Warranties, Representations, Covenants and Agreements. Guarantor warrants and represents, as follows: (i) It (a) is duly organized and validly existing under the laws of the jurisdiction of its organization, (b) has all requisite power and authority to carry on its business as now conducted and as presently contemplated to be conducted and to make the guarantee hereunder, and to execute and deliver each Loan Document to which it is a party, and to consummate the transactions contemplated thereby and to own and lease its property and (c) is qualified and in good standing (to the extent such concept is applicable in the applicable jurisdiction) to do business in every jurisdiction where such qualification is required, except in such jurisdictions where the failure to so qualify or be in good standing, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect; (ii) The transactions contemplated by this Guarantee have been duly authorized by all necessary action on the part of the Guarantor. This Guarantee has been duly executed and delivered by the Guarantor and constitutes, and each other Loan Document to which the Guarantor is to be a party, when executed and delivered by the Guarantor, will constitute, a legal, valid and binding obligation of the Guarantor, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law; (iii) The transactions contemplated by this Guarantee (a) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except (i) such as have been obtained or made and are in full force and effect and (ii) consents, approvals, registrations, filings, permits or actions the failure to obtain or perform which could not reasonably be expected to result in a Material Adverse Effect, (b) will not violate the Organizational Documents of the Guarantor, (c) will not violate any Requirement of Law, (d) will not violate or result in a default or require any consent or approval under any indenture, agreement or other instrument binding upon the Guarantor or its property, or give rise to a right thereunder to require any payment to be made by the Guarantor, except those violations or defaults that could not reasonably be expected to result in a Material Adverse Effect and (e) will not result in the creation or imposition of any Lien on any property of the Guarantor, except Liens created by the Loan Documents and Permitted Liens; (iv) Guarantor has received, or will receive, direct or indirect benefit from the making of this Guarantee, the making of the Loans and the entering into and execution of the Loan Documents in connection therewith; (v) The Guarantor assumes all responsibility for being and keeping itself informed of the Borrowers’ financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the Secured Obligations, and the nature, scope and extent of the risks that the Guarantor assumes and incurs hereunder, and agrees that none of the Facility Agent or the other Secured Parties will have any duty to advise the Guarantor of information known to it or any of them regarding such circumstances or risks; (vi) All financial statements concerning Guarantor which have been or will hereafter be furnished by Guarantor or Borrowers to the Lenders pursuant to the Loan Documents, have been or will be (a) prepared in accordance with GAAP consistently applied (except as disclosed therein, to the extent Lender approves such disclosure and in the case of clauses (a) and (b) with respect to any unaudited quarterly financial statements, subject to the absence of footnotes and normal year-end adjustments) and, (b) in all material respects, present fairly the financial condition of the persons covered thereby as at the dates thereof and the results of their operations for the periods then ended; (vii) Guarantor is not a party to any agreement or instrument or subject to any corporate or other constitutional restriction that has resulted or could reasonably be expected to result in a Material Adverse Effect. Guarantor is not in default under any provision of any indenture or other agreement or instrument evidencing Indebtedness, or any other agreement or instrument to which it is a party or by which it or any of its property is or may be bound, and no condition exists which, with the giving of notice or the lapse of time or both, would constitute such a default, except where such default could not reasonably be expected to result in a Material Adverse Effect. (viii) Each ERISA Affiliate of Guarantor has operated and administered each Employee Benefit Plan in material compliance with ERISA. Guarantor is not an Employee Benefit Plan and Guarantor’s assets do not constitute “plan assets” as defined in U.S. Department of Labor regulations under ERISA. No actions, suits or claims under any laws and regulations promulgated pursuant to ERISA are pending or, to Guarantor’s knowledge, threatened against Guarantor. Guarantor has no knowledge of any material liability incurred by Guarantor which remains unsatisfied for any taxes or penalties with respect to any Employee Benefit Plan or any Multiemployer Plan, or of any lien which has been imposed on Guarantor’s assets pursuant to section 412 of the Code or sections 302 or 4068 of ERISA. The Loans, the execution, delivery and performance of the Loan Documents and the transactions contemplated by this Guarantee are not a non-exempt prohibited transaction under ERISA. Guarantor is an “operating company” as defined in U.S. Department of Labor regulations under ERISA; (ix) As of the date hereof, and after giving effect to this Guarantee and the contingent obligations evidenced hereby, Guarantor is and expects to be solvent at all times, and has and expects to have assets at all times which, fairly valued, exceed its obligations, liabilities and debts, and has and expects to have property and assets at all times sufficient to satisfy and repay its obligations and liabilities; and (x) As of the date hereof, (a) there is no litigation, governmental investigation or arbitration pending or, to Guarantor’s knowledge, threatened against Guarantor which seeks to enjoin the consummation of the matters contemplated hereby or, except as set forth on Schedule 3.08 of the Facility Agreement, if adversely determined, could reasonably be expected to have a Material Adverse Effect on Guarantor; (b) there are no judgments outstanding against Guarantor that could reasonably be expected to result, either individually or in the aggregate, in a Material Adverse Effect; and (c) no petition in bankruptcy, whether voluntary or involuntary, or assignment for the benefit of creditors, or any other action involving debtors’ and creditors’ rights has ever been filed under the laws of the United States of America or any state thereof, or to Guarantor’s knowledge, threatened, by or against Guarantor.
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Samples: Facility Agreement, Facility Agreement (Equinix Inc)
Warranties, Representations, Covenants and Agreements. (a) Guarantor warrants and represents, as follows:
(i) It (a) is duly organized and validly existing under the laws of the jurisdiction of its organization, (b) has all requisite power and authority to carry on its business as now conducted and as presently contemplated to be conducted and to make the guarantee hereunder, and to execute and deliver each Loan Document to which it is a party, and to consummate the transactions contemplated thereby and to own and lease its property and (c) is qualified and in good standing (to the extent such concept is applicable in the applicable jurisdiction) to do business in every jurisdiction where such qualification is required, except in such jurisdictions where the failure to so qualify or be in good standing, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect;
(ii) The transactions contemplated by this Guarantee have been duly authorized by all necessary action on the part of the Guarantor. This Guarantee has been duly executed and delivered by the Guarantor and constitutes, and each other Loan Document to which the Guarantor is to be a party, when executed and delivered by the Guarantor, will constitute, a legal, valid and binding obligation of the Guarantor, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law;
(iii) The transactions contemplated by this Guarantee (a) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except (i) such as have been obtained or made and are in full force and effect and (ii) consents, approvals, registrations, filings, permits or actions the failure to obtain or perform which could not reasonably be expected to result in a Material Adverse Effect, (b) will not violate the Organizational Documents of the Guarantor, (c) will not violate any Requirement of Law, (d) will not violate or result in a default or require any consent or approval under any indenture, agreement or other instrument binding upon the Guarantor or its property, or give rise to a right thereunder to require any payment to be made by the Guarantor, except those violations or defaults that could not reasonably be expected to result in a Material Adverse Effect and (e) will not result in the creation or imposition of any Lien on any property of the Guarantor, except Liens created by the Loan Documents and Permitted Liens;
(iv) Guarantor has received, or will receive, direct or indirect benefit from the making of this GuaranteeGuaranty, the making of the Loans Loan and the entering into and execution of the Loan Agreement and the Loan Documents in connection therewith;
(vii) The Guarantor assumes all responsibility for being is familiar with, and keeping itself informed has independently reviewed the financial condition of the Borrowers’ financial condition Borrower and assets, is familiar with the value of any and of all other circumstances bearing upon collateral intended to be created as security for the risk of nonpayment payment and performance of the Secured indebtedness evidenced by the Note and the Guaranteed Obligations, and the nature, scope and extent of the risks that the Guarantor assumes and incurs hereunderfull responsibility for keeping fully informed as to such matters in the future; however, and agrees that none of the Facility Agent Guarantor is not relying on such financial condition or the other Secured Parties will have any duty collateral as an inducement to advise the Guarantor of information known to it or any of them regarding such circumstances or risks;enter into this Guaranty; and
(viiii) All financial statements concerning Guarantor which have been or will hereafter be furnished by Guarantor or Borrowers Borrower to the Lenders Lender pursuant to the Loan Documents, have been or will be (aA) prepared in accordance with GAAP consistently applied (except as disclosed therein, to the extent Lender approves such disclosure and in the case of clauses (aA) and (bB) with respect to any unaudited quarterly financial statements, subject to the absence of footnotes and normal year-end adjustments) and, (bB) in all material respects, present fairly the financial condition of the persons Persons covered thereby as at the dates thereof and the results of their operations for the periods then ended;
(vii) Guarantor is not a party to any agreement or instrument or subject to any corporate or other constitutional restriction that has resulted or could reasonably be expected to result in a Material Adverse Effect. Guarantor is not in default under any provision of any indenture or other agreement or instrument evidencing Indebtedness, or any other agreement or instrument to which it is a party or by which it or any of its property is or may be bound, and no condition exists which, with the giving of notice or the lapse of time or both, would constitute such a default, except where such default could not reasonably be expected to result in a Material Adverse Effect.
(viiiiv) Each No ERISA Affiliate of Guarantor maintains or contributes to, or has operated and administered each any obligation under, any Employee Benefit Plan in material compliance with ERISAPlans. Guarantor is not an Employee Benefit Plan “employee benefit plan” (within the meaning of section 3(3) of ERISA) to which ERISA applies and Guarantor’s assets do not constitute “plan assets” as defined in U.S. Department of Labor regulations under ERISA. No actions, suits or claims under any laws and regulations promulgated pursuant to ERISA are pending or, to Guarantor’s knowledge, threatened against Guarantor. Guarantor has no knowledge of any material liability incurred by Guarantor which remains unsatisfied for any taxes or penalties with respect to any Employee Benefit Plan or any Multiemployer Plan, or of any lien which has been imposed on Guarantor’s assets pursuant to section 412 of the Code or sections 302 or 4068 of ERISA. The LoansLoan, the execution, delivery and performance of the Loan Documents and the transactions contemplated by this Guarantee Guaranty are not a non-exempt prohibited transaction under ERISA. Guarantor is an “operating company” as defined in U.S. Department of Labor regulations under ERISA;.
(ixv) As of the date hereof, and after giving effect to this Guarantee Guaranty and the contingent obligations evidenced hereby, Guarantor is and expects to be solvent at all times, and has and expects to have assets at all times which, fairly valued, exceed his or its obligations, liabilities and debts, and has and expects to have property and assets at all times sufficient to satisfy and repay his or its obligations and liabilities; and.
(xvi) As of the date hereof, (aA) there is no litigation, governmental investigation or arbitration pending or, to Guarantor’s knowledge, threatened against Guarantor which seeks to enjoin the consummation of the matters contemplated hereby or, except as set forth on Schedule 3.08 4.7 of the Facility Loan Agreement, if adversely determined, could reasonably be expected to have a Material Adverse Effect on Carveout Guarantor; (bB) there are no judgments outstanding against Guarantor that could reasonably be expected to result, either individually or in the aggregate, in a Material Adverse Effect; and (cC) no petition in bankruptcy, whether voluntary or involuntary, or assignment for the benefit of creditors, or any other action involving debtors’ and creditors’ rights has ever been filed under the laws of the United States of America or any state thereof, or to Guarantor’s knowledge, threatened, by or against Guarantor.
(b) [Intentionally Omitted].
Appears in 1 contract
Samples: Guaranty (Equinix Inc)
Warranties, Representations, Covenants and Agreements. Guarantor warrants and The Borrower warrants, represents, covenants and agrees with the Agent as follows:
(i) It (a) There is duly organized and validly existing under the laws no security agreement, financing statement or other document or instrument creating or evidencing an Adverse Claim now on file in any public office covering any of the jurisdiction Collateral, nor is there any Adverse Claim on any of its organizationthe Collateral, and until the termination of this Security Agreement, the Borrower will not execute, authorize or permit to be on file in any public office any financing statement covering any of the Collateral, except as may have been or may hereafter be filed in favor of, or assigned to, the Agent, and the Borrower further agrees that it will not grant, permit or suffer to exist any Adverse Claim upon any of the Collateral, except as may be granted to the Agent hereunder.
(b) has all requisite power The Borrower shall, at its expense, make, procure, execute and authority to carry on its business as now conducted deliver such financing statements, or amendments thereof or supplements thereto, or other instruments, certificates and as presently contemplated to be conducted and to make the guarantee hereundersupplemental writings, and take such other actions as the Agent may from time to time reasonably require in order to preserve and protect the first priority perfected security interest of the Agent in the Collateral.
(c) The Borrower agrees to execute and deliver each Loan Document all such instruments and to which do all such other things as may be necessary or appropriate to preserve, protect and enforce the first priority perfected security interest of the Agent in the Collateral under applicable law.
(d) If any amount payable under or in connection with any of the Collateral shall be or become evidenced by any promissory note or other instrument, the Borrower shall deliver to the Agent such instrument, duly endorsed in a manner reasonably satisfactory to the Agent.
(e) The Borrower represents and warrants that it is a partythe owner of all the Collateral and has the full right, title and authority to consummate grant the transactions contemplated thereby security interest granted hereunder.
(f) None of the Agent nor any Secured Party assumes any liability for the performance of any of the obligations of the Borrower under the Collateral or any transaction, agreement or contract out of which the Collateral arises.
(g) Upon the occurrence and during the continuance of an Event of Default the Borrower shall, upon the request of the Agent, promptly, at its expense:
(i) Deliver, or cause to own and lease its property and (c) is qualified and in good standing (be delivered, to the extent such concept is applicable Agent (or its designee), with appropriate endorsement or assignment, all instruments, securities, monies, checks, notes, drafts and other evidence of indebtedness, or other property in the applicable jurisdiction) to do business in every jurisdiction where such qualification is requirednature of items of payment representing proceeds of any of the Collateral, except in such jurisdictions where which are then in, or may thereafter come into, the failure to so qualify or be in good standing, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect;Borrower’s possession; and
(ii) The transactions contemplated by this Guarantee have been duly authorized by Direct all necessary action parties obligated on the part any of the Guarantor. This Guarantee has been duly executed and delivered Collateral to make all payments due or to become due thereon directly to the Agent or to such other Person or officer as may be specified by the Guarantor Agent.
(h) The Borrower shall take, at its sole cost and constitutesexpense, any and reasonable all steps, and each other Loan Document to which shall pay the Guarantor is to be a party, when executed and delivered amount of all reasonable expenses incurred by the GuarantorAgent necessary to (A) obtain, will constitutepreserve, perfect, defend and enforce the first priority perfected security interest of the Agent in the Collateral, (B) collect the Secured Obligations, and (C) preserve, defend, enforce and collect the Collateral.
(i) The Borrower shall promptly notify the Agent of any material change in any fact or circumstance warranted or represented by the Borrower in this Security Agreement and promptly notify the Agent of any claim, action or proceeding affecting title to the Collateral, or any part thereof, or the security interests herein granted.
(j) If any proceeds of the Collateral are received by the Borrower, the Borrower covenants to forthwith deposit any such proceeds directly into the Collateral Account promptly upon receipt.
(k) The Borrower shall not change its name, identity, jurisdiction of formation or organizational structure unless the Borrower shall have given the Agent at least thirty (30) days’ prior written notice thereof and shall have taken all action (or made arrangements to take such action substantially simultaneously with such change if it is impossible to take such action in advance) necessary or reasonably requested by the Agent to preserve and maintain first priority perfected security interest of the Agent in the Collateral.
(l) The Collateral is owned by the Borrower free and clear of any Adverse Claim (other than any Adverse Claim in favor of the Agent).
(m) This Security Agreement creates a legal, valid and binding obligation continuing security interest (as defined in UCC Section 9-102) in the Collateral in favor of the GuarantorAgent, which security interest is prior to all other Adverse Claims and is enforceable in accordance with its terms.
(n) The Borrower has caused the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect (i) the sale of the Receivables and other related assets from Aspen to the Transferor pursuant to the Purchase and Sale Agreement, subject (ii) the sale of Receivables and other related assets from the Transferor to applicable bankruptcythe Borrower pursuant to the Purchase and Resale Agreement, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law;
(iii) the security interest in the Collateral granted to the Agent hereunder.
(o) The transactions contemplated by this Guarantee (a) do Borrower does not require use, and has not at any consent or approval of, registration or filing with, or any other action bytime used, any Governmental Authoritytrade name, except fictitious name, assumed name or “doing business as” name or other name under which it has or is doing business other than its actual corporate name.
(p) The address of the Borrower’s chief executive office is as follows: c/o Aspen Technology, Inc. Ten Xxxxx Xxxx
(q) The Borrower’s (i) such as have been obtained or made and are in full force and effect and exact legal name, (ii) consents, approvals, registrations, filings, permits or actions the failure to obtain or perform which could not reasonably be expected to result in a Material Adverse Effectfederal employer identification number, (biii) will not violate the Organizational Documents state of the Guarantororganization, (c) will not violate any Requirement of Law, (d) will not violate or result in a default or require any consent or approval under any indenture, agreement or other instrument binding upon the Guarantor or its property, or give rise to a right thereunder to require any payment to be made by the Guarantor, except those violations or defaults that could not reasonably be expected to result in a Material Adverse Effect and (e) will not result in the creation or imposition of any Lien on any property of the Guarantor, except Liens created by the Loan Documents and Permitted Liens;
(iv) Guarantor has received, or will receive, direct or indirect benefit from the making type of this Guarantee, the making of the Loans organization and the entering into and execution of the Loan Documents in connection therewith;
(v) The Guarantor assumes all responsibility for being and keeping itself informed state of the Borrowers’ financial condition and assetsorganization identification number are, and of all other circumstances bearing upon the risk of nonpayment of the Secured Obligations, and the nature, scope and extent of the risks that the Guarantor assumes and incurs hereunder, and agrees that none of the Facility Agent or the other Secured Parties will have any duty to advise the Guarantor of information known to it or any of them regarding such circumstances or risks;
(vi) All financial statements concerning Guarantor which have been or will hereafter be furnished by Guarantor or Borrowers to the Lenders pursuant to the Loan Documents, have been or will be (a) prepared in accordance with GAAP consistently applied (except as disclosed therein, to the extent Lender approves such disclosure and in the case of clauses (a) and (b) with respect to any unaudited quarterly financial statements, subject to the absence of footnotes and normal yearfollows: Aspen Technology Receivables II LLC 00-end adjustments) and, (b) in all material respects, present fairly the financial condition of the persons covered thereby as at the dates thereof and the results of their operations for the periods then ended;
(vii) Guarantor is not a party to any agreement or instrument or subject to any corporate or other constitutional restriction that has resulted or could reasonably be expected to result in a Material Adverse Effect. Guarantor is not in default under any provision of any indenture or other agreement or instrument evidencing Indebtedness, or any other agreement or instrument to which it is a party or by which it or any of its property is or may be bound, and no condition exists which, with the giving of notice or the lapse of time or both, would constitute such a default, except where such default could not reasonably be expected to result in a Material Adverse Effect.
(viii) Each ERISA Affiliate of Guarantor has operated and administered each Employee Benefit Plan in material compliance with ERISA. Guarantor is not an Employee Benefit Plan and Guarantor’s assets do not constitute “plan assets” as defined in U.S. Department of Labor regulations under ERISA. No actions, suits or claims under any laws and regulations promulgated pursuant to ERISA are pending or, to Guarantor’s knowledge, threatened against Guarantor. Guarantor has no knowledge of any material liability incurred by Guarantor which remains unsatisfied for any taxes or penalties with respect to any Employee Benefit Plan or any Multiemployer Plan, or of any lien which has been imposed on Guarantor’s assets pursuant to section 412 of the Code or sections 302 or 4068 of ERISA. The Loans, the execution, delivery and performance of the Loan Documents and the transactions contemplated by this Guarantee are not a non-exempt prohibited transaction under ERISA. Guarantor is an “operating company” as defined in U.S. Department of Labor regulations under ERISA;
(ix) As of the date hereof, and after giving effect to this Guarantee and the contingent obligations evidenced hereby, Guarantor is and expects to be solvent at all times, and has and expects to have assets at all times which, fairly valued, exceed its obligations, liabilities and debts, and has and expects to have property and assets at all times sufficient to satisfy and repay its obligations and liabilities; and
(x) As of the date hereof, (a) there is no litigation, governmental investigation or arbitration pending or, to Guarantor’s knowledge, threatened against Guarantor which seeks to enjoin the consummation of the matters contemplated hereby or, except as set forth on Schedule 3.08 of the Facility Agreement, if adversely determined, could reasonably be expected to have a Material Adverse Effect on Guarantor; (b) there are no judgments outstanding against Guarantor that could reasonably be expected to result, either individually or in the aggregate, in a Material Adverse Effect; and (c) no petition in bankruptcy, whether voluntary or involuntary, or assignment for the benefit of creditors, or any other action involving debtors’ and creditors’ rights has ever been filed under the laws of the United States of America or any state thereof, or to Guarantor’s knowledge, threatened, by or against Guarantor.0000000 Limited Liability Company Delaware 3983500
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