, use or transferability under any Environmental Law.
(i) Except as would not reasonably be expected to have a Material Adverse Effect, (A) none of the properties currently or formerly owned or operated by any Loan Party or any of its Subsidiaries is listed or proposed for listing on the NPL or any analogous foreign, state or local list or is adjacent to any such property; (B) there are no and never have been any underground or above ground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed on any property currently or formerly owned or operated by any Loan Party or any of its Subsidiaries that is reasonably expected to result in material liability to any Loan Party or any of its Subsidiaries; (C) there is no asbestos or asbestos‑containing material on any property currently owned or operated by any Loan Party or any of its Subsidiaries; and Digital Realty – Yen Credit Agreement 66
Appears in 1 contract
Representations and Warranties of the Loan Parties. Each Loan Party represents and warrants as follows:
(a) Each Loan Party and each general partner or managing member, if any, of each Loan Party its Subsidiaries (i) is a corporation, limited liability company corporation or partnership duly incorporated, organized or formed, and validly existing and in good standing (to the extent that a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) under the laws of the jurisdiction of its incorporation, organization or formationrespective organization, (ii) is duly qualified and in good standing (to the extent that a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) as a foreign corporation, limited liability company corporation or partnership in each other jurisdiction in which it owns the ownership, lease or leases operation of its property and assets or in which the conduct of its business requires it to so qualify or be licensed except where the failure to so qualify or be licensed would could not be reasonably likely to have a Material Adverse Effect and (iii) has all requisite corporate, limited liability company or partnership power and authority (including, without limitation, all governmental licenses, permits and other approvals) to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted. The Parent Guarantor is organized All of the outstanding Equity Interests in conformity with each of the requirements for qualification as a REIT Loan Parties have been validly issued, are fully paid and non-assessable and are owned by the Persons and in the amounts specified on Schedule 4.01(a) hereto free and clear of all Liens, except those created under the Internal Revenue CodeCollateral Documents.
(b) Set forth on Schedule 4.01(b) hereto is a complete and accurate list of all Subsidiaries of the Parent, showing as of the date hereof (as to each such Subsidiary) the jurisdiction of its organization, the number and type of each class of its Equity Interests authorized, and the number outstanding, on the date hereof and the percentage of each such class of its method Equity Interests owned (directly or indirectly) by the Parent and the number of operation enables it to Digital Realty – Yen Credit Agreement meet shares covered by all outstanding options, warrants, rights of conversion or purchase and similar rights at the requirements for qualification and taxation as a REIT under the Internal Revenue Codedate hereof. All of the outstanding Equity Interests in the Parent Guarantor have Parent's Subsidiaries has been validly issued, are fully paid and non‑assessable, all of the general partner Equity Interests in the Operating Partnership non-assessable and are owned by the Parent Guarantor, and all such general partner Equity Interests are owned by the Parent Guarantor or one or more of its Subsidiaries free and clear of all Liens.
(b) All , except those created under the Collateral Documents. None of the outstanding Equity Interests in each Loan Party’s Subsidiaries have been validly issued, are fully paid and non‑assessable and, to the extent owned by such Loan Party or one or more of its Borrowers has any Subsidiaries, are owned by such Loan Party or Subsidiaries free and clear of all Liens (other than Liens on Equity Interests in Subsidiaries securing Debt that is not prohibited hereunder).
(c) The execution execution, delivery and delivery performance by each Loan Party and of each general partner or managing member (if any) of each Loan Party of each Loan Transaction Document to which it is or is to be a party, and the performance of its obligations thereunder, and the consummation of the Transaction and the other transactions contemplated by the Loan Transaction Documents, are within the corporate, limited liability company or partnership powers of such Loan Party, general partner or managing member's corporate powers, have been duly authorized by all necessary corporate, limited liability company or partnership corporate action, and do not (i) contravene the charter or bylaws, memorandum and articles of association, operating agreement, partnership agreement or other governing document of such Loan Party, general partner or managing member's Constitutive Documents, (ii) violate any law, rule, regulation (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award, (iii) conflict with or result in the breach of, or constitute a default or require any payment to be made under, any Material Contract contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument binding on or affecting any Loan Party or Party, any of its Subsidiaries or any of their properties, or any general partner or managing member of any Loan Party properties or (iv) except for the Liens created under the Loan Documents, result in or require the creation or imposition of any Lien upon or with respect to any of the properties of any Loan Party or any of its Subsidiaries. No Loan Party or any of its Subsidiaries is in violation of any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of any such Material Contractcontract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument, the violation or breach of which would could be reasonably likely to have a Material Adverse Effect.
(d) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for (i) the due execution, delivery, recordation, filing or performance by any Loan Party or any general partner or managing member of any Loan Party of any Loan Transaction Document to which it is or is to be a party party, or for the consummation of the Transaction or the other transactions contemplated by the Transaction Documents, (ii) the grant by any Loan Party of the Liens granted by it pursuant to the Collateral Documents, (iii) the perfection or maintenance of the Liens created under the Collateral Documents and (including the first priority nature thereof) or (iv) the exercise by the Administrative any Agent or any Lender Party of its rights under the Loan Documents or the remedies in respect of the Collateral pursuant to the Collateral Documents. All applicable waiting periods in connection with the Transaction and the other transactions contemplated by the Transaction Documents have expired without any action having been taken by any competent authority restraining, except for authorizationspreventing or imposing materially adverse conditions upon the Transaction or the rights of the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, approvalsor to create any Lien on, actions, notices and filings which have been duly obtained, taken, given any properties now owned or made and are in full force and effecthereafter acquired by any of them.
(e) This Agreement has been, and each other Loan Transaction Document when delivered hereunder will have been, duly executed and delivered by each Loan Party and general partner or managing member (if any) of each Loan Party party thereto. This Agreement is, and each other Loan Transaction Document when delivered hereunder will be, the legal, valid and binding obligation of each Loan Party party thereto, enforceable against such Loan Party in accordance with its terms, except as such enforceability may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium, examinership or similar laws affecting creditors’ rights generally and by general principles of equity.
(f) Except as set forth in the reports delivered to the Administrative Agent pursuant to Section 5.03(g), there There is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries or any general partner or managing member (if any) of any Loan PartySubsidiaries, Digital Realty – Yen Credit Agreement including any Environmental Action to any Loan Party’s knowledgeAction, pending or threatened before any court, governmental agency or arbitrator that (i) would could be reasonably be expected likely to have a Material Adverse Effect or (ii) would reasonably be expected purports to affect the legality, validity or enforceability of any Loan Transaction Document or the consummation of the Transaction or the other transactions contemplated by the Loan Transaction Documents.
(g) The Consolidated balance sheet of the Parent Guarantor and its Subsidiaries the Borrowers as at December 31June 30, 2017 1998 and September 30, 1998, and the related Consolidated statement statements of income and Consolidated statement statements of cash flows of the Parent Guarantor and its Subsidiaries the Borrowers for the fiscal year three and six months, respectively, then ended, accompanied duly certified by an opinion of KPMG LLP, independent public accountants, and the Consolidated balance sheet Chief Financial Officer of the Parent Guarantor as at June 30, 2018, and the related Consolidated statement of income and Consolidated statement of cash flows of the Parent Guarantor and its Subsidiaries for the six months then endedBorrowers, copies of which have been furnished to each Lender PartyLender, fairly present, subject, in the case of such said balance sheet sheets as at June 30, 20181998 and September 30, 1998, and such said statements of income and cash flows for the three and six months months, respectively, then ended, to year‑end year-end audit adjustments, the Consolidated financial condition of the Parent Guarantor and its Subsidiaries the Borrowers as at such dates and the Consolidated results of operations of the Parent Guarantor and its Subsidiaries the Borrowers for the periods ended on such dates, all in accordance with generally accepted accounting principles applied on a consistent basisGAAP. Since May 15, and since December 31, 20171998, there has been no Material Adverse Change.
(h) The Consolidated and consolidating pro forma balance sheets of the Parent and its Subsidiaries as at the Effective Date, and the related Consolidated and consolidating pro forma statements of income and cash flows of the Parent and its Subsidiaries for the seven months then ended, certified by the Chief Financial Officer of the Parent, copies of which have been furnished to each Lender, fairly present the Consolidated and consolidating pro forma financial condition of the Parent and its Subsidiaries as at such date and the Consolidated and consolidating pro forma results of operations of the Parent and its Subsidiaries for the period ended on such date, in each case giving effect to the Transaction and the other transactions contemplated by the Transaction Documents, all in accordance with GAAP.
(i) The Consolidated and consolidating forecasted balance sheets, statements of income and statements of cash flows of the Parent Guarantor and its Subsidiaries most recently delivered to the Lender Parties Lenders pursuant to Section 3.01(a)(xv) or 5.03 were prepared in good faith on the basis of the assumptions stated therein, which assumptions were fair in light of the conditions existing at the time of delivery of such forecasts, and represented, at the time of delivery, the Parent's and the Borrowers' best estimate of their future financial performance.
(ij) No information, exhibit or report furnished by or on behalf of any Loan Party to the Administrative any Agent or any Lender Party prior to the Effective Date in connection with the negotiation and syndication of the Loan Documents or pursuant to the terms of the Loan Documents contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements made therein not materially misleading in light of the circumstances under which they were mademisleading.
(jk) No Loan Party is engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Advance or drawings under any Letter of Credit will be used, directly used or indirectly, whether immediately, incidentally or ultimately was used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock or to refund indebtedness originally incurred for such purposeStock.
(kl) Neither any Loan Party nor any of its Subsidiaries nor any general partner or managing member of any Loan Party, as applicable, is an “"investment company”", or an “"affiliated person” " of, or “"promoter” " or “"principal underwriter” " for, an “"investment company”", as such terms are defined in the Investment Company Act of 1940, as amended. Without limiting the generality of the foregoing, each Loan Party and each of its Subsidiaries and each general partner or managing member of any Loan Party, as applicable: (i) is primarily engaged, directly or through a wholly‑owned subsidiary or subsidiaries, in a business or businesses other than that of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (ii) is not engaged in, does not propose to engage in and does not hold itself out as being engaged in the business of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (iii) does not own or propose to acquire investment securities (as defined in the Investment Company Act of 1940, as amended) having a value exceeding forty percent (40%) of the value of such company’s total assets (exclusive of government securities and cash items) on an unconsolidated basis; (iv) has not in the past been engaged in the business of Digital Realty – Yen Credit Agreement issuing face‑amount certificates of the installment type; and (v) does not have any outstanding face‑amount certificates of the installment type. Neither the making of any Advances, nor the issuance of any Letters of Credit, Advances nor the application of the proceeds or repayment thereof by any Borrowerthe Borrowers, nor the consummation of the other transactions contemplated by the Loan Transaction Documents, will violate any provision of any such Act or any rule, regulation or order of the Securities and Exchange Commission thereunder.
(lm) Each Neither any Loan Party nor any of its Subsidiaries is a party to any indenture, loan or credit agreement or any lease or other agreement or instrument or subject to any charter or corporate restriction that could be reasonably likely to have a Material Adverse Effect.
(n) The Collateral Documents create a valid and, upon filing of the Assets listed on financing statements delivered pursuant to Section 3.01(a)(ii)(B) in the schedule office of Unencumbered Assets delivered to the Administrative Agent Secretary of State of the State of New York and the New York City Register's Office for New York County, perfected first priority security interest in connection with the Closing Date Collateral, securing the payment of the Secured Obligations and the Outstanding Indebtedness (as updated from time defined in the Mortgages), and all filings and other actions necessary or desirable to time in accordance with Section 5.03(d)) satisfies all Unencumbered Asset Conditions, except to perfect and protect such security interest have been duly taken or will be duly taken immediately following the extent as otherwise set forth herein or waived in writing by the Required LendersEffective Date. The Loan Parties are the legal and beneficial owners of the Unencumbered Assets Collateral free and clear of any Lien, except for the Liens liens and security interests created or permitted under the Loan Documents.
(mo) Each Loan Party is, individually and together with its Subsidiaries, Solvent.
(p) (i) Neither any Loan Party nor any of its Subsidiaries nor ERISA Affiliate has any general partner Plan or managing member of any Loan Party, as applicable, is an EEA Financial InstitutionMultiemployer Plan.
(nii) Set forth on Schedule 4.01(n) hereto is a complete and accurate list of all Surviving Debt of each Neither any Loan Party and its Subsidiaries (other than intercompany Debt) as of the date set forth on Schedule 4.01(n) having a principal amount of at least $10,000,000 and showing as of such date the obligor and the principal amount outstanding thereundernor any Subsidiary that is not subject to United States law maintains or contributes to, the maturity date thereof and the amortization schedule therefor, and from such date has any obligation to the Closing Date except as set forth on Schedule 4.01(n) there has been no material change in the amounts, interest rates, sinking funds, installment payments maintain or maturities of such Surviving Debt (other than payments of principal and interest in accordance with the documents governing such Debt).
(o) Each Loan Party and its Subsidiaries has good, marketable and insurable fee simple title contribute to, or valid trust beneficiary interests or leasehold interests inhas any liability with respect to, all material Real Property owned or leased by such Loan Party any employee benefit plan or any such Subsidiary, free and clear of all Liens, scheme or arrangement mandated by a government other than Liens created or permitted by the Loan DocumentsUnited States.
(i) The Except as otherwise set forth on Part I of Schedule 4.01(q) hereto, the operations and properties (including, without limitation, the Vessels) of each Loan Party and each of its Subsidiaries comply in all material respects with all applicable Environmental Laws and Environmental Permits, there is no all past non‑compliance non-compliance with such Environmental Laws and Environmental Permits that Permits, if any, has resulted in any been resolved without ongoing material costs or obligations or that is reasonably expected to result in any future material costs or obligationscosts, and no circumstances exist that could be reasonably likely to (A) form the basis of an Environmental Action against any Loan Party or any of its Subsidiaries or any of their properties (including, without limitation, the Vessels) that would reasonably be expected to could have a Material Adverse Effect or (B) cause any such property (including, without limitation, the Vessels) to be subject to any material restrictions on ownership, occupancy, use or transferability under any Environmental Law.
(iii) Except as would not reasonably be expected to have a Material Adverse EffectTo the best of its knowledge, (A) none of the properties currently or formerly owned or operated by any Loan Party or any of its Subsidiaries is listed or proposed for listing on the NPL or on the CERCLIS or any analogous foreign, state or local list or is adjacent to any such property; (B) there are no and never have been any underground or above ground aboveground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed on any property currently owned or operated by any Loan Party or any of its Subsidiaries or, to the best of its knowledge, on any property formerly owned or operated by any Loan Party or any of its Subsidiaries that is reasonably expected to result in material liability to any Loan Party or any of its Subsidiaries; (C) there is no asbestos or asbestos‑containing asbestos-containing material on any property currently owned or operated by any Loan Party or any of its Subsidiaries; and Digital Realty – Yen Credit Agreement 66Hazardous Materials have not been released, discharged or disposed of on any property currently or formerly owned or operated by any Loan Party or any of its Subsidiaries.
(iii) Except as otherwise set forth on Part II of Schedule 4.01(q) hereto, neither any Loan Party nor any of its Subsidiaries is undertaking, and has not completed, either individually or together with other potentially responsible parties, any investigation or assessment or remedial or response action relating to any actual or threatened release, discharge or disposal of Hazardous Materials at any site (including, without limitation, the Vessels), location or operation, either voluntarily or pursuant to the order of any governmental or regulatory authority or the requirements of any Environmental Law; and all Hazardous Materials generated, used, treated, handled or stored at, or transported to or from, any property (including, without limitation, the Vessels) currently or formerly owned or operated by any Loan Party or any of its Subsidiaries have been disposed of in a manner not reasonably expected to result in material liability to any Loan Party or any of its Subsidiaries.
Appears in 1 contract
Representations and Warranties of the Loan Parties. Each Loan Party represents and warrants as follows:
(a) Each Loan Party and each general partner or managing member, if any, of each Loan Party its Subsidiaries (i) is a corporation, limited liability company or limited partnership duly incorporated, organized or formedorganized, validly existing and in good standing (to the extent that a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) under the laws of the jurisdiction of its incorporation, organization or formation, (ii) is duly qualified and in good standing (to the extent that a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) as a foreign corporation, limited liability corporation or company or partnership in each other jurisdiction in which it owns or leases property or in which the conduct of its business requires it to so qualify or be licensed except where the failure to so qualify or be licensed would could not be reasonably likely to have a Material Adverse Effect and (iii) has all requisite corporate, limited liability company or limited partnership (as applicable) power and authority (including, without limitation, all governmental licenses, permits and other approvalsGovernmental Authorizations) to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted. The Parent Guarantor is organized in conformity with the requirements for qualification as a REIT under the Internal Revenue Code, and its method of operation enables it to Digital Realty – Yen Credit Agreement meet the requirements for qualification and taxation as a REIT under the Internal Revenue Code. All of the outstanding Equity Interests in the Parent Guarantor have been validly issued, are fully paid and non‑assessable, all of the general partner Equity Interests in the Operating Partnership are owned by the Parent Guarantor, and all such general partner Equity Interests are owned by the Parent Guarantor free and clear of all Liensnon-assessable.
(b) Set forth on Schedule 4.01(b) hereto is a complete and accurate list of all Loan Parties, showing as of the date hereof (as to each Loan Party) the jurisdiction of its incorporation, the address of its principal place of business and its U.S. taxpayer identification number or, in the case of any non-U.S. Loan Party that does not have a U.S. taxpayer identification number, its unique identification number issued to it by the jurisdiction of its incorporation. The copy of the charter of each Loan Party and each amendment thereto provided pursuant to Section 3.01(a)(iv) is a true and correct copy of each such document, each of which is valid and in full force and effect.
(c) Set forth on Schedule 4.01(c) hereto is a complete and accurate list of all Subsidiaries of each Loan Party, showing as of the date hereof (as to each such Subsidiary) the jurisdiction of its formation, the number of shares, membership interests or partnership interests (as applicable) of each class of its Equity Interests authorized, and the number outstanding, on the date hereof and the percentage of each such class of its Equity Interests owned by such Loan Party and the number of shares covered by all outstanding options, warrants, rights of conversion or purchase and similar rights at the date hereof. All of the outstanding Equity Interests in each Loan Party’s Subsidiaries have been validly issued, are fully paid and non‑assessable and, to the extent non-assessable and are owned by such Loan Party or one or more of its Subsidiaries, are owned by such Loan Party or Subsidiaries free and clear of all Liens (other than Liens on Equity Interests in Subsidiaries securing Debt that is not prohibited hereunder)Liens, except those created under the Collateral Documents.
(cd) The execution execution, delivery and delivery performance by each Loan Party and of each general partner or managing member (if any) of each Loan Party of each Loan Transaction Document to which it is or is to be a party, and the performance of its obligations thereunder, and the consummation of the transactions contemplated by the Loan DocumentsTransaction, are within the such Loan Party’s corporate, limited liability company or limited partnership powers of such Loan Party(as applicable), general partner or managing memberpowers, have been duly authorized by all necessary corporate, limited liability company or limited partnership (as applicable), action, and do not (i) contravene the charter or such Loan Party’s charter, bylaws, memorandum and articles of association, operating limited liability company agreement, partnership agreement or other governing document of such Loan Party, general partner or managing memberconstituent documents, (ii) violate violate, in any material respect, any law, rule, regulation (including, without limitation, Regulation U and Regulation X of the Board of Governors of the Federal Reserve System), order, writ, judgment, injunction, decree, determination or award, (iii) conflict with or result in the material breach of, or constitute a default or require any payment to be made under, any Material Contract material contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument binding on or affecting any Loan Party or Party, any of its Subsidiaries or any of their properties, or any general partner or managing member of any Loan Party properties or (iv) except for the Liens created under the Loan Documents, result in or require the creation or imposition of any Lien upon or with respect to any of the properties of any Loan Party or any of its Subsidiaries. No Loan Party or any of its Subsidiaries is in violation of any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of any such Material Contractcontract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument, the violation or breach of which would could be reasonably likely to have a Material Adverse Effect.
(de) No authorization or approval or other action byGovernmental Authorization, and no notice to or filing with, with any governmental authority or regulatory body Governmental Authority or any other third party party, is required for (i) the due execution, delivery, recordation, filing or performance by any Loan Party or any general partner or managing member of any Loan Party of any Loan Document to which it is or is to be a party or for party, (ii) the consummation grant by any Loan Party of the transactions contemplated Liens granted by it pursuant to the Loan Collateral Documents, (iii) the perfection or maintenance of the Liens created under the Collateral Documents and (including the first priority nature thereof) or (iv) the exercise by the Administrative any Agent or any Lender Party of its rights under the Loan Documents or the remedies in respect of the Collateral pursuant to the Collateral Documents, except for the authorizations, approvals, actions, notices and filings already obtained, taken, given or made and which are in full force and effect. No Governmental Authorization, and no notice or a filing with any Governmental Authority or any other third party, is required for the due execution, delivery or performance by any Loan Party of any Transaction Document (other than any Loan Documents) to which it is or is to be a party, or for the consummation of the Transaction, except for the authorization, approvals, actions, notices and filings set forth in the Related Documents, all of which have been duly obtained, taken, given or made and which are in full force and effecteffect or for those required to be taken, given or made following the Effective Date in accordance with such Related Documents. All applicable waiting periods in connection with the Transaction have expired without any action having been taken by any competent authority restraining, preventing or imposing materially adverse conditions upon the Transaction or the rights of the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, any properties now owned or hereafter acquired by any of them. The Spin-Off and the Merger have been consummated, in all material respects, in accordance with the Separation and Distribution Agreement and the Merger Agreement (without any modifications thereof or waivers thereunder) and applicable law.
(ef) There is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries, including any Environmental Action, pending or to the Loan Parties’ knowledge threatened before any Governmental Authority or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction.
(g) This Agreement has been, and each other Loan Transaction Document when delivered hereunder will have been, duly executed and delivered by each Loan Party and general partner or managing member (if any) of each Loan Party party thereto. This Agreement is, and each other Loan Transaction Document when delivered hereunder will be, the legal, valid and binding obligation of each Loan Party party thereto, enforceable against such Loan Party in accordance with its terms, except as such enforceability may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium, examinership or similar laws affecting creditors’ rights generally and by general principles of equity.
(f) Except as set forth in the reports delivered to the Administrative Agent pursuant to Section 5.03(g), there is no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries or any general partner or managing member (if any) of any Loan Party, Digital Realty – Yen Credit Agreement including any Environmental Action to any Loan Party’s knowledge, pending or threatened before any court, governmental agency or arbitrator that (i) would reasonably be expected to have a Material Adverse Effect or (ii) would reasonably be expected to affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated by the Loan Documents.
(gh) The Consolidated balance sheet of the Parent Guarantor and its Subsidiaries Gxxx Businesses as at December 31, 2017 and the related Consolidated statement of income and Consolidated statement of cash flows of the Parent Guarantor and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of KPMG LLP, independent public accountants, and the Consolidated balance sheet of the Parent Guarantor as at June 30, 20182004, and the related Consolidated statement of income and Consolidated statement of cash flows of the Parent Guarantor and its Subsidiaries Gxxx Businesses for the six fiscal year then ended, duly certified by the Chief Financial Officer of Gxxx, and the Consolidated balance sheet of the Gxxx Businesses as at September 30, 2005, and the related Consolidated statement of income and Consolidated statement of cash flows of the Gxxx Businesses for the nine months then ended, duly certified by the Chief Financial Officer of Gxxx, copies of which have been furnished to each Lender Party, fairly present, subject, in the case of such balance sheet as at June 30, 2018, and such statements of income and cash flows for the six months then ended, to year‑end audit adjustmentsall material respects, the Consolidated financial condition of the Parent Guarantor Gxxx Businesses as at such dates and the Consolidated results of operations of the Gxxx Businesses for the periods ended on such dates, all in accordance with generally accepted accounting principles applied on a consistent basis, and since December 31, 2004, there has been no Material Adverse Change and no Internal Control Event has occurred. Such financial statements set forth all material liabilities, actual or contingent, of the Gxxx Businesses as of the date of such financial statements. The Consolidated balance sheet of Bull Run and its Subsidiaries as at August 31, 2005, and the related Consolidated statement of income and Consolidated statement of cash flows of Bull Run and its Subsidiaries for the fiscal year then ended, accompanied by an unqualified opinion of PricewaterhouseCoopers LLP, independent public accountants, and the Consolidated balance sheet of Bull Run and its Subsidiaries as at September 30, 2005, and the related Consolidated statement of income and Consolidated statement of cash flows of Bull Run and its Subsidiaries for the one month then ended, duly certified by the Chief Financial Officer of Bull Run, copies of which have been furnished to each Lender Party, fairly present, in all material respects, the Consolidated financial condition of Bull Run and its Subsidiaries as at such dates and the Consolidated results of operations of the Parent Guarantor Bull Run and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles applied on a consistent basis, and since December August 31, 20172005, there has been no Material Adverse ChangeChange and no Internal Control Event has occurred. Such financial statements set forth all material liabilities, actual or contingent, of Bull Run and its consolidated Subsidiaries as of the date of such financial statements.
(hi) The Consolidated pro forma balance sheet of the Parent and its Subsidiaries as at September 30, 2005, and related Consolidated pro forma statements of income and cash flows of Bull Run and its Subsidiaries for the twelve months then ended, certified by the Chief Financial Officer of the Parent, copies of which have been furnished to each Lender Party, fairly present, in all material respects, the Consolidated pro forma financial condition of the Parent and its Subsidiaries as at such date and the Consolidated pro forma results of operations of the Parent and its Subsidiaries for the period ended on such date, in each case giving effect to the Transaction, all in accordance with GAAP. The Consolidated pro forma balance sheet of the Parent and its Subsidiaries as at the Effective Date, certified by the Chief Financial Officer of the Parent, copies of which have been furnished to each Lender Party, fairly present, in all material respects, the Consolidated pro forma financial condition of the Parent and its Subsidiaries as at such date after giving effect to the Transaction, all in accordance with GAAP.
(j) The Consolidated forecasted balance sheetssheet, statements statement of income and statements statement of cash flows of the Parent Guarantor and its Subsidiaries most recently delivered to the Lender Parties pursuant to Section 3.01(d)(ii) or 5.03 were prepared in good faith on the basis of the assumptions stated therein, which assumptions were fair in light of the conditions existing at the time of delivery of such forecasts, and represented, at the time of delivery, the Borrower’s best estimate of its future financial performance. It is acknowledged and understood that the projections as they relate to future events are not to be reviewed as representations and warranties that such events will occur and that actual results may differ significantly from the projected results.
(ik) No Neither the Information Memorandum nor the Registration Statement nor any other information, exhibit or report furnished by or on behalf of any Loan Party to the Administrative any Agent or any Lender Party in connection with the negotiation and syndication of the Loan Documents or pursuant to the terms of the Loan Documents Documents, taken as a whole, contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements made therein not materially misleading in light of the circumstances under which they were mademisleading.
(jl) No Loan Party The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Advance or drawings under any Letter of Credit will be used, directly or indirectly, whether immediately, incidentally or ultimately to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock or to refund indebtedness originally incurred for such purposeStock.
(km) Neither any Loan Party nor any of its Subsidiaries nor any general partner or managing member of any Loan Party, as applicable, is an “investment company”, or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company”, as such terms are defined in the Investment Company Act of 1940, as amended. Without limiting the generality of the foregoing, each Loan Party and each of its Subsidiaries and each general partner or managing member of any Loan Party, as applicable: (i) is primarily engaged, directly or through a wholly‑owned subsidiary or subsidiaries, in a business or businesses other than that of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (ii) is not engaged in, does not propose to engage in and does not hold itself out as being engaged in the business of (A) investing, reinvesting, owning, holding or trading in securities or (B) issuing face‑amount certificates of the installment type; (iii) does not own or propose to acquire investment securities (as defined in the Investment Company Act of 1940, as amended) having a value exceeding forty percent (40%) of the value of such company’s total assets (exclusive of government securities and cash items) on an unconsolidated basis; (iv) has not in the past been engaged in the business of Digital Realty – Yen Credit Agreement issuing face‑amount certificates of the installment type; and (v) does not have any outstanding face‑amount certificates of the installment type. Neither the making of any Advances, nor the issuance of any Letters of Credit, nor the application of the proceeds or repayment thereof by any the Borrower, nor the consummation of the other transactions contemplated by the Loan Transaction Documents, will violate any provision of any such Act or any rule, regulation or order of the Securities and Exchange Commission SEC thereunder.
(ln) Each Neither any Loan Party nor any of its Subsidiaries is a party to any indenture, loan or credit agreement or any lease or other agreement or instrument or subject to any charter or corporate restriction that could be reasonably likely to have a Material Adverse Effect.
(o) All filings and other actions necessary or desirable to perfect and protect the security interest in the Collateral created under the Collateral Documents have been duly made or taken and are in full force and effect, and the Collateral Documents create in favor of the Assets listed on Collateral Agent for the schedule benefit of Unencumbered Assets delivered the Secured Parties a valid and, together with such filings and other actions, perfected first priority security interest in the Collateral, securing the payment of the Secured Obligations, and all filings and other actions necessary or desirable to the Administrative Agent in connection with the Closing Date (as updated from time to time in accordance with Section 5.03(d)) satisfies all Unencumbered Asset Conditions, except to the extent as otherwise set forth herein or waived in writing by the Required Lendersperfect and protect such security interest have been duly taken. The Loan Parties are the legal and beneficial owners of the Unencumbered Assets Collateral free and clear of any Lien, except for the Liens liens and security interests created or permitted under the Loan Documents.
(mp) Neither any Each Loan Party nor any of is, individually and together with its Subsidiaries nor any general partner or managing member of any Loan PartySubsidiaries, as applicable, is an EEA Financial InstitutionSolvent.
(nq) (i) Set forth on Schedule 4.01(n4.01(q) hereto is a complete and accurate list of all Surviving Debt of each Loan Party Plans and its Subsidiaries (other than intercompany Debt) as of the date set forth on Schedule 4.01(n) having a principal amount of at least $10,000,000 and showing as of such date the obligor and the principal amount outstanding thereunder, the maturity date thereof and the amortization schedule therefor, and from such date to the Closing Date except as set forth on Schedule 4.01(n) there has been no material change in the amounts, interest rates, sinking funds, installment payments or maturities of such Surviving Debt (other than payments of principal and interest in accordance with the documents governing such Debt)Multiemployer Plans.
(o) Each Loan Party and its Subsidiaries has good, marketable and insurable fee simple title to, or valid trust beneficiary interests or leasehold interests in, all material Real Property owned or leased by such Loan Party or any such Subsidiary, free and clear of all Liens, other than Liens created or permitted by the Loan Documents.
(i) The operations and properties of each Loan Party and each of its Subsidiaries comply in all material respects with all applicable Environmental Laws and Environmental Permits, there is no past non‑compliance with such Environmental Laws and Environmental Permits that has resulted in any ongoing material costs or obligations or that is reasonably expected to result in any future material costs or obligations, and no circumstances exist that (A) form the basis of an Environmental Action against any Loan Party or any of its Subsidiaries or any of their properties that would reasonably be expected to have a Material Adverse Effect or (B) cause any such property to be subject to any material restrictions on ownership, occupancy, use or transferability under any Environmental Law.
(i) Except as would not reasonably be expected to have a Material Adverse Effect, (A) none of the properties currently or formerly owned or operated by any Loan Party or any of its Subsidiaries is listed or proposed for listing on the NPL or any analogous foreign, state or local list or is adjacent to any such property; (B) there are no and never have been any underground or above ground storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed on any property currently or formerly owned or operated by any Loan Party or any of its Subsidiaries that is reasonably expected to result in material liability to any Loan Party or any of its Subsidiaries; (C) there is no asbestos or asbestos‑containing material on any property currently owned or operated by any Loan Party or any of its Subsidiaries; and Digital Realty – Yen Credit Agreement 66
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