Representations and Warranties of the Obligors. To induce the Noteholders to execute and deliver this Amendment (which representations shall survive the execution and delivery of this Amendment), each Obligor represents and warrants to the Noteholders that: (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 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; (b) 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 and performance by such Obligor of this 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 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 indenture, agreement or other instrument to which it is a party or by which its properties or assets are or may be bound, including, 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 clause (iii)(A)(3) of this Section 3(c); (d) 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 amendment or modification of any outstanding Credit Agreement that addresses the subject matter of this Amendment is being entered into by the Obligors on or about the date of this Amendment or is currently contemplated by the Obligors; and (f) 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, 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 covenants set forth in the Note Purchase Agreement.
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. To induce the Noteholders to execute and deliver this Amendment (which representations shall survive the execution and delivery of this Amendment), each Obligor represents and warrants to the Noteholders that:
(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 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;
(b) 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 and performance by such Obligor of this 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 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 indenture, agreement or other instrument to which it is a party or by which its properties or assets are or may be bound, including, 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 clause (iii)(A)(3) of this Section 3(c);
(d) 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 amendment fee or modification form of other consideration is being paid or given to any lender under any outstanding Credit Agreement that addresses to consent to an amendment to any such Credit Agreement related to substantially similar matters referred to in this Amendment, other than (i) an increase in interest payable on the subject matter loans of this Amendment is being entered into 0.25% (25 bps) on the outstanding principal amount thereof and corresponding increases to applicable commitment and letter of credit fees at such times as the leverage ratio thereunder exceeds 3.00:1.00, and (ii) an amendment fee equal to 0.125% (12.5 bps) on the aggregate outstanding principal amount thereof held by the Obligors on or about the date lenders consenting thereto, payable upon execution of this Amendment or is currently contemplated by the Obligorssuch amendments; and
(f) 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, 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 covenants set forth in the Note Purchase Agreement; and
(g) the Subsidiary Guarantors executing this Amendment constitute all of the Subsidiary Guarantors as of the date hereof.
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. To In order to induce the Noteholders Lenders to execute enter into this Amendment, each Obligor makes the following representations and deliver this Amendment (warranties, which representations and warranties shall survive the execution and delivery of this Amendment), each Obligor represents and warrants to the Noteholders thathereof:
(a) Each of the Loan Agreement and the other Loan Documents are in full force and effect;
(b) Each of the Loan Agreement, the other Loan Documents and this Amendment has have been duly authorized, executed and delivered by it the parties thereto and this Amendment constitutes the constitute legal, valid and binding obligationobligations of each Obligor, contract and agreement of enforceable against such Obligor enforceable against it in accordance with its their respective terms, except as enforcement enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium insolvency or similar laws or equitable principles relating to or limiting creditors’ rights generally;
(b) affecting the Note Purchase Agreement, as amended by this Amendment, constitutes the legal, valid and binding obligation, contract and agreement enforcement 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) No Obligor has any offset, defense or counterclaim with respect to any of their obligations under the executionrespective Loan Documents, delivery and performance as amended hereby (any such offset, defense or counterclaim as may now exist being hereby irrevocably waived by such Obligor of this 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 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 indenture, agreement or other instrument to which it is a party or by which its properties or assets are or may be bound, including, 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 clause (iii)(A)(3) of this Section 3(ceach Obligor);
(d) as of the date hereof immediately prior to and after After giving effect to this Amendment, no Default or nor Event of Default has occurred which and is continuing;
(e) no amendment or modification of any outstanding Credit Agreement that addresses the subject matter of this Amendment is being entered into by the Obligors on or about the date of this Amendment or is currently contemplated by the Obligors; and
(f) all All of the representations and warranties contained of each Obligor in Section 5 of the Note Purchase Agreement Loan Documents are true and correct in all material respects (except (i) to the extent such representation and warranty is by its terms subject to materiality, in which case, such representation or warranty shall be true and correct in all respects in the case of and (ii) for representations and warranties qualified by materiality, 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 date);
(f) Neither the execution and delivery of actions taken this Amendment by each Obligor, nor consummation by such Obligor of the Obligors in accordance transactions contemplated herein, nor compliance by such Obligor with the covenants set forth terms, conditions and provisions hereof (or of the Loan Agreement or the other Loan Documents as amended hereby) will conflict with or result in a breach of any of the Note Purchase Agreementterms, conditions or provisions, as applicable, of (i) any Obligor’s Organic Documents, (ii) any agreement or instrument to which any Obligor is a party or by which the property of any Obligor is or may be bound, (iii) any judgment or order, writ, injunction or decree of any court, or (iv) any Applicable Law; and
(g) No action of, or filing with, any governmental or public body or authority, or any other Person, is required to authorize, or is otherwise required in connection with the execution, delivery and performance of this Amendment by each Obligor.
Appears in 2 contracts
Samples: Loan, Security and Guarantee Agreement (GEE Group Inc.), Loan, Security and Guarantee Agreement (GEE Group Inc.)
Representations and Warranties of the Obligors. To induce Each of the Noteholders to execute and deliver this Amendment (which representations shall survive the execution and delivery of this Amendment), each Obligor Obligors represents and warrants to the Noteholders thatAgent and Lenders as follows:
(a) the execution, delivery and performance by it of this Third Amendment has Agreement (i) have been duly authorizedauthorized by all necessary corporate action on its part, executed and delivered by (ii) do not and will not violate its Constating Documents, any Applicable Law, any Permit or any Contract to which it and is a party;
(b) this Third Amendment Agreement constitutes the a legal, valid and binding obligation, contract and agreement obligation of such Obligor each of the Obligors enforceable against it in accordance with its terms, except as enforcement may be limited by subject to the availability of equitable remedies and the effect of bankruptcy, insolvency, reorganization, moratorium or insolvency and similar laws or equitable principles relating to or limiting creditors’ affecting the rights generally;
(b) 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 creditors generally;
(c) the execution, delivery representations and performance warranties made by such Obligor of this Amendment (i) has been duly authorized by all requisite corporate action and, if required, shareholder action, (ii) does not require it in 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 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 indenture, agreement or other instrument to which it is a party or by which its properties or assets are or may be bound, including, without limitation, any Credit Agreement, or (B) result other than those expressly stated to be made as of a specific date, are true and correct as of the date hereof with the same effect as if such representations and warranties had been made on and as of the date hereof except as modified in a breach or constitute (alone or with Schedule F attached and, in relation to Schedule H as affected by the Reorganization, it being understood and agreed that the Borrower will deliver to the Agent an updated Schedule H as soon as possible and in any event, no later than its next financial reports due notice or lapse of time or both) a default under any indenture, agreement or other instrument referred pursuant to in clause (iii)(A)(3Section 7.3(1) of this Section 3(c)the Existing Credit Agreement attached;
(d) as of the date hereof immediately prior to and after giving effect to this AmendmentThird Amendment Agreement, no Event of Default or Pending Event of Default has occurred which is continuing;continuing on the date hereof or will occur as a result of entering into this Third Amendment Agreement or the observance or performance of its obligations hereunder; and
(e) no amendment or modification of any outstanding Credit Agreement that addresses the subject matter of this Amendment is being entered into by the Obligors on or about the date of this Amendment or is currently contemplated by the Obligors; and
(f) 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 transactions described in the case of representations Steps Memo are permitted by and warranties qualified by materiality, Material Adverse Effect have been or similar language will be completed in the text thereof) compliance 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 covenants set forth in the Note Purchase U.S. Credit Agreement.
Appears in 1 contract
Representations and Warranties of the Obligors. Section 2.1. To induce the Noteholders to execute and deliver this Third Amendment (which representations shall survive the execution and delivery of this Third Amendment), each Obligor represents the Obligors jointly and warrants severally represent and warrant to the Noteholders that:
(a) this Third Amendment has been duly authorized, executed and delivered by it each Obligor and this Third Amendment constitutes the legal, valid and binding obligation, contract and agreement of such each Obligor enforceable against it such Obligor 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;
(b) the Note Purchase Agreement, as amended by this Third Amendment, constitutes the legal, valid and binding obligation, contract and agreement of such each Obligor enforceable against it 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 such each Obligor of this Third Amendment (i) has been duly authorized by all requisite corporate necessary action and, if required, shareholder actionon the part of such Obligor, (ii) does not require the consent or approval of any governmental or regulatory body or agency, agency and (iii) will not (A) violate (1) in any material respect any provision of lawany Applicable Laws relating to such Obligor, statuteany of the Organizational Documents of such Obligor, rule or regulation any order, judgment or its certificate of incorporation or bylaws, (2) any order decree of any court or any rule, regulation or order of any other agency or of government binding upon it, or (3) any provision of any indenture, agreement or other instrument to which it is a party or by which its properties or assets are or may be bound, including, 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 clause (iii)(A)(3) of this Section 3(c);on such Obligor; and
(d) as of the date hereof immediately prior to and after giving effect to this Third Amendment, no Default or Event of Default has occurred which is continuing;
(e) no amendment or modification of any outstanding Credit Agreement that addresses the subject matter of this Amendment is being entered into by the Obligors on or about the date of this Amendment or is currently contemplated by the Obligors; and
(f) 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, 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 covenants set forth in the Note Purchase Agreement.
Appears in 1 contract
Samples: Note Purchase and Guarantee Agreement (Physicians Realty Trust)
Representations and Warranties of the Obligors. Section 2.1. To induce the Noteholders to execute and deliver this Second Amendment (which representations shall survive the execution and delivery of this Second Amendment), each Obligor represents the Obligors jointly and warrants severally represent and warrant to the Noteholders that:
(a) this Second Amendment has been duly authorized, executed and delivered by it each Obligor and this Second Amendment constitutes the legal, valid and binding obligation, contract and agreement of such each Obligor enforceable against it such Obligor 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;
(b) the Note Purchase Agreement, as amended by this Second Amendment, constitutes the legal, valid and binding obligation, contract and agreement of such each Obligor enforceable against it 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 such each Obligor of this Second Amendment (i) has been duly authorized by all requisite corporate necessary action and, if required, shareholder actionon the part of such Obligor, (ii) does not require the consent or approval of any governmental or regulatory body or agency, agency and (iii) will not (A) violate (1) in any material respect any provision of lawany Applicable Laws relating to such Obligor, statuteany of the Organizational Documents of such Obligor, rule or regulation any order, judgment or its certificate of incorporation or bylaws, (2) any order decree of any court or any rule, regulation or order of any other agency or of government binding upon it, or (3) any provision of any indenture, agreement or other instrument to which it is a party or by which its properties or assets are or may be bound, including, 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 clause (iii)(A)(3) of this Section 3(c);on such Obligor; and
(d) as of the date hereof immediately prior to and after giving effect to this Second Amendment, no Default or Event of Default has occurred which is continuing;
(e) no amendment or modification of any outstanding Credit Agreement that addresses the subject matter of this Amendment is being entered into by the Obligors on or about the date of this Amendment or is currently contemplated by the Obligors; and
(f) 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, 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 covenants set forth in the Note Purchase Agreement.
Appears in 1 contract
Samples: Note Purchase and Guarantee Agreement (Physicians Realty Trust)
Representations and Warranties of the Obligors. Section 2.1. To induce the Noteholders to execute and deliver this Fourth Amendment (which representations shall survive the execution and delivery of this Fourth Amendment), each Obligor represents the Obligors, jointly and warrants severally, represent and warrant to the Noteholders that:
(a) this Fourth Amendment has been duly authorized, executed and delivered by it each Obligor and this Fourth Amendment constitutes the legal, valid and binding obligation, contract and agreement of such each 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;
(b) the Note Purchase AgreementAgreements, as amended by this Fourth Amendment, constitutes constitute the legal, valid and binding obligationobligations, contract contracts and agreement agreements of such Obligor the Obligors enforceable against it them in accordance with its their 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 such Obligor the Obligors of this Fourth 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 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 it any Obligor is a party or by which its any Obligor's properties or assets are or may be bound, including, without limitation, any the Credit AgreementAgreement dated as of April 30, 1999, among the Obligors, the Lenders party thereto and Hxxxxx Trust and Savings Bank, individually and as Agent, and all amendments, supplements and modifications thereto, 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 3(c2.1(c);
(d) as of the date hereof immediately prior to and after giving effect to this Fourth Amendment, no Default or Event of Default has occurred which is continuing;
(e) no amendment or modification of any outstanding Credit Agreement that addresses the subject matter of this Amendment is being entered into by the Obligors on or about the date of this Amendment or is currently contemplated by the Obligors; and
(f) all of the representations and warranties contained in Section 5 of the Note Purchase Agreement Agreements (other than those contained in Sections 5.3, 5.4(a), 5.4(b) and 5.9) are true and correct in all material respects (in all respects in the case of representations and warranties qualified by materiality, Material Adverse Effect or similar language in the text thereof) with the same force and effect as if made by such Obligor the Obligors on and as of the date hereofhereof (other than any representation and warranty that expressly relates to a specified earlier date, except which was true and correct in all material respects as of such date); provided, that, notwithstanding any reference in Sections 5.4(c) and 5.4(d) of the Note Purchase Agreements to the extent that such Restricted Subsidiaries listed on Schedule 5.4 to the Note Purchase Agreements, the representations and warranties expressly relate solely to an earlier date or due solely as a result of actions taken hereby made by the Obligors with reference to Sections 5.4(c) and 5.4(d) of the Note Purchase Agreements shall relate to the Restricted Subsidiaries existing on the date hereof;
(f) the statements and information furnished to the Noteholders in connection with the negotiation of this Amendment do not, taken as a whole, and other than financial projections or 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 projections furnished to the Noteholders, the Obligors and the Constituent Company Guarantors only represent that the same were prepared on the basis of information and estimates the Obligors believed to be reasonable; and
(g) all tax returns with respect to any income tax or other material tax required to be filed by the Obligors and the Restricted Subsidiaries in any jurisdiction have, in fact, been filed, and all taxes, assessments, fees and other governmental charges upon the Obligors or the Restricted Subsidiaries or upon any of their respective properties, income or franchises, which are shown to be due and payable in such returns, 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 covenants set forth in books of the Note Purchase AgreementObligors 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. To induce the Noteholders to execute and deliver this Amendment (which representations shall survive the execution and delivery of this Amendment), each Obligor represents and warrants to the Noteholders that:
(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 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;
(b) 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 and performance by such Obligor of this 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 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 indenture, agreement or other instrument to which it is a party or by which its properties or assets are or may be bound, including, 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 clause (iii)(A)(3) of this Section 3(c4(c);
(d) as of the date hereof immediately prior to and after giving effect to this AmendmentAmendment and the Transaction Facilities Amendments, no Default or Event of Default has occurred which is continuing;
(e) no amendment or modification of any outstanding Credit Agreement that addresses the subject matter of this Amendment is being entered into by the Obligors on or about the date of this Amendment or is currently contemplated by the Obligors; and
(f) 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, 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 covenants set forth in the Note Purchase Agreement;
(f) the Subsidiary Guarantors listed on Annex X hereto constitute all of the Subsidiary Guarantors as of the date hereof;
(g) the information provided to the Collateral Agent and the holders of Notes with respect to each Mortgaged Property is true and correct in all material respects; provided that any information with respect to flood due diligence and flood insurance compliance shall be true and correct in all respects;
(h) the security interests created in favor of the Collateral Agent for the benefit of the Secured Creditors under the U.S. Security Agreement constitute first priority perfected security interests (subject to Liens permitted by Section 10.6 of the Note Purchase Agreement) in the U.S. Collateral referred to therein to the extent that the laws of the United States or any State thereof govern the creation and perfection of any such security interests, and (subject to Liens permitted by Section 10.6 of the Note Purchase Agreement) such U.S. Collateral is subject to no Lien of any other Person. Except for filings and actions contemplated hereby and by the U.S. Security Agreement, no consents, filings or recordings are required under the laws of the United States or any State thereof in order to perfect, and/or maintain the perfection and priority of, the security interests purported to be created by the U.S. Security Agreement;
(i) the security interests created in favor of the Collateral Agent for the benefit of the Secured Creditors under each Dutch Security Agreement constitute first priority perfected security interests (subject to Liens permitted by Section 10.6 of the Note Purchase Agreement) in the respective Dutch Collateral referred to therein to the extent that the laws of The Netherlands govern the creation and perfection of any such security interests, and (subject to Liens permitted by Section 10.6 of the Note Purchase Agreement) such Dutch Collateral is subject to no Lien of any other Person. Except for filings and actions contemplated hereby and by the Dutch Security Agreements, no consents, filings or recordings are required under the laws of The Netherlands in order to perfect, and/or maintain the perfection and priority of, the security interests purported to be created by any Dutch Security Agreement;
(j) the security interests created in favor of the Collateral Agent for the benefit of the Secured Creditors under each UK Security Agreement constitute, subject to the filings and actions contemplated in the next sentence below, first priority perfected security interests (subject to Liens permitted by Section 10.6 of the Note Purchase Agreement) in the respective UK Collateral referred to therein to the extent that the laws of England govern the creation and perfection of any such security interests, and (subject to Liens permitted by Section 10.6 of the Note Purchase Agreement) such UK Collateral is subject to no Lien of any other Person. Except for filings and actions contemplated hereby and by the UK Security Agreements, no consents, filings or recordings are required with any court or other authority in England under the laws of England in order to perfect, and/or maintain the perfection and priority of, the security interests purported to be created by any UK Security Agreement;
(k) no Mortgaged Property is a Flood Hazard Property unless the Collateral Agent shall have received the following: (a) the applicable Obligor’s written acknowledgment of receipt of written notification from the Collateral Agent (i) as to the fact that such Mortgaged Property is a Flood Hazard Property, (ii) as to whether the community in which each such Flood Hazard Property is located is participating in the National Flood Insurance Program and (iii) such other flood hazard determination forms, notices and confirmations thereof as requested by the Collateral Agent and (b) copies of insurance policies or certificates of insurance of the applicable Obligor evidencing flood insurance reasonably satisfactory to the Collateral Agent and naming the Collateral Agent as loss payee on behalf of the holders of Notes. All flood hazard insurance policies required hereunder have been obtained and remain in full force and effect, and the premiums thereon have been paid in full;
(l) the Company has delivered to each of the holders of the Notes true, correct and complete copies of each of the Transaction Facilities Amendments and the Transaction Facilities Amendments are in full force and effect as of the date hereof;
(m) other than (i) the increase in the applicable rate of interest on the loans and notes under the Transaction Facilities as contemplated by this Amendment and the respective Transaction Facilities Amendments and (ii) the fees payable by the Company pursuant to this Amendment, the respective Transaction Facilities Amendments and that certain separate fee letter, dated as of the date hereof, by and between the Obligors, and Bank of America, N.A., as Administrative Agent, and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, no fees or other consideration have been paid, are payable or will be paid, directly or indirectly, by the Obligors to any Person party to the any of the Transaction Facilities (or any agent for any of the foregoing), as an inducement to such Person’s execution and delivery of this Amendment, any of the Transaction Facilities Amendments or any related amendment to any other loan agreement, note purchase agreement, indenture or other agreement evidencing any other Indebtedness of the Obligors; and
(n) Except as, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect (i) there are no strikes, lockouts or slowdowns against the Parent Guarantor or any of its Subsidiaries pending or, to the knowledge of the Parent Guarantor or any of its Subsidiaries, threatened and (ii) the hours worked by and payments made to employees of the Parent Guarantor and its Subsidiaries have not been in violation of the Fair Labor Standards Act or any other applicable Requirements of Law dealing with such matters.
Appears in 1 contract
Samples: Note Purchase and Guarantee Agreement (Chicago Bridge & Iron Co N V)
Representations and Warranties of the Obligors. SECTION 2.1. To induce the Noteholders to execute and deliver this First Amendment (which representations shall survive the execution and delivery of this First Amendment), each Obligor represents the Obligors, jointly and warrants severally, represent and warrant to the Noteholders that:
(a) this First Amendment has been duly authorized, executed and delivered by it each Obligor and this First Amendment constitutes the legal, valid and binding obligation, contract and agreement of such each 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;
(b) the Note Purchase AgreementAgreements, as amended by this First Amendment, constitutes constitute the legal, valid and binding obligationobligations, contract contracts and agreement agreements of such Obligor the Obligors enforceable against it them in accordance with its their 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 such Obligor 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 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 it any Obligor is a party or by which its any Obligor's properties or assets are or may be bound, including, without limitation, any the Credit AgreementAgreement dated as of April 30, 1999, among the Obligors, the Lenders party thereto and Hxxxxx Trust and Savings Bank, individually and as Agent, and all amendments, supplements and modifications thereto, 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 3(c2.1(c);
(d) as of the date hereof immediately prior to and after giving effect to this First Amendment, no Default or Event of Default has occurred which is continuing;
(e) no amendment or modification of any outstanding Credit Agreement that addresses the subject matter of this Amendment is being entered into by the Obligors on or about the date of this Amendment or is currently contemplated by the Obligors; and
(f) all of the representations and warranties contained in Section 5 of the Note Purchase Agreement Agreements (other than those contained in Sections 5.3, 5.4(a), 5.4(b) and 5.9) are true and correct in all material respects (in all respects in the case of representations and warranties qualified by materiality, Material Adverse Effect or similar language in the text thereof) with the same force and effect as if made by such Obligor the Obligors on and as of the date hereofhereof (other than any representation and warranty that expressly relates to a specified earlier date, except which was true and correct in all material respects as of such date); PROVIDED, THAT, notwithstanding any reference in Sections 5.4(c) and 5.4(d) of the Note Purchase Agreements to the extent that such Restricted Subsidiaries listed on Schedule 5.4 to the Note Purchase Agreements, the representations and warranties expressly relate solely to an earlier date or due solely as a result of actions taken hereby made by the Obligors with reference to Sections 5.4(c) and 5.4(d) of the Note Purchase Agreements shall relate to the Restricted Subsidiaries existing on the date hereof;
(f) The statements and information furnished to the Noteholders in connection with the negotiation of this Amendment do not, taken as a whole, and other than financial projections or 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 projections furnished to the Noteholders, the Obligors and the Constituent Company Guarantors only represent that the same were prepared on the basis of information and estimates the Obligors believed to be reasonable; and
(g) All tax returns with respect to any income tax or other material tax required to be filed by the Obligors and the Restricted Subsidiaries in any jurisdiction have, in fact, been filed, and all taxes, assessments, fees and other governmental charges upon the Obligors or the Restricted Subsidiaries or upon any of their respective properties, income or franchises, which are shown to be due and payable in such returns, 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 covenants set forth in books of the Note Purchase AgreementObligors and each Restricted Subsidiary have been made for all open years, and for its current fiscal period.
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Representations and Warranties of the Obligors. To induce the Noteholders to execute and deliver this Amendment (which representations shall survive the execution and delivery of this Amendment), each Obligor represents and warrants to the Noteholders that:
(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 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;
(b) 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 and performance by such Obligor of this 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 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 indenture, agreement or other instrument to which it is a party or by which its properties or assets are or may be bound, including, 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 clause (iii)(A)(3) of this Section 3(c4(c);
(d) as of the date hereof immediately prior to and after giving effect to this AmendmentAmendment and the Transaction Facilities Amendments, no Default or Event of Default has occurred which is continuing;
(e) no amendment or modification of any outstanding Credit Agreement that addresses the subject matter of this Amendment is being entered into by the Obligors on or about the date of this Amendment or is currently contemplated by the Obligors; and
(f) 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, 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 covenants set forth in the Note Purchase Agreement;
(f) the Subsidiary Guarantors listed on Annex X hereto constitute all of the Subsidiary Guarantors as of the date hereof;
(g) the information provided to the Collateral Agent and the holders of Notes with respect to each Mortgaged Property is true and correct in all material respects; provided that any information with respect to flood due diligence and flood insurance compliance shall be true and correct in all respects;
(h) the security interests created in favor of the Collateral Agent for the benefit of the Secured Creditors under the U.S. Security Agreement constitute first priority perfected security interests (subject to Liens permitted by Section 10.6 of the Note Purchase Agreement) in the U.S. Collateral referred to therein to the extent that the laws of the United States or any State thereof govern the creation and perfection of any such security interests, and (subject to Liens permitted by Section 10.6 of the Note Purchase Agreement) such U.S. Collateral is subject to no Lien of any other Person. Except for filings and actions contemplated hereby and by the U.S. Security Agreement, no consents, filings or recordings are required under the laws of the United States or any State thereof in order to perfect, and/or maintain the perfection and priority of, the security interests purported to be created by the U.S. Security Agreement;
(i) the security interests created in favor of the Collateral Agent for the benefit of the Secured Creditors under each Dutch Security Agreement constitute first priority perfected security interests (subject to Liens permitted by Section 10.6 of the Note Purchase Agreement) in the respective Dutch Collateral referred to therein to the extent that the laws of The Netherlands govern the creation and perfection of any such security interests, and (subject to Liens permitted by Section 10.6 of the Note Purchase Agreement) such Dutch Collateral is subject to no Lien of any other Person. Except for filings and actions contemplated hereby and by the Dutch Security Agreements, no consents, filings or recordings are required under the laws of The Netherlands in order to perfect, and/or maintain the perfection and priority of, the security interests purported to be created by any Dutch Security Agreement;
(j) the security interests created in favor of the Collateral Agent for the benefit of the Secured Creditors under each UK Security Agreement constitute, subject to the filings and actions contemplated in the next sentence below, first priority perfected security interests (subject to Liens permitted by Section 10.6 of the Note Purchase Agreement) in the respective UK Collateral referred to therein to the extent that the laws of England govern the creation and perfection of any such security interests, and (subject to Liens permitted by Section 10.6 of the Note Purchase Agreement) such UK Collateral is subject to no Lien of any other Person. Except for filings and actions contemplated hereby and by the UK Security Agreements, no consents, filings or recordings are required with any court or other authority in England under the laws of England in order to perfect, and/or maintain the perfection and priority of, the security interests purported to be created by any UK Security Agreement;
(k) no Mortgaged Property is a Flood Hazard Property unless the Collateral Agent shall have received the following: (a) the applicable Obligor’s written acknowledgment of receipt of written notification from the Collateral Agent (i) as to the fact that such Mortgaged Property is a Flood Hazard Property, (ii) as to whether the community in which each such Flood Hazard Property is located is participating in the National Flood Insurance Program and (iii) such other flood hazard determination forms, notices and confirmations thereof as requested by the Collateral Agent and (b) copies of insurance policies or certificates of insurance of the applicable Obligor evidencing flood insurance reasonably satisfactory to the Collateral Agent and naming the Collateral Agent as loss payee on behalf of the holders of Notes. All flood hazard insurance policies required hereunder have been obtained and remain in full force and effect, and the premiums thereon have been paid in full;
(l) the Company has delivered to each of the holders of the Notes true, correct and complete copies of each of the Transaction Facilities Amendments and the Transaction Facilities Amendments are in full force and effect as of the date hereof;
(m) other than (i) the increase in the applicable rate of interest on the loans and notes under the Transaction Facilities as contemplated by this Amendment and the respective Transaction Facilities Amendments and (ii) the fees payable by the Company pursuant to this Amendment, the respective Transaction Facilities Amendments and that certain separate fee letter dated as of the date hereof by and between the Obligors, Bank of America, N.A, as Administrative Agent, and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, no fees or other consideration have been paid, are payable or will be paid, directly or indirectly, by the Obligors to any Person party to the any of the Transaction Facilities (or any agent for any of the foregoing), as an inducement to such Person’s execution and delivery of this Amendment, any of the Transaction Facilities Amendments or any related amendment to any other loan agreement, note purchase agreement, indenture or other agreement evidencing any other Indebtedness of the Obligors; and
(n) Except as, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect (i) there are no strikes, lockouts or slowdowns against the Parent Guarantor or any of its Subsidiaries pending or, to the knowledge of the Parent Guarantor or any of its Subsidiaries, threatened and (ii) the hours worked by and payments made to employees of the Parent Guarantor and its Subsidiaries have not been in violation of the Fair Labor Standards Act or any other applicable Requirements of Law dealing with such matters.
Appears in 1 contract
Samples: Note Purchase and Guarantee Agreement (Chicago Bridge & Iron Co N V)
Representations and Warranties of the Obligors. SECTION 2.1. To induce the Noteholders to execute and deliver this Third Amendment (which representations shall survive the execution and delivery of this Third Amendment), each Obligor represents the Obligors, jointly and warrants severally, represent and warrant to the Noteholders that:
(a) this Third Amendment has been duly authorized, executed and delivered by it each Obligor and this Third Amendment constitutes the legal, valid and binding obligation, contract and agreement of such each 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;
(b) the Note Purchase AgreementAgreements, as amended by this Third Amendment, constitutes constitute the legal, valid and binding obligationobligations, contract contracts and agreement agreements of such Obligor the Obligors enforceable against it them in accordance with its their 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 such Obligor the Obligors of this Third 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 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 it any Obligor is a party or by which its any Obligor's properties or assets are or may be bound, including, without limitation, any the Credit AgreementAgreement dated as of April 30, 1999, among the Obligors, the Lenders party thereto and Xxxxxx Trust and Savings Bank, individually and as Agent, and all amendments, supplements and modifications thereto, 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 CLAUSE (iii)(A)(3III)(A)(3) of this Section 3(cSECTION 2.1(C);
(d) as of the date hereof immediately prior to and after giving effect to this Third Amendment, no Default or Event of Default has occurred which is continuing;
(e) no amendment or modification of any outstanding Credit Agreement that addresses the subject matter of this Amendment is being entered into by the Obligors on or about the date of this Amendment or is currently contemplated by the Obligors; and
(f) all of the representations and warranties contained in Section 5 of the Note Purchase Agreement Agreements (other than those contained in Sections 5.3, 5.4(a), 5.4(b) and 5.9) are true and correct in all material respects (in all respects in the case of representations and warranties qualified by materiality, Material Adverse Effect or similar language in the text thereof) with the same force and effect as if made by such Obligor the Obligors on and as of the date hereofhereof (other than any representation and warranty that expressly relates to a specified earlier date, except which was true and correct in all material respects as of such date); PROVIDED, THAT, notwithstanding any reference in Sections 5.4(c) and 5.4(d) of the Note Purchase Agreements to the extent that such Restricted Subsidiaries listed on Schedule 5.4 to the Note Purchase Agreements, the representations and warranties expressly relate solely to an earlier date or due solely as a result of actions taken hereby made by the Obligors with reference to Sections 5.4(c) and 5.4(d) of the Note Purchase Agreements shall relate to the Restricted Subsidiaries existing on the date hereof;
(f) the statements and information furnished to the Noteholders in connection with the negotiation of this Amendment do not, taken as a whole, and other than financial projections or 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 projections furnished to the Noteholders, the Obligors and the Constituent Company Guarantors only represent that the same were prepared on the basis of information and estimates the Obligors believed to be reasonable; and
(g) all tax returns with respect to any income tax or other material tax required to be filed by the Obligors and the Restricted Subsidiaries in any jurisdiction have, in fact, been filed, and all taxes, assessments, fees and other governmental charges upon the Obligors or the Restricted Subsidiaries or upon any of their respective properties, income or franchises, which are shown to be due and payable in such returns, 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 covenants set forth in books of the Note Purchase AgreementObligors and each Restricted Subsidiary have been made for all open years, and for its current fiscal period.
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Representations and Warranties of the Obligors. To induce Each Obligor hereby represents and warrants for the Noteholders benefit of each Secured Debt Representative, the Collateral Agent and each Secured Party on the date hereof, as follows:
(a) each of the Borrower and the other Obligors has been duly formed, validly exists, and has all requisite organizational power and authority to execute conduct its business as intended and deliver own its assets;
(b) each of the Borrower and the other Obligors has taken all necessary organizational action to authorize the execution, delivery and performance of this Amendment Agreement and the other Collateral Documents to which it is a party;
(c) each of the Borrower and the other Obligors has duly authorized, executed and delivered this Agreement and the other Collateral Documents to which representations shall survive it is a party, and the execution and delivery of this Amendment), each Obligor represents Agreement and warrants to the Noteholders that:
(a) this Amendment has been duly authorized, executed and delivered such other Collateral Documents by it and 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;
(b) 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 and performance by such Obligor of this 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 its certificate of incorporation or bylaws, (2) any order of any court or any rule, regulation or order of any other agency or government applicable law binding upon it, it or (3) conflict in any provision of material respect with any indenture, agreement or other instrument to which it is a party or by which its properties or assets are or may be bound, including, 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 clause (iii)(A)(3) of this Section 3(c)party;
(d) as this Agreement constitutes valid and legally binding obligations of each of the date hereof immediately prior Borrower and the other Obligors, enforceable against each of them in accordance with the terms hereof, subject only to applicable bankruptcy, insolvency and after giving effect other laws of general application limiting the enforceability of creditors’ rights and to this Amendmentgeneral principles of equity, no Default or Event including the principle that specific performance is an equitable remedy, available only in the discretion of Default has occurred which is continuingthe court;
(e) no amendment or modification the only jurisdictions in which each Obligor carries on business, and the chief executive office of any outstanding Credit Agreement that addresses the subject matter each of this Amendment is being entered into by the Obligors on or about the date of this Amendment or is currently contemplated by the Obligorsare as set out in Exhibit B hereto; and
(f) all of no Obligor has trade names or has been known by any legal name different from 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, 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 covenants ones set forth in Exhibit B hereto, nor has any Obligor been the Note Purchase Agreementsubject of any merger or other corporate reorganization.
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Representations and Warranties of the Obligors. To induce the Noteholders to execute The Obligors each represent and deliver this Amendment (which representations shall survive the execution and delivery of this Amendment), each Obligor represents and warrants warrant to the Noteholders Agent and the Holders that:
(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 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;
(b) 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 and performance by such Obligor of this 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 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 indenture, agreement or other instrument to which it is a party or by which its properties or assets are or may be bound, including, 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 clause (iii)(A)(3) of this Section 3(c);
(d) as of the date hereof immediately prior to Amendment Effective Date and after giving effect to this Amendment:
6.1 All of the representations and warranties of the Issuer and the Guarantor contained in this Amendment, no the Secured Note Purchase Agreement, and the other Note Documents are true and correct on and as of the Amendment Effective Date, as if then made (other than representations and warranties which expressly related to an earlier date and except for changes therein expressly permitted by the Secured Note Purchase Agreement).
6.2 No Default or Event of Default has occurred which or is continuing;continuing or will result after giving effect to this Amendment.
6.3 The Issuer is not and will not be in breach of any financial covenant tested as of the Amendment Effective Date, except as have been expressly waived by this Amendment.
6.4 Since April 16, 1998, except for information previously publicly disclosed or disclosed in writing by the Issuer to the Agent, (ei) no amendment event or modification of any outstanding Credit Agreement that addresses the subject matter of this Amendment is being entered into by the Obligors on or about the date of this Amendment condition has occurred or is currently contemplated by the Obligors; and
existing which could reasonably be expected to have a Material Adverse Effect, (fii) 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 materialityno litigation has been commenced which, if successful, would have a 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 could challenge any 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 transactions contemplated by the Obligors in accordance with the covenants set forth in the Secured Note Purchase Agreement, this Amendment, or the Note Documents, and (iii) there has been no material increase in liabilities, liquidated or contingent, and no material decrease in assets of either the Issuer or the Guarantor.
6.5 The Obligors have received with respect to the Unsecured Note Purchase Agreement and the Unsecured Notes the executed amendment, waiver and forbearance referred to in Section 4.5 hereof, and such amendment, waiver and forbearance is binding and in full force and effect.
6.6 The execution and delivery of this Amendment and related documents by the Issuer and the Guarantor, and the performance of the transactions contemplated hereby and thereby, (a) are within each such Person's corporate power, (b) have been duly authorized by all necessary or proper corporate and shareholder action, and (c) do not conflict with or violate any contract or agreement to which the Issuer or the Guarantor may be a party; this Amendment and such documents have been duly executed and delivered by, and each
Appears in 1 contract
Samples: Senior Subordinated Secured Note Purchase Agreement (National Record Mart Inc /De/)
Representations and Warranties of the Obligors. SECTION 2.1. To induce the Noteholders to execute and deliver this Second Amendment (which representations shall survive the execution and delivery of this Second Amendment), each Obligor represents the Obligors, jointly and warrants severally, represent and warrant to the Noteholders that:
(a) this Second Amendment has been duly authorized, executed and delivered by it each Obligor and this Second Amendment constitutes the legal, valid and binding obligation, contract and agreement of such each 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;
(b) the Note Purchase AgreementAgreements, as amended by this Second Amendment, constitutes constitute the legal, valid and binding obligationobligations, contract contracts and agreement agreements of such Obligor the Obligors enforceable against it them in accordance with its their 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 such Obligor the Obligors of this Amendment Second 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 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 it any Obligor is a party or by which its any Obligor's properties or assets are or may be bound, including, without limitation, any the Credit AgreementAgreement dated as of April 30, 1999, among the Obligors, the Lenders party thereto and Hxxxxx Trust and Savings Bank, individually and as Agent, and all amendments, supplements and modifications thereto, 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 3(c2.1(c);
(d) as of the date hereof immediately prior to and after giving effect to this Second Amendment, no Default or Event of Default has occurred which is continuing;
(e) no amendment or modification of any outstanding Credit Agreement that addresses the subject matter of this Amendment is being entered into by the Obligors on or about the date of this Amendment or is currently contemplated by the Obligors; and
(f) all of the representations and warranties contained in Section 5 of the Note Purchase Agreement Agreements (other than those contained in Sections 5.3, 5.4(a), 5.4(b) and 5.9) are true and correct in all material respects (in all respects in the case of representations and warranties qualified by materiality, Material Adverse Effect or similar language in the text thereof) with the same force and effect as if made by such Obligor the Obligors on and as of the date hereofhereof (other than any representation and warranty that expressly relates to a specified earlier date, except which was true and correct in all material respects as of such date); PROVIDED, THAT, notwithstanding any reference in Sections 5.4(c) and 5.4(d) of the Note Purchase Agreements to the extent that such Restricted Subsidiaries listed on Schedule 5.4 to the Note Purchase Agreements, the representations and warranties expressly relate solely to an earlier date or due solely as a result of actions taken hereby made by the Obligors with reference to Sections 5.4(c) and 5.4(d) of the Note Purchase Agreements shall relate to the Restricted Subsidiaries existing on the date hereof;
(f) The statements and information furnished to the Noteholders in connection with the negotiation of this Amendment do not, taken as a whole, and other than financial projections or 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 projections furnished to the Noteholders, the Obligors and the Constituent Company Guarantors only represent that the same were prepared on the basis of information and estimates the Obligors believed to be reasonable; and
(g) All tax returns with respect to any income tax or other material tax required to be filed by the Obligors and the Restricted Subsidiaries in any jurisdiction have, in fact, been filed, and all taxes, assessments, fees and other governmental charges upon the Obligors or the Restricted Subsidiaries or upon any of their respective properties, income or franchises, which are shown to be due and payable in such returns, 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 covenants set forth in books of the Note Purchase AgreementObligors 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. To induce Each Obligor hereby represents and warrants for the Noteholders benefit of each Secured Debt Representative, the Collateral Agent and each Secured Party on the date hereof, as follows:
(a) each of the Company and the other Obligors has been duly formed, validly exists, and has all requisite organizational power and authority to execute conduct its business as intended and deliver own its assets;
(b) each of the Company and the other Obligors has taken all necessary organizational action to authorize the execution, delivery and performance of this Amendment Agreement and the other Collateral Documents to which it is a party;
(c) each of the Company and the other Obligors has duly authorized, executed and delivered this Agreement and the other Collateral Documents to which representations shall survive it is a party, and the execution and delivery of this Amendment), each Obligor represents Agreement and warrants to the Noteholders that:
(a) this Amendment has been duly authorized, executed and delivered such other Collateral Documents by it and 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;
(b) 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 and performance by such Obligor of this 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 its certificate of incorporation or bylaws, (2) any order of any court or any rule, regulation or order of any other agency or government applicable law binding upon it, it or (3) conflict in any provision of material respect with any indenture, agreement or other instrument to which it is a party or by which its properties or assets are or may be bound, including, 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 clause (iii)(A)(3) of this Section 3(c)party;
(d) as this Agreement constitutes valid and legally binding obligations of each of the date hereof immediately prior Company and the other Obligors, enforceable against each of them in accordance with the terms hereof, subject only to applicable bankruptcy, insolvency and after giving effect other laws of general application limiting the enforceability of creditors’ rights and to this Amendmentgeneral principles of equity, no Default or Event including the principle that specific performance is an equitable remedy, available only in the discretion of Default has occurred which is continuingthe court;
(e) no amendment or modification the only jurisdictions in which each Obligor carries on business, and the chief executive office of any outstanding Credit Agreement that addresses the subject matter each of this Amendment is being entered into by the Obligors on or about the date of this Amendment or is currently contemplated by the Obligorsare as set out in Exhibit B hereto; and
(f) all of no Obligor has trade names or has been known by any legal name different from 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, 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 covenants ones set forth in Exhibit B hereto, nor has any Obligor been the Note Purchase Agreementsubject of any merger or other corporate reorganization.
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