Representations, Warranties, Acknowledgments and Covenants. Guarantor hereby represents, warrants and covenants to and with Agent that: 10.1. Guarantor does not currently have (and will not have, upon execution of this Guaranty) any defenses, counterclaims or rights of set-off against Agent in connection with this Guaranty; 10.2. Other than in favor of Agent, Guarantor does not currently have, and shall not at any time after the date of this Guaranty create, assume, incur, or permit to exist, any mortgage, lien, pledge, charge, security interest or other encumbrance of any kind in respect of any of the Guaranty Collateral whether heretofore or hereafter acquired by the Guarantor; 10.3. Guarantor does not now, and shall not while any of the Obligations or Expenses remain outstanding, have, exercise or benefit from, and hereby waives, any security interest in or lien (whether granted consensually by operation of law or otherwise) upon the assets or properties of Borrower; and 10.4. All representations and warranties made herein shall survive until such time as all of the Obligations and Expenses have been paid in full indefeasibly in cash or are otherwise fully satisfied and Agent shall be under no further obligation to extend credit to or enter into credit arrangements with Borrower under the Credit Documents or otherwise. 10.5. Each warranty and representation made by Guarantor or by the Borrower on Guarantor’s behalf in the Tax Credit Warehouse Agreement or any other Credit Document is true, accurate and complete and is incorporated herein by reference. 10.6. In addition to the covenants and obligations set forth elsewhere in this Guaranty or by which Guarantor is bound under any other Credit Document, Guarantor hereby covenants and agrees that Guarantor shall comply with the additional covenants and obligations set forth on Schedule 1 hereto.
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Representations, Warranties, Acknowledgments and Covenants. Guarantor Borrower hereby represents, warrants warrants, acknowledges and covenants to Lender that as of the date hereof,
(a) Borrower is duly organized and in good standing under the laws of the state of its formation, is duly and legally authorized to enter into this Agreement, and has complied with Agent that:all laws, rules, regulations, charter provisions, and bylaws to which it may be subject.
10.1. Guarantor (b) The undersigned representative is authorized to act on behalf of and bind Borrower in accordance with the terms of this Agreement, and Borrower shall furnish such resolutions, consents, and other such documents as may be reasonably requested by Lender in Exhibit 10.4 connection with the above.
(c) The individual executing this Agreement on behalf of Borrower has full power and authority to execute and deliver this Agreement as well as any and all documents and instruments contemplated herein or requested in connection herewith.
(d) The Existing Events of Default set forth in Section 1(c) of this Agreement are the sole Events of Default under the Loan Agreement as of the date hereof, and no facts or circumstances presently exist which would constitute a default or an Event of Default under the Loan Agreement or give grounds for termination hereunder.
(e) The Borrower does not currently have a present intention to file for protection or seek relief under the United States Bankruptcy Code or any similar federal or state law providing for the relief of debtors.
(f) The Collateral, including without limitation Borrower’s books and will records related thereto, is not havelocated, upon execution of this Guaranty) any defenseskept, counterclaims or rights of set-off against Agent in connection with this Guaranty;
10.2. Other than in favor of Agent, Guarantor does not currently have, and shall not stored at any time after location that is the subject of the Lease Litigation.
(g) The addresses provided hereinbelow for Borrower are true and correct as of the date of this Guaranty create, assume, incur, or permit to exist, any mortgage, lien, pledge, charge, security interest or other encumbrance of any kind in respect of any of the Guaranty Collateral whether heretofore or hereafter acquired by the Guarantor;
10.3. Guarantor does not now, and shall not while any of the Obligations or Expenses remain outstanding, have, exercise or benefit from, and hereby waives, any security interest in or lien (whether granted consensually by operation of law or otherwise) upon the assets or properties of Borrower; and
10.4. All representations and warranties made herein shall survive until such time as all of the Obligations and Expenses have been paid in full indefeasibly in cash or are otherwise fully satisfied and Agent shall be under no further obligation to extend credit to or enter into credit arrangements with Borrower under the Credit Documents or otherwiseAgreement.
10.5. Each warranty and representation made by Guarantor or by the Borrower on Guarantor’s behalf in the Tax Credit Warehouse Agreement or any other Credit Document is true, accurate and complete and is incorporated herein by reference.
10.6. In addition to the covenants and obligations set forth elsewhere in this Guaranty or by which Guarantor is bound under any other Credit Document, Guarantor hereby covenants and agrees that Guarantor shall comply with the additional covenants and obligations set forth on Schedule 1 hereto.
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Samples: Modification and Termination Agreement (Trinsic, Inc.)
Representations, Warranties, Acknowledgments and Covenants. Guarantor hereby represents(a) JDN represents and warrants that it has attempted to review expeditiously the Transactions for Discrepancies and that it has generally described to Wal-Mart and Lowe's the nature of the Discrepancies ascertained by such review, warrants but that the precise nature and covenants to and with Agent that:
10.1. Guarantor does not extent of the Discrepancies are currently have (and will not have, upon execution of this Guaranty) any defenses, counterclaims or rights of set-off against Agent in connection with this Guaranty;
10.2. Other than in favor of Agent, Guarantor does not currently haveunknown, and shall may never be known, but are in excess of Five Million Dollars ($5,000,000) as to each of Lowe's and Wal-Mart.
(b) Wal-Mart and Lowe's acknowledge and agree that JDN has generally described the nature of the Discrepancies of which it is aware to the representatives of each, but acknowledge that the precise nature and extent of the Discrepancies are currently unknown, and may never be known. Notwithstanding the foregoing, the parties agree to settle in full any and all disputes, whether now existing or hereinafter arising from or related to the Discrepancies solely on the terms set forth in this Agreement.
(c) The parties acknowledge and agree that it would not be beneficial or efficient to conduct a full scale, comprehensive review in an attempt to identify with particularity or quantify the Discrepancies, and enter into this Agreement in settlement of a potential dispute.
(d) Without limiting JDN's duties set forth in Section 4(e) hereof, the parties acknowledge and agree that JDN is in no way obligated to further investigate or report any further findings with respect to the Discrepancies to Wal-Mart or Lowe's, or to at any time or for any reason open or make available its books and records to Wal-Mart or Lowe's for a further investigation into the nature and extent of any actual Discrepancies; provided, however, that from and after the date of this Guaranty createAgreement, assumeJDN shall inform Wal-Mart and Lowe's, incuras applicable, or permit to exist, any mortgage, lien, pledge, charge, security interest or other encumbrance of any kind further material (either qualitative or quantitative) information or evidence discovered by JDN with respect to the Discrepancies. Nothing in respect this paragraph shall be construed to affect or limit Wal-Mart and Lowe's right to take actions necessary to fulfill discovery requests that may be served on Wal-Mart or Lowe's in connection with litigation with third parties or conduct discovery in the context of any litigation between any of the Guaranty Collateral whether heretofore parties hereto brought as a result of a breach or hereafter acquired default under this Agreement.
(e) JDN hereby represents and warrants that both JDN Development and JDN Realty have the authority and power to enter into this Agreement and to consummate the transactions contemplated herein; that specific corporate resolutions of the Boards of Directors from JDN Development and JDn Realty authorizing this Agreement shall be submitted to Wal-Mart and Lowe's upon the execution of this Agreement by the Guarantor;
10.3. Guarantor does not nowall parties, and shall not while any that upon execution hereof both JDN Development and JDN Realty will be legally obligated to Wal-Mart and Lowe's in accordance with the terms and provisions of this Agreement.
(f) Wal-Mart hereby represents and warrants that both Wal-Mart Stores and Wal-Mart Trust have the Obligations or Expenses remain outstandingauthority and power to enter into this Agreement and to consummate the transactions contemplated herein; and that upon execution hereof both Wal-Mart Stores and Wal-Mart Trust will be legally obligated to JDN in accordance with the terms and provisions of this Agreement.
(g) Lowe's hereby represents and warrants that Lowe's has the authority and power to enter into this Agreement and to consummate the transactions contemplated herein; and that upon execution hereof Lowe's will be legally obligated to JDN in accordance with the terms and provisions of this Agreement.
(h) Except as expressly set forth in this Agreement, have, exercise or benefit from, and hereby waives, any security interest in or lien (whether granted consensually by operation of law or otherwise) upon the assets or properties of Borrower; and
10.4. All representations and warranties made nothing contained herein shall survive until such time be construed as all of amending, modifying, supplementing or otherwise altering in any manner the Obligations and Expenses have been paid in full indefeasibly in cash Existing Leases, Purchases, Other Transactions or are otherwise fully satisfied and Agent shall be under no further obligation to extend credit to or enter into credit arrangements with Borrower under the Credit Documents or otherwisePending Transactions.
10.5. Each warranty and representation made by Guarantor or by the Borrower on Guarantor’s behalf in the Tax Credit Warehouse Agreement or any other Credit Document is true, accurate and complete and is incorporated herein by reference.
10.6. In addition to the covenants and obligations set forth elsewhere in this Guaranty or by which Guarantor is bound under any other Credit Document, Guarantor hereby covenants and agrees that Guarantor shall comply with the additional covenants and obligations set forth on Schedule 1 hereto.
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Representations, Warranties, Acknowledgments and Covenants. Guarantor hereby represents, warrants and covenants to and with Agent that:
10.1. Guarantor does not currently have (and will not have, upon execution of this Guaranty) any defenses, counterclaims or rights of set-off against Agent in connection with this Guaranty;
10.2. Other than in favor of Agent, Guarantor does not currently have, and shall not at any time after the date of this Guaranty create, assume, incur, or permit to exist, any mortgage, lien, pledge, charge, security interest or other encumbrance of any kind in respect of any of the Guaranty Collateral whether heretofore or hereafter acquired by the Guarantor;
10.3. Guarantor does not now, and shall not while any of the Until all Obligations or Expenses remain outstanding, have, exercise or benefit from, and hereby waives, any security interest in or lien (whether granted consensually by operation of law or otherwise) upon the assets or properties of Borrower; and
10.4. All representations and warranties made herein shall survive until such time as all of the Obligations and Expenses have been paid in full indefeasibly in cash or are otherwise fully satisfied satisfied, Debtor hereby represents, warrants, covenants and Agent shall be under no further agrees that:
(a) Debtor has and has duly exercised all requisite power and authority to enter into this Agreement, to pledge and grant a security interest in the Collateral and to carry out the transactions contemplated by this Agreement; and this Agreement has been duly executed and delivered by Debtor and is the legal, valid, and binding obligation to extend credit of Debtor enforceable against it in accordance with the terms hereof except as enforceability is limited by bankruptcy, insolvency, reorganization, moratorium, or other laws relating to or enter into credit arrangements with Borrower under affecting generally the Credit Documents enforcement of creditors’ rights and except to the extent that availability of the remedy of specific performance, injunctive relief or otherwiseother equitable remedies is subject to the discretion of the court before which any case or proceeding therefor may be brought.
10.5. Each warranty (b) the execution and representation made by Guarantor delivery of this Agreement and the performance of Debtor’s obligations hereunder, do not and shall not require the approval of, or by the Borrower giving of notice to, or the consent of, any third party (including, without limitation, any federal, state, local or foreign governmental authority), and do not and shall not contravene any law binding on GuarantorDebtor or contravene Debtor’s behalf in the Tax Credit Warehouse Agreement charter documents or by-laws, or any agreement, indenture, or other Credit Document instrument to which Debtor is true, accurate and complete and is incorporated herein by reference.
10.6. In addition to the covenants and obligations set forth elsewhere in this Guaranty a party or by which Guarantor it may be bound;
(c) Debtor does now (and will in the future, upon payment in full of the invoice price of each item of equipment included within the Collateral) lawfully possess and own the Collateral;
(d) except for the security interest granted herein, Debtor has and, upon payment in full of the invoice price of each item of equipment included within the Collateral, will have good and marketable title to the Collateral; the Collateral is bound free from and will be kept free from all liens, claims, security interests, attachments and encumbrances; no financing statement covering the Collateral or any proceeds thereof is now or shall be on file in favor of anyone other than Lender; and Debtor shall defend Lender’s rights in the Collateral against the claims and demands of all other persons;
(e) Debtor will not misuse, fail to keep in good repair, sell, assign, rent, lend, encumber, transfer, secrete or otherwise dispose of any of the Collateral or any interest therein, nor permit or contract to do any such act (each such act, a “Transfer”) except:
(i) that a Transfer may occur to (A) an entity that controls, is under common control with, or is controlled by Debtor; (B) an entity with whom Debtor merges or consolidates, or (C) to an entity that acquires all or substantially all of Debtor’s assets (each of such entities, an “Approved Entity”) so long as (1) Debtor provides Lender at least thirty (30) days’ prior notice of such proposed Transfer, (2) the Approved Entity assumes, in a writing to Lender, all of Debtor’s obligations under the Loan Documents, (3) Debtor remains liable, on a joint and several basis with the Approved Entity, for all of Debtor’s obligations under the Loan Documents, and (4) Debtor and the Approved Entity shall take all actions requested by Lender to confirm Lender’s security interest in the Collateral described in this Agreement;
(ii) for a Transfer consented to by Lender to an entity other than an Approved Entity, provided that Lender’s consent shall not be unreasonably withheld, conditioned or delayed, but, in addition to any other Credit Documentgrounds for denial, Guarantor hereby Lender’s consent shall be deemed reasonably withheld if Lender, in its capacity as the Landlord under and as defined in the Lease, withholds its consent to any assignment, sublease, license or other transfer of the Lease to the proposed transferee; or
(iii) Debtor may sell such of the Collateral as consists of obsolete or surplus equipment if either (A) Debtor pays to Lender an amount equal to the then-outstanding principal portion of the Obligations attributable to the equipment being sold, or (B) Debtor grants to Lender a first-priority security interest in replacement equipment having an aggregate fair market value (as determined by Lender in its good faith, reasonable discretion) equal to or greater than the then-outstanding principal portion of the Obligations attributable to the equipment being sold such that the replacement equipment becomes Collateral hereunder;
(f) if any Collateral becomes the subject of any instrument, chattel paper, negotiable document of title, including any warehouse receipt or xxxx of lading, or if any Collateral at any time consists of certificated investment property, Debtor shall deliver such instrument, paper or document or the certificates evidencing such investment property to Lender, together with such assignments in blank or other documents of transfer as Lender shall request;
(g) Debtor shall defend at Debtor’s own cost any action, proceeding or claim affecting the Collateral;
(h) Debtor shall pay promptly all taxes, assessments, license fees and other public or private charges when levied or assessed against the Collateral;
(i) Upon at least three (3) days’ prior notice, except during the pendency of an Event of Default that extends beyond the expiration of applicable notice and cure periods, and except in the case of an emergency, when in each case no prior notice shall be required, Debtor shall permit Lender and its agents to enter into the portions of the Premises that are not one of the Controlled Areas (as defined below) at reasonable times, to examine and inspect the Collateral and to inspect and make abstracts from records of Debtor concerning the Collateral; provided, however, that except in the case of an emergency or during the pendency of an Event of Default that extends beyond the expiration of applicable notice and cure periods, such access shall only be performed when escorted by a representative of Debtor. Lender acknowledges that Debtor’s business operations require strict compliance with federal and state regulations regarding the development, production and testing of human use biological products and, therefore, Lender covenants that its representative (and agrees that Guarantor any access of the Premises or examination of the Collateral by Lender or anyone claiming by, through or under Lender) shall comply in all respects with such regulations;
(j) Debtor intends to use certain portions of the additional covenants Premises for experimentation, testing and obligations set forth on Schedule 1 hereto.development of highly sensitive materials and vaccines and, in order to establish the
Appears in 1 contract
