Representations and Warranties of the Obligors. Each Obligor makes the following representations and warranties to the Manager all of which shall survive the execution, delivery, performance or termination of this Agreement: (a) Such Obligor is a limited liability company duly organized, validly existing and in good standing under the laws of its jurisdiction of organization. (b) Such Obligor’s execution and delivery of, performance under, and compliance with this Agreement, will not violate such Obligor’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in a breach of, any agreement or other instrument to which it is a party or by which it is bound, except where such violation, breach or default in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor. (c) Such Obligor has the full power and authority to own its Tenant Site Assets, to conduct its business as presently conducted by it and to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement. (d) This Agreement, assuming the due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal and binding obligation of such Obligor, enforceable against such Obligor in accordance with the terms hereof, subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors’ rights generally and (ii) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law. (e) Such Obligor is not in violation of, and its execution and delivery of, performance under and compliance with this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, except such violation, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor. (f) No consent, approval, authorization or order of any state or federal court or governmental agency or body is required for the consummation by such Obligor of the transactions contemplated herein, except for those consents, approvals, authorizations or orders that previously have been obtained or that, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor. (g) No litigation is pending or, to the Obligor’s Knowledge, threatened against such Obligor that, if determined adversely to such Obligor, would prohibit such Obligor from entering into this Agreement or that, in such Obligor’s good faith and reasonable judgment, is reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
Appears in 3 contracts
Samples: Management Agreement, Management Agreement (Landmark Infrastructure Partners LP), Management Agreement (Landmark Infrastructure Partners LP)
Representations and Warranties of the Obligors. Each Obligor makes To induce the following Bank to execute and deliver this Amendment (which representations and warranties to the Manager all of which shall survive the execution, delivery, performance or termination execution and delivery of this AgreementAmendment), the Obligors represent and warrant to the Bank that:
(a) Such Obligor is a this Amendment has been duly authorized, executed and delivered by it and this Amendment constitutes the legal, valid and binding obligation, contract and agreement of the Obligors enforceable against them in accordance with its terms, except as enforcement may be limited liability company duly organizedby bankruptcy, validly existing and in good standing under the insolvency, reorganization, moratorium or similar laws of its jurisdiction of organization.or equitable principles relating to or limiting creditors' rights generally;
(b) Such Obligor’s execution the Forbearance Agreement, as amended by this Amendment, constitutes the legal, valid and binding obligation, contract and agreement of the Obligors enforceable against them in accordance with its respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or limiting creditors' rights generally; and
(c) the execution, delivery ofand performance by the Obligors of this Amendment (i) has been duly authorized by all requisite corporate action, performance under(ii) does not require the consent or approval of any governmental or regulatory body or agency, and compliance with this Agreement, (iii) will not (A) violate such Obligor’s organizational documents (1) any provision of law, statute, rule or constitute a default regulation or its certificate of incorporation or bylaws, (2) any order of any court or an event whichany rule, with notice regulation or lapse order of timeany other agency or government binding upon it, or both(3) any provision of any material indenture, would constitute a default) under, or result in a breach of, any agreement or other instrument to which it is a party or by which it is its properties or assets are or may be bound, except where such violationincluding, without limitation, the Subordinated Note and Warrant Purchase Agreement dated as of July 23, 1998 in the principal amount of $30,000,000 for 11.28% Senior Subordinated Notes due July 23, 2006 and Common Stock Purchase Warrants, or (B) result in a breach or constitute (along or with due notice or lapse of time or both) a default under any indenture, agreement or other instrument referred to in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
clause (ciii)(A)(3) Such Obligor has the full power and authority to own its Tenant Site Assets, to conduct its business as presently conducted by it and to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this AgreementSection 4(c).
(d) This Agreement, assuming the due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal and binding obligation of such Obligor, enforceable against such Obligor in accordance with the terms hereof, subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors’ rights generally and (ii) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law.
(e) Such Obligor is not in violation of, and its execution and delivery of, performance under and compliance with this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, except such violation, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(f) No consent, approval, authorization or order of any state or federal court or governmental agency or body is required for the consummation by such Obligor of the transactions contemplated herein, except for those consents, approvals, authorizations or orders that previously have been obtained or that, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(g) No litigation is pending or, to the Obligor’s Knowledge, threatened against such Obligor that, if determined adversely to such Obligor, would prohibit such Obligor from entering into this Agreement or that, in such Obligor’s good faith and reasonable judgment, is reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
Appears in 3 contracts
Samples: Forbearance and Extension Agreement (Boots & Coots International Well Control Inc), Forbearance and Extension Agreement (Boots & Coots International Well Control Inc), Forbearance and Extension Agreement (Boots & Coots International Well Control Inc)
Representations and Warranties of the Obligors. Each Obligor makes the following representations and warranties to the Manager all of which shall survive the execution, delivery, performance or termination of this Agreementfor itself represents as follows:
(a) Such The execution, delivery and performance by such Obligor is a limited liability company of this Amendment has been duly organized, validly existing authorized by all necessary corporate action and in good standing under the laws of its jurisdiction of organization.
(b) Such Obligor’s execution does not and delivery of, performance under, and compliance with this Agreement, will not violate (i) require any consent or approval of such Obligor’s organizational documents or constitute a default shareholders; (or an event which, with notice or lapse ii) violate any provisions of timethe Constituent Documents of such Obligor; (iii) violate any provision of, or bothrequire any filing, would constitute a default) registration, consent or approval under, any law, rule, regulation, order, writ, judgment, injunction, decree, determination or result award presently in a breach of, any agreement or other instrument effect having applicability to which it is a party or by which it is boundand binding upon such Obligor, except where such violation, breach violation or default in such Obligor’s good faith and reasonable judgment, is failure to file would not reasonably likely be expected to affect materially and adversely either have a material adverse effect on the condition (financial or otherwise) of such Obligor or the ability of such Obligor to perform its obligations under with respect to this Agreement Amendment or the financial condition Reimbursement Agreement, as amended; or (iv) result in a breach of, cause a lien to arise under, or constitute a default or require any consent under, any note, indenture or loan or agreement or any other agreement of such ObligorObligor except where such breach, default or failure to obtain consent or approval would not reasonably be expected to have a material adverse effect on the condition (financial or otherwise) of such Obligor or the ability of such Obligor to perform its obligations with respect to this Amendment or the Reimbursement Agreement, as amended.
(cb) Such Obligor has This Amendment and the full power and authority to own its Tenant Site Assets, to conduct its business as presently conducted by it and to enter into and consummate all transactions contemplated by this Reimbursement Agreement, has duly authorized as amended hereby, constitute the executionlegal, delivery and performance of this Agreement, and has duly executed and delivered this Agreement.
(d) This Agreement, assuming the due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal valid and binding obligation obligations of such Obligor, enforceable against such Obligor in accordance with their respective terms, except to the terms hereof, subject to (i) extent that such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium insolvency and other similar laws affecting the enforcement of creditors’ rights generally and (ii) by general principles of equity.
(c) The representations and warranties contained in Article IV of the Reimbursement Agreement (as amended by this Amendment) are true, regardless correct and complete in all material respects on and as of whether the date hereof as though made on and as of such enforcement date.
(d) No Default or Event of Default as described in Article VI of the Reimbursement Agreement has occurred and is considered in a proceeding in equity continuing or at lawwill result from the signing of this Amendment or the transactions contemplated hereby.
(e) Such There has been no material adverse change in the condition (financial or otherwise) of such Obligor is not in violation of, and its execution and delivery of, performance under and compliance with this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, except such violation, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such each Obligor to perform its obligations under this with respect to the Reimbursement Agreement or as amended hereby since the financial condition of such Obligor.
(f) No consent, approval, authorization or order of any state or federal court or governmental agency or body is required for the consummation by such Obligor date of the transactions contemplated herein, except for those consents, approvals, authorizations or orders that previously have been obtained or that, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the last financial condition of such Obligor.
(g) No litigation is pending or, statements furnished to the Obligor’s Knowledge, threatened against such Obligor that, if determined adversely to such Obligor, would prohibit such Obligor from entering into this Agreement or that, in such Obligor’s good faith and reasonable judgment, is reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such ObligorLenders.
Appears in 3 contracts
Samples: Letter of Credit and Reimbursement Agreement (Arch Capital Group LTD), Letter of Credit and Reimbursement Agreement (Arch Capital Group LTD), Letter of Credit and Reimbursement Agreement (Arch Capital Group LTD)
Representations and Warranties of the Obligors. Each Obligor makes To induce the following representations Agent and warranties the Lenders party hereto to enter into this Amendment, each of the Borrower, Holdings and the Guarantors hereby represents and warrants to the Manager all Agent and each Lender that as of which shall survive the execution, delivery, performance or termination of this AgreementFirst Amendment Effective Date:
(a) Such Holdings and each Obligor is a limited liability company duly organized, validly existing and in good standing under the laws of its jurisdiction of organization.
(b) Such Obligor’s execution and delivery of, performance under, and compliance with party to this Agreement, will not violate such Obligor’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in a breach of, any agreement or other instrument to which it is a party or by which it is bound, except where such violation, breach or default in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(c) Such Obligor Amendment has the full power and authority to own execute, deliver and perform this Amendment. Holdings and each Obligor party to this Amendment has taken all necessary corporate, limited liability company or partnership, as applicable, action (including obtaining approval of its Tenant Site Assetsshareholders, if necessary) to conduct its business as presently conducted by it and to enter into and consummate all transactions contemplated by this Agreement, has duly authorized authorize the execution, delivery and performance of this Agreement, and Amendment. This Amendment has been duly executed and delivered this Agreement.
(d) This Agreementby Holdings and each Obligor party hereto and constitutes the legal, assuming the due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal valid and binding obligation obligations of Holdings and each such Obligor, enforceable against such Obligor it in accordance with the terms hereofits terms, subject to (i) applicable the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, winding up, moratorium and other laws similar Laws relating to or affecting the enforcement of creditors’ rights generally and general equitable principles (ii) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law.
Law) and an implied covenant of good faith and fair dealing. Holdings’ and each Obligor’s execution, delivery and performance of this Amendment does not (ei) Such Obligor is not in violation ofconflict with, and its execution and delivery of, performance under and compliance with this Agreement will not or constitute a violation or breach of, the terms of (A) any lawcontract, mortgage, lease, agreement, indenture, or instrument to which Holdings, such Obligor or any of its Restricted Subsidiaries is a party or which is binding upon it, (B) any Requirement of Law applicable to Holdings, such Obligor or any of its Restricted Subsidiaries or (C) any Charter Documents of Holdings, such Obligor or any of its Restricted Subsidiaries, in each case under clauses (A), (B) and (C), in any respect that would reasonably be expected to have a Material Adverse Effect or (ii) result in the imposition of any Lien (other than the Liens created by the Security Documents) upon the property of Holdings, such Obligor or any of its Restricted Subsidiaries by reason of any of the foregoing;
(b) no Default or Event of Default has occurred and is continuing or would occur, in each case, after giving effect to this Amendment and the First Amendment to ABL Credit Agreement;
(c) no approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any order Governmental Authority or decree of any court other Person is necessary or arbiterrequired in connection with the execution, delivery or performance by, or enforcement against, Holdings or any orderof its Restricted Subsidiaries of this Amendment other than where failure to obtain, regulation effect or demand make any such approval, consent, exemption, authorization, or other action, notice or filing would not reasonably be expected to have a Material Adverse Effect; and
(d) after giving effect to this Amendment and the First Amendment to ABL Credit Agreement, the representations and warranties of the Borrower and each of the other Obligors contained in the Credit Agreement and each other Loan Document are true and correct in all material respects (and any federalrepresentation and warranty that is qualified as to materiality or Material Adverse Effect is true and correct in all respects) on and as of the First Amendment Effective Date as though made on and as of such date, state other than any such representation or local governmental or regulatory authority, except such violationwarranty which relates to a specified prior date, in which case such Obligor’s good faith representations and reasonable judgment, is not reasonably likely to affect materially warranties were true and adversely either the ability correct in all material respects as of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligorprior date.
(f) No consent, approval, authorization or order of any state or federal court or governmental agency or body is required for the consummation by such Obligor of the transactions contemplated herein, except for those consents, approvals, authorizations or orders that previously have been obtained or that, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(g) No litigation is pending or, to the Obligor’s Knowledge, threatened against such Obligor that, if determined adversely to such Obligor, would prohibit such Obligor from entering into this Agreement or that, in such Obligor’s good faith and reasonable judgment, is reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
Appears in 2 contracts
Samples: Term Loan Credit Agreement (ProFrac Holding Corp.), Term Loan Credit Agreement (ProFrac Holding Corp.)
Representations and Warranties of the Obligors. Each Obligor makes To induce the following Noteholders to execute and deliver this Amendment (which representations and warranties to the Manager all of which shall survive the execution, delivery, performance or termination execution and delivery of this AgreementAmendment), each Obligor represents and warrants to the Noteholders that:
(a) Such this Amendment has been duly authorized, executed and delivered by it and this Amendment constitutes the legal, valid and binding obligation, contract and agreement of such Obligor is a enforceable against it in accordance with its terms, except as enforcement may be limited liability company duly organizedby bankruptcy, validly existing and in good standing under the insolvency, reorganization, moratorium or similar laws of its jurisdiction of organization.or equitable principles relating to or limiting creditors’ rights generally;
(b) Such Obligor’s execution the Note Purchase Agreement, as amended by this Amendment, constitutes the legal, valid and binding obligation, contract and agreement of such Obligor enforceable against it in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or limiting creditors’ rights generally;
(c) the execution, delivery ofand performance by such Obligor of this Amendment (i) has been duly authorized by all requisite corporate action and, performance underif required, shareholder action, (ii) does not require the consent or approval of any governmental or regulatory body or agency, and compliance with this Agreement, (iii) will not (A) violate such Obligor’s organizational documents (1) any provision of law, statute, rule or constitute a default regulation or its certificate of incorporation or bylaws, (2) any order of any court or an event whichany rule, with notice regulation or lapse order of timeany other agency or government binding upon it, or both(3) any provision of any indenture, would constitute a default) under, or result in a breach of, any agreement or other instrument to which it is a party or by which it is its properties or assets are or may be bound, except where such violationincluding, without limitation, any Credit Agreement, or (B) result in a breach or constitute (alone or with due notice or lapse of time or both) a default under any indenture, agreement or other instrument referred to in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
clause (ciii)(A)(3) Such Obligor has the full power and authority to own its Tenant Site Assets, to conduct its business as presently conducted by it and to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement.Section 4(c);
(d) This Agreement, assuming the due authorization, execution and delivery by each as of the other parties heretodate hereof after giving effect to this Amendment and the amendments to the Transaction Facilities, constitutes a validno Default or Event of Default has occurred which is continuing;
(e) all of the representations and warranties contained in Section 5 of the Note Purchase Agreement are true and correct in all material respects (in all respects in the case of representations and warranties qualified by materiality, legal Material Adverse Effect or similar language in the text thereof) with the same force and binding obligation of such Obligor, enforceable against effect as if made by such Obligor on and as of the date hereof, except to the extent that such representations and warranties expressly relate solely to an earlier date or due solely as a result of actions taken by the Obligors in accordance with the terms hereof, subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting covenants set forth in the enforcement of creditors’ rights generally and (ii) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law.
(e) Such Obligor is not in violation of, and its execution and delivery of, performance under and compliance with this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, except such violation, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.Note Purchase Agreement; and
(f) No consent, approval, authorization or order of any state or federal court or governmental agency or body is required for the consummation by such Obligor Subsidiary Guarantors executing this Amendment constitute all of the transactions contemplated herein, except for those consents, approvals, authorizations or orders that previously have been obtained or that, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to materially and adversely affect either Subsidiary Guarantors as of the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligordate hereof.
(g) No litigation is pending or, to the Obligor’s Knowledge, threatened against such Obligor that, if determined adversely to such Obligor, would prohibit such Obligor from entering into this Agreement or that, in such Obligor’s good faith and reasonable judgment, is reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
Appears in 2 contracts
Samples: Note Purchase and Guarantee Agreement (Chicago Bridge & Iron Co N V), Note Purchase and Guarantee Agreement (Chicago Bridge & Iron Co N V)
Representations and Warranties of the Obligors. Each Obligor makes To induce the following representations Agent and warranties the Lenders party hereto to enter into this Amendment, each of the Borrower, Holdings and the other Obligors hereby represents and warrants to the Manager all Agent and each Lender that as of which shall survive the execution, delivery, performance or termination of this AgreementFirst Amendment Effective Date:
(a) Such Holdings and each Obligor is a limited liability company duly organized, validly existing and in good standing under the laws of its jurisdiction of organization.
(b) Such Obligor’s execution and delivery of, performance under, and compliance with party to this Agreement, will not violate such Obligor’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in a breach of, any agreement or other instrument to which it is a party or by which it is bound, except where such violation, breach or default in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(c) Such Obligor Amendment has the full power and authority to own execute, deliver and perform this Amendment. Holdings and each Obligor party to this Amendment has taken all necessary corporate, limited liability company or partnership, as applicable, action (including obtaining approval of its Tenant Site Assetsshareholders, if necessary) to conduct its business as presently conducted by it and to enter into and consummate all transactions contemplated by this Agreement, has duly authorized authorize the execution, delivery and performance of this Agreement, and Amendment. This Amendment has been duly executed and delivered this Agreement.
(d) This Agreementby Holdings and each Obligor party hereto and constitutes the legal, assuming the due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal valid and binding obligation obligations of Holdings and each such Obligor, enforceable against such Obligor it in accordance with the terms hereofits terms, subject to (i) applicable the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, winding up, moratorium and other laws similar Laws relating to or affecting the enforcement of creditors’ rights generally and general equitable principles (ii) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law.
Law) and an implied covenant of good faith and fair dealing. Holdings’ and each Obligor’s execution, delivery and performance of this Amendment does not (ei) Such Obligor is not in violation ofconflict with, and its execution and delivery of, performance under and compliance with this Agreement will not or constitute a violation or breach of, the terms of (A) any lawcontract, mortgage, lease, agreement, indenture, or instrument to which Holdings, such Obligor or any of its Restricted Subsidiaries is a party or which is binding upon it, (B) any Requirement of Law applicable to Holdings, such Obligor or any of its Restricted Subsidiaries or (C) any Charter Documents of Holdings, such Obligor or any of its Restricted Subsidiaries, in each case under clauses (A), (B) and (C), in any respect that would reasonably be expected to have a Material Adverse Effect or (ii) result in the imposition of any Lien (other than the Liens created by the Security Documents) upon the property of Holdings, such Obligor or any of its Restricted Subsidiaries by reason of any of the foregoing;
(b) no Default or Event of Default has occurred and is continuing or would occur, in each case, immediately prior to and after giving effect to this Amendment and the First Amendment to Term Loan Credit Agreement;
(c) no approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any order Governmental Authority or decree of any court other Person is necessary or arbiterrequired in connection with the execution, delivery or performance by, or enforcement against, Holdings or any orderof its Restricted Subsidiaries of this Amendment other than where failure to obtain, regulation effect or demand make any such approval, consent, exemption, authorization, or other action, notice or filing would not reasonably be expected to have a Material Adverse Effect; and
(d) after giving effect to this Amendment and the First Amendment to Term Loan Credit Agreement, the representations and warranties of Holdings and each of its Restricted Subsidiaries contained in the Credit Agreement and each other Loan Document are true and correct in all material respects (and any federalrepresentation and warranty that is qualified as to materiality or Material Adverse Effect is true and correct in all respects) on and as of the First Amendment Effective Date as though made on and as of such date, state other than any such representation or local governmental or regulatory authority, except such violationwarranty which relates to a specified prior date, in which case such Obligor’s good faith representations and reasonable judgment, is not reasonably likely to affect materially warranties were true and adversely either the ability correct in all material respects as of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligorprior date.
(f) No consent, approval, authorization or order of any state or federal court or governmental agency or body is required for the consummation by such Obligor of the transactions contemplated herein, except for those consents, approvals, authorizations or orders that previously have been obtained or that, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(g) No litigation is pending or, to the Obligor’s Knowledge, threatened against such Obligor that, if determined adversely to such Obligor, would prohibit such Obligor from entering into this Agreement or that, in such Obligor’s good faith and reasonable judgment, is reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
Appears in 2 contracts
Samples: Credit Agreement (ProFrac Holding Corp.), Credit Agreement (ProFrac Holding Corp.)
Representations and Warranties of the Obligors. Each Obligor makes To induce the following Noteholders to execute and deliver this Amendment (which representations and warranties to the Manager all of which shall survive the execution, delivery, performance or termination execution and delivery of this AgreementAmendment), each Obligor represents and warrants to the Noteholders that:
(a) Such this Amendment has been duly authorized, executed and delivered by it and this Amendment constitutes the legal, valid and binding obligation, contract and agreement of such Obligor is a enforceable against it in accordance with its terms, except as enforcement may be limited liability company duly organizedby bankruptcy, validly existing and in good standing under the insolvency, reorganization, moratorium or similar laws of its jurisdiction of organization.or equitable principles relating to or limiting creditors’ rights generally;
(b) Such Obligor’s execution the Note Purchase Agreement, as amended by this Amendment (including, without limitation, the acknowledgement and agreement of the Obligors set forth in the last sentence of Section 7.1(l) of the Note Purchase Agreement, after taking into account this Amendment), constitutes the legal, valid and binding obligation, contract and agreement of such Obligor enforceable against it in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or limiting creditors’ rights generally;
(c) the execution, delivery ofand performance by such Obligor of this Amendment (i) has been duly authorized by all requisite corporate action and, performance underif required, shareholder action, (ii) does not require the consent or approval of any governmental or regulatory body or agency, and compliance with this Agreement, (iii) will not (A) violate such Obligor’s organizational documents (1) any provision of law, statute, rule or constitute a default regulation or its certificate of incorporation or bylaws, (2) any order of any court or an event whichany rule, with notice regulation or lapse order of timeany other agency or government binding upon it, or both(3) any provision of any indenture, would constitute a default) under, or result in a breach of, any agreement or other instrument to which it is a party or by which it is its properties or assets are or may be bound, except where such violationincluding, without limitation, any Credit Agreement, or (B) result in a breach or constitute (alone or with due notice or lapse of time or both) a default under any indenture, agreement or other instrument referred to in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
clause (ciii)(A)(3) Such Obligor has the full power and authority to own its Tenant Site Assets, to conduct its business as presently conducted by it and to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement.Section 3(c); and
(d) This Agreement, assuming the due authorization, execution and delivery by each as of the other parties heretodate hereof after giving effect to this Amendment and the Transaction Facilities Amendments, constitutes a validdefined below, legal and binding obligation no Default or Event of such Obligor, enforceable against such Obligor in accordance with the terms hereof, subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors’ rights generally and (ii) general principles of equity, regardless of whether such enforcement Default has occurred which is considered in a proceeding in equity or at lawcontinuing.
(e) Such Obligor is not in violation of, and its execution and delivery of, performance under and compliance with this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, except such violation, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(f) No consent, approval, authorization or order of any state or federal court or governmental agency or body is required for the consummation by such Obligor of the transactions contemplated herein, except for those consents, approvals, authorizations or orders that previously have been obtained or that, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(g) No litigation is pending or, to the Obligor’s Knowledge, threatened against such Obligor that, if determined adversely to such Obligor, would prohibit such Obligor from entering into this Agreement or that, in such Obligor’s good faith and reasonable judgment, is reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
Appears in 2 contracts
Samples: Note Purchase and Guarantee Agreement (Chicago Bridge & Iron Co N V), Note Purchase and Guarantee Agreement (Chicago Bridge & Iron Co N V)
Representations and Warranties of the Obligors. Each Obligor makes the following representations represents and warranties to the Manager all of which shall survive the execution, delivery, performance or termination of this Agreementwarrants as follows:
(a) Such Obligor Each Document Party and each of its Subsidiaries (i) is a limited liability company corporation duly organized, validly existing and in good standing under the laws of its the jurisdiction of organizationits incorporation, (ii) is duly qualified and in good standing as a foreign 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 could not be reasonably likely to have a Material Adverse Effect and (iii) has all requisite corporate power and authority (including, without limitation, all Governmental Authorizations) to own or lease and operate its property and to carry on its business as now conducted and as proposed to be conducted is subject to civil and commercial law with respect to its Obligations. Neither any Document Party nor any of its properties or revenues is entitled to any right of immunity in any applicable jurisdiction from suit, court jurisdiction, judgment, attachment (whether before or after judgment), set-off or execution of a judgment or from any other legal process or remedy relating to its Obligations (to the extent such suit, court jurisdiction, judgment, attachment, set-off, execution, legal process or remedy would otherwise be permitted or exist).
(b) Such Obligor’s execution The execution, delivery and delivery of, performance under, and compliance with this Agreement, will not violate such Obligor’s organizational documents or constitute a default (or an event which, with notice or lapse by each Document Party of time, or both, would constitute a default) under, or result in a breach of, any agreement or other instrument each Loan Document to which it is a party are within such Document Party’s corporate powers, have been duly authorized by all necessary corporate action, and do not (i) contravene such Document Party’s charter or by which it is boundbylaws, except where such violationas applicable, breach or default in such Obligor’s good faith (ii) violate any law, rule, regulation (including, without limitation, Regulation T, U and reasonable 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 contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument binding on or affecting any Document Party, any of its Subsidiaries or any of their 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 Collateral. No Document Party or any of its Subsidiaries is not in violation of any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or in breach of any such contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument, the violation or breach of which could reasonably likely be expected to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligorresult in a Material Adverse Effect.
(c) Such Obligor has Except as the same have been obtained or made and are in full power force and authority effect or have been made or to own its Tenant Site Assetsbe made in connection with the Collateral Documents, no Governmental Authorization, and no notice to conduct its business as presently conducted or filing with, any Governmental Authority or any other third party is required for (i) the due execution, delivery, recordation, filing or performance by any Document Party of any Loan Document to which it is or is to be a party, (ii) the grant by any Document Party of the Liens granted by it and pursuant to enter into and consummate all transactions contemplated the Collateral Documents, (iii) the perfection or maintenance of the Liens created under the Collateral Documents (including the priority thereof) or (iv) the exercise by this Agreement, has duly authorized the execution, delivery and performance Administrative Agent or any Lender Party of this Agreement, and has duly executed and delivered this Agreementits rights under the Loan Documents or the remedies in respect of the Collateral pursuant to the Collateral Documents.
(d) This AgreementAgreement has been, assuming the due authorizationand each other Loan Document when delivered hereunder will have been, execution duly authorized, executed and delivery delivered by each of Document Party party thereto. This Agreement is, and each other Loan Document when delivered hereunder will be, the other parties heretolegal, constitutes a valid, legal valid and binding obligation of such Obligoreach Document Party party thereto, enforceable against such Obligor Document Party in accordance with the terms hereofits terms, subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium and or other laws affecting the enforcement of creditors’ rights generally and (ii) subject to general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law.
(e) Such Obligor There is not no action, suit, investigation, litigation or proceeding affecting any Document Party or any of its Subsidiaries, including any Environmental Action, pending or threatened before any Governmental Authority or arbitrator that (i) as to which there is a reasonable possibility of adverse determination and that if adversely determined, could reasonably be expected to result in violation ofa Material Adverse Effect (other than the Disclosed Litigation) or (ii) purports to affect the legality, and its execution and delivery of, performance under and compliance with this Agreement will not constitute a violation of, any law, any order validity or decree enforceability of any court Loan Document or arbiter, or any order, regulation or demand the consummation of any federal, state or local governmental or regulatory authority, except such violation, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(f) No consent, approval, authorization or order of any state or federal court or governmental agency or body is required for the consummation by such Obligor of the transactions contemplated hereinby any Loan Document, except for those consentsand there has been no adverse change in the status, approvalsor financial effect on any Document Party or any of its Subsidiaries, authorizations or orders of the Disclosed Litigation from that previously have been obtained or that, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligordescribed on Schedule II hereto.
(g) No litigation is pending or, to the Obligor’s Knowledge, threatened against such Obligor that, if determined adversely to such Obligor, would prohibit such Obligor from entering into this Agreement or that, in such Obligor’s good faith and reasonable judgment, is reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
Appears in 2 contracts
Samples: Naira Letter of Credit Facility and Guaranty Agreement (Pacific Drilling S.A.), Naira Letter of Credit Facility and Guaranty Agreement (Pacific Drilling S.A.)
Representations and Warranties of the Obligors. Each Section 2.1. To induce the Noteholders to execute and deliver this First Amendment, each Obligor makes the following representations jointly and warranties severally hereby represents and warrants to the Manager all of which shall survive the execution, delivery, performance or termination of this AgreementNoteholders that:
(a) Such Obligor Each Group Member (i) is a limited liability company duly organized, incorporated, validly existing and in good standing (to the extent such concept is applicable in the relevant jurisdiction) under the laws of its the jurisdiction of its organization, (ii) has the corporate, limited liability or limited partnership, as applicable, power and authority, and the legal right, to own and operate its property, to lease the property it operates as lessee and to conduct the business in which it is currently engaged, (iii) is duly qualified to do business in, and in good standing (to the extent such concept is applicable in the relevant jurisdiction) under the laws of, each jurisdiction where its ownership, lease or operation of property or the conduct of its business requires such qualification except for where failure to do so could not reasonably be expected to have a Material Adverse Effect and (iv) is in compliance with all Requirements of Law except to the extent that the failure to comply therewith could not, in the aggregate, reasonably be expected to have a Material Adverse Effect.
(b) Such Obligor’s execution and delivery of, performance under, and compliance with this Agreement, will not violate such Obligor’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in a breach of, any agreement or other instrument to which it is a party or by which it is bound, except where such violation, breach or default in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(c) Such Each Obligor has the full corporate, limited liability or limited partnership, as applicable, power and authority to own its Tenant Site Assetsauthority, to conduct its business as presently conducted by it and the legal right, to enter into and consummate perform the First Amendment. Each Obligor has taken all transactions contemplated by this Agreement, has duly authorized necessary organizational action to authorize the execution, delivery and performance of this AgreementFirst Amendment. No consent or authorization of, filing with, notice to or other act by or in respect of, any Governmental Authority or any other Person is required in connection with the execution, delivery, performance, validity or enforceability of this First Amendment, except consents, authorizations, filings, notices and other acts that have been obtained or made and are in full force and effect. This First Amendment has been duly executed and delivered this Agreement.
(d) on behalf of each Obligor party thereto. This Agreement, assuming the due authorization, execution and delivery by each of the other parties hereto, First Amendment constitutes a validlegal, legal valid and binding obligation of such Obligoreach Obligor party thereto, enforceable against each such Obligor in accordance with the terms hereofits terms, subject to (i) except as enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other or similar laws relating to or affecting the enforcement of creditors’ rights generally and by general equitable principles (ii) general principles of equity, regardless of whether such enforcement is considered in a proceeding sought by proceedings in equity or at law).
(c) The execution, delivery and performance by the applicable Obligor of this First Amendment will not (i) violate any Requirement of Law, any indenture, agreement or other instrument binding on an Obligor or its assets, or any Governing Document of any Obligor, except where such violation could not reasonably be expected to have a Material Adverse Effect, and (ii) will not result in, or require, the creation or imposition of any Lien on any of their respective properties or revenues pursuant to any such indenture, agreement or other instrument.
(d) No consent, approval or authorization of, or registration, filing or declaration with, any Governmental Authority is required in connection with the execution, delivery or performance by the Obligors of this First Amendment. It is not necessary to ensure the legality, validity, enforceability or admissibility into evidence in the United States or the Netherlands, as applicable, of this First Amendment that this First Amendment or any other document be filed, recorded or enrolled with any Governmental Authority, or that any such agreement or document be stamped with any stamp, registration or similar transaction tax that may be required in connection with admissibility into evidence.
(e) Such Obligor As of the date hereof, both before and after giving effect to this First Amendment, no Default or Event of Default has occurred and is not in violation of, and its execution and delivery of, performance under and compliance with this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, except such violation, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligorcontinuing.
(f) No consent, approval, authorization lender under any agreement or order other evidence of any state or federal court or governmental agency or body is required for the consummation by such Obligor Indebtedness of the transactions contemplated hereinObligors, except for those consentsincluding but not limited to any Material Debt Facility, approvals, authorizations has received any collateral or orders consideration in connection with any amendments that previously have been obtained or that, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(g) No litigation is pending or, are substantially similar to the Obligor’s Knowledge, threatened against such Obligor that, if determined adversely to such Obligor, would prohibit such Obligor from entering into amendments set forth in Section 1 of this Agreement or that, in such Obligor’s good faith and reasonable judgment, is reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such ObligorFirst Amendment.
Appears in 2 contracts
Samples: Note Purchase Agreement (Lineage, Inc.), Note Purchase Agreement (Lineage, Inc.)
Representations and Warranties of the Obligors. Each The Borrower, on behalf of itself, and the Company, on behalf of itself and the Borrower hereby: (a) represent and warrant that each Obligor makes has read and is aware of all of the following terms, conditions, representations, warranties, covenants and other undertakings set forth in the Merger Agreement, (b) represent and warrant that each of the representations and warranties to set forth in Article V of the Manager all of which shall survive Merger Agreement, as qualified or limited by the executionCompany Disclosure Schedule (as that term is defined in the Merger Agreement), deliveryare true, performance or termination of this Agreement:
(a) Such Obligor is a limited liability company duly organized, validly existing correct and in good standing under the laws of its jurisdiction of organization.
(b) Such Obligor’s execution and delivery of, performance undercomplete, and compliance with this Agreement, will not violate such Obligor’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in a breach of, any agreement or other instrument to which it is a party or by which it is bound, except where such violation, breach or default in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(c) Such Obligor has the full power and authority to own its Tenant Site Assetsmake, to conduct its business as presently conducted by it and to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance for purposes of this Agreement, and has duly executed and delivered incorporate herein by this Agreement.
(d) This Agreementreference as though fully set forth herein, assuming the due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal representations and binding obligation warranties set forth in Article V of such Obligor, enforceable against such Obligor in accordance the Merger Agreement with the terms hereofintent that such representations shall have independent force and effect under this Agreement notwithstanding the cancellation, subject expiration or termination of the Merger Agreement, the enforceability of any term or provision thereof, or any determination that the Merger Agreement is no longer in force or effect. Without limiting the generality of the foregoing, the Obligors shall be deemed to have made each of the representations and warranties set forth in Article V of the Merger Agreement as of the Closing Date, date of delivery of each request for a Loan and as of each Funding Date. Except as set forth in (i) applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors’ rights generally and Company Reports (as defined below) filed prior to the date hereof; or (ii) general principles the applicable section of equity, regardless the disclosure schedule delivered by the Company to Lender on the date hereof (the “Disclosure Schedule”) (it being understood that any matter disclosed in any section or subsection of whether such enforcement is considered in a proceeding in equity the Disclosure Schedule with respect to the corresponding section or at law.
(e) Such Obligor is not in violation of, and its execution and delivery of, performance under and compliance with subsection of this Agreement will not constitute a violation ofshall be deemed to be disclosed under any other section or subsection of this Agreement, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, except such violation, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either as long as the ability relevance of such Obligor disclosure to perform its obligations under this Agreement such other section or the financial condition of such Obligor.
(f) No consent, approval, authorization or order of any state or federal court or governmental agency or body is required for the consummation by such Obligor subsection of the transactions contemplated hereinAgreement is reasonably apparent, except for those consents, approvals, authorizations or orders that previously have been obtained or that, in such Obligor’s good faith the Obligors hereby jointly and reasonable judgment, is not reasonably likely to materially severally represent and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(g) No litigation is pending or, warrants to the Obligor’s Knowledge, threatened against such Obligor that, if determined adversely to such Obligor, would prohibit such Obligor from entering into this Agreement or that, in such Obligor’s good faith and reasonable judgment, is reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.Lender as follows:
Appears in 2 contracts
Samples: Bridge Facility Agreement (Moscow Cablecom Corp), Bridge Facility Agreement (Renova Media Enterprises Ltd.)
Representations and Warranties of the Obligors. Each Obligor makes To induce the following Noteholders to execute and deliver this Amendment (which representations and warranties to the Manager all of which shall survive the execution, delivery, performance or termination execution and delivery of this AgreementAmendment), each Obligor represents and warrants to the Noteholders that:
(a) Such this Amendment has been duly authorized, executed and delivered by it and this Amendment constitutes the legal, valid and binding obligation, contract and agreement of such Obligor is a enforceable against it in accordance with its terms, except as enforcement may be limited liability company duly organizedby bankruptcy, validly existing and in good standing under the insolvency, reorganization, moratorium or similar laws of its jurisdiction of organization.or equitable principles relating to or limiting creditors’ rights generally;
(b) Such Obligor’s execution the Note Purchase Agreement, as amended by this Amendment, constitutes the legal, valid and binding obligation, contract and agreement of such Obligor enforceable against it in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or limiting creditors’ rights generally;
(c) the execution, delivery ofand performance by such Obligor of this Amendment (i) has been duly authorized by all requisite corporate action and, performance underif required, shareholder action, (ii) does not require the consent or approval of any governmental or regulatory body or agency, and compliance with this Agreement, (iii) will not (A) violate such Obligor’s organizational documents (1) any provision of law, statute, rule or constitute a default regulation or its certificate of incorporation or bylaws, (2) any order of any court or an event whichany rule, with notice regulation or lapse order of timeany other agency or government binding upon it, or both(3) any provision of any indenture, would constitute a default) under, or result in a breach of, any agreement or other instrument to which it is a party or by which it is its properties or assets are or may be bound, except where such violationincluding, without limitation, any Credit Agreement, or (B) result in a breach or constitute (alone or with due notice or lapse of time or both) a default under any indenture, agreement or other instrument referred to in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
clause (ciii)(A)(3) Such Obligor has the full power and authority to own its Tenant Site Assets, to conduct its business as presently conducted by it and to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement.Section 3(c);
(d) This Agreement, assuming the due authorization, execution and delivery by each as of the date hereof immediately prior to and after giving effect to this Amendment, no Default or Event of Default has occurred which is continuing;
(e) no fee or form of other parties heretoconsideration is being given to any lender under any outstanding Credit Agreement to consent to the amendment to the Credit Agreements entered into on the date hereof;
(f) CB&I Stone & Xxxxxxx, constitutes a validInc. (the “Transferred Company”) is the direct or indirect owner of the following Subsidiaries: CB&I Contractors, legal Inc., Xxxx Nuclear Services, Inc., Field Services, LLC, CB&I Nuclear Technology Solutions, LLC, Xxxx Global Services, LLC, CB&I Stone & Xxxxxxx Construction, Inc., CB&I Stone & Xxxxxxx International, Inc., Stone & Xxxxxxx Services, LLC and binding obligation CB&I Stone & Xxxxxxx Asia, Inc.; and
(g) all of such Obligorthe representations and warranties contained in Section 5 of the Note Purchase Agreement are true and correct in all material respects (in all respects in the case of representations and warranties qualified by materiality, enforceable against Material Adverse Effect or similar language in the text thereof) with the same force and effect as if made by such Obligor on and as of the date hereof, except to the extent that such representations and warranties expressly relate solely to an earlier date or due solely as a result of actions taken by the Obligors in accordance with the terms hereof, subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting covenants set forth in the enforcement of creditors’ rights generally and (ii) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at lawNote Purchase Agreement.
(e) Such Obligor is not in violation of, and its execution and delivery of, performance under and compliance with this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, except such violation, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(f) No consent, approval, authorization or order of any state or federal court or governmental agency or body is required for the consummation by such Obligor of the transactions contemplated herein, except for those consents, approvals, authorizations or orders that previously have been obtained or that, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(g) No litigation is pending or, to the Obligor’s Knowledge, threatened against such Obligor that, if determined adversely to such Obligor, would prohibit such Obligor from entering into this Agreement or that, in such Obligor’s good faith and reasonable judgment, is reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
Appears in 2 contracts
Samples: Note Purchase and Guarantee Agreement (Chicago Bridge & Iron Co N V), Note Purchase and Guarantee Agreement (Chicago Bridge & Iron Co N V)
Representations and Warranties of the Obligors. Each Obligor makes of the following representations Obligors represents and warranties warrants to the Manager all of which shall survive the execution, delivery, performance or termination of this AgreementPurchaser that:
(a) Such Obligor is a limited liability company duly organizedAfter giving effect to this Amendment, validly existing the representations and warranties contained in good standing under Section 3 of the laws Existing Purchase Agreement are true in all material respects on and as of its jurisdiction the date hereof to the same extent as if made on and as of organizationthe date hereof except to the extent that such representations and warranties specifically relate to an earlier date, in which case they are true in all material respects as of such earlier date.
(b) Such The execution, delivery and performance by each of the Obligors of this Amendment are within their respective corporate powers and have been duly authorized by all necessary corporate action on the part of the board of directors and stockholders of each respective Obligor’s . This Amendment has been duly executed and delivered by each of the Obligors and is the legal, valid and binding obligation of each Obligor, enforceable against that Obligor, in accordance with its terms, except to the extent that such enforcement may be limited by applicable bankruptcy, insolvency and other similar laws affecting creditors' rights generally and by general principles of equity.
(c) Neither the execution and delivery ofby each of the Obligors of this Amendment, performance under, and nor the fulfillment of or compliance with this Agreementthe terms and provisions hereof, will not violate such Obligor’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) underconflict with, or result in a breach or violation of the terms, conditions or provisions of, or constitute a default under, or result in the creation of any agreement Lien on any properties or other assets of any Obligor pursuant to, the Organizational Documents of such Obligor or any contract, agreement, mortgage, indenture, lease or instrument to which it such Obligor is a party or by which it is boundbound or to which any of its assets are subject, except where such violationor any statute, breach or default in such Obligor’s good faith and reasonable ordinance, law, rule, regulation, order, writ, judgment, is not reasonably likely injunction, decree or award to affect materially and adversely either the ability of which such Obligor to perform or any of its obligations under this Agreement or the financial condition of such Obligor.
(c) Such Obligor has the full power and authority to own its Tenant Site Assets, to conduct its business as presently conducted by it and to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreementassets are subject.
(d) This Agreement, assuming the due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal and binding obligation of such Obligor, enforceable against such Obligor in accordance with the terms hereof, subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors’ rights generally and (ii) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law.
(e) Such Obligor is not in violation of, and its execution and delivery of, performance under and compliance with this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, except such violation, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(f) No consent, approvalapproval or authorization of or declaration, authorization registration or order filing with any Governmental Authority or any nongovernmental Person, including, without limitation, any creditor or stockholder of any state or federal court or governmental agency or body Obligor, is required for in connection with the consummation execution or delivery by such Obligor of this Amendment or the transactions contemplated herein, except for those consents, approvals, authorizations or orders that previously have been obtained or that, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to materially and adversely affect either the ability of performance by such Obligor to perform of its obligations under this Agreement hereunder, or the financial as a condition of such Obligor.
(g) No litigation is pending or, to the Obligor’s Knowledgelegality, threatened against such Obligor that, if determined adversely to such Obligor, would prohibit such Obligor from entering into validity or enforceability of this Agreement Amendment or that, in such Obligor’s good faith and reasonable judgment, is reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligorany provision hereof.
Appears in 2 contracts
Samples: Amendment and Consent (TRUEYOU.COM), Note and Warrant Purchase Agreement (TRUEYOU.COM)
Representations and Warranties of the Obligors. Each Obligor makes To induce the following representations Agent, the Collateral Agent, the Letter of Credit Issuer, the Swingline Lender and warranties Lenders party hereto to enter into this Agreement, each of the Borrower, Holdings and Manufacturing hereby represent and warrant to the Manager all Agent, the Collateral Agent, the Letter of which shall survive Credit Issuer, the execution, delivery, performance or termination of this AgreementSwingline Lender and each Lender that:
(a) Such Obligor is Each of the Borrower, Holdings and Manufacturing has the corporate power and authority, and the legal right, to execute, delivery and perform this Agreement. Each of the Borrower, Holdings and Manufacturing has taken all necessary corporate action to authorize the execution, delivery and performance, as applicable, of this Agreement. This Agreement has been duly executed and delivered on behalf of the Borrower, Holdings and Manufacturing. Upon its execution, this Agreement constitutes a limited liability company duly organizedlegal, validly existing valid and binding obligation of each of the Borrower, Holdings and Manufacturing, enforceable against each of the Borrower, Holdings and Manufacturing in good standing under the laws of accordance with its jurisdiction of organization.
(b) Such terms. Holdings’ and each Obligor’s execution and delivery of, performance under, and compliance with this Agreement, will not violate such Obligor’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in a breach of, any agreement or other instrument to which it is a party or by which it is bound, except where such violation, breach or default in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(c) Such Obligor has the full power and authority to own its Tenant Site Assets, to conduct its business as presently conducted by it and to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this AgreementAgreement does not (x) conflict with, or constitute a violation or breach of, the terms of (a) any contract, mortgage, lease, agreement, indenture, or instrument to which Holdings, such Obligor or any of its Restricted Subsidiaries is a party or which is binding upon it, (b) any Requirement of Law applicable to Holdings, such Obligor or any of its Restricted Subsidiaries or (c) any Charter Documents of Holdings, such Obligor or any of its Restricted Subsidiaries, in each case, in any respect that would reasonably be expected to have a Material Adverse Effect or (y) result in the imposition of any Lien (other than Liens created by the Security Documents) upon the property of Holdings, such Obligor or any of its Restricted Subsidiaries by reason of any of the foregoing.
(b) The execution, delivery and performance of this Agreement does not violate any Organization Document of any Obligor.
(c) No Default or Event of Default has duly executed occurred and delivered is continuing or would occur, in each case, after giving effect to this Agreement.
(d) This No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, the Borrower of this Agreement, assuming the due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal and binding obligation of such Obligor, enforceable against such Obligor in accordance with the terms hereof, subject to than (i) applicable bankruptcy, insolvency, reorganization, moratorium those that have been obtained or made and other laws affecting the enforcement of creditors’ rights generally are in full force and effect and (ii) general principles of equitywhere failure to obtain, regardless of whether effect or make any such enforcement is considered in approval, consent, exemption, authorization, or other action, notice or filing would not reasonably be expected to have a proceeding in equity or at lawMaterial Adverse Effect.
(e) Such Obligor is not After giving effect to this Agreement, the representations and warranties of the Borrower and each of the other Obligors contained in violation of, the Credit Agreement and its execution each other Loan Document are true and delivery of, performance under and compliance with this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authoritycorrect in all material respects, except to the extent such violationrepresentation and warranty expressly relates to an earlier date, in which case such Obligor’s good faith representation or warranty shall have been true and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability correct in all material respects as of such Obligor earlier date), except that any representations and warranties subject to perform its obligations under this Agreement “materiality”, “Material Adverse Effect” or similar materiality qualifiers shall be true and correct in all respects (except to the financial condition extent such representation and warranty expressly relates to an earlier date, in which case such representation and warranty shall have been true and correct in all respects as of such Obligorearlier date).
(f) No consent, approval, authorization or order of any state or federal court or governmental agency or body is required for the consummation by such Obligor of the transactions contemplated herein, except for those consents, approvals, authorizations or orders that previously have been obtained or that, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(g) No litigation is pending or, to the Obligor’s Knowledge, threatened against such Obligor that, if determined adversely to such Obligor, would prohibit such Obligor from entering into this Agreement or that, in such Obligor’s good faith and reasonable judgment, is reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
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Representations and Warranties of the Obligors. Each Obligor makes Section 2.1. To induce the following Noteholders to execute and deliver this Amendment (which representations and warranties to the Manager all of which shall survive the execution, delivery, performance or termination execution and delivery of this AgreementAmendment), each Obligor represents and warrants to the Noteholders that:
(a) Such this Amendment has been duly authorized, executed and delivered by it and this Amendment constitutes the legal, valid and binding obligation, contract and agreement of such Obligor is a enforceable against it in accordance with its terms, except as enforcement may be limited liability company duly organizedby bankruptcy, validly existing and in good standing under the insolvency, reorganization, moratorium or similar laws of its jurisdiction of organization.or equitable principles relating to or limiting creditors’ rights generally;
(b) Such Obligor’s execution the Note Purchase Agreement, as amended by this Amendment, constitutes the legal, valid and binding obligation, contract and agreement of such Obligor enforceable against it in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or limiting creditors’ rights generally;
(c) the execution, delivery ofand performance by such Obligor of this Amendment (i) has been duly authorized by all requisite corporate action and, performance underif required, shareholder action, (ii) does not require the consent or approval of any governmental or regulatory body or agency, and compliance with this Agreement, (iii) will not (A) violate such Obligor’s organizational documents (1) any provision of law, statute, rule or constitute a default regulation or its certificate of incorporation or bylaws, (2) any order of any court or an event whichany rule, with notice regulation or lapse order of timeany other agency or government binding upon it, or both(3) any provision of any indenture, would constitute a default) under, or result in a breach of, any agreement or other instrument to which it is a party or by which it is its properties or assets are or may be bound, except where such violationincluding, without limitation, any Credit Agreement, or (B) result in a breach or constitute (alone or with due notice or lapse of time or both) a default under any indenture, agreement or other instrument referred to in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
clause (ciii)(A)(3) Such Obligor has the full power and authority to own its Tenant Site Assets, to conduct its business as presently conducted by it and to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement.Section 2.1(c);
(d) This Agreement, assuming the due authorization, execution and delivery by each as of the other parties heretodate hereof and after giving effect to this Amendment, constitutes a valid, legal no Default or Event of Default has occurred which is continuing; and
(e) all of the representations and binding obligation warranties contained in Section 5 of such Obligor, enforceable against the Note Purchase Agreement are true and correct in all material respects with the same force and effect as if made by such Obligor on and as of the date hereof, except to the extent that such representations and warranties expressly relate solely to an earlier date or due solely as a result of actions taken by the Obligors in accordance with the terms hereof, subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting covenants set forth in the enforcement of creditors’ rights generally and (ii) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at lawNote Purchase Agreement.
(e) Such Obligor is not in violation of, and its execution and delivery of, performance under and compliance with this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, except such violation, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(f) No consent, approval, authorization or order of any state or federal court or governmental agency or body is required for the consummation by such Obligor of the transactions contemplated herein, except for those consents, approvals, authorizations or orders that previously have been obtained or that, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(g) No litigation is pending or, to the Obligor’s Knowledge, threatened against such Obligor that, if determined adversely to such Obligor, would prohibit such Obligor from entering into this Agreement or that, in such Obligor’s good faith and reasonable judgment, is reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
Appears in 1 contract
Samples: Note Purchase Agreement (Chicago Bridge & Iron Co N V)
Representations and Warranties of the Obligors. Each Obligor makes To induce the following representations Agent and warranties the Lenders party hereto to enter into this Amendment, each of the Borrower, Holdings and the other Obligors hereby represents and warrants to the Manager all Agent and each Lender that as of which shall survive the execution, delivery, performance or termination of this AgreementFourth Amendment Effective Date:
(a) Such Holdings and each Obligor is a limited liability company duly organized, validly existing and in good standing under the laws of its jurisdiction of organization.
(b) Such Obligor’s execution and delivery of, performance under, and compliance with party to this Agreement, will not violate such Obligor’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in a breach of, any agreement or other instrument to which it is a party or by which it is bound, except where such violation, breach or default in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(c) Such Obligor Amendment has the full power and authority to own execute, deliver and perform this Amendment. Holdings and each Obligor party to this Amendment has taken all necessary corporate, limited liability company or partnership, as applicable, action (including obtaining approval of its Tenant Site Assetsshareholders, if necessary) to conduct its business as presently conducted by it and to enter into and consummate all transactions contemplated by this Agreement, has duly authorized authorize the execution, delivery and performance of this Agreement, and Amendment. This Amendment has been duly executed and delivered this Agreement.
(d) This Agreementby Holdings and each Obligor party hereto and constitutes the legal, assuming the due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal valid and binding obligation obligations of Holdings and each such Obligor, enforceable against such Obligor it in accordance with the terms hereofits terms, subject to (i) applicable the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, winding up, moratorium and other laws similar Laws relating to or affecting the enforcement of creditors’ rights generally and general equitable principles (ii) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law.Law) and an implied covenant of good faith and fair dealing. Holdings’ and each Obligor’s execution, delivery and performance of this Amendment does not, after giving effect to this Amendment, the Amendment to Intercreditor and the Fifth Amendment to Term Loan Credit Agreement, (i) conflict with, or constitute a violation or breach of, the terms of (A) any contract, mortgage, lease, agreement, indenture, or instrument to which Holdings, such Obligor or any of its Restricted Subsidiaries is a party or which is binding upon it, (B) any Requirement of Law applicable to Holdings, such Obligor or any of its Restricted Subsidiaries or (C) any Charter Documents of Holdings, such Obligor or any of its Restricted Subsidiaries, in each case under clauses (A), (B) and (C), in any respect that would reasonably be expected to have a Material Adverse Effect or (ii) result in the imposition of any Lien (other than the Liens created by the Security Documents) upon the property of Holdings, such Obligor or any of its Restricted Subsidiaries by reason of any of the foregoing;
(b) all Deposit Accounts, Securities Accounts, and commodities accounts of any Obligors (including any Excluded Accounts) as of the Fourth Amendment Effective Date are listed on Exhibit C, and all Excluded Accounts are specified as such on Exhibit C;
(c) no Default or Event of Default has occurred and is continuing or would occur, in each case, after giving effect to this Amendment, the Amendment to Intercreditor and the Fifth Amendment to Term Loan Credit Agreement;
(d) no approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, Holdings or any of its Restricted Subsidiaries of this Amendment other than where failure to obtain, effect or make any such approval, consent, exemption, authorization, or other action, notice or filing would not reasonably be expected to have a Material Adverse Effect; and
(e) Such Obligor after giving effect to this Amendment, the Amendment to Intercreditor and the Fifth Amendment to Term Loan Credit Agreement, the representations and warranties of Holdings and each of its Restricted Subsidiaries contained in the Credit Agreement and each other Loan Document are true and correct in all material respects (and any representation and warranty that is not qualified as to materiality or Material Adverse Effect is true and correct in violation of, all respects) on and its execution as of the Fourth Amendment Effective Date as though made on and delivery of, performance under and compliance with this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, except such violation, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability as of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(f) No consentdate, approval, authorization or order of any state or federal court or governmental agency or body is required for the consummation by such Obligor of the transactions contemplated herein, except for those consents, approvals, authorizations or orders that previously have been obtained or that, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(g) No litigation is pending or, to the Obligor’s Knowledge, threatened against such Obligor that, if determined adversely to such Obligor, would prohibit such Obligor from entering into this Agreement or that, in such Obligor’s good faith and reasonable judgment, is reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.other than
Appears in 1 contract
Representations and Warranties of the Obligors. Each Obligor makes To induce the following representations Agent and warranties Lenders party hereto to enter into this Amendment, each of the Borrower, Holdings and Manufacturing hereby represent and warrant to the Manager all of which shall survive the execution, delivery, performance or termination of this AgreementAgent and each Lender that:
(a) Such Obligor is a limited liability company duly organizedeach of the Borrower, validly existing Holdings and in good standing under the laws of its jurisdiction of organization.
(b) Such Obligor’s execution and delivery of, performance under, and compliance with this Agreement, will not violate such Obligor’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in a breach of, any agreement or other instrument to which it is a party or by which it is bound, except where such violation, breach or default in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(c) Such Obligor Manufacturing has the full power and authority to own its Tenant Site Assetsexecute, deliver and perform this Amendment. Each of the Borrower, Holdings and Manufacturing has taken all necessary corporate or limited liability action to conduct its business as presently conducted by it and to enter into and consummate all transactions contemplated by this Agreement, has duly authorized authorize the execution, delivery and performance performance, as applicable, of this Agreement, and Amendment. This Amendment has been duly executed and delivered this Agreement.
(d) This Agreement, assuming the due authorization, execution and delivery by each on behalf of the other parties heretoBorrower, Holdings and Manufacturing. Upon its execution, this Amendment constitutes a validlegal, legal valid and binding obligation of such Obligoreach of the Borrower, Holdings and Manufacturing, enforceable against such Obligor each of the Borrower, Holdings and Manufacturing in accordance with the terms hereofits terms, subject to (i) applicable the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, winding up, moratorium and other laws similar Laws relating to or affecting the enforcement of creditors’ rights generally and general equitable principles (ii) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law.
Law) and an implied covenant of good faith and fair dealing. Holdings’ and each Obligor’s execution, delivery and performance of this Amendment does not (ex) Such Obligor is not in violation ofconflict with, and its execution and delivery of, performance under and compliance with this Agreement will not or constitute a violation or breach of, the terms of (a) any lawcontract, mortgage, lease, agreement, indenture, or instrument to which Holdings, such Obligor or any of its Restricted Subsidiaries is a party or which is binding upon it, (b) any Requirement of Law applicable to Holdings, such Obligor or any of its Restricted Subsidiaries or (c) any Charter Documents of Holdings, such Obligor or any of its Restricted Subsidiaries, in each case, in any respect that would reasonably be expected to have a Material Adverse Effect or (y) result in the imposition of any Lien (other than Liens created by the Security Documents) upon the property of Holdings, such Obligor or any of its Restricted Subsidiaries by reason of any of the foregoing;
(b) no Default or Event of Default has occurred and is continuing or would occur, in each case, after giving effect to this Amendment;
(c) no approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any order Governmental Authority or decree of any court other Person is necessary or arbiterrequired in connection with the execution, delivery or performance by, or any orderenforcement against, regulation or demand the Borrower of any federalthis Amendment, state or local governmental or regulatory authority, except such violation, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
other than (fi) No consent, approval, authorization or order of any state or federal court or governmental agency or body is required for the consummation by such Obligor of the transactions contemplated herein, except for those consents, approvals, authorizations or orders that previously have been obtained or thatmade and are in full force and effect and (ii) where failure to obtain, effect or make any such approval, consent, exemption, authorization, or other action, notice or filing would not reasonably be expected to have a Material Adverse Effect; and
(d) after giving effect to this Amendment, the representations and warranties of the Borrower and each of the other Obligors contained in the Credit Agreement and each other Loan Document are true and correct in all material respects (except to the extent such representation and warranty expressly relates to an earlier date, in which case such Obligor’s good faith representation or warranty shall have been true and reasonable judgment, is not reasonably likely to materially and adversely affect either the ability correct in all material respects as of such Obligor earlier date), except that any representations and warranties subject to perform its obligations under this Agreement “materiality”, “Material Adverse Effect” or similar materiality qualifiers shall be true and correct in all respects (except to the financial condition extent such representation and warranty expressly relates to an earlier date, in which case such representation and warranty shall have been true and correct in all respects as of such Obligorearlier date).
(g) No litigation is pending or, to the Obligor’s Knowledge, threatened against such Obligor that, if determined adversely to such Obligor, would prohibit such Obligor from entering into this Agreement or that, in such Obligor’s good faith and reasonable judgment, is reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
Appears in 1 contract
Representations and Warranties of the Obligors. Each Section 2.1. To induce the Noteholders to execute and deliver this Third Amendment, each Obligor makes the following representations hereby represents and warranties warrants to the Manager all of which shall survive the execution, delivery, performance or termination of this AgreementNoteholders that:
(a) Such Obligor it is a limited liability company duly organized, validly existing and and, where applicable, in good standing under the laws of its jurisdiction of organization.incorporation, and is duly qualified as a foreign corporation and, where applicable, is in good standing in each jurisdiction in which such qualification is required by law, other than those jurisdictions as to which the failure to be so qualified or in good standing would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(b) Such Obligor’s execution this Third Amendment has been duly authorized, executed and delivery of, performance under, and compliance with this Agreement, will not violate such Obligor’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in a breach of, any agreement or other instrument to which it is a party or by which it is bound, except where such violation, breach or default in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.delivered byi t;
(c) Such Obligor has the full power and authority to own its Tenant Site AssetsNote Agreement, to conduct its business as presently conducted by it and to enter into and consummate all transactions contemplated amended by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement.
(d) This Agreement, assuming the due authorization, execution and delivery by each of the other parties heretoThird Amendment, constitutes a validthe legal, legal valid and binding obligation obligation, contract and agreement of such Obligor, Obligor enforceable against such Obligor it in accordance with the terms hereofits terms, subject to except as enforcement may be limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium and or other similar laws affecting the enforcement of creditors’ rights generally and (ii) general principles of equity, equity (regardless of whether such enforcement enforceability is considered in a proceeding in equity or at law.);
(d) the execution, delivery and performance by such Obligor of this Third Amendment will not (i) contravene, result in any breach of, or constitute a default under, or result in the creation of any Lien in respect of any property of the Company, the Parent Guarantor or any Significant Subsidiary under, any indenture, mortgage, deed of trust, loan, purchase or credit agreement, lease, corporate charter, memorandum of association, articles of association, regulations or by-laws, shareholders agreement or any other agreement or instrument to which the Company, the Parent Guarantor or any Significant Subsidiary is bound or by which the Company, the Parent Guarantor or any Significant Subsidiary or any of their respective properties may be bound or affected, (ii) conflict with or result in a breach of any of the terms, conditions or provisions of any order, judgment, decree, or ruling of any court, arbitrator or Governmental Authority applicable to the Company, the Parent Guarantor or any Significant Subsidiary or (iii) violate any provision of any statute or other rule or regulation of any Governmental Authority applicable to the Company, the Parent Guarantor or any Significant Subsidiary;
(e) Such Obligor is not in violation no consent, approval or authorization of, and its execution and delivery ofor registration, performance under and compliance with this Agreement will not constitute a violation offiling or declaration with, any lawGovernmental Authority is required in connection with the execution, any order delivery or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, except such violation, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either performance by the ability of such Obligor to perform its obligations under this Agreement Company or the financial condition Parent Guarantor of such Obligor.this Third Amendment;
(f) No consent, approval, authorization or order of any state or federal court or governmental agency or body is required for the consummation by such Obligor as of the transactions contemplated hereindate hereof, except for those consentsboth before and after giving effect to this Third Amendment, approvals, authorizations no Default or orders that previously have been obtained or that, in such Obligor’s good faith Event of Default has occurred and reasonable judgment, is not reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.continuing; and
(g) No litigation is pending orno lender under any agreement or other evidence of Indebtedness of the Obligors, including but not limited to any Material Credit Facility, has received any collateral or consideration in connection with any amendments that are substantially similar to the Obligor’s Knowledgeamendments set forth in Section 1 of this Third Amendment in excess of the consideration paid to the Noteholders under Section 3.1(d) hereof, threatened against such Obligor that, if determined adversely except that the lenders under the Revolving Credit Agreement shall have received an amendment fee equal to such Obligor, would prohibit such Obligor from entering into this Agreement or that, in such Obligor’s good faith and reasonable judgment, is reasonably likely to materially and adversely affect either 0.05% (five basis points) of the ability commitment of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligoreach lender.
Appears in 1 contract
Samples: Note Purchase Agreement (Colliers International Group Inc.)
Representations and Warranties of the Obligors. Each Obligor makes To induce the following representations Agent and warranties the Lenders party hereto to enter into this Amendment, each of the Borrower, Holdings and the Guarantors hereby represents and warrants to the Manager all Agent and each Lender that as of which shall survive the execution, delivery, performance or termination of this AgreementThird Amendment Effective Date:
(a) Such Holdings and each Obligor is a limited liability company duly organized, validly existing and in good standing under the laws of its jurisdiction of organization.
(b) Such Obligor’s execution and delivery of, performance under, and compliance with party to this Agreement, will not violate such Obligor’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in a breach of, any agreement or other instrument to which it is a party or by which it is bound, except where such violation, breach or default in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(c) Such Obligor Amendment has the full power and authority to own execute, deliver and perform this Amendment. Holdings and each Obligor party to this Amendment has taken all necessary corporate, limited liability company or partnership, as applicable, action (including obtaining approval of its Tenant Site Assetsshareholders, if necessary) to conduct its business as presently conducted by it and to enter into and consummate all transactions contemplated by this Agreement, has duly authorized authorize the execution, delivery and performance of this Agreement, and Amendment. This Amendment has been duly executed and delivered this Agreement.
(d) This Agreementby Holdings and each Obligor party hereto and constitutes the legal, assuming the due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal valid and binding obligation obligations of Holdings and each such Obligor, enforceable against such Obligor it in accordance with the terms hereofits terms, subject to (i) applicable the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, winding up, moratorium and other laws similar Laws relating to or affecting the enforcement of creditors’ rights generally and general equitable principles (ii) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law.
Law) and an implied covenant of good faith and fair dealing. Holdings’ and each Obligor’s execution, delivery and performance of this Amendment does not (ei) Such Obligor is not in violation ofconflict with, and its execution and delivery of, performance under and compliance with this Agreement will not or constitute a violation or breach of, the terms of (A) any lawcontract, mortgage, lease, agreement, indenture, or instrument to which Holdings, such Obligor or any of its Restricted Subsidiaries is a party or which is binding upon it, (B) any Requirement of Law applicable to Holdings, such Obligor or any of its Restricted Subsidiaries or (C) any Charter Documents of Holdings, such Obligor or any of its Restricted Subsidiaries, in each case under clauses (A), (B) and (C), in any respect that would reasonably be expected to have a Material Adverse Effect or (ii) result in the imposition of any Lien (other than the Liens created by the Security Documents) upon the property of Holdings, such Obligor or any of its Restricted Subsidiaries by reason of any of the foregoing;
(b) no Default or Event of Default has occurred and is continuing or would occur, in each case, after giving effect to this Amendment and the Third Amendment to ABL Credit Agreement;
(c) no approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any order Governmental Authority or decree of any court other Person is necessary or arbiterrequired in connection with the execution, delivery or performance by, or enforcement against, Holdings or any orderof its Restricted Subsidiaries of this Amendment other than where failure to obtain, regulation effect or demand make any such approval, consent, exemption, authorization, or other action, notice or filing would not reasonably be expected to have a Material Adverse Effect; and
(d) after giving effect to this Amendment and the Third Amendment to ABL Credit Agreement, the representations and warranties of the Borrower and each of the other Obligors contained in the Credit Agreement and each other Loan Document are true and correct in all material respects (and any federalrepresentation and warranty that is qualified as to materiality or Material Adverse Effect is true and correct in all respects) on and as of the Third Amendment Effective Date as though made on and as of such date, state other than any such representation or local governmental or regulatory authority, except such violationwarranty which relates to a specified prior date, in which case such Obligor’s good faith representations and reasonable judgment, is not reasonably likely to affect materially warranties were true and adversely either the ability correct in all material respects as of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligorprior date.
(f) No consent, approval, authorization or order of any state or federal court or governmental agency or body is required for the consummation by such Obligor of the transactions contemplated herein, except for those consents, approvals, authorizations or orders that previously have been obtained or that, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(g) No litigation is pending or, to the Obligor’s Knowledge, threatened against such Obligor that, if determined adversely to such Obligor, would prohibit such Obligor from entering into this Agreement or that, in such Obligor’s good faith and reasonable judgment, is reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
Appears in 1 contract
Representations and Warranties of the Obligors. Each Obligor makes 2.1 To induce the following Noteholders to execute and deliver this Second Amendment (which representations and warranties to the Manager all of which shall survive the execution, delivery, performance or termination execution and delivery of this AgreementSecond Amendment), the Obligors represent and warrant to the Noteholders that with respect to each Obligor:
(a) Such this Second Amendment has been duly authorized, executed and delivered by such Obligor is a limited liability company duly organizedand this Second Amendment constitutes the legal, validly existing valid and in good standing under the laws of its jurisdiction of organization.
(b) Such Obligor’s execution binding obligation, contract and delivery of, performance under, and compliance with this Agreement, will not violate such Obligor’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in a breach of, any agreement or other instrument to which it is a party or by which it is bound, except where such violation, breach or default in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(c) Such Obligor has the full power and authority to own its Tenant Site Assets, to conduct its business as presently conducted by it and to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement.
(d) This Agreement, assuming the due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal and binding obligation of such Obligor, enforceable against such Obligor it in accordance with the terms hereofits terms, subject to (i) applicable except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium and other or similar laws affecting the enforcement of or equitable principles relating to or limiting creditors’ rights generally generally;
(b) the Note Agreement, as amended by this Second Amendment, constitutes the legal, valid and binding obligation, contract and agreement of such Obligor enforceable against it in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or limiting creditors’ rights generally;
(c) the execution, delivery and performance by such Obligor of this Second Amendment (i) has been duly authorized by all requisite corporate action or partnership action, as applicable, (ii) general principles does not require the consent or approval of equity, regardless of whether such enforcement is considered in a proceeding in equity any governmental or at law.
(e) Such Obligor is not in violation ofregulatory body or agency, and its execution and delivery of, performance under and compliance with this Agreement (iii) will not constitute a violation of, (A) violate (1) any provision of law, statute, rule or regulation or such Obligor’s articles (or certificate) of incorporation or bylaws or partnership agreement, as applicable, (2) any order or decree of any court or arbiter, or any orderrule, regulation or demand of any federal, state or local governmental or regulatory authority, except such violation, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(f) No consent, approval, authorization or order of any state or federal court or governmental other agency or body is required for the consummation by such Obligor of the transactions contemplated herein, except for those consents, approvals, authorizations or orders that previously have been obtained or that, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(g) No litigation is pending or, to the Obligor’s Knowledge, threatened against such Obligor that, if determined adversely to government binding upon such Obligor, would prohibit or (3) any provision of any material indenture, agreement or other instrument to which such Obligor from entering into is a party or by which its properties or assets are or may be bound, or (B) result in a breach or constitute (alone or with due notice or lapse of time or both) a default under any indenture, agreement or other instrument referred to in clause (iii) (A)(3) of this Agreement §2.1(c) and
(d) as of the date hereof and after giving effect to this Second Amendment, no Default or that, in such Obligor’s good faith and reasonable judgment, Event of Default has occurred which is reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligorcontinuing.
Appears in 1 contract
Samples: Note Agreement (Quad/Graphics, Inc.)
Representations and Warranties of the Obligors. Each Section 2.1. To induce the Noteholders to execute and deliver this Amendment, each Obligor makes the following representations jointly and warranties severally hereby represents and warrants to the Manager all of which shall survive the execution, delivery, performance or termination of this AgreementNoteholders that:
(a) Such Obligor Each Group Member (i) is a limited liability company duly organized, incorporated, validly existing and in good standing (to the extent such concept is applicable in the relevant jurisdiction) under the laws of its the jurisdiction of its organization, (ii) has the corporate, limited liability or limited partnership, as applicable, power and authority, and the legal right, to own and operate its property, to lease the property it operates as lessee and to conduct the business in which it is currently engaged, (iii) is duly qualified to do business in, and in good standing (to the extent such concept is applicable in the relevant jurisdiction) under the laws of, each jurisdiction where its ownership, lease or operation of property or the conduct of its business requires such qualification except for where failure to do so could not reasonably be expected to have a Material Adverse Effect and (iv) is in compliance with all Requirements of Law except to the extent that the failure to comply therewith could not, in the aggregate, reasonably be expected to have a Material Adverse Effect.
(b) Such Obligor’s execution and delivery of, performance under, and compliance with this Agreement, will not violate such Obligor’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in a breach of, any agreement or other instrument to which it is a party or by which it is bound, except where such violation, breach or default in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(c) Such Each Obligor has the full corporate, limited liability or limited partnership, as applicable, power and authority to own its Tenant Site Assetsauthority, to conduct its business as presently conducted by it and the legal right, to enter into and consummate perform this Amendment. Each Obligor has taken all transactions contemplated by this Agreement, has duly authorized necessary organizational action to authorize the execution, delivery and performance of this AgreementAmendment. No consent or authorization of, filing with, notice to or other act by or in respect of, any Governmental Authority or any other Person is required in connection with the execution, delivery, performance, validity or enforceability of this Amendment, except consents, authorizations, filings, notices and other acts that have been obtained or made and are in full force and effect. This Amendment has been duly executed and delivered this Agreement.
(d) on behalf of each Obligor party thereto. This Agreement, assuming the due authorization, execution and delivery by each of the other parties hereto, Amendment constitutes a validlegal, legal valid and binding obligation of such Obligoreach Obligor party thereto, enforceable against each such Obligor in accordance with the terms hereofits terms, subject to (i) except as enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other or similar laws relating to or affecting the enforcement of creditors’ rights generally and by general equitable principles (ii) general principles of equity, regardless of whether such enforcement is considered in a proceeding sought by proceedings in equity or at law).
(c) The execution, delivery and performance by the applicable Obligor of this Amendment will not (i) violate any Requirement of Law, any indenture, agreement or other instrument binding on an Obligor or its assets, or any Governing Document of any Obligor, except where such violation could not reasonably be expected to have a Material Adverse Effect, and (ii) will not result in, or require, the creation or imposition of any Lien on any of their respective properties or revenues pursuant to any such indenture, agreement or other instrument.
(d) No consent, approval or authorization of, or registration, filing or declaration with, any Governmental Authority is required in connection with the execution, delivery or performance by the Obligors of this Amendment. It is not necessary to ensure the legality, validity, enforceability or admissibility into evidence in the United States or the Netherlands, as applicable, of this Amendment that this Amendment or any other document be filed, recorded or enrolled with any Governmental Authority, or that any such agreement or document be stamped with any stamp, registration or similar transaction tax that may be required in connection with admissibility into evidence.
(e) Such Obligor As of the date hereof, both before and after giving effect to this Amendment, no Default or Event of Default has occurred and is not in violation of, and its execution and delivery of, performance under and compliance with this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, except such violation, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligorcontinuing.
(f) No consentOther than the consideration given by Parent Company or its affiliate to (i) the lenders in connection with amending and restating the Principal Credit Facility on February 15, approval2024 and (ii) the noteholders in connection with the Second Amendment to the 2021 NPA on or about the date of this Amendment, authorization no lender under any agreement or order other evidence of any state or federal court or governmental agency or body is required for the consummation by such Obligor Indebtedness of the transactions contemplated hereinObligors, except for those consentsincluding but not limited to any Material Debt Facility, approvals, authorizations has received any collateral or orders consideration in connection with any amendments that previously have been obtained or that, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(g) No litigation is pending or, are substantially similar to the Obligor’s Knowledge, threatened against such Obligor that, if determined adversely to such Obligor, would prohibit such Obligor from entering into amendments set forth in Section 1 of this Agreement or that, in such Obligor’s good faith and reasonable judgment, is reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such ObligorAmendment.
Appears in 1 contract
Representations and Warranties of the Obligors. Each Obligor makes To induce the following representations Lender to enter into this Agreement, each Obligor, jointly and warranties severally, represents and warrants to the Manager all Lender that, on and as of which shall survive the execution, delivery, performance or termination Effective Date and as of this Agreement:
each date as required by Section 3.02(c)(i): (a) Such each Obligor is a limited liability company duly organized, validly organized and existing and in good standing under the laws of its jurisdiction of organization.
(b) Such Obligor’s execution and delivery of, performance undercorporation, and compliance with this Agreementthe Borrower is duly authorized to borrow hereunder, will not violate such Obligor’s organizational documents or constitute a default (or an event whichand each Obligor is duly authorized to enter into, with notice or lapse of time, or both, would constitute a default) under, or result in a breach of, any agreement or other instrument deliver and perform the Loan Documents to which it is a party or by which it is boundparty, except where such violation, breach or default in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(c) Such Obligor has the full power and authority to own its Tenant Site Assets, to conduct its business as presently conducted by it and to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement.
(d) This Agreement, assuming the due authorization, execution and delivery by each of the other parties hereto, which constitutes a valid, legal valid and binding obligation of such Obligor, enforceable against such Obligor in accordance with its terms, except as such enforcement may be limited by the terms hereof, subject to (i) effect of any applicable bankruptcy, insolvency, reorganization, moratorium and other laws or similar law affecting the enforcement of creditors’ ' rights generally and (ii) general principles of equity, regardless (b) none of whether the execution and delivery of the Loan Documents, any borrowing by the Borrower hereunder, or the performance by any Obligor of its obligations under the Loan Documents to which it is a party will violate any Requirement of Law or any agreement, indenture, note or other instrument binding upon such enforcement Obligor or any of its subsidiaries, or its certificate of incorporation or by-laws or other constitutional documents or give cause for acceleration of any indebtedness of such Obligor or any of its subsidiaries, (c) no authority from or approval by any Governmental Authority is considered required in connection with the validity of and the execution, delivery and performance of the Loan Documents or any borrowing hereunder, (d) the consolidated balance sheet of Sonus Corp. as of January 31, 2001 and the related consolidated statements of income and cash flows for the period then ended, all of which has been heretofore furnished to the Lender, are complete and correct and fairly present the financial condition and results of operations of Sonus Corp. and its consolidated subsidiaries as at such date and since such date there has been no material adverse change in the condition (financial or otherwise), business, results of operations or prospects of Sonus Corp. and its subsidiaries, taken as a proceeding whole, from that reflected in equity or at law.
said financial statements, (e) Such since January 31, 2001, there has been no change or development which could be reasonably expected to have a material adverse effect on the condition (financial or otherwise), business, results of operations or prospects of Sonus Corp. and its subsidiaries taken as a whole, or the ability of the Obligors to perform their obligations under the Loan Documents, (f) there are no actions, suits or proceedings pending against or, to the knowledge of any Obligor, threatened against or affecting, any Obligor or any of their subsidiaries, in any court or before or by any Governmental Authority, agency or instrumentality, an adverse decision in which could materially and adversely affect the condition (financial or otherwise), business, results of operations or prospects of the Obligors or the ability of the Obligors to perform their obligations under the Loan Documents, (g) the Obligors and each of their subsidiaries are in compliance in all material respects with all Requirements of Law (including, without limitation, Environmental Laws and the Employee Retirement Income Security Act of 1974, as amended, or any successor statute), (h) all information heretofore furnished by any Obligor or its Affiliates to the Lender for purposes of or in connection with the Loan Documents and any transaction contemplated thereby is, and all information hereafter furnished by any Obligor or its Affiliates to the Lender will be, true and accurate in all material respects on the date as of which such information is stated or certified, (i) all material Federal, state and local tax returns, reports and statements required to be filed by or on behalf of Sonus Corp. and its subsidiaries have been filed with the appropriate governmental agencies in all jurisdictions in which such returns, reports and statements are required to be filed, except where the failure to so file could not reasonably be expected to have a material adverse effect on the condition (financial or otherwise), business, results of operations or prospects of Sonus Corp. and its subsidiaries, taken as a whole, and all taxes (including real property taxes) and other charges shown to be due and payable have been timely paid prior to the date on which any fine, penalty, interest, late charge or loss may be added thereto for nonpayment thereof, except in violation cases where (i) the applicable Obligor or subsidiary is contesting in good faith such assessment or (ii) the failure to pay such assessment could not reasonably be expected to have a material adverse effect on the condition (financial or otherwise), business, results of operations or prospects of Sonus Corp. and its subsidiaries, taken as a whole, (j) none of the Obligors or any of their subsidiaries holds any capital stock, evidence of indebtedness or other securities (including any warrant or option or other right to acquire any of the foregoing) of, and its execution and delivery or has made any loans or advances to, guaranteed any obligations of, performance or made any investment or any other interest in, any other Person, or has purchased or otherwise acquired (in one transaction or a series of transactions) any assets of any other Person constituting a business unit, except for the investments set forth on Schedule 4.01(j), (k) none of the Obligors or any of their subsidiaries has any Debt or contingent obligations except for those set forth on Schedule 4.01(k), (l) the obligations of the Obligors under and compliance with this Agreement will the Loan Documents are not subject to any defense, set-off or counterclaim by the Borrower or any other Obligor or any circumstance whatsoever which might constitute a violation oflegal or equitable discharge from its obligations thereunder, (m) no Obligor or any law, of its property has any order or decree immunity from the jurisdiction of any court or arbiterfrom any legal process (whether through service or notice, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, except such violation, in such Obligor’s good faith and reasonable attachment prior to judgment, is not reasonably likely to affect materially and adversely either attachment in aid of execution, execution or otherwise) under the ability laws of such Obligor to perform Canada or other relevant jurisdiction in respect of its obligations under this Agreement or the financial condition Loan Documents to which it is a party, (n) the Loan Documents are in proper legal form under the laws of such Obligor.
(f) No consent, approval, authorization or order of any state or federal court or governmental agency or body is required Canada for the consummation enforcement thereof in accordance with their respective terms against the Obligors under such laws, (o) to ensure the legality, validity, enforceability or admissibility into evidence in Canada of the Loan Documents, it is not necessary that the Loan Documents or any other document be filed or recorded with any Governmental Authority in Canada, and (p) it is not necessary in order for the Lender to enforce any rights or remedies under the Loan Documents or solely by such reason of the execution, delivery and performance by any Obligor of the transactions contemplated hereinLoan Documents that the Lender be licensed or qualified with any Governmental Authority in Canada, except for those consents, approvals, authorizations or orders that previously have been obtained or that, be entitled to carry on business in such Obligor’s good faith and reasonable judgment, is not reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such ObligorCanada.
(g) No litigation is pending or, to the Obligor’s Knowledge, threatened against such Obligor that, if determined adversely to such Obligor, would prohibit such Obligor from entering into this Agreement or that, in such Obligor’s good faith and reasonable judgment, is reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
Appears in 1 contract
Representations and Warranties of the Obligors. Each Obligor makes Section 2.1. To induce the following Noteholders to execute and deliver this First Amendment (which representations and warranties to the Manager all of which shall survive the execution, delivery, performance or termination execution and delivery of this AgreementFirst Amendment), each Obligor represents and warrants to the Noteholders that:
(a) Such Obligor is a limited liability company this First Amendment has been duly organizedauthorized, validly existing and in good standing under the laws of its jurisdiction of organization.
(b) Such Obligor’s execution and delivery of, performance under, and compliance with this Agreement, will not violate such Obligor’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in a breach of, any agreement or other instrument to which it is a party or by which it is bound, except where such violation, breach or default in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(c) Such Obligor has the full power and authority to own its Tenant Site Assets, to conduct its business as presently conducted by it and to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered by the Obligors and this Agreement.
(d) This AgreementFirst Amendment constitutes the legal, assuming the due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal valid and binding obligation of such Obligor, the Obligors enforceable against such Obligor the Obligors in accordance with the terms hereofits terms, subject to except as such enforceability may be limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium and or other similar laws affecting the enforcement of creditors’ rights generally and (ii) general principles of equity, equity (regardless of whether such enforcement enforceability is considered in a proceeding in equity or at law.);
(b) the Note Purchase Agreement, as amended by this First Amendment, constitutes the legal, valid and binding obligation of the Obligors enforceable against the Obligors in accordance with its terms, except as such enforceability may be limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law);
(c) the execution, delivery and performance by the Obligors of this First Amendment (i) has been duly authorized by all requisite corporate action and, if required, shareholder action, (ii) does not require the consent or approval of any governmental or regulatory body or agency and (iii) will not (A) violate (1) any provision of law, statute, rule or regulation or either Obligor’s certificate of incorporation or bylaws, (2) any order of any court or any rule, regulation or order of any other agency or government binding upon either Obligor, or (3) any provision of any indenture, mortgage, deed of trust, loan, purchase or credit agreement, lease, shareholders agreement or any other agreement or instrument to which either Obligor or any Subsidiary is bound or by which either Obligor or any Subsidiary or any of their respective properties may be bound or affected, except as would not be Material, or (B) result in a breach or constitute (alone or with due notice or lapse of time or both) a default under any indenture, agreement or other instrument referred to in clause (iii)(A)(3) of this Section 2.1(c);
(d) as of the date hereof and after giving effect to this First Amendment, no Default or Event of Default has occurred which is continuing;
(e) Such Obligor is not neither the Obligors nor any of their Affiliates has paid or agreed to pay any fees or other consideration, or given any additional security or collateral, or shortened the maturity or average life of any Indebtedness or permanently reduced any borrowing capacity, in violation ofeach case, and its execution and delivery of, performance under and compliance with this Agreement will not constitute a violation ofin favor of or for the benefit of any creditor of either Obligor, any law, any order or decree of any court or arbiter, Subsidiary or any order, regulation or demand of any federal, state or local governmental or regulatory authority, except such violationAffiliate, in such Obligor’s good faith and reasonable judgment, is not reasonably likely connection with the changes contemplated by or similar in nature to affect materially and adversely either the ability of such Obligor to perform its obligations under changes in this Agreement or the financial condition of such Obligor.First Amendment;
(f) No consent, approval, authorization or order of any state or federal court or governmental agency or body the Subsidiary Guaranty is required for hereby ratified and confirmed by the consummation by such Obligor of the transactions contemplated herein, except for those consents, approvals, authorizations or orders that previously have been obtained or that, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.Subsidiary Guarantors; and
(g) No litigation the Parent Guaranty is pending or, to hereby ratified and confirmed by the Obligor’s Knowledge, threatened against such Obligor that, if determined adversely to such Obligor, would prohibit such Obligor from entering into this Agreement or that, in such Obligor’s good faith and reasonable judgment, is reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such ObligorParent Guarantor.
Appears in 1 contract
Representations and Warranties of the Obligors. Each Obligor makes To induce the following representations ABL Collateral Agent, the ABL Claimholders party hereto, the Agent, the Letter of Credit Issuer, the Swingline Lender and warranties the Lenders party hereto to enter into this Agreement, each of the Borrower, Holdings and Manufacturing hereby represent and warrant to the Manager all ABL Collateral Agent, the ABL Claimholders, the Agent, the Letter of which shall survive Credit Issuer, the execution, delivery, performance or termination of this AgreementSwingline Lender and the Lenders that:
(a) Such Obligor is a limited liability company duly organizedeach of the Borrower, validly existing Holdings and in good standing under the laws of its jurisdiction of organization.
(b) Such Obligor’s execution and delivery of, performance under, and compliance with this Agreement, will not violate such Obligor’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in a breach of, any agreement or other instrument to which it is a party or by which it is bound, except where such violation, breach or default in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(c) Such Obligor Manufacturing has the full power and authority to own its Tenant Site Assetsexecute, to conduct its business as presently conducted by it deliver and to enter into and consummate all transactions contemplated by perform this Agreement. Each of the Borrower, Holdings and Manufacturing has duly authorized taken all necessary corporate or limited liability action to authorize the execution, delivery and performance performance, as applicable, of this Agreement, and . This Agreement has been duly executed and delivered this Agreement.
(d) This Agreement, assuming the due authorization, execution and delivery by each on behalf of the other parties heretoBorrower, Holdings and Manufacturing. Upon its execution, this Agreement constitutes a validlegal, legal valid and binding obligation of such Obligoreach of the Borrower, Holdings and Manufacturing, enforceable against such Obligor each of the Borrower, Holdings and Manufacturing in accordance with the terms hereofits terms, subject to (i) applicable the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, winding up, moratorium and other laws similar Laws relating to or affecting the enforcement of creditors’ rights generally and general equitable principles (ii) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law.
(eLaw) Such Obligor is not in violation ofand an implied covenant of good faith and fair dealing. Holdings’ and each Obligor’s execution, delivery and its execution and delivery of, performance under and compliance with of this Agreement will does not (x) conflict with, or constitute a violation or breach of, the terms of (a) any lawcontract, mortgage, lease, agreement, indenture, or instrument to which Holdings, such Obligor or any of its Restricted Subsidiaries is a party or which is binding upon it, (b) any Requirement of Law applicable to Holdings, such Obligor or any of its Restricted Subsidiaries or (c) any Charter Documents of Holdings, such Obligor or any of its Restricted Subsidiaries, in each case, in any respect that would reasonably be expected to have a Material Adverse Effect or (y) result in the imposition of any Lien (other than Liens created by the Security Documents) upon the property of Holdings, such Obligor or any of its Restricted Subsidiaries by reason of any of the foregoing;
(b) no Default or Event of Default has occurred and is continuing or would occur, in each case, after giving effect to this Agreement;
(c) no approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any order Governmental Authority or decree of any court other Person is necessary or arbiterrequired in connection with the execution, delivery or performance by, or any orderenforcement against, regulation or demand the Borrower of any federalthis Agreement, state or local governmental or regulatory authority, except such violation, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
other than (fi) No consent, approval, authorization or order of any state or federal court or governmental agency or body is required for the consummation by such Obligor of the transactions contemplated herein, except for those consents, approvals, authorizations or orders that previously have been obtained or thatmade and are in full force and effect and (ii) where failure to obtain, effect or make any such approval, consent, exemption, authorization, or other action, notice or filing would not reasonably be expected to have a Material Adverse Effect; and
(d) after giving effect to this Agreement, the representations and warranties of the Borrower and each of the other Obligors contained in the Credit Agreement and each other Loan Document are true and correct in all material respects (except to the extent such representation and warranty expressly relates to an earlier date, in which case such Obligor’s good faith representation or warranty shall have been true and reasonable judgment, is not reasonably likely to materially and adversely affect either the ability correct in all material respects as of such Obligor earlier date), except that any representations and warranties subject to perform its obligations under “materiality”, “Material Adverse Effect” or similar materiality qualifiers shall be true and correct in all respects (except to the extent such representation and warranty expressly relates to an earlier date, in which case such representation and warranty shall have been true and correct in all respects as of such earlier date). By executing this Agreement or and making the financial condition representations and warranties set forth herein, each of such Obligor.
the Borrower, Holdings and Manufacturing is certifying that the conditions set forth in clauses (gc) No litigation is pending or, to the Obligor’s Knowledge, threatened against such Obligor that, if determined adversely to such Obligor, would prohibit such Obligor from entering into and (d) of Section 2 of this Agreement or that, in such Obligor’s good faith and reasonable judgment, is reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligorhave been satisfied.
Appears in 1 contract
Samples: Fourth Amendment to Credit Agreement (ProFrac Holding Corp.)
Representations and Warranties of the Obligors. Each Obligor makes To induce the following representations Agent and warranties the Lenders party hereto to enter into this Amendment, each of the Borrower, Holdings and Manufacturing hereby represents and warrants to the Manager all of which shall survive the execution, delivery, performance or termination of this AgreementAgent and each Lender that:
(a) Such Holdings and each Obligor is a limited liability company duly organized, validly existing and in good standing under the laws of its jurisdiction of organization.
(b) Such Obligor’s execution and delivery of, performance under, and compliance with party to this Agreement, will not violate such Obligor’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in a breach of, any agreement or other instrument to which it is a party or by which it is bound, except where such violation, breach or default in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(c) Such Obligor Amendment has the full power and authority to own execute, deliver and perform this Amendment. Holdings and each Obligor party to this Amendment has taken all necessary corporate, limited liability company or partnership, as applicable, action (including obtaining approval of its Tenant Site Assetsshareholders, if necessary) to conduct its business as presently conducted by it and to enter into and consummate all transactions contemplated by this Agreement, has duly authorized authorize the execution, delivery and performance of this Agreement, and Amendment. This Amendment has been duly executed and delivered this Agreement.
(d) This Agreementby Holdings and each Obligor party hereto and constitute the legal, assuming the due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal valid and binding obligation obligations of Holdings and each such Obligor, enforceable against such Obligor it in accordance with the terms hereofits terms, subject to (i) applicable the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, winding up, moratorium and other laws similar Laws relating to or affecting the enforcement of creditors’ rights generally and general equitable principles (ii) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law.Law) and an implied covenant of good faith and fair dealing. Holdings’ and each Obligor’s execution, delivery and performance of this Amendment does not (i) conflict with, or constitute a violation or breach of, the terms of (A) any contract, mortgage, lease, agreement, indenture, or instrument to which Holdings, such Obligor or any of its Restricted Subsidiaries is a party or which is binding upon it, (B) any Requirement of Law applicable to Holdings, such Obligor or any of its Restricted Subsidiaries or (C) any Charter Documents of Holdings, such Obligor or any of its Restricted Subsidiaries, in each case, in any respect that would reasonably be expected to have a Material Adverse Effect or (ii) result in the imposition of any Lien (other than the Liens created by the Security Documents) upon the property of Holdings, such Obligor or any of its Restricted Subsidiaries by reason of any of the foregoing;
(b) The execution, delivery and performance of this Amendment does not violate any Organization Document of any Obligor;
(c) no Default or Event of Default has occurred and is continuing or would occur, in each case, after giving effect to this Amendment;
(d) no approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, Holdings or any of its Restricted Subsidiaries of this Amendment other than where failure to obtain, effect or make any such approval, consent, exemption, authorization, or other action, notice or filing would not reasonably be expected to have a Material Adverse Effect; and
(e) Such Obligor after giving effect to this Amendment, the representations and warranties of the Borrower and each of the other Obligors contained in the Credit Agreement and each other Loan Document are true and correct in all material respects (and any representation and warranty that is not qualified as to materiality or Material Adverse Effect is true and correct in violation ofall respects) on and as of the Fourth Amendment Effective Date as though made on and as of such date, and its execution and delivery of, performance under and compliance with this Agreement will not constitute other than any such representation or warranty which relates to a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, except such violationspecified prior date, in which case such Obligor’s good faith representations and reasonable judgment, is not reasonably likely to affect materially warranties were true and adversely either the ability correct in all material respects as of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligorprior date.
(f) No consent, approval, authorization or order of any state or federal court or governmental agency or body is required for the consummation by such Obligor of the transactions contemplated herein, except for those consents, approvals, authorizations or orders that previously have been obtained or that, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(g) No litigation is pending or, to the Obligor’s Knowledge, threatened against such Obligor that, if determined adversely to such Obligor, would prohibit such Obligor from entering into this Agreement or that, in such Obligor’s good faith and reasonable judgment, is reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
Appears in 1 contract
Representations and Warranties of the Obligors. Each To induce the Noteholders to execute and deliver this Amendment, each Obligor makes the following representations represents and warranties warrants to the Manager all of which shall survive the execution, delivery, performance or termination of this AgreementNoteholders that:
(a) Such this Amendment has been duly authorized, executed and delivered by it and this Amendment constitutes the legal, valid and binding obligation, contract and agreement of such Obligor is a enforceable against it in accordance with its terms, except as enforcement may be limited liability company duly organizedby bankruptcy, validly existing and in good standing under the insolvency, reorganization, moratorium or similar laws of its jurisdiction of organization.or equitable principles relating to or limiting creditors’ rights generally;
(b) Such Obligor’s the Note Purchase Agreement constitutes the legal, valid and binding obligation, contract and agreement of such Obligor enforceable against it in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or limiting creditors’ rights generally;
(c) the execution and delivery ofof this Amendment and the performance by such Obligor of this Amendment and the Note Purchase Agreement (i) have been duly authorized by all requisite corporate action and, performance underif required, shareholder action, (ii) do not require the consent or approval of any governmental or regulatory body or agency, and compliance with this Agreement, (iii) will not (A) violate such Obligor’s organizational documents (1) any provision of law, statute, rule or constitute a default regulation or its certificate of incorporation, bylaws or other constitutive document, (2) any order of any court or an event whichany rule, with notice regulation or lapse order of timeany other agency or government binding upon it, or both(3) any provision of any indenture, would constitute a default) under, or result in a breach of, any agreement or other instrument to which it is a party or by which it is its properties or assets are or may be bound, except where such violationincluding, without limitation, any Credit Agreement, or (B) result in a breach or constitute (alone or with due notice or lapse of time or both) a default under any indenture, agreement or other instrument referred to in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
clause (ciii)(A)(3) Such Obligor has the full power and authority to own its Tenant Site Assets, to conduct its business as presently conducted by it and to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement.Section 3(c);
(d) This Agreement, assuming the due authorization, execution and delivery by each as of the other parties heretodate hereof after giving effect to this Amendment and the amendments to the Transaction Facilities referred to in Section 4(b), constitutes a validno Default or Event of Default has occurred which is continuing;
(e) all of the representations and warranties contained in Section 5 of the Note Purchase Agreement are true and correct in all material respects (in all respects in the case of representations and warranties qualified by materiality, legal Material Adverse Effect or similar language in the text thereof) with the same force and binding obligation of such Obligor, enforceable against effect as if made by such Obligor on and as of the date hereof, except to the extent that such representations and warranties expressly relate solely to an earlier date or due solely as a result of actions taken by the Obligors in accordance with the terms hereof, subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting covenants set forth in the enforcement of creditors’ rights generally and (ii) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law.
(e) Such Obligor is not in violation of, and its execution and delivery of, performance under and compliance with this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, except such violation, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.Note Purchase Agreement; and
(f) No consent, approval, authorization no fee or order other consideration has been or will be paid to any party to any of any state the amendments referred to in Section 4(a) or federal court or governmental agency or body is required Section 4(b) hereof as consideration for the consummation by such Obligor execution thereof, except (i) for the fees identified in Section 4(e), the fee payable to the holders of the transactions contemplated hereinSeries A Notes under (and as defined in) the 2012 NPA under Section 4(f) of the tenth amendment thereto being executed on the date hereof, except for those consents, approvals, authorizations or orders that previously have been obtained or that(ii) a fee equivalent to the fee identified in Section 4(e) payable to the holders of the 2012 Notes and (iii) a fee of .20% (20 basis points) of (A) the aggregate commitments under the 2013 Revolving Credit Agreement and the 2015 Revolving Credit Agreement and (B) the aggregate principal amount outstanding under the 2015 Term Loan Agreement, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(g) No litigation is pending or, each case payable to the Obligor’s Knowledgelenders under the 2013 Revolving Credit Agreement, threatened against such Obligor thatthe 2015 Revolving Credit Agreement and the 2015 Term Loan Agreement, if determined adversely to such Obligor, would prohibit such Obligor from entering into as applicable. The representations and warranties set forth in this Agreement or that, in such Obligor’s good faith Section 3 shall survive the execution and reasonable judgment, is reasonably likely to materially and adversely affect either the ability delivery of such Obligor to perform its obligations under this Agreement or the financial condition of such ObligorAmendment.
Appears in 1 contract
Samples: Note Purchase and Guarantee Agreement (Chicago Bridge & Iron Co N V)
Representations and Warranties of the Obligors. Each Obligor makes A. In order to induce the Original Lender, the Original Collateral Agent, the New Lender and the New Collateral Agent to enter into this Agreement, the Obligors represent and warrant, jointly and severally, to the Original Lender, the Original Collateral Agent, the New Lender and the New Collateral Agent that the following representations statements are true and warranties to the Manager all of which shall survive the execution, delivery, performance or termination of this Agreementcorrect:
(ai) Such Each Obligor is a limited liability company duly organizedhas full power, validly existing authority and in good standing under the laws of its jurisdiction of organization.
(b) Such Obligor’s execution legal right to enter into this Agreement and delivery of, performance under, and compliance with this Agreement, will not violate such Obligor’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in a breach of, any agreement or other instrument to which it is a party or by which it is bound, except where such violation, breach or default in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement.
(ii) The transactions contemplated by this Agreement are within each Obligor’s corporate powers and have been duly authorized by all necessary corporate or other organizational action and, if required, by all necessary holders of the financial condition Equity Interests of such Obligor.
(ciii) Such Obligor This Agreement has the full power and authority to own its Tenant Site Assets, to conduct its business as presently conducted by it and to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has been duly executed and delivered this Agreement.
(d) This Agreement, assuming the due authorization, execution and delivery by each of Obligor and constitutes the other parties heretolegal, constitutes a valid, legal valid and binding obligation of such Obligor, enforceable against such Obligor in accordance with the terms hereofits terms, subject to except as such enforceability may be limited by (ix) applicable bankruptcy, insolvency, reorganization, moratorium and other or similar laws of general applicability affecting the enforcement of creditors’ rights generally and (iiy) the application of general principles of equity, equity (regardless of whether such enforcement enforceability is considered in a proceeding in equity or at law).
(eiv) Such Obligor is The transactions contemplated by this Agreement (1) do not in violation require any Governmental Approval of, and its execution and delivery of, performance under and compliance with this Agreement will not constitute a violation of, any law, any order registration or decree of any court or arbiterfiling with, or any orderother action by, regulation any Governmental Authority or demand of any federal, state or local governmental or regulatory authority, except such violation, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(f) No consent, approval, authorization or order of any state or federal court or governmental agency or body is required for the consummation by such Obligor of the transactions contemplated hereinPerson, except for those consents, approvals, authorizations or orders that previously such as have been obtained or made and are in full force and effect, (2) will not violate (x) any Law or any order of any Governmental Authority, other than any such violations that, individually or in such Obligor’s good faith and reasonable judgmentthe aggregate, is could not reasonably likely be expected to materially have a Material Adverse Effect, or (y) the Organic Documents of any Obligor or its Subsidiaries, (3) will not violate or result in a default under any indenture, agreement or other instrument binding upon any Obligor or its Subsidiaries or assets in any material respect, or give rise to a right thereunder to require any payment to be made by any such Person, and adversely affect either (4) will not result in the ability creation or imposition of such any Lien (other than Permitted Liens) on any asset of any Obligor to perform or its obligations under this Agreement or the financial condition of such ObligorSubsidiaries.
(g) No litigation is pending or, to the Obligor’s Knowledge, threatened against such Obligor that, if determined adversely to such Obligor, would prohibit such Obligor from entering into this Agreement or that, in such Obligor’s good faith and reasonable judgment, is reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
Appears in 1 contract
Representations and Warranties of the Obligors. Each Obligor In order to induce the Indenture Trustee and the Noteholders to enter into this Agreement, each of the Obligors makes the following representations and warranties to the Manager warranties, all of which shall survive the execution, delivery, performance or termination execution and delivery of this Agreement:
: (ai) Such Obligor is a limited liability company The Obligors have all requisite corporate, partnership or other power and authority to execute, deliver and perform their obligations under this Agreement. This Agreement has been duly organizedauthorized, validly existing executed and in good standing under the laws of its jurisdiction of organization.
(b) Such delivered by each Obligor’s execution and delivery of, performance under, and compliance with this Agreementdoes not conflict with, will not violate such Obligor’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in a breach ofof or require any consent under (i) any applicable law or regulation or any of the terms of the charter or by-laws (or equivalent constitutional documents) of the Obligors, or (ii) any agreement or other instrument to which it any Obligor is a party or by to which it or any of its assets is boundbound or subject; and (ii) This Agreement constitutes the legal, except where such violationvalid and binding obligation of the Obligors, breach enforceable against them in accordance with its terms. (b) Representations and Warranties of the Noteholders and Indenture Trustee. In order to induce the Obligors to enter into this Agreement, each of the Indenture Trustee and Noteholders makes the following representations and warranties, all of which shall survive the execution and delivery of this Agreement: (i) The Noteholders and Indenture Trustee each have all requisite corporate, partnership or default in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(c) Such Obligor has the full other power and authority to own its Tenant Site Assetsexecute, to conduct its business as presently conducted by it deliver and to enter into and consummate all transactions contemplated by perform their obligations under this Agreement. This Agreement has been duly authorized, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement.
by each Noteholder and the Indenture Trustee, and does not conflict with, violate or result in a breach of or require any consent under (di) any applicable law or regulation or any of the terms of the charter or by-laws (or equivalent constitutional documents) of the Noteholders or the Indenture Trustee, or (ii) any agreement or instrument to which any Noteholder or the Indenture Trustee is a party or to which it or any of its assets is bound or subject; and (ii) This AgreementAgreement constitutes the legal, assuming the due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal valid and binding obligation of such Obligorthe Noteholders and Indenture Trustee, enforceable against such Obligor in them accordance with the terms hereof, subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors’ rights generally and (ii) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at lawits terms. 4.
(e) Such Obligor is not in violation of, and its execution and delivery of, performance under and compliance with this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, except such violation, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(f) No consent, approval, authorization or order of any state or federal court or governmental agency or body is required for the consummation by such Obligor of the transactions contemplated herein, except for those consents, approvals, authorizations or orders that previously have been obtained or that, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(g) No litigation is pending or, to the Obligor’s Knowledge, threatened against such Obligor that, if determined adversely to such Obligor, would prohibit such Obligor from entering into this Agreement or that, in such Obligor’s good faith and reasonable judgment, is reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
Appears in 1 contract
Samples: Forbearance Agreement
Representations and Warranties of the Obligors. Each Obligor makes SECTION 2.1. To induce the following Noteholders to execute and deliver this Sixth Amendment (which representations and warranties to the Manager all of which shall survive the execution, delivery, performance or termination execution and delivery of this AgreementSixth Amendment), the Obligors, jointly and severally, represent and warrant to the Noteholders that:
(a) Such Obligor is a limited liability company this Sixth Amendment has been duly organizedauthorized, validly existing and in good standing under the laws of its jurisdiction of organization.
(b) Such Obligor’s execution and delivery of, performance under, and compliance with this Agreement, will not violate such Obligor’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in a breach of, any agreement or other instrument to which it is a party or by which it is bound, except where such violation, breach or default in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(c) Such Obligor has the full power and authority to own its Tenant Site Assets, to conduct its business as presently conducted by it and to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement.
(d) This Agreement, assuming the due authorization, execution and delivery by each of Obligor and this Sixth Amendment constitutes the other parties heretolegal, constitutes a valid, legal valid and binding obligation obligation, contract and agreement of such Obligor, each Obligor enforceable against such Obligor it in accordance with the terms hereofits terms, subject to (i) applicable except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or limiting creditors' rights generally;
(b) the Note Purchase Agreements, as amended by this Sixth Amendment, constitute the legal, valid and other binding obligations, contracts and agreements of the Obligors enforceable against them in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting or equitable principles relating to or limiting creditors' rights generally;
(c) the enforcement execution, delivery and performance by the Obligors of creditors’ rights generally and this Sixth Amendment (i) has been duly authorized by all requisite corporate action and, if required, shareholder action, (ii) general principles does not require the consent or approval of equityany governmental or regulatory body or agency, regardless and (iii) will not (A) violate (1) any provision of whether such enforcement law, statute, rule or regulation or its certificate of incorporation or bylaws, (2) any order of any court or any rule, regulation or order of any other agency or government binding upon it, or (3) any provision of any material indenture, agreement or other instrument to which any Obligor is considered a party or by which any Obligor's properties or assets are or may be bound, including, without limitation, the Bank Credit Agreement, or (B) result in a proceeding breach or constitute (alone or with due notice or lapse of time or both) a default under any indenture, agreement or other instrument referred to in equity CLAUSE (III)(A)(3) of this SECTION 2.1(C);
(d) as of the date hereof and after giving effect to this Sixth Amendment, no Default or at law.Event of Default has occurred which is continuing;
(e) Such Obligor is not all the representations and warranties contained in violation ofSection 5 of the Note Purchase Agreements (other than those contained in Sections 5.3, 5.3(a), 5.3(b) and its execution 5.9) are true and delivery ofcorrect in all material respects with the same force and effect as if made by the Obligors on and as of the date hereof (other than any representation and warranty that expressly relates to a specified earlier date, performance under which was true and compliance with this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, except such violation, correct in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability all material respects as of such Obligor date); PROVIDED, THAT, notwithstanding any reference in Sections 5.3(c) and 5.3(d) of the Note Purchase Agreements to perform its obligations under this Agreement or the financial condition Restricted Subsidiaries listed on Schedule 5.3 to the Note Purchase Agreements, the representations and warranties hereby made by the Obligors with reference to Sections 5.3(c) and 5.3(d) of such Obligor.the Note Purchase Agreements shall relate to the Restricted Subsidiaries existing on the date hereof;
(f) No consentthe statements and information furnished to the Noteholders in connection with the negotiation of this Amendment do not, approvaltaken as a whole, authorization and other than financial projections or order forecasts, contain any untrue statements of a material fact or omit a material fact necessary to make the material statements contained herein or therein not misleading, the Noteholders acknowledging that as to any state or federal court or governmental agency or body is required for projections furnished to the consummation by such Obligor Noteholders, the Obligors and the Constituent Company Guarantors only represent that the same were prepared on the basis of information and estimates the transactions contemplated herein, except for those consents, approvals, authorizations or orders that previously have been obtained or that, in such Obligor’s good faith and reasonable judgment, is not reasonably likely Obligors believed to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.be reasonable; and
(g) No litigation is pending or, all tax returns with respect to any income tax or other material tax required to be filed by the Obligor’s Knowledge, threatened against such Obligor that, if determined adversely to such Obligor, would prohibit such Obligor from entering into this Agreement or thatObligors and the Restricted Subsidiaries in any jurisdiction have, in such Obligor’s good faith fact, been filed, and reasonable judgmentall taxes, is reasonably likely to materially assessments, fees and adversely affect either other governmental charges upon the ability of such Obligor to perform its obligations under this Agreement Obligors or the financial condition Restricted Subsidiaries or upon any of their respective properties, income or franchises, which are shown to be due and payable in such Obligorreturns, have been paid. The Obligors do not know of any proposed additional tax assessment against the Obligors or any Restricted Subsidiary for which adequate provision in accordance with GAAP has not been made. Adequate provisions in accordance with GAAP for taxes on the books of the Obligors and each Restricted Subsidiary have been made for all open years, and for its current fiscal period.
Appears in 1 contract
Representations and Warranties of the Obligors. Each Obligor makes of the following representations Obligors represents and warranties warrants to the Manager all of which shall survive the execution, delivery, performance or termination of this AgreementPurchaser that:
(a) Such Obligor is a limited liability company duly organizedAfter giving effect to the transactions contemplated by this Waiver and Amendment, validly existing no Default or Event of Default will have occurred and in good standing under the laws of its jurisdiction of organizationbe continuing.
(b) Such After giving effect to the Waiver and Amendment, the representations and warranties contained in Section 3 of the Amended Purchase Agreement are true in all material respects on and as of the date hereof to the same extent as if made on and as of the date hereof except to the extent that such representations and warranties specifically relate to an earlier date, in which case they are true in all material respects as of such earlier date.
(c) The execution, delivery and performance by each of the Obligors of this Waiver and Amendment are within their respective corporate powers and have been duly authorized by all necessary corporate action on the part of the board of directors and stockholders of each respective Obligor’s . This Waiver and Amendment has been duly executed and delivered by each of the Obligors and is the legal, valid and binding obligation of each Obligor, enforceable against that Obligor, in accordance with its terms, except to the extent that such enforcement may be limited by applicable bankruptcy, insolvency and other similar laws affecting creditors' rights generally and by general principles of equity.
(d) Neither the execution and delivery ofby each of the Obligors of this Waiver and Amendment, performance under, and nor the fulfillment of or compliance with this Agreementthe terms and provisions hereof, will not violate such Obligor’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) underconflict with, or result in a breach or violation of the terms, conditions or provisions of, or constitute a default under, or result in the creation of any agreement Lien on any properties or other assets of any Obligor pursuant to, the Organizational Documents of such Obligor or any contract, agreement, mortgage, indenture, lease or instrument to which it such Obligor is a party or by which it is boundbound or to which any of its assets are subject, except where such violation, breach or default in such Obligor’s good faith and reasonable judgment, is not reasonably likely any Requirement of Law to affect materially and adversely either the ability of which such Obligor to perform or any of its obligations under this Agreement or the financial condition of such Obligor.
(c) Such Obligor has the full power and authority to own its Tenant Site Assets, to conduct its business as presently conducted by it and to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement.
(d) This Agreement, assuming the due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal and binding obligation of such Obligor, enforceable against such Obligor in accordance with the terms hereof, subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors’ rights generally and (ii) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at lawassets are subject.
(e) Such Obligor is not in violation of, and its execution and delivery of, performance under and compliance with this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, except such violation, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(f) No consent, approvalapproval or authorization of or declaration, authorization registration or order filing with any Governmental Authority or any nongovernmental Person, including, without limitation, any creditor or stockholder of any state or federal court or governmental agency or body Obligor, is required for in connection with the consummation execution or delivery by such Obligor of this Waiver and Amendment or the transactions contemplated herein, except for those consents, approvals, authorizations or orders that previously have been obtained or that, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to materially and adversely affect either the ability of performance by such Obligor to perform of its obligations under this Agreement hereunder, or the financial as a condition of such Obligor.
(g) No litigation is pending or, to the Obligor’s Knowledgelegality, threatened against such Obligor that, if determined adversely to such Obligor, would prohibit such Obligor from entering into validity or enforceability of this Agreement Waiver and Amendment or that, in such Obligor’s good faith and reasonable judgment, is reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligorany provision hereof.
Appears in 1 contract
Representations and Warranties of the Obligors. Each Obligor makes To induce the following representations Agent and warranties the Lenders party hereto to enter into this Amendment, each of the Borrower, Holdings and the other ProFrac Parties hereby represents and warrants to the Manager all Agent and each Lender that as of which shall survive the execution, delivery, performance or termination of this AgreementSeventh Amendment Effective Date:
(a) Such Obligor is a limited liability company duly organized, validly existing Holdings and in good standing under the laws of its jurisdiction of organization.
(b) Such Obligor’s execution and delivery of, performance under, and compliance with each other ProFrac Party party to this Agreement, will not violate such Obligor’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in a breach of, any agreement or other instrument to which it is a party or by which it is bound, except where such violation, breach or default in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(c) Such Obligor Amendment has the full power and authority to own execute, deliver and perform this Amendment. Holdings and each other ProFrac Party party to this Amendment have taken all necessary corporate, limited liability company or partnership, as applicable, action (including obtaining approval of its Tenant Site Assetsshareholders, if necessary) to conduct its business as presently conducted by it and to enter into and consummate all transactions contemplated by this Agreement, has duly authorized authorize the execution, delivery and performance of this Agreement, and Amendment. This Amendment has been duly executed and delivered this Agreement.
(d) This Agreementby Holdings and each other ProFrac Party party hereto and constitutes the legal, assuming the due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal valid and binding obligation obligations of such ObligorPerson, enforceable against such Obligor it in accordance with the terms hereofits terms, subject to (i) applicable the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, winding up, moratorium and other laws similar Laws relating to or affecting the enforcement of creditors’ rights generally and general equitable principles (ii) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law.
Law) and an implied covenant of good faith and fair dealing. Holdings’ and each other ProFrac Party’s execution, delivery and performance of this Amendment does not, after giving effect to this Amendment, the Refinancing and the other transactions contemplated herein to close on the Seventh Amendment Effective Date, (ei) Such Obligor is not in violation ofconflict with, and its execution and delivery of, performance under and compliance with this Agreement will not or constitute a violation or breach of, the terms of (A) any lawcontract, mortgage, lease, agreement, indenture, or instrument to which such Person is a party or which is binding upon it, (B) any Requirement of Law applicable to such Person or (C) any Charter Documents of such Person, in each case under clauses (A), (B) and (C), in any respect that would reasonably be expected to have a Material Adverse Effect with respect to such Person or (ii) result in the imposition of any Lien (other than the Liens created by the Security Documents) upon the property of Holdings, any order Obligor or decree any of its Restricted Subsidiaries by reason of any court of the foregoing;
(b) no Default or arbiterEvent of Default has occurred and is continuing or would occur, in each case, after giving effect to this Amendment, the Refinancing, the Specified Unrestricted Subsidiary Designation and the other transactions contemplated herein to close on the Seventh Amendment Effective Date;
(c) no approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any orderGovernmental Authority or other Person is necessary or required in connection with the execution, regulation delivery or demand performance by, or enforcement against, Holdings or any of its Restricted Subsidiaries of this Amendment other than where failure to obtain, effect or make any federalsuch approval, state consent, exemption, authorization, or local governmental other action, notice or regulatory authorityfiling would not reasonably be expected to have a Material Adverse Effect; and
(d) after giving effect to this Amendment, except the Refinancing, the Specified Unrestricted Subsidiary Designation and the other transactions contemplated herein to close on the Seventh Amendment Effective Date, the representations and warranties of Holdings and each of its Restricted Subsidiaries contained in the Credit Agreement and each other Loan Document are true and correct in all material respects (and any representation and warranty that is qualified as to materiality or Material Adverse Effect is true and correct in all respects) on and as of the Seventh Amendment Effective Date as though made on and as of such violationdate, other than any such representation or warranty which relates to a specified prior date, in which case such Obligor’s good faith representations and reasonable judgment, is not reasonably likely to affect materially warranties were true and adversely either the ability correct in all material respects as of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligorprior date.
(f) No consent, approval, authorization or order of any state or federal court or governmental agency or body is required for the consummation by such Obligor of the transactions contemplated herein, except for those consents, approvals, authorizations or orders that previously have been obtained or that, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(g) No litigation is pending or, to the Obligor’s Knowledge, threatened against such Obligor that, if determined adversely to such Obligor, would prohibit such Obligor from entering into this Agreement or that, in such Obligor’s good faith and reasonable judgment, is reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
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Representations and Warranties of the Obligors. Each Section 2.1. To induce the Noteholders to execute and deliver this Fifth Amendment, each Obligor makes the following representations hereby represents and warranties warrants to the Manager all of which shall survive the execution, delivery, performance or termination of this AgreementNoteholders that:
(a) Such Obligor it is a limited liability company duly organized, validly existing and and, where applicable, in good standing under the laws of its jurisdiction of organization.incorporation, and is duly qualified as a foreign corporation and, where applicable, is in good standing in each jurisdiction in which such qualification is required by law, other than those jurisdictions as to which the failure to be so qualified or in good standing would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(b) Such Obligor’s execution this Fifth Amendment has been duly authorized, executed and delivery of, performance under, and compliance with this Agreement, will not violate such Obligor’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in a breach of, any agreement or other instrument to which it is a party or delivered by which it is bound, except where such violation, breach or default in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.it;
(c) Such Obligor has the full power and authority to own its Tenant Site AssetsNote Agreement, to conduct its business as presently conducted by it and to enter into and consummate all transactions contemplated amended by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement.
(d) This Agreement, assuming the due authorization, execution and delivery by each of the other parties heretoFifth Amendment, constitutes a validthe legal, legal valid and binding obligation obligation, contract and agreement of such Obligor, Obligor enforceable against such Obligor it in accordance with the terms hereofits terms, subject to except as enforcement may be limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium and or other similar laws affecting the enforcement of creditors’ rights generally and (ii) general principles of equity, equity (regardless of whether such enforcement enforceability is considered in a proceeding in equity or at law.);
(d) the execution, delivery and performance by such Obligor of this Fifth Amendment will not (i) contravene, result in any breach of, or constitute a default under, or result in the creation of any Lien in respect of any property of the Company, the Parent Guarantor or any Significant Subsidiary under, any indenture, mortgage, deed of trust, loan, purchase or credit agreement, lease, corporate charter, memorandum of association, articles of association, regulations or by-laws, shareholders agreement or any other agreement or instrument to which the Company, the Parent Guarantor or any Significant Subsidiary is bound or by which the Company, the Parent Guarantor or any Significant Subsidiary or any of their respective properties may be bound or affected, (ii) conflict with or result in a breach of any of the terms, conditions or provisions of any order, judgment, decree, or ruling of any court, arbitrator or Governmental Authority applicable to the Company, the Parent Guarantor or any Significant Subsidiary or (iii) violate any provision of any statute or other rule or regulation of any Governmental Authority applicable to the Company, the Parent Guarantor or any Significant Subsidiary;
(e) Such Obligor is not in violation no consent, approval or authorization of, and its execution and delivery ofor registration, performance under and compliance with this Agreement will not constitute a violation offiling or declaration with, any lawGovernmental Authority is required in connection with the execution, any order delivery or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, except such violation, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either performance by the ability of such Obligor to perform its obligations under this Agreement Company or the financial condition Parent Guarantor of such Obligor.this Fifth Amendment;
(f) No consent, approval, authorization or order of any state or federal court or governmental agency or body is required for the consummation by such Obligor as of the transactions contemplated hereindate hereof, except for those consentsboth before and after giving effect to this Fifth Amendment, approvals, authorizations no Default or orders that previously have been obtained or that, in such Obligor’s good faith Event of Default has occurred and reasonable judgment, is not reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.continuing; and
(g) No litigation is pending orno lender under any agreement or other evidence of Indebtedness of the Obligors, including but not limited to any Material Credit Facility, has received any collateral or consideration in connection with any amendments that are substantially similar to the Obligor’s Knowledge, threatened against such Obligor that, if determined adversely to such Obligor, would prohibit such Obligor from entering into amendments set forth in Section 1 of this Agreement or that, in such Obligor’s good faith and reasonable judgment, is reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such ObligorFifth Amendment.
Appears in 1 contract
Samples: Note Purchase Agreement (Colliers International Group Inc.)
Representations and Warranties of the Obligors. Each Obligor makes To induce the following representations Agent and warranties the Lenders party hereto to enter into this Amendment, each of the Borrower, Holdings and the other Obligors hereby represents and warrants to the Manager all Agent and each Lender that as of which shall survive the execution, delivery, performance or termination of this AgreementSecond Amendment Effective Date:
(a) Such Holdings and each Obligor is a limited liability company duly organized, validly existing and in good standing under the laws of its jurisdiction of organization.
(b) Such Obligor’s execution and delivery of, performance under, and compliance with party to this Agreement, will not violate such Obligor’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in a breach of, any agreement or other instrument to which it is a party or by which it is bound, except where such violation, breach or default in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(c) Such Obligor Amendment has the full power and authority to own execute, deliver and perform this Amendment. Holdings and each Obligor party to this Amendment has taken all necessary corporate, limited liability company or partnership, as applicable, action (including obtaining approval of its Tenant Site Assetsshareholders, if necessary) to conduct its business as presently conducted by it and to enter into and consummate all transactions contemplated by this Agreement, has duly authorized authorize the execution, delivery and performance of this Agreement, and Amendment. This Amendment has been duly executed and delivered this Agreement.
(d) This Agreementby Holdings and each Obligor party hereto and constitutes the legal, assuming the due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal valid and binding obligation obligations of Holdings and each such Obligor, enforceable against such Obligor it in accordance with the terms hereofits terms, subject to (i) applicable the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, winding up, moratorium and other laws similar Laws relating to or affecting the enforcement of creditors’ rights generally and general equitable principles (ii) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law.
Law) and an implied covenant of good faith and fair dealing. Holdings’ and each Obligor’s execution, delivery and performance of this Amendment does not, after giving effect to this Amendment, the Amendment to Intercreditor and the Second Amendment to Term Loan Credit Agreement, (ei) Such Obligor is not in violation ofconflict with, and its execution and delivery of, performance under and compliance with this Agreement will not or constitute a violation or breach of, the terms of (A) any lawcontract, mortgage, lease, agreement, indenture, or instrument to which Holdings, such Obligor or any of its Restricted Subsidiaries is a party or which is binding upon it, (B) any Requirement of Law applicable to Holdings, such Obligor or any of its Restricted Subsidiaries or (C) any Charter Documents of Holdings, such Obligor or any of its Restricted Subsidiaries, in each case under clauses (A), (B) and (C), in any respect that would reasonably be expected to have a Material Adverse Effect or (ii) result in the imposition of any Lien (other than the Liens created by the Security Documents) upon the property of Holdings, such Obligor or any of its Restricted Subsidiaries by reason of any of the foregoing;
(b) no Default or Event of Default has occurred and is continuing or would occur, in each case, after giving effect to this Amendment and the Second Amendment to Term Loan Credit Agreement;
(c) no approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any order Governmental Authority or decree of any court other Person is necessary or arbiterrequired in connection with the execution, delivery or performance by, or enforcement against, Holdings or any orderof its Restricted Subsidiaries of this Amendment other than where failure to obtain, regulation effect or demand make any such approval, consent, exemption, authorization, or other action, notice or filing would not reasonably be expected to have a Material Adverse Effect; and
(d) after giving effect to this Amendment and the Second Amendment to Term Loan Credit Agreement, the representations and warranties of Holdings and each of its Restricted Subsidiaries contained in the Credit Agreement and each other Loan Document are true and correct in all material respects (and any federalrepresentation and warranty that is qualified as to materiality or Material Adverse Effect is true and correct in all respects) on and as of the Second Amendment Effective Date as though made on and as of such date, state other than any such representation or local governmental or regulatory authority, except such violationwarranty which relates to a specified prior date, in which case such Obligor’s good faith representations and reasonable judgment, is not reasonably likely to affect materially warranties were true and adversely either the ability correct in all material respects as of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligorprior date.
(f) No consent, approval, authorization or order of any state or federal court or governmental agency or body is required for the consummation by such Obligor of the transactions contemplated herein, except for those consents, approvals, authorizations or orders that previously have been obtained or that, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(g) No litigation is pending or, to the Obligor’s Knowledge, threatened against such Obligor that, if determined adversely to such Obligor, would prohibit such Obligor from entering into this Agreement or that, in such Obligor’s good faith and reasonable judgment, is reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
Appears in 1 contract
Representations and Warranties of the Obligors. Each Obligor makes the following representations The Obligors represent and warranties warrant, jointly and severally, to the Manager all Agents and the Purchasers as follows as of which shall survive the execution, delivery, performance or termination of this Agreementdate hereof and the Closing Date:
(a) Such Each Obligor and each of its respective Subsidiaries (i) is a limited liability company corporation duly organized, validly existing and in good standing under the laws of its the jurisdiction of organizationits incorporation, (ii) is duly qualified and in good standing as a foreign corporation (except as set forth on Schedule 4.01(a)(ii) hereto) 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 power and authority to own or lease and operate its properties and to carry on its business as now conducted and as currently proposed to be conducted. All of the outstanding Equity Interests in the Issuer have been duly authorized, validly issued, are fully paid and non-assessable and are owned by the Parent free and clear of all Liens, except those created under the Purchase Documents or as set forth on Schedule 4.01(v).
(b) Such Set forth on Schedule 4.01(b) hereto is a complete and accurate list of all Subsidiaries of each Obligor as of the Closing Date showing as of the date hereof (as to each such Subsidiary) the jurisdiction of its incorporation, its directors and senior officers, 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 Obligor 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 Obligor’s execution Subsidiaries have been duly authorized, validly issued, are fully paid and delivery of, performance under, non-assessable and compliance with this Agreement, will not violate are owned by such Obligor’s organizational documents Obligor or constitute a default (one or an event which, with notice or lapse more of time, or both, would constitute a default) under, or result in a breach of, any agreement or other instrument to which it is a party or by which it is boundits Subsidiaries free and clear of all Liens, except where such violation, breach those created under the Purchase Documents or default in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligoras set forth on Schedule 4.01(v).
(c) Such Obligor has the full power and authority to own its Tenant Site Assets, to conduct its business as presently conducted by it and to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the The execution, delivery and performance by each Obligor of this Agreementeach Purchase Document to which it is or is to be a party, and has the consummation of the Transactions, are within such Obligor’s corporate powers, have been duly executed authorized by all necessary corporate action, and delivered this Agreementdo not (i) contravene such Obligor’s charter or bylaws, (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 under, any loan agreement, indenture, mortgage, deed of trust, or material contract, lease or other instrument binding on or affecting any Obligor, any of its Subsidiaries or any of their properties or (iv) except for the Liens created under the Purchase Documents, the Second Lien Loan Documents and the First Lien Documents, result in or require the creation or imposition of any Lien upon or with respect to any of the properties of any Obligor or any of its Subsidiaries. No Obligor 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 contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument, the violation or breach of which could be reasonably likely to have a Material Adverse Effect.
(d) This No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority or regulatory body (including, without limitation, the FCC or any applicable PUC) or any other third party is required for (i) the due execution, delivery, recordation, filing or performance by any Obligor of any Purchase Document to which it is or is to be a party, or for the consummation of the Transactions or the incurrence of the Obligations, (ii) the grant or affirmation by any Obligor 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 third priority nature thereof), or (iv) the exercise by any Agent or any Purchaser of its rights under the Purchase Documents or the remedies in respect of the Collateral pursuant to the Collateral Documents, except for (A) the authorizations, approvals, actions, notices and filings listed on Part I of Schedule 4.01(d) hereto, all of which have been duly obtained, taken, given or made and are in full force and effect, (B) authorizations, approvals, actions, notices and filings listed in Part II of Schedule 4.01(d) hereto, which shall not have been duly obtained, taken, given or made by the Closing Date, but shall be obtained, taken, given or made after the Closing Date in accordance with this Agreement, assuming (C) authorizations, approvals, actions, notices and filings listed in Part III of Schedule 4.01(d) hereto, which shall not have been duly obtained, taken, given or made by the due authorizationClosing Date and (D) authorizations, execution approvals, actions, notices and delivery filings which would not have a Material Adverse Effect if not made or obtained. All applicable waiting periods in connection with the Transactions have expired without any action having been taken by any competent authority restraining, preventing or imposing materially adverse conditions upon the Transactions or the rights of the Obligors 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 Purchase Document when delivered hereunder shall have been, duly executed and delivered by each of Obligor thereto. This Agreement is, and each other Purchase Document when delivered hereunder shall be, the other parties heretolegal, constitutes a valid, legal valid and binding obligation of such Obligoreach Obligor thereto, enforceable against such Obligor in accordance with the terms hereof, subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors’ rights generally and (ii) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law.
(e) Such Obligor is not in violation of, and its execution and delivery of, performance under and compliance with this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, except such violation, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligorterms.
(f) There is no action, suit, investigation, litigation or proceeding affecting any Obligor or any of its Subsidiaries, including any Environmental Action, pending or, to any Obligor’s knowledge, threatened before any court, governmental agency or arbitrator that (i) would alone or when considered in conjunction with any other actions, suits, investigation, litigation or proceeding affecting any Obligor, be reasonably likely to have a Material Adverse Effect other than the Disclosed Litigation or (ii) purports to affect the legality, validity or enforceability of any Purchase Document or the consummation of Transactions, and there has been no material adverse change in the status, or financial effect on any Obligor or any of its Subsidiaries, of or as a result of the Disclosed Litigation from that described on Schedule 4.01(f) hereto.
(i) The (A) audited Consolidated balance sheet of the Obligors as at the year ended December 31, 2004 and (B) the audited related Consolidated statement of income and Consolidated statement of cash flows of the Obligors for the year then ended, duly certified by the Chief Financial Officer of the Parent, copies of which have been furnished to the Agents and each Purchaser, fairly present the Consolidated financial condition of the Obligors, as the case may be, as at such date and the Consolidated results of operations of the Parent and its Subsidiaries for the period ended on such date, all in accordance with GAAP applied on a consistent basis, and since December 31, 2004 there has been no Material Adverse Change, it being understood that the events set forth on Schedule 4.01(o) hereto shall not be deemed to constitute a Material Adverse Change.
(ii) The (A) unaudited Consolidated balance sheet of the Obligors as at the three-months and quarter ended March 31, 2005 and (B) the unaudited related Consolidated statements of income and Consolidated statements of cash flows of the Obligors for the three months and quarter then ended, copies of which have been furnished to the Agents and each Purchaser, fairly present the Consolidated financial condition of the Obligors, as the case may be, as at such dates and the Consolidated results of operations of the Parent and its Subsidiaries for the periods ended on such dates, all in accordance with GAAP applied on a consistent basis.
(h) No consentObligor has (and shall not have following the funding of the Securities Purchase) any Contingent Obligation, approvalcontingent liability or liability for taxes, authorization long-term lease or unusual forward or long-term commitment that, as of the Closing Date, that is not reflected in the audited financial statements referenced in Section 4.01(g) (except such Contingent Obligations, contingent liabilities or liabilities for taxes, long-term leases or unusual forward or long-term commitment incurred in connection with the First Lien Loan Documents, the Purchase Documents or the Second Lien Loan Documents) or the notes thereto and that, in any such case, is material in relation to the business, operations, properties, condition (financial or otherwise) or prospects of the Parent or any of its Subsidiaries.
(i) The Consolidated balance sheets, income statements and cash flows statements of the Obligors delivered to the Purchasers pursuant to Section 5.03(d) and the unaudited pro forma financial information about the Obligors delivered to the Purchasers in the ITC^DeltaCom 2005-2006 Management Plan dated March 9, 2005 and the ITC^DeltaCom 2005-2007 forecast dated June 2005 (collectively, the “Projections”), 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 information, and represented, at the time of delivery, the Obligors’ best estimate of the future financial performance of the Obligors.
(j) No information, exhibit or report furnished by or on behalf of any Obligor to any Agent or any Purchaser in connection with the negotiation of the Purchase Documents or pursuant to the terms of the Purchase Documents contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements made therein not misleading.
(k) The Issuer is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Note have been or shall be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock.
(l) Neither any Obligor nor any of its Subsidiaries 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. Neither the issuance of any Notes, nor the application of the proceeds or repayment thereof by the Issuer, nor the consummation of the other Transactions, shall violate any provision of such Act or any rule, regulation or order of any state or federal court or governmental agency or body is required for the consummation by such Obligor SEC thereunder, in each case assuming the accuracy of the transactions contemplated hereinrepresentations and warranties of each Purchaser in Section 4.02.
(m) No Subsidiary is a party to, except for those consentsor otherwise subject to, approvalsany legal restriction or any agreement (other than the Purchase Documents, authorizations or orders that previously have been obtained or that, in such Obligor’s good faith the First Lien Documents and reasonable judgment, is not reasonably likely to materially the Second Lien Loan Documents and adversely affect either customary limitations imposed by Applicable Law) restricting the ability of such Obligor Subsidiary to perform pay dividends out of profits or make any other similar distributions of profits to the Parent or any of its obligations under this Agreement or the financial condition Subsidiaries that owns outstanding Capital Stock of such ObligorSubsidiary.
(gn) No litigation is pending orThe Collateral Documents create a valid third priority security interest in the Collateral, securing the payment of the Secured Obligations, and at such time as all filings delivered to the Obligor’s KnowledgeCollateral Agent on or before the Closing Date have been duly filed in accordance with the provisions of the Security Agreement, threatened against such Obligor thatthird priority security interest shall be perfected. The Obligors are the legal and beneficial owners of the Collateral free and clear of any Lien, if determined adversely except for the Liens and security interests created or permitted under the Purchase Documents, the First Lien Documents and the Second Lien Loan Documents.
(o) Since December 31, 2004, no event or change has occurred that has resulted in or evidences, either in any case or in the aggregate, a Material Adverse Effect (it being acknowledged that the effect of the events described in Schedule 4.01(o) does not constitute a Material Adverse Effect). Neither the Parent nor any of its Subsidiaries has directly or indirectly declared, ordered, paid or made, or set apart any sum or property for, any Restricted Payment or agreed to such Obligor, would prohibit such Obligor from entering into this Agreement or that, in such Obligor’s good faith and reasonable judgment, is reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligordo so except as permitted by Section 5.02(g).
Appears in 1 contract
Representations and Warranties of the Obligors. Each To induce the Noteholders to execute and deliver this Amendment, each Obligor makes the following representations represents and warranties warrants to the Manager all of which shall survive the execution, delivery, performance or termination of this AgreementNoteholders that:
(a) Such this Amendment has been duly authorized, executed and delivered by it and this Amendment constitutes the legal, valid and binding obligation, contract and agreement of such Obligor is a enforceable against it in accordance with its terms, except as enforcement may be limited liability company duly organizedby bankruptcy, validly existing and in good standing under the insolvency, reorganization, moratorium or similar laws of its jurisdiction of organization.or equitable principles relating to or limiting creditors’ rights generally;
(b) Such Obligor’s the Note Purchase Agreement constitutes the legal, valid and binding obligation, contract and agreement of such Obligor enforceable against it in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or limiting creditors’ rights generally;
(c) the execution and delivery ofof this Amendment and the performance by such Obligor of this Amendment and the Note Purchase Agreement (i) have been duly authorized by all requisite corporate action and, performance underif required, shareholder action, (ii) do not require the consent or approval of any governmental or regulatory body or agency, and compliance with this Agreement, (iii) will not (A) violate such Obligor’s organizational documents (1) any provision of law, statute, rule or constitute a default regulation or its certificate of incorporation, bylaws or other constitutive document, (2) any order of any court or an event whichany rule, with notice regulation or lapse order of timeany other agency or government binding upon it, or both(3) any provision of any indenture, would constitute a default) under, or result in a breach of, any agreement or other instrument to which it is a party or by which it is its properties or assets are or may be bound, except where such violationincluding, without limitation, any Credit Agreement, or (B) result in a breach or constitute (alone or with due notice or lapse of time or both) a default under any indenture, agreement or other instrument referred to in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
clause (ciii)(A)(3) Such Obligor has the full power and authority to own its Tenant Site Assets, to conduct its business as presently conducted by it and to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement.Section 3(c);
(d) This Agreement, assuming the due authorization, execution and delivery by each as of the other parties heretodate hereof after giving effect to this Amendment and the amendments to the Transaction Facilities referred to in Section 4(b), constitutes a validno Default or Event of Default has occurred which is continuing;
(e) all of the representations and warranties contained in Section 5 of the Note Purchase Agreement are true and correct in all material respects (in all respects in the case of representations and warranties qualified by materiality, legal Material Adverse Effect or similar language in the text thereof) with the same force and binding obligation of such Obligor, enforceable against effect as if made by such Obligor on and as of the date hereof, except to the extent that such representations and warranties expressly relate solely to an earlier date or due solely as a result of actions taken by the Obligors in accordance with the terms hereof, subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting covenants set forth in the enforcement of creditors’ rights generally and (ii) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law.
(e) Such Obligor is not in violation of, and its execution and delivery of, performance under and compliance with this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, except such violation, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.Note Purchase Agreement; and
(f) No consent, approval, authorization no fee or order other consideration has been or will be paid to any party to any of any state the amendments referred to in Section 4(a) or federal court or governmental agency or body is required Section 4(b) hereof as consideration for the consummation by such Obligor of the transactions contemplated hereinexecution thereof, except for those consents(i) the fees identified in Section 4(e) and Section 4(f), approvals, authorizations or orders that previously have been obtained or that(ii) a fee equivalent to the fee identified in Section 4(e) payable to the holders of the 2015 Notes and (iii) a fee of .20% (20 basis points) of (A) the aggregate commitments under the 2013 Revolving Credit Agreement and the 2015 Revolving Credit Agreement and (B) the aggregate principal amount outstanding under the 2015 Term Loan Agreement, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(g) No litigation is pending or, each case payable to the Obligor’s Knowledgelenders under the 2013 Revolving Credit Agreement, threatened against such Obligor thatthe 2015 Revolving Credit Agreement and the 2015 Term Loan Agreement, if determined adversely to such Obligor, would prohibit such Obligor from entering into as applicable. The representations and warranties set forth in this Agreement or that, in such Obligor’s good faith Section 3 shall survive the execution and reasonable judgment, is reasonably likely to materially and adversely affect either the ability delivery of such Obligor to perform its obligations under this Agreement or the financial condition of such ObligorAmendment.
Appears in 1 contract
Samples: Note Purchase and Guarantee Agreement (Chicago Bridge & Iron Co N V)
Representations and Warranties of the Obligors. Each Section 2.1. To induce the Noteholders to execute and deliver this Consent, each Obligor makes the following representations hereby represents and warranties warrants to the Manager all of which shall survive Noteholders on the execution, delivery, performance or termination of this AgreementEffective Date as follows:
(a) Such Obligor it is a limited liability company duly organized, validly existing and and, where applicable, in good standing under the laws of its jurisdiction of organization.incorporation, and is duly qualified as a foreign corporation and, where applicable, is in good standing in each jurisdiction in which such qualification is required by law, other than those jurisdictions as to which the failure to be so qualified or in good standing would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(b) Such Obligor’s execution this Consent has been duly authorized, executed and delivery of, performance under, and compliance with this Agreement, will not violate such Obligor’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in a breach of, any agreement or other instrument to which it is a party or delivered by which it is bound, except where such violation, breach or default in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.it;
(c) Such Obligor has the full power and authority to own its Tenant Site AssetsNote Agreement constitutes the legal, to conduct its business as presently conducted by it and to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement.
(d) This Agreement, assuming the due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal valid and binding obligation obligation, contract and agreement of such Obligor, Obligor enforceable against such Obligor it in accordance with the terms hereofits terms, subject to except as enforcement may be limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium and or other similar laws affecting the enforcement of creditors’ rights generally and (ii) general principles of equity, equity (regardless of whether such enforcement enforceability is considered in a proceeding in equity or at law.);
(d) the execution, delivery and performance by such Obligor of this Consent will not (i) contravene, result in any breach of, or constitute a default under, or result in the creation of any Lien in respect of any property of the Company, the Parent Guarantor or any Significant Subsidiary under, any indenture, mortgage, deed of trust, loan, purchase or credit agreement, lease, corporate charter, memorandum of association, articles of association, regulations or by-laws, shareholders agreement or any other agreement or instrument to which the Company, the Parent Guarantor or any Significant Subsidiary is bound or by which the Company, the Parent Guarantor or any Significant Subsidiary or any of their respective properties may be bound or affected, (ii) conflict with or result in a breach of any of the terms, conditions or provisions of any order, judgment, decree, or ruling of any court, arbitrator or Governmental Authority applicable to the Company, the Parent Guarantor or any Significant Subsidiary or (iii) violate any provision of any statute or other rule or regulation of any Governmental Authority applicable to the Company, the Parent Guarantor or any Significant Subsidiary;
(e) Such Obligor is not in violation no consent, approval or authorization of, and its execution and delivery ofor registration, performance under and compliance with this Agreement will not constitute a violation offiling or declaration with, any lawGovernmental Authority is required in connection with the execution, any order delivery or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, except such violation, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either performance by the ability of such Obligor to perform its obligations under this Agreement Company or the financial condition Parent Guarantor of such Obligor.this Consent;
(f) No consent, approval, authorization or order of any state or federal court or governmental agency or body is required for the consummation by such Obligor as of the transactions contemplated hereindate hereof, except for those consentsboth before and after giving effect to this Consent, approvals, authorizations no Default or orders that previously have been obtained or that, in such Obligor’s good faith Event of Default has occurred and reasonable judgment, is not reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.continuing;
(g) No litigation is pending orall necessary shareholder and stock exchange approval has been obtained for the Transactions; and
(h) no lender under any agreement or other evidence of Indebtedness of the Obligors, including but not limited to any Material Credit Facility, has received any collateral or consideration in connection with any amendments that are substantially similar to the Obligor’s Knowledge, threatened against such Obligor that, if determined adversely amendments set forth in Section 1 of this Consent in excess of the consideration paid to such Obligor, would prohibit such Obligor from entering into this Agreement or that, in such Obligor’s good faith and reasonable judgment, is reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations Noteholders under this Agreement or the financial condition of such ObligorSection 3.1(d) hereof.
Appears in 1 contract
Samples: Note Purchase Agreement (Colliers International Group Inc.)
Representations and Warranties of the Obligors. Each Obligor makes Section 2.1. To induce the following Noteholders to execute and deliver this Fifth Amendment (which representations and warranties to the Manager all of which shall survive the execution, delivery, performance or termination execution and delivery of this AgreementFifth Amendment), the Obligors, jointly and severally, represent and warrant to the Noteholders that:
(a) Such Obligor is a limited liability company this Fifth Amendment has been duly organizedauthorized, validly existing and in good standing under the laws of its jurisdiction of organization.
(b) Such Obligor’s execution and delivery of, performance under, and compliance with this Agreement, will not violate such Obligor’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in a breach of, any agreement or other instrument to which it is a party or by which it is bound, except where such violation, breach or default in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(c) Such Obligor has the full power and authority to own its Tenant Site Assets, to conduct its business as presently conducted by it and to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement.
(d) This Agreement, assuming the due authorization, execution and delivery by each of Obligor and this Fifth Amendment constitutes the other parties heretolegal, constitutes a valid, legal valid and binding obligation obligation, contract and agreement of such Obligor, each Obligor enforceable against such Obligor it in accordance with the terms hereofits terms, subject to (i) applicable except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or limiting creditors' rights generally;
(b) the Note Purchase Agreements, as amended by this Fifth Amendment, constitute the legal, valid and other binding obligations, contracts and agreements of the Obligors enforceable against them in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting or equitable principles relating to or limiting creditors' rights generally;
(c) the enforcement execution, delivery and performance by the Obligors of creditors’ rights generally and this Fifth Amendment (i) has been duly authorized by all requisite corporate action and, if required, shareholder action, (ii) general principles does not require the consent or approval of equityany governmental or regulatory body or agency, regardless and (iii) will not (A) violate (1) any provision of whether such enforcement law, statute, rule or regulation or its certificate of incorporation or bylaws, (2) any order of any court or any rule, regulation or order of any other agency or government binding upon it, or (3) any provision of any material indenture, agreement or other instrument to which any Obligor is considered a party or by which any Obligor's properties or assets are or may be bound, including, without limitation, the Bank Credit Agreement, or (B) result in a proceeding breach or constitute (alone or with due notice or lapse of time or both) a default under any indenture, agreement or other instrument referred to in equity clause (iii)(A)(3) of this Section 2.1(c);
(d) as of the date hereof and after giving effect to this Fifth Amendment, no Default or at law.Event of Default has occurred which is continuing;
(e) Such Obligor is not all the representations and warranties contained in violation ofSection 5 of the Note Purchase Agreements (other than those contained in Sections 5.3, 5.4(a), 5.4(b) and its execution 5.9) are true and delivery ofcorrect in all material respects with the same force and effect as if made by the Obligors on and as of the date hereof (other than any representation and warranty that expressly relates to a specified earlier date, performance under which was true and compliance with this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, except such violation, correct in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability all material respects as of such Obligor date); provided, that, notwithstanding any reference in Sections 5.4(c) and 5.4(d) of the Note Purchase Agreements to perform its obligations under this Agreement or the financial condition Restricted Subsidiaries listed on Schedule 5.4 to the Note Purchase Agreements, the representations and warranties hereby made by the Obligors with reference to Sections 5.4(c) and 5.4(d) of such Obligor.the Note Purchase Agreements shall relate to the Restricted Subsidiaries existing on the date hereof;
(f) No consentthe statements and information furnished to the Noteholders in connection with the negotiation of this Amendment do not, approvaltaken as a whole, authorization and other than financial projections or order forecasts, contain any untrue statements of a material fact or omit a material fact necessary to make the material statements contained herein or therein not misleading, the Noteholders acknowledging that as to any state or federal court or governmental agency or body is required for projections furnished to the consummation by such Obligor Noteholders, the Obligors and the Constituent Company Guarantors only represent that the same were prepared on the basis of information and estimates the transactions contemplated herein, except for those consents, approvals, authorizations or orders that previously have been obtained or that, in such Obligor’s good faith and reasonable judgment, is not reasonably likely Obligors believed to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.be reasonable; and
(g) No litigation is pending or, all tax returns with respect to any income tax or other material tax required to be filed by the Obligor’s Knowledge, threatened against such Obligor that, if determined adversely to such Obligor, would prohibit such Obligor from entering into this Agreement or thatObligors and the Restricted Subsidiaries in any jurisdiction have, in such Obligor’s good faith fact, been filed, and reasonable judgmentall taxes, is reasonably likely to materially assessments, fees and adversely affect either other governmental charges upon the ability of such Obligor to perform its obligations under this Agreement Obligors or the financial condition Restricted Subsidiaries or upon any of their respective properties, income or franchises, which are shown to be due and payable in such Obligorreturns, have been paid. The Obligors do not know of any proposed additional tax assessment against the Obligors or any Restricted Subsidiary for which adequate provision in accordance with GAAP has not been made. Adequate provisions in accordance with GAAP for taxes on the books of the Obligors and each Restricted Subsidiary have been made for all open years, and for its current fiscal period.
Appears in 1 contract
Representations and Warranties of the Obligors. Each Obligor makes the following representations and warranties Subject to the Manager all disclosures set forth in the disclosure schedule of the Obligors delivered to Agent and Lenders concurrently with the execution and delivery of this Agreement (the “Disclosure Schedule”) (each of which disclosures, in order to be effective, shall survive clearly indicate the executionSection and, deliveryif applicable, performance or termination the Subsection of this AgreementSection 4 to which it relates), each Obligor represents and warrants to the Agent as follows:
(a) Such Each Obligor (i) is a limited liability company duly organized, validly existing and in good standing under the laws of its the jurisdiction of its organization, (ii) has the power and authority, and the legal right, to own and operate its Property and to conduct the business in which it is currently engaged, (iii) is duly qualified as a foreign corporation and in good standing under the laws of each jurisdiction where its ownership, lease or operation of Property or the conduct of its business requires such qualification and (iv) is in compliance with all Requirements of Law in all material respects.
(b) Such Obligor’s execution Each Obligor has the power and delivery of, performance underauthority, and compliance with this Agreementthe legal right, will not violate such Obligor’s organizational documents or constitute a default (or an event whichto make, with notice or lapse of time, or both, would constitute a default) under, or result in a breach of, any agreement or other instrument deliver and perform the Credit Documents to which it is a party or by which it is boundparty, except where such violationto consummate the transactions contemplated thereby and, breach or default in such Obligor’s good faith and reasonable judgmentas the case may be, is not reasonably likely to affect materially and adversely either the ability obtain extensions of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(c) Such credit hereunder. Each Obligor has the full power and authority taken all necessary organizational action to own its Tenant Site Assets, to conduct its business as presently conducted by it and to enter into and consummate all transactions contemplated by this Agreement, has duly authorized authorize the execution, delivery and performance of the Credit Documents to which it is a party and to authorize the extensions of credit on the terms and conditions of this Agreement. No consent or authorization of, and filing with, notice to or other act by or in respect of, any Governmental Authority or any other Person is required in connection with the extension of credit hereunder or with the execution, delivery, performance, validity or enforceability of this Agreement or any of the Credit Documents. Each Credit Document to which an Obligor is a party has been duly executed and delivered this Agreement.
(d) on behalf of such Obligor. This AgreementAgreement constitutes, assuming the due authorizationand each other Credit Document upon execution will constitute, execution and delivery by each of the other parties heretoa legal, constitutes a valid, legal valid and binding obligation of such Obligoreach Obligor party thereto, enforceable against such Obligor in accordance with the terms hereofits terms, subject to (i) except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (ii) general principles of equity, regardless of whether such enforcement is considered in a proceeding sought by proceedings in equity or at law).
(c) The execution, delivery, and performance by each Obligor of this Agreement and the other Credit Documents to which such Obligor is a party and compliance with the terms and provisions hereof and thereof will not (i) violate or conflict with, or result in a breach of, or require any consent (other than those that have been, or on the Agreement Date will be, duly obtained or made and which are, or on the Agreement Date will be, in full force and effect) under (A) the Organic Documents of such Obligor, (B) any Requirement of Law, or (C) any material agreement or instrument to which such Obligor is a party or by which it or any of its properties is bound or subject, or (ii) result in the creation or imposition of any Lien upon any of the revenues or assets of such Obligor other than the Liens arising under the Credit Documents or Permitted Liens.
(d) All factual information taken as a whole (other than forward-looking information and projections and information of a general economic nature and general information about each Obligor’s industry) furnished by or on behalf of such Obligor in writing to the Agent or any Lender for purposes of or in connection with this Agreement or any other Credit Document, will be true and accurate in all material respects, on the date as of which such information is dated or certified and is not incomplete by omitting to state any fact necessary to make such information (taken as a whole) not misleading in any material respect at such time in light of the circumstances under which such information was provided. The projections delivered to the Agent represent, as applicable, each Obligor’s good faith estimate, on the date such projections were/are delivered, of such Obligor’s future performance for the periods covered thereby based upon assumptions believed by such Obligor to be reasonable at the time of the delivery thereof to the Agent.
(e) Such Obligor Schedule 4(e) hereto is not in violation ofa correct and complete list of each Obligor’s head office, registered office and chief executive office, the location of its books and records and the locations of its Property. Each Obligor, as applicable, enjoys peaceful and undisturbed possession under all leases material to its business, if any, and its execution to which it is a party or under which it is operating, and delivery ofall such material leases, performance under if any, are valid and compliance with this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, except such violation, in such Obligor’s good faith subsisting and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of no material default by such Obligor to perform its obligations exists under this Agreement or the financial condition any of such Obligorthem.
(f) No consent, approval, authorization or order of any state or federal court or governmental agency or body is required for the consummation by such Obligor of the transactions contemplated herein, except for those consents, approvals, authorizations or orders that previously have been obtained or that, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor[reserved].
(g) No litigation Obligor nor to the knowledge of any Obligor, any of its respective Affiliates, is pending or(i) in violation of any applicable laws relating to terrorism or money laundering (“Anti-Terrorism Laws”), including, but not limited to, (x) the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56, (y) the laws, rules and regulations comprising or implementing the Bank Secrecy Act, (z) the laws, rules and regulations administered by the United States Department of the Treasury’s Office of Foreign Asset Control (“OFAC”) (as any of the foregoing laws described in this Section 4(g) may from time to time be amended, renewed, extended, or replaced), or (ii) currently a Sanctioned Entity. No Loan or the proceeds from any Loan has been used by a Borrower or any other Obligor, as applicable, to lend, contribute, provide, or has otherwise been made available by a Borrower or any other Obligor, a applicable, to fund, any activity or business in any Designated Jurisdiction or to fund any activity or business of any Sanctioned Entity, or in any other manner that will result in any violation by any Lender, the Agent or any of their respective Affiliates, of Sanctions.
(h) No Obligor nor to the knowledge of any Obligor, any of its respective Affiliates or any of their respective agents acting in any capacity in connection with the Loans or other transactions hereunder (i) conducts any business or engages in making or receiving any contributions of funds, goods or services to or for the benefit of any Sanctioned Entity, except to the extent not in violation of Sanctions or (ii) knowingly engages in or conspires to knowingly engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any applicable Anti-Terrorism Law.
(i) Each Obligor is in compliance in all material respects with the Foreign Corrupt Practices Act, as amended, and rules and regulations thereunder (“FCPA”). No part of the proceeds of any Revolving Advance will be used directly or indirectly for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the FCPA.
(j) To each Obligor’s Knowledgeknowledge, threatened against such no Obligor thatis in violation of any Requirement of Law, if determined adversely to such Obligor, would prohibit such Obligor from entering into this Agreement or thatincluding all environmental laws, in any material respect.
(k) There are no actions, suits, litigation or proceedings, at law or in equity, pending by or against any Obligor before any court, administrative agency, or arbitrator in which a likely adverse decision could reasonably be expected to have a Material Adverse Effect.
(l) Each Obligor has filed all federal and other material tax returns required to be filed, including all income, franchise, employment, property, and sales tax returns, and has paid all of their respective federal and other material taxes, assessments, governmental charges, and other levies that are due and payable, except to the extent such Obligor’s taxes are contested in good faith by proper proceedings which stay the imposition of any penalty, fine or Lien resulting from the non-payment thereof and reasonable judgment, is reasonably likely with respect to materially and adversely affect either which adequate reserves have been set aside for the ability payment thereof. No Obligor has knowledge of any pending investigation of such Obligor by any taxing authority or of any pending unassessed tax liability (other than taxes which are not yet due and payable) of any Obligor.
(m) Each Borrower or each Obligor, as applicable, has rights in or the power to transfer the Collateral, as applicable, and its title to the Collateral is free and clear of Liens (other than Permitted Liens), adverse claims and restrictions on transfer or pledge except as permitted under this Agreement.
(n) The proceeds of the Loans shall be used by each Borrower, as applicable, for the purposes described on Schedule 5.1(i). No Obligor is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulations T, U, or X of the Board of Governors of the Federal Reserve System), and no part of the proceeds of any Loan will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying margin stock.
(o) No Obligor is (i) an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940 or (ii) subject to regulation under any other federal or state statute, rule or regulation limiting its ability to incur Indebtedness, pledge its assets or perform its obligations under this Agreement or the Credit Documents.
(p) All financial statements related to any Obligor, as applicable, that are delivered by such Obligor to Agent fairly present in all material respects such Obligor’s financial condition as of the date thereof and such Obligor’s results of operations for the period then ended. There has not been a material adverse change in the financial condition of such Obligor since the date of the most recent financial statements submitted to Agent.
(q) The properties of each Obligor are insured with financially sound and reputable insurance companies which are not Affiliates of such Obligor, in such amounts, with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where such Obligor operates.
(r) Each Obligor, as applicable, has met the minimum funding requirements of ERISA with respect to any employee benefit plans subject to ERISA. No event has occurred resulting from any Obligor‘s failure to comply with ERISA that is reasonably likely to result in such Obligor incurring any liability that could reasonably be expected to have a Material Adverse Effect.
(s) Each Obligor is able to pay its debts (including trade debts) as they mature; the fair saleable value of each Obligor’s assets (including goodwill minus disposition costs) exceeds the fair value of its liabilities; and each such Obligor will not be left with unreasonably small capital after the transactions contemplated by this Agreement.
(t) The representations and warranties made in this Section 4 shall survive the execution and delivery of this Agreement and shall be deemed to have been made by each Obligor on the Agreement Date and repeated by such Obligor, as applicable, in each case with reference to the facts and circumstances then existing, on the Closing Date, each Interest Payment Date and any subsequent Drawdown Date.
Appears in 1 contract
Samples: Credit Agreement (Aemetis, Inc)
Representations and Warranties of the Obligors. Each Obligor makes To induce the following representations Agent and warranties the Lenders party hereto to enter into this Amendment, each of the Borrower, Holdings and the Guarantors hereby represents and warrants to the Manager all Agent and each Lender that as of which shall survive the execution, delivery, performance or termination of this AgreementSecond Amendment Effective Date:
(a) Such Holdings and each Obligor is a limited liability company duly organized, validly existing and in good standing under the laws of its jurisdiction of organization.
(b) Such Obligor’s execution and delivery of, performance under, and compliance with party to this Agreement, will not violate such Obligor’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in a breach of, any agreement or other instrument to which it is a party or by which it is bound, except where such violation, breach or default in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(c) Such Obligor Amendment has the full power and authority to own execute, deliver and perform this Amendment. Holdings and each Obligor party to this Amendment has taken all necessary corporate, limited liability company or partnership, as applicable, action (including obtaining approval of its Tenant Site Assetsshareholders, if necessary) to conduct its business as presently conducted by it and to enter into and consummate all transactions contemplated by this Agreement, has duly authorized authorize the execution, delivery and performance of this Agreement, and Amendment. This Amendment has been duly executed and delivered this Agreement.
(d) This Agreementby Holdings and each Obligor party hereto and constitutes the legal, assuming the due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal valid and binding obligation obligations of Holdings and each such Obligor, enforceable against such Obligor it in accordance with the terms hereofits terms, subject to (i) applicable the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, winding up, moratorium and other laws similar Laws relating to or affecting the enforcement of creditors’ rights generally and general equitable principles (ii) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law.
Law) and an implied covenant of good faith and fair dealing. Holdings’ and each Obligor’s execution, delivery and performance of this Amendment does not (ei) Such Obligor is not in violation ofconflict with, and its execution and delivery of, performance under and compliance with this Agreement will not or constitute a violation or breach of, the terms of (A) any lawcontract, mortgage, lease, agreement, indenture, or instrument to which Holdings, such Obligor or any of its Restricted Subsidiaries is a party or which is binding upon it, (B) any Requirement of Law applicable to Holdings, such Obligor or any of its Restricted Subsidiaries or (C) any Charter Documents of Holdings, such Obligor or any of its Restricted Subsidiaries, in each case under clauses (A), (B) and (C), in any respect that would reasonably be expected to have a Material Adverse Effect or (ii) result in the imposition of any Lien (other than the Liens created by the Security Documents) upon the property of Holdings, such Obligor or any of its Restricted Subsidiaries by reason of any of the foregoing;
(b) no Default or Event of Default has occurred and is continuing or would occur, in each case, after giving effect to this Amendment and the Second Amendment to ABL Credit Agreement;
(c) no approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any order Governmental Authority or decree of any court other Person is necessary or arbiterrequired in connection with the execution, delivery or performance by, or enforcement against, Holdings or any orderof its Restricted Subsidiaries of this Amendment other than where failure to obtain, regulation effect or demand make any such approval, consent, exemption, authorization, or other action, notice or filing would not reasonably be expected to have a Material Adverse Effect; and
(d) after giving effect to this Amendment and the Second Amendment to ABL Credit Agreement, the representations and warranties of the Borrower and each of the other Obligors contained in the Credit Agreement and each other Loan Document are true and correct in all material respects (and any federalrepresentation and warranty that is qualified as to materiality or Material Adverse Effect is true and correct in all respects) on and as of the Second Amendment Effective Date as though made on and as of such date, state other than any such representation or local governmental or regulatory authority, except such violationwarranty which relates to a specified prior date, in which case such Obligor’s good faith representations and reasonable judgment, is not reasonably likely to affect materially warranties were true and adversely either the ability correct in all material respects as of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligorprior date.
(f) No consent, approval, authorization or order of any state or federal court or governmental agency or body is required for the consummation by such Obligor of the transactions contemplated herein, except for those consents, approvals, authorizations or orders that previously have been obtained or that, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(g) No litigation is pending or, to the Obligor’s Knowledge, threatened against such Obligor that, if determined adversely to such Obligor, would prohibit such Obligor from entering into this Agreement or that, in such Obligor’s good faith and reasonable judgment, is reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
Appears in 1 contract
Representations and Warranties of the Obligors. Each Obligor makes the following representations The Obligors represent and warranties warrant, jointly and severally, to the Manager all Agents and the Note Purchasers as follows as of which shall survive the execution, delivery, performance or termination of this Agreementdate hereof and the Closing Date:
(a) Such Each Obligor and each of its respective Subsidiaries (i) is a limited liability company corporation duly organized, validly existing and in good standing under the laws of its the jurisdiction of organizationits incorporation, (ii) is duly qualified and in good standing as a foreign corporation (except as set forth on Schedule 4.01(a)(ii) hereto) 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 power and authority to own or lease and operate its properties and to carry on its business as now conducted and as currently proposed to be conducted. All of the outstanding Equity Interests in the Issuer have been duly authorized, validly issued, are fully paid and non-assessable and are owned by the Parent free and clear of all Liens, except those created under the Note Purchase Documents or as set forth on Schedule 4.01(v).
(b) Such Set forth on Schedule 4.01(b) hereto is a complete and accurate list of all Subsidiaries of each Obligor as of the Closing Date showing as of the date hereof (as to each such Subsidiary) the jurisdiction of its incorporation, its directors and senior officers, 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 Obligor 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 Obligor’s execution Subsidiaries have been duly authorized, validly issued, are fully paid and delivery of, performance under, non-assessable and compliance with this Agreement, will not violate are owned by such Obligor’s organizational documents Obligor or constitute a default (one or an event which, with notice or lapse more of time, or both, would constitute a default) under, or result in a breach of, any agreement or other instrument to which it is a party or by which it is boundits Subsidiaries free and clear of all Liens, except where such violation, breach those created under the Note Purchase Documents or default in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligoras set forth on Schedule 4.01(v).
(c) Such Obligor has the full power and authority to own its Tenant Site Assets, to conduct its business as presently conducted by it and to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the The execution, delivery and performance by each Obligor of this Agreementeach Note Purchase Document to which it is or is to be a party, and has the consummation of the Transactions, are within such Obligor’s corporate powers, have been duly executed authorized by all necessary corporate action, and delivered this Agreementdo not (i) contravene such Obligor’s charter or bylaws, (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 under, any loan agreement, indenture, mortgage, deed of trust, or material contract, lease or other instrument binding on or affecting any Obligor, any of its Subsidiaries or any of their properties or (iv) except for the Liens created under the Note Purchase Documents, the Second Lien Loan Documents and the New Third Lien Documents, result in or require the creation or imposition of any Lien upon or with respect to any of the properties of any Obligor or any of its Subsidiaries. No Obligor 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 contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument, the violation or breach of which could be reasonably likely to have a Material Adverse Effect.
(d) This No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority or regulatory body (including, without limitation, the FCC or any applicable PUC) or any other third party is required for (i) the due execution, delivery, recordation, filing or performance by any Obligor of any Note Purchase Document to which it is or is to be a party, or for the consummation of the Transactions or the incurrence of the Obligations, (ii) the grant or affirmation by any Obligor 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 first priority nature thereof), or (iv) the exercise by any Agent or any Note Purchaser of its rights under the Note Purchase Documents or the remedies in respect of the Collateral pursuant to the Collateral Documents, except for (A) the authorizations, approvals, actions, notices and filings listed on Part I of Schedule 4.01(d) hereto, all of which have been duly obtained, taken, given or made and are in full force and effect, (B) authorizations, approvals, actions, notices and filings listed in Part II of Schedule 4.01(d) hereto, which shall not have been duly obtained, taken, given or made by the Closing Date, but shall be obtained, taken, given or made after the Closing Date in accordance with this Agreement, assuming (C) authorizations, approvals, actions, notices and filings listed in Part III of Schedule 4.01(d) hereto, which shall not have been duly obtained, taken, given or made by the due authorizationClosing Date and (D) authorizations, execution approvals, actions, notices and delivery filings which would not have a Material Adverse Effect if not made or obtained. All applicable waiting periods in connection with the Transactions have expired without any action having been taken by any competent authority restraining, preventing or imposing materially adverse conditions upon the Transactions or the rights of the Obligors 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 Note Purchase Document when delivered hereunder shall have been, duly executed and delivered by each of Obligor thereto. This Agreement is, and each other Note Purchase Document when delivered hereunder shall be, the other parties heretolegal, constitutes a valid, legal valid and binding obligation of such Obligoreach Obligor thereto, enforceable against such Obligor in accordance with the terms hereof, subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors’ rights generally and (ii) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law.
(e) Such Obligor is not in violation of, and its execution and delivery of, performance under and compliance with this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, except such violation, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligorterms.
(f) There is no action, suit, investigation, litigation or proceeding affecting any Obligor or any of its Subsidiaries, including any Environmental Action, pending or, to any Obligor’s knowledge, threatened before any court, governmental agency or arbitrator that (i) would alone or when considered in conjunction with any other actions, suits, investigation, litigation or proceeding affecting any Obligor, be reasonably likely to have a Material Adverse Effect other than the Disclosed Litigation or (ii) purports to affect the legality, validity or enforceability of any Note Purchase Document or the consummation of Transactions, and there has been no material adverse change in the status, or financial effect on any Obligor or any of its Subsidiaries, of or as a result of the Disclosed Litigation from that described on Schedule 4.01(f) hereto.
(i) The (A) audited Consolidated balance sheet of the Obligors as at the year ended December 31, 2004 and (B) the audited related Consolidated statement of income and Consolidated statement of cash flows of the Obligors for the year then ended, duly certified by the Chief Financial Officer of the Parent, copies of which have been furnished to the Agents and each Note Purchaser, fairly present the Consolidated financial condition of the Obligors, as the case may be, as at such date and the Consolidated results of operations of the Parent and its Subsidiaries for the period ended on such date, all in accordance with GAAP applied on a consistent basis, and since December 31, 2004 there has been no Material Adverse Change, it being understood that the events set forth on Schedule 4.01(o) hereto shall not be deemed to constitute a Material Adverse Change.
(ii) The (A) unaudited Consolidated balance sheet of the Obligors as at the three-months and quarter ended March 31, 2005 and (B) the unaudited related Consolidated statements of income and Consolidated statements of cash flows of the Obligors for the three months and quarter then ended, copies of which have been furnished to the Agents and each Note Purchaser, fairly present the Consolidated financial condition of the Obligors, as the case may be, as at such dates and the Consolidated results of operations of the Parent and its Subsidiaries for the periods ended on such dates, all in accordance with GAAP applied on a consistent basis.
(h) No consentObligor has (and shall not have following the funding of the Note Purchase) any Contingent Obligation, approvalcontingent liability or liability for taxes, authorization long-term lease or unusual forward or long-term commitment that, as of the Closing Date, that is not reflected in the audited financial statements referenced in Section 4.01(g) (except such Contingent Obligations, contingent liabilities or liabilities for taxes, long-term leases or unusual forward or long-term commitment incurred in connection with the Second Lien Loan Documents, the Note Purchase Documents or the New Third Lien Documents) or the notes thereto and that, in any such case, is material in relation to the business, operations, properties, condition (financial or otherwise) or prospects of the Parent or any of its Subsidiaries.
(i) The Consolidated balance sheets, income statements and cash flows statements of the Obligors delivered to the Note Purchasers pursuant to Section 5.03(d) and the unaudited pro forma financial information about the Obligors delivered to the Note Purchasers in the ITC^DeltaCom 2005-2006 Management Plan dated March 9, 2005 and the ITC^DeltaCom 2005-2007 forecast dated June 2005 (collectively, the “Projections”), 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 information, and represented, at the time of delivery, the Obligors’ best estimate of the future financial performance of the Obligors.
(j) No information, exhibit or report furnished by or on behalf of any Obligor to any Agent or any Note Purchaser in connection with the negotiation of the Note Purchase Documents or pursuant to the terms of the Note Purchase Documents contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements made therein not misleading.
(k) The Issuer is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Note have been or shall be used to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock.
(l) Neither any Obligor nor any of its Subsidiaries 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. Neither the issuance of any Notes, nor the application of the proceeds or repayment thereof by the Issuer, nor the consummation of the other Transactions, shall violate any provision of such Act or any rule, regulation or order of any state or federal court or governmental agency or body is required for the consummation by such Obligor SEC thereunder, in each case assuming the accuracy of the transactions contemplated hereinrepresentations and warranties of each Note Purchaser in Section 4.02.
(m) No Subsidiary is a party to, except for those consentsor otherwise subject to any legal restriction or any agreement (other than the Note Purchase Documents, approvals, authorizations or orders that previously have been obtained or that, in such Obligor’s good faith the Second Lien Loan Documents and reasonable judgment, is not reasonably likely to materially the New Third Lien Documents and adversely affect either customary limitations imposed by Applicable Law) restricting the ability of such Obligor Subsidiary to perform pay dividends out of profits or make any other similar distributions of profits to the Parent or any of its obligations under this Agreement or the financial condition Subsidiaries that owns outstanding Capital Stock of such ObligorSubsidiary.
(gn) No litigation is pending orThe Collateral Documents create a valid first priority security interest in the Collateral, securing the payment of the Secured Obligations, and at such time as all filings delivered to the Obligor’s KnowledgeCollateral Agent on or before the Closing Date have been duly filed in accordance with the provisions of the Security Agreement, threatened against such Obligor thatfirst priority security interest shall be perfected. The Obligors are the legal and beneficial owners of the Collateral free and clear of any Lien, if determined adversely except for the Liens and security interests created or permitted under the Note Purchase Documents.
(o) Since December 31, 2004, no event or change has occurred that has resulted in or evidences, either in any case or in the aggregate, a Material Adverse Effect (it being acknowledged that the effect of the events described in Schedule 4.01(o) does not constitute a Material Adverse Effect). Neither the Parent nor any of its Subsidiaries has directly or indirectly declared, ordered, paid or made, or set apart any sum or property for, any Restricted Payment or agreed to such Obligor, would prohibit such Obligor from entering into this Agreement or that, in such Obligor’s good faith and reasonable judgment, is reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligordo so except as permitted by Section 5.02(g).
Appears in 1 contract
Representations and Warranties of the Obligors. Each Obligor makes To induce the following representations Agent and warranties the Lenders party hereto to enter into this Amendment, each of the Borrower, Holdings and the other Obligors hereby represents and warrants to the Manager all Agent and each Lender that as of which shall survive the execution, delivery, performance or termination of this AgreementEighth Amendment Effective Date:
(a1) Such Holdings and each other Obligor is a limited liability company duly organized, validly existing and in good standing under the laws of its jurisdiction of organization.
(b) Such Obligor’s execution and delivery of, performance under, and compliance with party to this Agreement, will not violate such Obligor’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in a breach of, any agreement or other instrument to which it is a party or by which it is bound, except where such violation, breach or default in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(c) Such Obligor Amendment has the full power and authority to own its Tenant Site Assetsexecute, deliver and perform this Amendment, (2) Holdings and each other Obligor party to conduct its business as presently conducted by it this Amendment have taken all necessary limited liability company action to authorize the execution and to enter into and consummate all transactions contemplated by delivery of this Agreement, has duly authorized the execution, delivery Amendment and performance of this the Existing Credit Agreement, and as amended by this Amendment, (3) this Amendment has been duly executed and delivered this Agreement.
(d) This Agreementby Holdings and each other Obligor party hereto and constitutes the legal, assuming the due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal valid and binding obligation obligations of such ObligorPerson, enforceable against such Obligor Person in accordance with the terms hereofits terms, subject to (i) applicable the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, winding up, moratorium and other laws similar Laws relating to or affecting the enforcement of creditors’ rights generally and general equitable principles (ii) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law.
Law) and an implied covenant of good faith and fair dealing and (e4) Such Obligor is not in violation of, Holdings’ and its each other Obligor’s execution and delivery ofof this Amendment, and performance under of the Existing Credit Agreement, as amended by this Amendment, do not, after giving effect to this Amendment and compliance with this Agreement will not the First Amendment to Initial Intercreditor Agreement, (i) conflict with, or constitute a violation or breach of, the terms of (A) any lawcontract, mortgage, lease, agreement, indenture, or instrument to which such Person is a party or which is binding upon it, (B) any Requirement of Law applicable to such Person or (C) any Charter Documents of such Person, in each case under clauses (A), (B) and (C), in any respect that would reasonably be expected to have a Material Adverse Effect with respect to such Person or (ii) result in the imposition of any Lien (other than the Liens created by the Security Documents or other Permitted Liens) upon the property of Holdings, any order other Obligor or decree any of Holdings’ Restricted Subsidiaries by reason of any court of the foregoing;
(b) no Default or arbiterEvent of Default has occurred and is continuing or would occur, in each case, after giving effect to this Amendment and the First Amendment to Initial Intercreditor Agreement;
(c) no approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any orderGovernmental Authority or other Person is necessary or required in connection with the execution, regulation delivery or demand performance by, or enforcement against, Holdings or any of its Restricted Subsidiaries of this Amendment other than where failure to obtain, effect or make any federalsuch approval, state consent, exemption, authorization, or local governmental other action, notice or regulatory authorityfiling would not reasonably be expected to have a Material Adverse Effect; and
(d) after giving effect to this Amendment and the First Amendment to Initial Intercreditor Agreement, except the representations and warranties of Holdings and each of its Restricted Subsidiaries contained in the Credit Agreement and each other Loan Document are true and correct in all material respects (and any representation and warranty that is qualified as to materiality or Material Adverse Effect is true and correct in all respects) on and as of the Eighth Amendment Effective Date as though made on and as of such violationdate, other than any such representation or warranty which relates to a specified prior date, in which case such Obligor’s good faith representations and reasonable judgment, is not reasonably likely to affect materially warranties were true and adversely either the ability correct in all material respects as of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligorprior date.
(f) No consent, approval, authorization or order of any state or federal court or governmental agency or body is required for the consummation by such Obligor of the transactions contemplated herein, except for those consents, approvals, authorizations or orders that previously have been obtained or that, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(g) No litigation is pending or, to the Obligor’s Knowledge, threatened against such Obligor that, if determined adversely to such Obligor, would prohibit such Obligor from entering into this Agreement or that, in such Obligor’s good faith and reasonable judgment, is reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
Appears in 1 contract
Representations and Warranties of the Obligors. Each Obligor makes Section 2.1. To induce the following Noteholders to execute and deliver this First Amendment (which representations and warranties to the Manager all of which shall survive the execution, delivery, performance or termination execution and delivery of this Agreement:
First Amendment), the Obligors jointly and severally represent and warrant to the Noteholders that: (a) Such Obligor is a limited liability company this First Amendment has been duly organizedauthorized, validly existing and in good standing under the laws of its jurisdiction of organization.
(b) Such Obligor’s execution and delivery of, performance under, and compliance with this Agreement, will not violate such Obligor’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in a breach of, any agreement or other instrument to which it is a party or by which it is bound, except where such violation, breach or default in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(c) Such Obligor has the full power and authority to own its Tenant Site Assets, to conduct its business as presently conducted by it and to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement.
(d) This Agreement, assuming the due authorization, execution and delivery by each of Obligor and this First Amendment constitutes the other parties heretolegal, constitutes a valid, legal valid and binding obligation obligation, contract and agreement of such Obligor, each Obligor enforceable against such Obligor in accordance with the terms hereofits terms, subject to (i) applicable except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium and other or similar laws affecting the enforcement of or equitable principles relating to or limiting creditors’ rights generally generally; (b) the Note Purchase Agreement, as amended by this First Amendment, constitutes the legal, valid and binding obligation, contract and agreement of each Obligor enforceable against such Obligor in accordance with its respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or limiting creditors’ rights generally; (c) the execution, delivery and performance by each of the Obligors of this First Amendment (i) has been duly authorized by all requisite corporate action and, if required, shareholder action, (ii) general principles does not require the consent or approval of equity, regardless of whether such enforcement is considered in a proceeding in equity any governmental or at law.
regulatory body or agency and (eiii) Such Obligor is not in violation of, and its execution and delivery of, performance under and compliance with this Agreement will not constitute a violation of, (A) violate (1) any provision of law, statute, rule or regulation or such Obligor’s certificate of incorporation or bylaws, (2) any order or decree of any court or arbiter, or any orderrule, regulation or demand of any federal, state or local governmental or regulatory authority, except such violation, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(f) No consent, approval, authorization or order of any state or federal court or governmental other agency or body is required for the consummation by government binding upon such Obligor or (3) any provision of the transactions contemplated hereinany material indenture, except for those consents, approvals, authorizations agreement or orders that previously have been obtained or that, in such Obligor’s good faith and reasonable judgment, is not reasonably likely other instrument to materially and adversely affect either the ability of which such Obligor to perform is a party or by which its obligations properties or assets are or may be bound, including, without limitation, under this Agreement any Material Credit Facility, or the financial condition (B) result in a breach or constitute (alone or with due notice or lapse of such Obligor.
(g) No litigation is pending or, to the Obligor’s Knowledge, threatened against such Obligor that, if determined adversely to such Obligor, would prohibit such Obligor from entering into this Agreement or that, in such Obligor’s good faith and reasonable judgment, is reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.time
Appears in 1 contract
Samples: Note Purchase and Guarantee Agreement (Physicians Realty Trust)
Representations and Warranties of the Obligors. Each Obligor makes To induce the following representations Lenders party hereto to enter into this Amendment, each of the Borrower, Holdings and warranties Manufacturing hereby represents and warrants to the Manager all of which shall survive the execution, delivery, performance or termination of this AgreementAgent and each Lender that:
(a) Such Holdings and each Obligor is a limited liability company duly organized, validly existing and in good standing under the laws of its jurisdiction of organization.
(b) Such Obligor’s execution and delivery of, performance under, and compliance with party to this Agreement, will not violate such Obligor’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in a breach of, any agreement or other instrument to which it is a party or by which it is bound, except where such violation, breach or default in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(c) Such Obligor Amendment has the full power and authority to own execute, deliver and perform this Amendment. Holdings and each Obligor party to this Amendment has taken all necessary corporate, limited liability company or partnership, as applicable, action (including obtaining approval of its Tenant Site Assetsshareholders, if necessary) to conduct its business as presently conducted by it and to enter into and consummate all transactions contemplated by this Agreement, has duly authorized authorize the execution, delivery and performance of this Agreement, and Amendment. This Amendment has been duly executed and delivered this Agreement.
(d) This Agreementby Holdings and each Obligor party hereto and constitute the legal, assuming the due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal valid and binding obligation obligations of Holdings and each such Obligor, enforceable against such Obligor it in accordance with the terms hereofits terms, subject to (i) applicable the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, winding up, moratorium and other laws similar Laws relating to or affecting the enforcement of creditors’ rights generally and general equitable principles (ii) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law.
Law) and an implied covenant of good faith and fair dealing. Holdings’ and each Obligor’s execution, delivery and performance of this Amendment does not (ei) Such Obligor is not in violation ofconflict with, and its execution and delivery of, performance under and compliance with this Agreement will not or constitute a violation or breach of, the terms of (A) any lawcontract, mortgage, lease, agreement, indenture, or instrument to which Holdings, such Obligor or any of its Restricted Subsidiaries is a party or which is binding upon it, (B) any Requirement of Law applicable to Holdings, such Obligor or any of its Restricted Subsidiaries or (C) any Charter Documents of Holdings, such Obligor or any of its Restricted Subsidiaries, in each case, in any respect that would reasonably be expected to have a Material Adverse Effect or (ii) result in the imposition of any Lien (other than the Liens created by the Security Documents) upon the property of Holdings, such Obligor or any of its Restricted Subsidiaries by reason of any of the foregoing;
(b) no Default or Event of Default has occurred and is continuing or would occur, in each case, after giving effect to this Amendment;
(c) no approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any order Governmental Authority or decree of any court other Person is necessary or arbiterrequired in connection with the execution, delivery or performance by, or enforcement against, Holdings or any orderof its Restricted Subsidiaries of this Amendment other than where failure to obtain, regulation effect or demand make any such approval, consent, exemption, authorization, or other action, notice or filing would not reasonably be expected to have a Material Adverse Effect; and
(d) after giving effect to this Amendment, the representations and warranties of the Borrower and each of the other Obligors contained in the Credit Agreement and each other Loan Document are true and correct in all material respects (and any federalrepresentation and warranty that is qualified as to materiality or Material Adverse Effect is true and correct in all respects) on and as of the Third Amendment Effective Date as though made on and as of such date, state other than any such representation or local governmental or regulatory authority, except such violationwarranty which relates to a specified prior date, in which case such Obligor’s good faith representations and reasonable judgment, is not reasonably likely to affect materially warranties were true and adversely either the ability correct in all material respects as of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligorprior date.
(f) No consent, approval, authorization or order of any state or federal court or governmental agency or body is required for the consummation by such Obligor of the transactions contemplated herein, except for those consents, approvals, authorizations or orders that previously have been obtained or that, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(g) No litigation is pending or, to the Obligor’s Knowledge, threatened against such Obligor that, if determined adversely to such Obligor, would prohibit such Obligor from entering into this Agreement or that, in such Obligor’s good faith and reasonable judgment, is reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
Appears in 1 contract
Representations and Warranties of the Obligors. Each Obligor makes To induce the following representations Agent, the Collateral Agent, the Letter of Credit Issuer, the Swingline Lender and warranties Lenders party hereto to enter into this Agreement, each of the Borrower, Holdings and Manufacturing hereby represent and warrant to the Manager all Agent, the Collateral Agent, the Letter of which shall survive Credit Issuer, the execution, delivery, performance or termination of this AgreementSwingline Lender and each Lender that:
(a) Such Obligor is each of the Borrower, Holdings and Manufacturing has the corporate power and authority, and the legal right, to execute, delivery and perform this Agreement. Each of the Borrower, Holdings and Manufacturing has taken all necessary corporate action to authorize the execution, delivery and performance, as applicable, of this Agreement. This Agreement has been duly executed and delivered on behalf of the Borrower, Holdings and Manufacturing. Upon its execution, this Agreement constitutes a limited liability company duly organizedlegal, validly existing valid and binding obligation of each of the Borrower, Holdings and Manufacturing, enforceable against each of the Borrower, Holdings and Manufacturing in good standing under the laws of accordance with its jurisdiction of organization.
(b) Such terms. Holdings’ and each Obligor’s execution and delivery of, performance under, and compliance with this Agreement, will not violate such Obligor’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in a breach of, any agreement or other instrument to which it is a party or by which it is bound, except where such violation, breach or default in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(c) Such Obligor has the full power and authority to own its Tenant Site Assets, to conduct its business as presently conducted by it and to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement does not (x) conflict with, or constitute a violation or breach of, the terms of (a) any contract, mortgage, lease, agreement, indenture, or instrument to which Holdings, such Obligor or any of its Restricted Subsidiaries is a party or which is binding upon it, (b) any Requirement of Law applicable to Holdings, such Obligor or any of its Restricted Subsidiaries or (c) any Charter Documents of Holdings, such Obligor or any of its Restricted Subsidiaries, in each case, in any respect that would reasonably be expected to have a Material Adverse Effect or (y) result in the imposition of any Lien (other than Liens created by the Security Documents) upon the property of Holdings, such Obligor or any of its Restricted Subsidiaries by reason of any of the foregoing;
(b) no Default or Event of Default has occurred and is continuing or would occur, in each case, after giving effect to this Agreement;
(c) no approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, the Borrower of this Agreement, other than (i) those that have been obtained or made and has duly executed are in full force and delivered this Agreement.effect and (ii) where failure to obtain, effect or make any such approval, consent, exemption, authorization, or other action, notice or filing would not reasonably be expected to have a Material Adverse Effect; and
(d) This after giving effect to this Agreement, assuming the due authorization, execution representations and delivery by warranties of the Borrower and each of the other parties heretoObligors contained in the Credit Agreement and each other Loan Document are true and correct in all material respects, constitutes a validexcept to the extent such representation and warranty expressly relates to an earlier date, legal in which case such representation or warranty shall have been true and binding obligation correct in all material respects as of such Obligorearlier date, enforceable against such Obligor in accordance with the terms hereof, except that any representations and warranties subject to “materiality”, “Material Adverse Effect” or similar materiality qualifiers shall be true and correct in all respects (iexcept to the extent such representation and warranty expressly relates to an earlier date, in which case such representation and warranty shall have been true and correct in all respects as of such earlier date). By executing this Agreement and making the representations and warranties set forth herein, each of the Borrower, Holdings and Manufacturing is certifying that the conditions set forth in clauses (c) applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors’ rights generally and (iid) general principles of equity, regardless Section 2 of whether such enforcement is considered in a proceeding in equity or at law.
(e) Such Obligor is not in violation of, and its execution and delivery of, performance under and compliance with this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, except such violation, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(f) No consent, approval, authorization or order of any state or federal court or governmental agency or body is required for the consummation by such Obligor of the transactions contemplated herein, except for those consents, approvals, authorizations or orders that previously have been obtained or that, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligorsatisfied.
(g) No litigation is pending or, to the Obligor’s Knowledge, threatened against such Obligor that, if determined adversely to such Obligor, would prohibit such Obligor from entering into this Agreement or that, in such Obligor’s good faith and reasonable judgment, is reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
Appears in 1 contract
Representations and Warranties of the Obligors. Each Section 2.1. To induce the Noteholders to execute and deliver this First Amendment, each Obligor makes the following representations hereby represents and warranties warrants to the Manager all of which shall survive the execution, delivery, performance or termination of this AgreementNoteholders that:
(a) Such Obligor it is a limited liability company duly organized, validly existing and and, where applicable, in good standing under the laws of its jurisdiction of organization.incorporation, and is duly qualified as a foreign corporation and, where applicable, is in good standing in each jurisdiction in which such qualification is required by law, other than those jurisdictions as to which the failure to be so qualified or in good standing would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(b) Such Obligor’s execution this First Amendment has been duly authorized, executed and delivery of, performance under, and compliance with this Agreement, will not violate such Obligor’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in a breach of, any agreement or other instrument to which it is a party or delivered by which it is bound, except where such violation, breach or default in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.it;
(c) Such Obligor has the full power and authority to own its Tenant Site AssetsNote Agreement, to conduct its business as presently conducted by it and to enter into and consummate all transactions contemplated amended by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement.
(d) This Agreement, assuming the due authorization, execution and delivery by each of the other parties heretoFirst Amendment, constitutes a validthe legal, legal valid and binding obligation obligation, contract and agreement of such Obligor, Obligor enforceable against such Obligor it in accordance with the terms hereofits terms, subject to except as enforcement may be limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium and or other similar laws affecting the enforcement of creditors’ rights generally and (ii) general principles of equity, equity (regardless of whether such enforcement enforceability is considered in a proceeding in equity or at law.);
(d) the execution, delivery and performance by such Obligor of this First Amendment will not (i) contravene, result in any breach of, or constitute a default under, or result in the creation of any Lien in respect of any property of the Company, the Parent Guarantor or any Significant Subsidiary under, any indenture, mortgage, deed of trust, loan, purchase or credit agreement, lease, corporate charter, memorandum of association, articles of association, regulations or by-laws, shareholders agreement or any other agreement or instrument to which the Company, the Parent Guarantor or any Significant Subsidiary is bound or by which the Company, the Parent Guarantor or any Significant Subsidiary or any of their respective properties may be bound or affected, (ii) conflict with or result in a breach of any of the terms, conditions or provisions of any order, judgment, decree, or ruling of any court, arbitrator or Governmental Authority applicable to the Company, the Parent Guarantor or any Significant Subsidiary or (iii) violate any provision of any statute or other rule or regulation of any Governmental Authority applicable to the Company, the Parent Guarantor or any Significant Subsidiary;
(e) Such Obligor is not in violation no consent, approval or authorization of, and its execution and delivery ofor registration, performance under and compliance with this Agreement will not constitute a violation offiling or declaration with, any lawGovernmental Authority is required in connection with the execution, any order delivery or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, except such violation, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either performance by the ability of such Obligor to perform its obligations under this Agreement Company or the financial condition Parent Guarantor of such Obligor.this First Amendment; and
(f) No consent, approval, authorization or order of any state or federal court or governmental agency or body is required for the consummation by such Obligor as of the transactions contemplated hereindate hereof, except for those consentsboth before and after giving effect to this First Amendment, approvals, authorizations no Default or orders that previously have been obtained or that, in such Obligor’s good faith Event of Default has occurred and reasonable judgment, is not reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligorcontinuing.
(g) No litigation is pending or, to the Obligor’s Knowledge, threatened against such Obligor that, if determined adversely to such Obligor, would prohibit such Obligor from entering into this Agreement or that, in such Obligor’s good faith and reasonable judgment, is reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
Appears in 1 contract
Samples: Note Purchase Agreement (Colliers International Group Inc.)
Representations and Warranties of the Obligors. Each Section 2.1. To induce the Noteholders to execute and deliver this Amendment, each Obligor makes the following representations jointly and warranties severally hereby represents and warrants to the Manager all of which shall survive the execution, delivery, performance or termination of this AgreementNoteholders that:
(a) Such Obligor Each Group Member (i) is a limited liability company duly organized, incorporated, validly existing and in good standing (to the extent such concept is applicable in the relevant jurisdiction) under the laws of its the jurisdiction of its organization, (ii) has the corporate, limited liability or limited partnership, as applicable, power and authority, and the legal right, to own and operate its property, to lease the property it operates as lessee and to conduct the business in which it is currently engaged, (iii) is duly qualified to do business in, and in good standing (to the extent such concept is applicable in the relevant jurisdiction) under the laws of, each jurisdiction where its ownership, lease or operation of property or the conduct of its business requires such qualification except for where failure to do so could not reasonably be expected to have a Material Adverse Effect and (iv) is in compliance with all Requirements of Law except to the extent that the failure to comply therewith could not, in the aggregate, reasonably be expected to have a Material Adverse Effect.
(b) Such Obligor’s execution and delivery of, performance under, and compliance with this Agreement, will not violate such Obligor’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in a breach of, any agreement or other instrument to which it is a party or by which it is bound, except where such violation, breach or default in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(c) Such Each Obligor has the full corporate, limited liability or limited partnership, as applicable, power and authority to own its Tenant Site Assetsauthority, to conduct its business as presently conducted by it and the legal right, to enter into and consummate perform this Amendment. Each Obligor has taken all transactions contemplated by this Agreement, has duly authorized necessary organizational action to authorize the execution, delivery and performance of this AgreementAmendment. No consent or authorization of, filing with, notice to or other act by or in respect of, any Governmental Authority or any other Person is required in connection with the execution, delivery, performance, validity or enforceability of this Amendment, except consents, authorizations, filings, notices and other acts that have been obtained or made and are in full force and effect. This Amendment has been duly executed and delivered this Agreement.
(d) on behalf of each Obligor party thereto. This Agreement, assuming the due authorization, execution and delivery by each of the other parties hereto, Amendment constitutes a validlegal, legal valid and binding obligation of such Obligoreach Obligor party thereto, enforceable against each such Obligor in accordance with the terms hereofits terms, subject to (i) except as enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other or similar laws relating to or affecting the enforcement of creditors’ rights generally and by general equitable principles (ii) general principles of equity, regardless of whether such enforcement is considered in a proceeding sought by proceedings in equity or at law).
(c) The execution, delivery and performance by the applicable Obligor of this Amendment will not (i) violate any Requirement of Law, any indenture, agreement or other instrument binding on an Obligor or its assets, or any Governing Document of any Obligor, except where such violation could not reasonably be expected to have a Material Adverse Effect, and (ii) will not result in, or require, the creation or imposition of any Lien on any of their respective properties or revenues pursuant to any such indenture, agreement or other instrument.
(d) No consent, approval or authorization of, or registration, filing or declaration with, any Governmental Authority is required in connection with the execution, delivery or performance by the Obligors of this Amendment. It is not necessary to ensure the legality, validity, enforceability or admissibility into evidence in the United States or the Netherlands, as applicable, of this Amendment that this Amendment or any other document be filed, recorded or enrolled with any Governmental Authority, or that any such agreement or document be stamped with any stamp, registration or similar transaction tax that may be required in connection with admissibility into evidence.
(e) Such Obligor As of the date hereof, both before and after giving effect to this Amendment, no Default or Event of Default has occurred and is not in violation of, and its execution and delivery of, performance under and compliance with this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, except such violation, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligorcontinuing.
(f) No consentOther than the consideration given by Parent Company or its affiliate to (i) the lenders in connection with amending and restating the Principal Credit Facility on February 15, approval2024 and (ii) the noteholders in connection with the First Amendment to the 2022 NPA on or about the date of this Amendment, authorization no lender under any agreement or order other evidence of any state or federal court or governmental agency or body is required for the consummation by such Obligor Indebtedness of the transactions contemplated hereinObligors, except for those consentsincluding but not limited to any Material Debt Facility, approvals, authorizations has received any collateral or orders consideration in connection with any amendments that previously have been obtained or that, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(g) No litigation is pending or, are substantially similar to the Obligor’s Knowledge, threatened against such Obligor that, if determined adversely to such Obligor, would prohibit such Obligor from entering into amendments set forth in Section 1 of this Agreement or that, in such Obligor’s good faith and reasonable judgment, is reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such ObligorAmendment.
Appears in 1 contract
Representations and Warranties of the Obligors. Each Obligor makes Section 3.1. To induce the following Noteholder to execute and deliver this Second Amendment to Note Agreement, each of the Obligors represents and warrants to Noteholder (which representations and warranties to the Manager all of which shall survive the execution, delivery, performance or termination execution and delivery of this Second Amendment to Note Agreement) that:
(a) Such this Second Amendment to Note Agreement has been duly authorized, executed and delivered by it and this Second Amendment to Note Agreement constitutes the legal, valid and binding obligation, contract and agreement of such Obligor is a enforceable against it in accordance with its terms, except as enforcement may be limited liability company duly organizedby bankruptcy, validly existing and in good standing under the insolvency, reorganization, moratorium or similar laws of its jurisdiction of organization.or equitable principles relating to or limiting creditors' rights generally;
(b) Such Obligor’s execution the Original Note Agreement, as amended by this Second Amendment to Note Agreement, constitutes the legal, valid and binding obligations, contracts and agreements of such Obligor enforceable against it in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or limiting creditors' rights generally;
(c) the execution, delivery ofand performance by such Obligor of this Second Amendment to Note Agreement (i) has been duly authorized by all requisite corporate action and, performance underif required, shareholder action, (ii) does not require the consent or approval of any governmental or regulatory body or agency, and compliance with this Agreement, (iii) will not (A) violate such Obligor’s organizational documents (1) any provision of law, statute, rule or constitute a default regulation or its certificate of incorporation or bylaws, (2) any order of any court or an event whichany rule, with notice regulation or lapse order of timeany other agency or government binding upon it, or both(3) any provision of any material indenture, would constitute a default) under, or result in a breach of, any agreement or other instrument to which it is a party or by which it is its properties or assets are or may be bound, except where such violation, or (B) result in a breach or constitute (alone or with due notice or lapse of time or both) a default under any indenture, agreement or other instrument referred to in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
clause (ciii)(A)(3) Such Obligor has the full power and authority to own its Tenant Site Assets, to conduct its business as presently conducted by it and to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement.Section 3.1(c);
(d) This as of the date hereof and after giving effect to this Second Amendment to Note Agreement, assuming the due authorization, execution and delivery by each no Default or Event of the other parties hereto, constitutes a valid, legal and binding obligation of such Obligor, enforceable against such Obligor in accordance with the terms hereof, subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors’ rights generally and (ii) general principles of equity, regardless of whether such enforcement Default has occurred which is considered in a proceeding in equity or at law.continuing;
(e) Such Obligor is not the representations and warranties set forth in violation of, Exhibit B to the First Amendment are true and its execution correct on and delivery of, performance under as of the Effective Date as if made on such date; and compliance with this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, except such violation, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(f) No consentsince September 30, approval1996 there has been no material adverse change in the business, authorization financial or order other conditions of any state Obligor, or federal court or governmental agency or body is required for in the consummation by such Obligor collateral securing of the transactions contemplated herein, except for those consents, approvals, authorizations Notes or orders that previously have been obtained or that, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to materially and adversely affect either the ability prospects of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(g) No litigation is pending or, to the Obligor’s Knowledge, threatened against such Obligor that, if determined adversely to such any Obligor, would prohibit such Obligor other than the one-time charge of $1,371,000 from entering into this Agreement or that, in such Obligor’s good faith and reasonable judgment, is reasonably likely to materially and adversely affect either the ability discontinued operations of such Obligor to perform its obligations under this Agreement or the financial condition of such ObligorVictory.
Appears in 1 contract
Samples: Note Agreement (Middleby Corp)
Representations and Warranties of the Obligors. Each Obligor makes of the following representations Obligors represents and warranties warrants to the Manager all of which shall survive the execution, delivery, performance or termination of this AgreementPurchaser that:
(a) Such Obligor is a limited liability company duly organizedAfter giving effect to this Consent, validly existing the representations and warranties contained in good standing under Section 3 of the laws Existing Purchase Agreement are true in all material respects on and as of its jurisdiction the date hereof to the same extent as if made on and as of organizationthe date hereof except to the extent that such representations and warranties specifically relate to an earlier date, in which case they are true in all material respects as of such earlier date.
(b) Such The execution, delivery and performance by each of the Obligors of this Consent are within their respective corporate powers and have been duly authorized by all necessary corporate action on the part of the board of directors and stockholders of each respective Obligor’s . This Consent has been duly executed and delivered by each of the Obligors and is the legal, valid and binding obligation of each Obligor, enforceable against that Obligor, in accordance with its terms, except to the extent that such enforcement may be limited by applicable bankruptcy, insolvency and other similar laws affecting creditors' rights generally and by general principles of equity.
(c) Neither the execution and delivery ofby any of the Obligors of this Consent, performance under, and nor the fulfillment of or compliance with this Agreementthe terms and provisions hereof, will not violate such Obligor’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) underconflict with, or result in a breach or violation of the terms, conditions or provisions of, or constitute a default under, or result in the creation of any agreement Lien on any properties or other assets of any Obligor pursuant to, the Organizational Documents of such Obligor or any contract, agreement, mortgage, indenture, lease or instrument to which it such Obligor is a party or by which it is boundbound or to which any of its assets are subject, except where such violationor any statute, breach or default in such Obligor’s good faith and reasonable ordinance, law, rule, regulation, order, writ, judgment, is not reasonably likely injunction, decree or award to affect materially and adversely either the ability of which such Obligor to perform or any of its obligations under this Agreement or the financial condition of such Obligor.
(c) Such Obligor has the full power and authority to own its Tenant Site Assets, to conduct its business as presently conducted by it and to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreementassets are subject.
(d) This Agreement, assuming the due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal and binding obligation of such Obligor, enforceable against such Obligor in accordance with the terms hereof, subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors’ rights generally and (ii) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law.
(e) Such Obligor is not in violation of, and its execution and delivery of, performance under and compliance with this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, except such violation, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(f) No consent, approvalapproval or authorization of or declaration, authorization registration or order filing with any Governmental Authority or any nongovernmental Person, including, without limitation, any creditor or stockholder of any state or federal court or governmental agency or body Obligor, is required for in connection with the consummation execution or delivery by such Obligor of this Consent or the transactions contemplated herein, except for those consents, approvals, authorizations or orders that previously have been obtained or that, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to materially and adversely affect either the ability of performance by such Obligor to perform of its obligations under this Agreement hereunder, or the financial as a condition of such Obligor.
(g) No litigation is pending or, to the Obligor’s Knowledgelegality, threatened against such Obligor that, if determined adversely to such Obligor, would prohibit such Obligor from entering into validity or enforceability of this Agreement Consent or that, in such Obligor’s good faith and reasonable judgment, is reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligorany provision hereof.
Appears in 1 contract
Samples: Consent and Amendment (TRUEYOU.COM)
Representations and Warranties of the Obligors. Each Obligor makes Section 3.1. To induce the following Noteholders to execute and deliver this First Amendment (which representations and warranties to the Manager all of which shall survive the execution, delivery, performance or termination execution and delivery of this AgreementFirst Amendment), each Obligor represents and warrants to the Noteholders that:
(a) Such Obligor is a this First Amendment has been duly authorized, executed and delivered by it and this First Amendment constitutes the legal, valid and binding obligation, contract and agreement of the Obligors enforceable against it in accordance with its terms, except as enforcement may be limited liability company duly organizedby bankruptcy, validly existing and in good standing under the insolvency, reorganization, moratorium or similar laws of its jurisdiction of organization.or equitable principles relating to or limiting creditors’ rights generally;
(b) Such Obligor’s execution the Note Agreement, as amended by this First Amendment, constitutes the legal, valid and binding obligations, contracts and agreement of FDSI enforceable against it in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or limiting creditors’ rights generally;
(c) the execution, delivery ofand performance by it of this First Amendment (i) has been duly authorized by all requisite corporate action and, performance underif required, shareholder action, (ii) does not require the consent or approval of any governmental or regulatory body or agency, and compliance with this Agreement, (iii) will not (A) violate such Obligor’s organizational documents (1) any provision of law, statute, rule or constitute a default regulation or its certificate of incorporation or bylaws, (2) any order of any court or an event whichany rule, with notice regulation or lapse order of timeany other agency or government binding upon it, or both(3) any provision of any material indenture, would constitute a default) under, or result in a breach of, any agreement or other instrument to which it is a party or by which it is its properties or assets are or may be bound, except where such violationincluding, without limitation, the Bank Credit Agreement or (B) result in a breach or constitute (alone or with due notice or lapse of time or both) a default in such Obligor’s good faith and reasonable judgmentunder any indenture, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement agreement or the financial condition of such Obligor.
(c) Such Obligor has the full power and authority to own its Tenant Site Assets, to conduct its business as presently conducted by it and to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement.other instrument;
(d) This Agreement, assuming the due authorization, execution and delivery by each as of the other parties heretodate hereof and after giving effect to this First Amendment, constitutes a valid, legal and binding obligation no Default or Event of such Obligor, enforceable against such Obligor in accordance with the terms hereof, subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors’ rights generally and (ii) general principles of equity, regardless of whether such enforcement Default has occurred which is considered in a proceeding in equity or at law.continuing; and
(e) Such Obligor it has received and is not in violation ofpossession of an indicative rating of its long-term unsecured debt of BBB- or greater from S&P and Baa3 or greater from Xxxxx’x, and its execution such letters from each of Xxxxx’x and delivery of, performance under S&P confirming such ratings remain in full force and compliance with this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, except such violation, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligoreffect.
(f) No consent, approval, authorization or order of any state or federal court or governmental agency or body is required for the consummation by such Obligor of the transactions contemplated herein, except for those consents, approvals, authorizations or orders that previously have been obtained or that, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(g) No litigation is pending or, to the Obligor’s Knowledge, threatened against such Obligor that, if determined adversely to such Obligor, would prohibit such Obligor from entering into this Agreement or that, in such Obligor’s good faith and reasonable judgment, is reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
Appears in 1 contract
Representations and Warranties of the Obligors. Each Section 2.1. To induce the Noteholders to execute and deliver this Second Amendment, each Obligor makes the following representations hereby represents and warranties warrants to the Manager all of which shall survive the execution, delivery, performance or termination of this AgreementNoteholders that:
(a) Such Obligor it is a limited liability company duly organized, validly existing and and, where applicable, in good standing under the laws of its jurisdiction of organization.incorporation, and is duly qualified as a foreign corporation and, where applicable, is in good standing in each jurisdiction in which such qualification is required by law, other than those jurisdictions as to which the failure to be so qualified or in good standing would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(b) Such Obligor’s execution this Second Amendment has been duly authorized, executed and delivery of, performance under, and compliance with this Agreement, will not violate such Obligor’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in a breach of, any agreement or other instrument to which it is a party or delivered by which it is bound, except where such violation, breach or default in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.it;
(c) Such Obligor has the full power and authority to own its Tenant Site AssetsNote Agreement, to conduct its business as presently conducted by it and to enter into and consummate all transactions contemplated amended by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement.
(d) This Agreement, assuming the due authorization, execution and delivery by each of the other parties heretoSecond Amendment, constitutes a validthe legal, legal valid and binding obligation obligation, contract and agreement of such Obligor, Obligor enforceable against such Obligor it in accordance with the terms hereofits terms, subject to except as enforcement may be limited by
(i) applicable bankruptcy, insolvency, reorganization, moratorium and or other similar laws affecting the enforcement of creditors’ rights generally and (ii) general principles of equity, equity (regardless of whether such enforcement enforceability is considered in a proceeding in equity or at law.);
(d) the execution, delivery and performance by such Obligor of this Second Amendment will not (i) contravene, result in any breach of, or constitute a default under, or result in the creation of any Lien in respect of any property of the Company, the Parent Guarantor or any Significant Subsidiary under, any indenture, mortgage, deed of trust, loan, purchase or credit agreement, lease, corporate charter, memorandum of association, articles of association, regulations or by-laws, shareholders agreement or any other agreement or instrument to which the Company, the Parent Guarantor or any Significant Subsidiary is bound or by which the Company, the Parent Guarantor or any Significant Subsidiary or any of their respective properties may be bound or affected, (ii) conflict with or result in a breach of any of the terms, conditions or provisions of any order, judgment, decree, or ruling of any court, arbitrator or Governmental Authority applicable to the Company, the Parent Guarantor or any Significant Subsidiary or (iii) violate any provision of any statute or other rule or regulation of any Governmental Authority applicable to the Company, the Parent Guarantor or any Significant Subsidiary;
(e) Such Obligor is not in violation no consent, approval or authorization of, and its execution and delivery ofor registration, performance under and compliance with this Agreement will not constitute a violation offiling or declaration with, any lawGovernmental Authority is required in connection with the execution, any order delivery or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, except such violation, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either performance by the ability of such Obligor to perform its obligations under this Agreement Company or the financial condition Parent Guarantor of such Obligor.this Second Amendment;
(f) No consent, approval, authorization or order of any state or federal court or governmental agency or body is required for the consummation by such Obligor as of the transactions contemplated hereindate hereof, except for those consentsboth before and after giving effect to this Second Amendment, approvals, authorizations no Default or orders that previously have been obtained or that, in such Obligor’s good faith Event of Default has occurred and reasonable judgment, is not reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.continuing; and
(g) No litigation is pending orno lender under any agreement or other evidence of Indebtedness of the Obligors, including but not limited to any Material Credit Facility, has received any collateral or consideration in connection with any amendments that are substantially similar to the Obligor’s Knowledge, threatened against such Obligor that, if determined adversely amendments set forth in Section 1 of this Second Amendment in excess of the consideration paid to such Obligor, would prohibit such Obligor from entering into this Agreement or that, in such Obligor’s good faith and reasonable judgment, is reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations Noteholders under this Agreement or the financial condition of such ObligorSection 3.1(d) hereof.
Appears in 1 contract
Samples: Note Purchase Agreement (Colliers International Group Inc.)
Representations and Warranties of the Obligors. Each Obligor makes To induce the following representations Agent and warranties the Lenders party hereto to enter into this Amendment, each of the Borrower, Holdings and the other Obligors hereby represents and warrants to the Manager all Agent and each Lender that as of which shall survive the execution, delivery, performance or termination of this AgreementThird Amendment Effective Date:
(a) Such Holdings and each Obligor is a limited liability company duly organized, validly existing and in good standing under the laws of its jurisdiction of organization.
(b) Such Obligor’s execution and delivery of, performance under, and compliance with party to this Agreement, will not violate such Obligor’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in a breach of, any agreement or other instrument to which it is a party or by which it is bound, except where such violation, breach or default in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(c) Such Obligor Amendment has the full power and authority to own execute, deliver and perform this Amendment. Holdings and each Obligor party to this Amendment has taken all necessary corporate, limited liability company or partnership, as applicable, action (including obtaining approval of its Tenant Site Assetsshareholders, if necessary) to conduct its business as presently conducted by it and to enter into and consummate all transactions contemplated by this Agreement, has duly authorized authorize the execution, delivery and performance of this Agreement, and Amendment. This Amendment has been duly executed and delivered this Agreement.
(d) This Agreementby Holdings and each Obligor party hereto and constitutes the legal, assuming the due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal valid and binding obligation obligations of Holdings and each such Obligor, enforceable against such Obligor it in accordance with the terms hereofits terms, subject to (i) applicable the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, winding up, moratorium and other laws similar Laws relating to or affecting the enforcement of creditors’ rights generally and general equitable principles (ii) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law.
Law) and an implied covenant of good faith and fair dealing. Holdings’ and each Obligor’s execution, delivery and performance of this Amendment does not, after giving effect to this Amendment, the Amendment to Intercreditor and the Third Amendment to Term Loan Credit Agreement, (ei) Such Obligor is not in violation ofconflict with, and its execution and delivery of, performance under and compliance with this Agreement will not or constitute a violation or breach of, the terms of (A) any lawcontract, mortgage, lease, agreement, indenture, or instrument to which Holdings, such Obligor or any of its Restricted Subsidiaries is a party or which is binding upon it, (B) any Requirement of Law applicable to Holdings, such Obligor or any of its Restricted Subsidiaries or (C) any Charter Documents of Holdings, such Obligor or any of its Restricted Subsidiaries, in each case under clauses (A), (B) and (C), in any respect that would reasonably be expected to have a Material Adverse Effect or (ii) result in the imposition of any Lien (other than the Liens created by the Security Documents) upon the property of Holdings, such Obligor or any of its Restricted Subsidiaries by reason of any of the foregoing;
(b) no Default or Event of Default has occurred and is continuing or would occur, in each case, after giving effect to this Amendment and the Third Amendment to Term Loan Credit Agreement;
(c) no approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any order Governmental Authority or decree of any court other Person is necessary or arbiterrequired in connection with the execution, delivery or performance by, or enforcement against, Holdings or any orderof its Restricted Subsidiaries of this Amendment other than where failure to obtain, regulation effect or demand make any such approval, consent, exemption, authorization, or other action, notice or filing would not reasonably be expected to have a Material Adverse Effect; and
(d) after giving effect to this Amendment and the Third Amendment to Term Loan Credit Agreement, the representations and warranties of Holdings and each of its Restricted Subsidiaries contained in the Credit Agreement and each other Loan Document are true and correct in all material respects (and any federalrepresentation and warranty that is qualified as to materiality or Material Adverse Effect is true and correct in all respects) on and as of the Third Amendment Effective Date as though made on and as of such date, state other than any such representation or local governmental or regulatory authority, except such violationwarranty which relates to a specified prior date, in which case such Obligor’s good faith representations and reasonable judgment, is not reasonably likely to affect materially warranties were true and adversely either the ability correct in all material respects as of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligorprior date.
(f) No consent, approval, authorization or order of any state or federal court or governmental agency or body is required for the consummation by such Obligor of the transactions contemplated herein, except for those consents, approvals, authorizations or orders that previously have been obtained or that, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(g) No litigation is pending or, to the Obligor’s Knowledge, threatened against such Obligor that, if determined adversely to such Obligor, would prohibit such Obligor from entering into this Agreement or that, in such Obligor’s good faith and reasonable judgment, is reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
Appears in 1 contract
Representations and Warranties of the Obligors. Each Obligor makes To induce the following representations Agent and warranties the Note Purchasers to enter into this Amendment No. 1, the Obligors represent and warrant, jointly and severally, to the Manager all Agents and the Note Purchasers as follows as of which shall survive the execution, delivery, performance or termination of this AgreementExecution Date and the Secondary Closing Date:
(a) Such This Amendment No. 1, the Note Purchase Agreement as amended hereby, and the other Note Purchase Documents to which any Obligor is a limited liability company party have been duly organizedauthorized, validly existing executed and delivered and constitute legal, valid and binding obligations of each such Obligor party thereto enforceable against each such Obligor in good standing under accordance with its terms. The issuance of the laws Additional Notes by the Issuer has been duly authorized and the Additional Notes constitute legal, valid and binding obligations of its jurisdiction of organizationthe Issuer enforceable against the Issuer in accordance with their terms.
(b) Such Obligor’s Neither the execution or delivery by each Obligor of this Amendment No. 1, nor performance by any of them of this Amendment No. 1 and delivery of, performance under, and compliance with this the Note Purchase Agreement, will not violate nor the issuance of the Additional Notes shall (i) contravene such Obligor’s organizational documents charter or bylaws, (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 an event whichunder, with notice or lapse any loan agreement, indenture, mortgage, deed of timetrust, or bothmaterial contract, would constitute a default) under, or result in a breach of, any agreement lease or other instrument binding on or affecting any Obligor, any of its Subsidiaries or any of their properties or (iv) except for the Liens created under the Note Purchase Documents, result in or require the creation or imposition of any Lien upon or with respect to which it any of the properties of any Obligor or any of its Subsidiaries. No Obligor or any of its Subsidiaries is a party or by which it is boundin violation of any such law, except where such violationrule, breach or default in such Obligor’s good faith and reasonable regulation, order, writ, judgment, is not injunction, decree, determination or award or in breach of any such contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument, the violation or breach of which could be reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligorhave a Material Adverse Effect.
(c) Such Obligor has The representations and warranties contained in the full power Note Purchase Agreement are true, correct and authority complete in all material respects (except that any representation and warranty that is qualified as to own its Tenant Site Assets“materiality” or “Material Adverse Effect” shall be true and correct in all respects) on and as of the date hereof as if made on the date hereof, except to conduct its business the extent such representations and warranties expressly relate to an earlier date, in which case they were true and correct as presently conducted by it and to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreementsuch earlier date, and has duly executed except that references to a Schedule in any such representation and delivered this Agreementwarranty shall be deemed to be a reference to the corresponding New Schedule.
(d) This AgreementPrior to and after giving effect to this Amendment No. 1, assuming the due authorization, execution and delivery by each no Default or Event of the other parties hereto, constitutes a valid, legal and binding obligation of such Obligor, enforceable against such Obligor in accordance with the terms hereof, subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors’ rights generally and (ii) general principles of equity, regardless of whether such enforcement Default has occurred or is considered in a proceeding in equity or at lawcontinuing.
(e) Such Obligor is not After giving effect to this Amendment No. 1, the Collateral Documents continue to create a valid first priority security interest in violation ofthe Collateral, securing the payment of the Secured Obligations, and its execution assuming that all filings delivered to the Collateral Agent on or before the Closing Date have been duly filed in accordance with the provisions of the Security Agreement and delivery ofassuming that all filings required as a result of the operation of Section 9-507(c) of the UCC (as defined in the Security Agreement) have been duly filed, performance under such first priority security interest shall continue to be perfected. The Obligors are the legal and compliance with this Agreement will not constitute a violation of, any law, any order or decree beneficial owners of the Collateral free and clear of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authorityLien, except such violation, in such Obligor’s good faith for the Liens and reasonable judgment, is not reasonably likely to affect materially and adversely either security interests created or permitted under the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such ObligorNote Purchase Documents.
(f) No consentAfter giving effect to this Amendment No. 1, approval, authorization or order of any state or federal court or governmental agency or body is required for the consummation by such Obligor Guaranties in favor of the transactions contemplated hereinSecured Parties, except for those consentsgranted pursuant to the Note Purchase Documents, approvals, authorizations or orders that previously have been obtained or that, in such Obligor’s good faith shall continue to be valid and reasonable judgment, is not reasonably likely to materially and adversely affect either enforceable against the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligorrespective Subsidiary Guarantors thereunder.
(g) No litigation Each Obligor is pending orand, after giving effect to the Obligor’s Knowledgetransactions contemplated hereby (including, threatened against such Obligor thatwithout limitation, if determined adversely to such Obligorthe issuance of the Additional Notes), would prohibit such Obligor from entering into shall be, Solvent. No transfer of Property is being made by the Parent or any of its Subsidiaries, and no obligation is being incurred by the Parent or any of its Subsidiaries in connection with the transactions contemplated by this Agreement or that, in such Obligor’s good faith and reasonable judgment, is reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement Amendment No. 1 or the financial condition other Note Purchase Documents with the intent to hinder, delay, or defraud either present or future creditors of such Obligorthe Parent and its Subsidiaries.
Appears in 1 contract
Representations and Warranties of the Obligors. Each Obligor makes To induce the following representations Agent and warranties the Lenders party hereto to enter into this Amendment, each of the Borrower, Holdings and the Guarantors hereby represents and warrants to the Manager all Agent and each Lender that as of which shall survive the execution, delivery, performance or termination of this AgreementFourth Amendment Effective Date:
(a) Such Holdings and each Obligor is a limited liability company duly organized, validly existing and in good standing under the laws of its jurisdiction of organization.
(b) Such Obligor’s execution and delivery of, performance under, and compliance with party to this Agreement, will not violate such Obligor’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in a breach of, any agreement or other instrument to which it is a party or by which it is bound, except where such violation, breach or default in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(c) Such Obligor Amendment has the full power and authority to own execute, deliver and perform this Amendment. Holdings and each Obligor party to this Amendment has taken all necessary corporate, limited liability company or partnership, as applicable, action (including obtaining approval of its Tenant Site Assetsshareholders, if necessary) to conduct its business as presently conducted by it and to enter into and consummate all transactions contemplated by this Agreement, has duly authorized authorize the execution, delivery and performance of this Agreement, and Amendment. This Amendment has been duly executed and delivered this Agreement.
(d) This Agreementby Holdings and each Obligor party hereto and constitutes the legal, assuming the due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal valid and binding obligation obligations of Holdings and each such Obligor, enforceable against such Obligor it in accordance with the terms hereofits terms, subject to (i) applicable the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, winding up, moratorium and other laws similar Laws relating to or affecting the enforcement of creditors’ rights generally and general equitable principles (ii) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law.
Law) and an implied covenant of good faith and fair dealing. Holdings’ and each Obligor’s execution, delivery and performance of this Amendment does not (ei) Such Obligor is not in violation ofconflict with, and its execution and delivery of, performance under and compliance with this Agreement will not or constitute a violation or breach of, the terms of (A) any lawcontract, mortgage, lease, agreement, indenture, or instrument to which Holdings, such Obligor or any of its Restricted Subsidiaries is a party or which is binding upon it, (B) any Requirement of Law applicable to Holdings, such Obligor or any of its Restricted Subsidiaries or (C) any Charter Documents of Holdings, such Obligor or any of its Restricted Subsidiaries, in each case under clauses (A), (B) and (C), in any respect that would reasonably be expected to have a Material Adverse Effect or (ii) result in the imposition of any Lien (other than the Liens created by the Security Documents) upon the property of Holdings, such Obligor or any of its Restricted Subsidiaries by reason of any of the foregoing;
(b) no Default or Event of Default has occurred and is continuing or would occur, in each case, after giving effect to this Amendment;
(c) no approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any order Governmental Authority or decree of any court other Person is necessary or arbiterrequired in connection with the execution, delivery or performance by, or enforcement against, Holdings or any orderof its Restricted Subsidiaries of this Amendment other than where failure to obtain, regulation effect or demand make any such approval, consent, exemption, authorization, or other action, notice or filing would not reasonably be expected to have a Material Adverse Effect; and
(d) after giving effect to this Amendment, the representations and warranties of the Borrower and each of the other Obligors contained in the Credit Agreement and each other Loan Document are true and correct in all material respects (and any federalrepresentation and warranty that is qualified as to materiality or Material Adverse Effect is true and correct in all respects) on and as of the Fourth Amendment Effective Date as though made on and as of such date, state other than any such representation or local governmental or regulatory authority, except such violationwarranty which relates to a specified prior date, in which case such Obligor’s good faith representations and reasonable judgment, is not reasonably likely to affect materially warranties were true and adversely either the ability correct in all material respects as of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligorprior date.
(f) No consent, approval, authorization or order of any state or federal court or governmental agency or body is required for the consummation by such Obligor of the transactions contemplated herein, except for those consents, approvals, authorizations or orders that previously have been obtained or that, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(g) No litigation is pending or, to the Obligor’s Knowledge, threatened against such Obligor that, if determined adversely to such Obligor, would prohibit such Obligor from entering into this Agreement or that, in such Obligor’s good faith and reasonable judgment, is reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
Appears in 1 contract
Representations and Warranties of the Obligors. Each In order to induce the Lender to enter into this Amendment, each Obligor makes the following representations for itself hereby represents and warranties to the Manager all of which shall survive the execution, delivery, performance or termination of this Agreementwarrants that:
(a) Such Obligor (i) is a limited liability company or corporation duly organized, validly existing without limitation of its corporate existence and in good standing under the laws of its jurisdiction of organizationorganization and (ii) has adequate power and authority and legal right to own or hold under lease the properties it purports to own or to hold under lease and to carry on the business in which it is engaged or presently proposes to engage. Such Obligor has adequate power and authority to enter into this Amendment and to perform its obligations under the Agreement as amended hereby.
(b) Such Obligor’s The execution and delivery of, by such Obligor of this Amendment and the performance under, by such Obligor of its obligations in respect of the Agreement as amended hereby have been duly authorized by all necessary corporate action on the part of such Obligor and compliance with this Agreement, do not and will not violate (i) contravene any provision of the Constituent Documents of such Obligor’s organizational documents or constitute a default , (or an event which, with notice or lapse of time, or both, would constitute a defaultii) underconflict with, or result in a breach of the terms, conditions or provisions of, or constitute a default under or, except as contemplated by the Agreement, result in the creation or imposition of any agreement Lien pursuant to the terms of any, mortgage, indenture, deed of trust, security agreement, pledge agreement, charge or other instrument to which it is a party such Obligor or by which it any of its respective property is bound, except where such violation(iii) violate any law, breach governmental rule, regulation, order or default in decree of any court or administrative agency or governmental officer applicable to and binding upon such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability (iv) require any waiver, consent or other action by any governmental or regulatory authority or by any trustee or holder of any Indebtedness or obligations of such Obligor to perform its obligations under this Agreement or (v) require the financial condition approval of the shareholders of such Obligor.
(c) Such Obligor This Amendment has the full power and authority to own its Tenant Site Assets, to conduct its business as presently conducted by it and to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has been duly executed and delivered by such Obligor and this Agreement.
(d) This Agreement, assuming Amendment and the due authorization, execution and delivery by each of the other parties hereto, Agreement as amended hereby constitutes a valid, legal valid and legally binding obligation of such Obligor, Obligor enforceable against such Obligor in accordance with the terms hereofits terms, subject to except as such enforceability may be limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium and moratorium, or other similar laws affecting the enforcement of creditors’ ' rights generally generally, and (ii) general principles of equity, equity (regardless of whether such enforcement enforceability is considered in a proceeding in equity or at law).
(d) The Parent and such Obligor have heretofore furnished to the Lender accurate and complete financial data and other information based on its operations in previous years, and said financial data furnished to the Lender is accurate and complete and fairly presents the financial position and the results of operations for the period indicated therein.
(e) Such Obligor is not There has been no material adverse change in violation ofthe condition, and its execution and delivery offinancial or otherwise, performance under and compliance with this Agreement will not constitute a violation of, any law, any order of the Parent or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, except such violation, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor since the date of the most recent financial statement and no Default or Event of Default exists with respect to perform its obligations under this Agreement or the financial condition of such Obligor.
(f) No consentThere are no legal or arbitral proceedings, approvalor any proceedings by or before any governmental or regulatory authority or agency, authorization now pending or order (to the knowledge of any state such Obligor) threatened against the Parent or federal court or governmental agency or body is required for the consummation by such Obligor that are reasonably likely (either individually or in the aggregate) to have a material adverse effect on the condition, financial or otherwise, of the transactions contemplated herein, except for those consents, approvals, authorizations Parent or orders that previously have been obtained or that, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(g) No litigation Such Obligor is pending orin compliance with laws, regulations and orders of any governmental agency or authority applicable to it or its Properties and all indentures, agreements and other instruments binding upon it or its Property, except where the Obligor’s Knowledgefailure to do so, threatened against such Obligor thatindividually or in the aggregate, if determined adversely could not reasonably be expected to such Obligorhave a material adverse effect on its condition, would prohibit such Obligor from entering into this Agreement financial or that, in such Obligor’s good faith and reasonable judgment, is reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligorotherwise.
Appears in 1 contract
Samples: Letter of Credit and Reimbursement Agreement (Arch Capital Group LTD)
Representations and Warranties of the Obligors. Each Obligor makes the following representations and warranties to the Project Manager all of which shall survive the execution, delivery, performance or termination of this Agreement:
(a) Such Obligor is a limited liability company duly organized, validly existing and in good standing under the laws of its jurisdiction of organization.
(b) Such Obligor’s execution and delivery of, performance under, and compliance with this Agreement, will not violate such Obligor’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in a breach of, any agreement or other instrument to which it is a party or by which it is bound, except where such violation, breach or default in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(c) Such Obligor has the full power and authority to own its Tenant Site AssetsProject Sites, to conduct its business as presently conducted by it and to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement.
(d) This Agreement, assuming the due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal and binding obligation of such Obligor, enforceable against such Obligor in accordance with the terms hereof, subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors’ rights generally and (ii) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law.
(e) Such Obligor is not in violation of, and its execution and delivery of, performance under and compliance with this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, except such violation, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(f) No consent, approval, authorization or order of any state or federal court or governmental agency or body is required for the consummation by such Obligor of the transactions contemplated herein, except for those consents, approvals, authorizations or orders that previously have been obtained or that, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(g) No litigation is pending or, to the Obligor’s Knowledgeactual knowledge, threatened against such Obligor that, if determined adversely to such Obligor, would prohibit such Obligor from entering into this Agreement or that, in such Obligor’s good faith and reasonable judgment, is reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
Appears in 1 contract
Samples: Management Agreement (Landmark Infrastructure Partners LP)
Representations and Warranties of the Obligors. Each Obligor makes To induce the following representations Agent and warranties the Lenders party hereto to enter into this Amendment, each of the Borrower, Holdings and the Guarantors hereby represents and warrants to the Manager all Agent and each Lender that as of which shall survive the execution, delivery, performance or termination of this AgreementFifth Amendment Effective Date:
(a) Such Holdings and each Obligor is a limited liability company duly organized, validly existing and in good standing under the laws of its jurisdiction of organization.
(b) Such Obligor’s execution and delivery of, performance under, and compliance with party to this Agreement, will not violate such Obligor’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in a breach of, any agreement or other instrument to which it is a party or by which it is bound, except where such violation, breach or default in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(c) Such Obligor Amendment has the full power and authority to own execute, deliver and perform this Amendment. Holdings and each Obligor party to this Amendment has taken all necessary corporate, limited liability company or partnership, as applicable, action (including obtaining approval of its Tenant Site Assetsshareholders, if necessary) to conduct its business as presently conducted by it and to enter into and consummate all transactions contemplated by this Agreement, has duly authorized authorize the execution, delivery and performance of this Agreement, and Amendment. This Amendment has been duly executed and delivered this Agreement.
(d) This Agreementby Holdings and each Obligor party hereto and constitutes the legal, assuming the due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal valid and binding obligation obligations of Holdings and each such Obligor, enforceable against such Obligor it in accordance with the terms hereofits terms, subject to (i) applicable the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, winding up, moratorium and other laws similar Laws relating to or affecting the enforcement of creditors’ rights generally and general equitable principles (ii) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law.
Law) and an implied covenant of good faith and fair dealing. Holdings’ and each Obligor’s execution, delivery and performance of this Amendment does not (ei) Such Obligor is not in violation ofconflict with, and its execution and delivery of, performance under and compliance with this Agreement will not or constitute a violation or breach of, the terms of (A) any lawcontract, mortgage, lease, agreement, indenture, or instrument to which Holdings, such Obligor or any of its Restricted Subsidiaries is a party or which is binding upon it, (B) any Requirement of Law applicable to Holdings, such Obligor or any of its Restricted Subsidiaries or (C) any Charter Documents of Holdings, such Obligor or any of its Restricted Subsidiaries, in each case under clauses (A), (B) and (C), in any respect that would reasonably be expected to have a Material Adverse Effect or (ii) result in the imposition of any Lien (other than the Liens created by the Security Documents) upon the property of Holdings, such Obligor or any of its Restricted Subsidiaries by reason of any of the foregoing;
(b) no Default or Event of Default has occurred and is continuing or would occur, in each case, after giving effect to this Amendment;
(c) no approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any order Governmental Authority or decree of any court other Person is necessary or arbiterrequired in connection with the execution, delivery or performance by, or enforcement against, Holdings or any orderof its Restricted Subsidiaries of this Amendment other than where failure to obtain, regulation effect or demand make any such approval, consent, exemption, authorization, or other action, notice or filing would not reasonably be expected to have a Material Adverse Effect; and
(d) after giving effect to this Amendment, the representations and warranties of the Borrower and each of the other Obligors contained in the Credit Agreement and each other Loan Document are true and correct in all material respects (and any federalrepresentation and warranty that is qualified as to materiality or Material Adverse Effect is true and correct in all respects) on and as of the Fifth Amendment Effective Date as though made on and as of such date, state other than any such representation or local governmental or regulatory authority, except such violationwarranty which relates to a specified prior date, in which case such Obligor’s good faith representations and reasonable judgment, is not reasonably likely to affect materially warranties were true and adversely either the ability correct in all material respects as of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligorprior date.
(f) No consent, approval, authorization or order of any state or federal court or governmental agency or body is required for the consummation by such Obligor of the transactions contemplated herein, except for those consents, approvals, authorizations or orders that previously have been obtained or that, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(g) No litigation is pending or, to the Obligor’s Knowledge, threatened against such Obligor that, if determined adversely to such Obligor, would prohibit such Obligor from entering into this Agreement or that, in such Obligor’s good faith and reasonable judgment, is reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
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Representations and Warranties of the Obligors. Each Obligor makes To induce the following representations Agent, the Collateral Agent, the Letter of Credit Issuer, the Swingline Lender and warranties Lenders party hereto to enter into this Agreement, each of the Borrower, Holdings and Manufacturing hereby represent and warrant to the Manager all Agent, the Collateral Agent, the Letter of which shall survive Credit Issuer, the execution, delivery, performance or termination of this AgreementSwingline Lender and each Lender that:
(a) Such Obligor is Each of the Borrower, Holdings and Manufacturing has the corporate power and authority, and the legal right, to execute, delivery and perform this Agreement. Each of the Borrower, Holdings and Manufacturing has taken all necessary corporate action to authorize the execution, delivery and performance, as applicable, of this Agreement. This Agreement has been duly executed and delivered on behalf of the Borrower, Holdings and Manufacturing. Upon its execution, this Agreement constitutes a limited liability company duly organizedlegal, validly existing valid and binding obligation of each of the Borrower, Holdings and Manufacturing, enforceable against each of the Borrower, Holdings and Manufacturing in good standing under the laws of accordance with its jurisdiction of organization.
(b) Such terms. Holdings’ and each Obligor’s execution and delivery of, performance under, and compliance with this Agreement, will not violate such Obligor’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in a breach of, any agreement or other instrument to which it is a party or by which it is bound, except where such violation, breach or default in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(c) Such Obligor has the full power and authority to own its Tenant Site Assets, to conduct its business as presently conducted by it and to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this AgreementAgreement does not (x) conflict with, or constitute a violation or breach of, the terms of (a) any contract, mortgage, lease, agreement, indenture, or instrument to which Holdings, such Obligor or any of its Restricted Subsidiaries is a party or which is binding upon it, (b) any Requirement of Law applicable to Holdings, such Obligor or any of its Restricted Subsidiaries or (c) any Charter Documents of Holdings, such Obligor or any of its Restricted Subsidiaries, in each case, in any respect that would reasonably be expected to have a Material Adverse Effect or (y) result in the imposition of any Lien (other than Liens created by the Security Documents) upon the property of Holdings, such Obligor or any of its Restricted Subsidiaries by reason of any of the foregoing.
(b) No Default or Event of Default has occurred and has duly executed and delivered is continuing or would occur, in each case, after giving effect to this Agreement.
(c) No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, the Borrower of this Agreement, other than (i) those that have been obtained or made and are in full force and effect and (ii) where failure to obtain, effect or make any such approval, consent, exemption, authorization, or other action, notice or filing would not reasonably be expected to have a Material Adverse Effect.
(d) This After giving effect to this Agreement, assuming the due authorization, execution representations and delivery by warranties of the Borrower and each of the other parties heretoObligors contained in the Credit Agreement and each other Loan Document are true and correct in all material respects, constitutes a validexcept to the extent such representation and warranty expressly relates to an earlier date, legal in which case such representation or warranty shall have been true and binding obligation correct in all material respects as of such Obligorearlier date, enforceable against such Obligor in accordance with the terms hereof, except that any representations and warranties subject to “materiality”, “Material Adverse Effect” or similar materiality qualifiers shall be true and correct in all respects (i) applicable bankruptcy, insolvency, reorganization, moratorium except to the extent such representation and other laws affecting the enforcement of creditors’ rights generally and (ii) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law.
(e) Such Obligor is not in violation of, and its execution and delivery of, performance under and compliance with this Agreement will not constitute a violation of, any law, any order or decree of any court or arbiter, or any order, regulation or demand of any federal, state or local governmental or regulatory authority, except such violationwarranty expressly relates to an earlier date, in which case such Obligor’s good faith representation and reasonable judgment, is not reasonably likely to affect materially warranty shall have been true and adversely either the ability correct in all respects as of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligorearlier date).
(f) No consent, approval, authorization or order of any state or federal court or governmental agency or body is required for the consummation by such Obligor of the transactions contemplated herein, except for those consents, approvals, authorizations or orders that previously have been obtained or that, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(g) No litigation is pending or, to the Obligor’s Knowledge, threatened against such Obligor that, if determined adversely to such Obligor, would prohibit such Obligor from entering into this Agreement or that, in such Obligor’s good faith and reasonable judgment, is reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
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Representations and Warranties of the Obligors. Each Obligor makes To induce the following representations Lenders party hereto to enter into this Amendment, each of the Borrower, Holdings and warranties Manufacturing hereby represents and warrants to the Manager all of which shall survive the execution, delivery, performance or termination of this AgreementAgent and each Lender that:
(a) Such Holdings and each Obligor is a limited liability company duly organized, validly existing and in good standing under the laws of its jurisdiction of organization.
(b) Such Obligor’s execution and delivery of, performance under, and compliance with party to this Agreement, will not violate such Obligor’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in a breach of, any agreement or other instrument to which it is a party or by which it is bound, except where such violation, breach or default in such Obligor’s good faith and reasonable judgment, is not reasonably likely to affect materially and adversely either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(c) Such Obligor Amendment has the full power and authority to own execute, deliver and perform this Amendment. Holdings and each Obligor party to this Amendment has taken all necessary corporate, limited liability company or partnership, as applicable, action (including obtaining approval of its Tenant Site Assetsshareholders, if necessary) to conduct its business as presently conducted by it and to enter into and consummate all transactions contemplated by this Agreement, has duly authorized authorize the execution, delivery and performance of this Agreement, and Amendment. This Amendment has been duly executed and delivered this Agreement.
(d) This Agreementby Holdings and each Obligor party hereto and constitute the legal, assuming the due authorization, execution and delivery by each of the other parties hereto, constitutes a valid, legal valid and binding obligation obligations of Holdings and each such Obligor, enforceable against such Obligor it in accordance with the terms hereofits terms, subject to (i) applicable the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, winding up, moratorium and other laws similar Laws relating to or affecting the enforcement of creditors’ rights generally and general equitable principles (ii) general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law.
Law) and an implied covenant of good faith and fair dealing. Holdings’ and each Obligor’s execution, delivery and performance of this Amendment does not (ei) Such Obligor is not in violation ofconflict with, and its execution and delivery of, performance under and compliance with this Agreement will not or constitute a violation or breach of, the terms of (A) any lawcontract, mortgage, lease, agreement, indenture, or instrument to which Holdings, such Obligor or any of its Restricted Subsidiaries is a party or which is binding upon it, (B) any Requirement of Law applicable to Holdings, such Obligor or any of its Restricted Subsidiaries or (C) any Charter Documents of Holdings, such Obligor or any of its Restricted Subsidiaries, in each case, in any respect that would reasonably be expected to have a Material Adverse Effect or (ii) result in the imposition of any Lien (other than the Liens created by the Security Documents) upon the property of Holdings, such Obligor or any of its Restricted Subsidiaries by reason of any of the foregoing;
(b) no Default or Event of Default has occurred and is continuing or would occur, in each case, after giving effect to this Amendment;
(c) no approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any order Governmental Authority or decree of any court other Person is necessary or arbiterrequired in connection with the execution, delivery or performance by, or enforcement against, Holdings or any orderof its Restricted Subsidiaries of this Amendment other than where failure to obtain, regulation effect or demand make any such approval, consent, exemption, authorization, or other action, notice or filing would not reasonably be expected to have a Material Adverse Effect; and
(d) after giving effect to this Amendment, the representations and warranties of the Borrower and each of the other Obligors contained in the Credit Agreement and each other Loan Document are true and correct in all material respects (and any federalrepresentation and warranty that is qualified as to materiality or Material Adverse Effect is true and correct in all respects) on and as of the Second Amendment Effective Date as though made on and as of such date, state other than any such representation or local governmental or regulatory authority, except such violationwarranty which relates to a specified prior date, in which case such Obligor’s good faith representations and reasonable judgment, is not reasonably likely to affect materially warranties were true and adversely either the ability correct in all material respects as of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligorprior date.
(f) No consent, approval, authorization or order of any state or federal court or governmental agency or body is required for the consummation by such Obligor of the transactions contemplated herein, except for those consents, approvals, authorizations or orders that previously have been obtained or that, in such Obligor’s good faith and reasonable judgment, is not reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
(g) No litigation is pending or, to the Obligor’s Knowledge, threatened against such Obligor that, if determined adversely to such Obligor, would prohibit such Obligor from entering into this Agreement or that, in such Obligor’s good faith and reasonable judgment, is reasonably likely to materially and adversely affect either the ability of such Obligor to perform its obligations under this Agreement or the financial condition of such Obligor.
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