Additional Representations, Warranties and Covenants. Borrowers and Guarantors, jointly and severally, represent, warrant and covenant with and to Agent and Lenders as follows, which representations, warranties and covenants are continuing and shall survive the execution and delivery hereof, and the truth and accuracy of, or compliance with each, together with the representations, warranties and covenants in the other Financing Agreements, being a continuing condition of the making of Loans by Lenders to Borrowers: (a) This Amendment and the other Financing Agreements executed and/or delivered by any Borrower or Guarantor in connection herewith (together with this Amendment, the “Amendment Documents”) have been duly authorized, executed and delivered by all necessary action on the part of each Borrower and Guarantor which is a party hereto and, if necessary, their respective members or stockholders, as the case may be, and is in full force and effect as of the date hereof, as the case may be, and the agreements and obligations of Borrowers and Guarantors contained herein or therein constitute legal, valid and binding obligations of Borrowers and Guarantors enforceable against them in accordance with their terms, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or similar laws of general applicability affecting the enforcement of creditors’ rights and (ii) the application of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). (b) As of the date hereof, all of the representations and warranties set forth in the Loan Agreement and the other Financing Agreements are true and correct in all material respects on and as of the date hereof as if made on the date hereof, except to the extent any such representation or warranty is made as of a specified date, in which case such representation or warranty shall have been true and correct as of such date. (c) As of the date hereof, no Default or Event of Default exists or has occurred and is continuing. (d) Neither the execution, delivery and performance of this Amendment or any other Amendment Document in connection therewith, nor the consummation of any of the transactions contemplated herein or therein (i) are in contravention of law or any indenture, agreement or undertaking (including the Indenture) to which any Borrower or Guarantor is a party or by which any Borrower or Guarantor or its property are bound or (ii) violates any provision of the Certificate of Incorporation, Certificate of Formation, Operating Agreement, By-Laws or other governing documents of any Borrower or Guarantor. (e) After giving effect to the increase in the Commitments and the Maximum Credit provided for herein, the Indebtedness under the Loan Agreement constitutes “Permitted Indebtedness” under (and as defined in) the Indenture.
Appears in 1 contract
Additional Representations, Warranties and Covenants. Borrowers and Guarantors, jointly and severally, represent, warrant and covenant with and to Agent and Lenders as follows, which representations, warranties and covenants are continuing and shall survive the execution and delivery hereof, and the truth and accuracy of, or compliance with each, together with the representations, warranties and covenants in the other Financing Agreements, being a continuing condition of the making of Loans by Lenders to Borrowers:
(a) This Amendment and the other Financing Agreements executed and/or delivered by any Borrower or Guarantor in connection herewith (together with this Amendment, the “Amendment Documents”) have been duly authorized, executed and delivered by all necessary action on the part of each Borrower and Guarantor which is a party hereto and, if necessary, their respective members or stockholders, as the case may be, and is in full force and effect as of the date hereof, as the case may be, and the agreements and obligations of Borrowers and Guarantors contained herein or therein constitute legal, valid and binding obligations of Borrowers and Guarantors enforceable against them in accordance with their terms, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or similar laws of general applicability affecting the enforcement of creditors’ rights and (ii) the application of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(b) As of the date hereof, all of the representations and warranties set forth in the Loan Agreement and the other Financing Agreements are true and correct in all material respects on and as of the date hereof as if made on the date hereof, except to the extent any such representation or warranty is made as of a specified date, in which case such representation or warranty shall have been true and correct as of such date.
(c) As of the date hereof, no Default or Event of Default exists or has occurred and is continuing.
(d) Neither the execution, delivery and performance of this Amendment or any other Amendment Document in connection therewith, nor the consummation of any of the transactions contemplated herein or therein (i) are in contravention of law or any indenture, agreement or undertaking (including the Indenture) to which any Borrower or Guarantor is a party or by which any Borrower or Guarantor or its property are bound bound, or (ii) violates any provision of the Certificate of Incorporation, Certificate of Formation, Operating Agreement, By-Laws or other governing documents of any Borrower or Guarantor.
(ed) After giving effect to the increase in the Commitments and the Maximum Credit provided for herein, the Indebtedness under the Loan Agreement constitutes “Permitted Indebtedness” under (and as defined in) the Indenture.
(e) As of the date hereof and after giving effect to the provisions of Section 5 hereof, no Default or Event of Default exists or has occurred and is continuing.
Appears in 1 contract
Additional Representations, Warranties and Covenants. Borrowers In addition to the continuing representations, warranties and Guarantorscovenants heretofore or hereafter made by each Borrower and Guarantor to Agent and Lenders pursuant to the other Financing Agreements, each Borrower and Guarantor hereby jointly and severallyseverally represents, represent, warrant warrants and covenant covenants with and to Agent and Lenders as follows, which representations, warranties and covenants are continuing and shall survive the execution and delivery hereof, hereof and shall be incorporated into and made a part of the truth and accuracy of, or compliance with each, together with the representations, warranties and covenants in the other Financing Agreements, being a continuing condition of the making of Loans by Lenders to Borrowers:
(a) No Event of Default or condition or event which with notice or passage of time or both would constitute an Event of Default exists or has occurred as of the date of this Amendment No. 6 (after giving effect to the amendments made and consents granted by Agent and Lenders pursuant to this Amendment No. 6).
(b) This Amendment No. 6 and the each other Financing Agreements executed and/or delivered by any Borrower agreement or Guarantor in connection herewith (together with this Amendment, the “Amendment Documents”) have been duly authorized, instrument to be executed and delivered by all necessary action on the part of Borrowers and Guarantors hereunder has been duly executed and delivered by each Borrower and Guarantor which is a party hereto and, if necessary, their respective members or stockholders, as the case may be, and is in full force and effect as of the date hereof, as the case may be, and the agreements and obligations of Borrowers and Guarantors each Borrower contained herein or and therein constitute legal, valid and binding obligations of Borrowers each Borrower and Guarantors Guarantor enforceable against them each Borrower and Guarantor in accordance with their terms, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or similar laws of general applicability affecting the enforcement of creditors’ rights and (ii) the application of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(b) As of the date hereof, all of the representations and warranties set forth in the Loan Agreement and the other Financing Agreements are true and correct in all material respects on and as of the date hereof as if made on the date hereof, except to the extent any such representation or warranty is made as of a specified date, in which case such representation or warranty shall have been true and correct as of such date.
(c) As Neither the execution and delivery of this Amendment No. 6, nor the consummation of the date hereoftransactions contemplated by this Amendment No. 6 and the Term Loan Agreements nor compliance with the provisions of this Amendment No. 6 or instruments thereunder or the Term Loan Agreements shall result in (i) the creation or imposition of any lien, no Default claim, charge or Event encumbrance upon any of Default exists the Collateral, except in favor of Agent and Lenders or has occurred (ii) the incurrence, creation, assumption of any Indebtedness of any Borrower or Guarantor, except as expressly permitted under Section 9.9 of the Loan Agreement (after giving effect to this Amendment No. 6) and is continuingby the other Financing Agreements.
(d) Neither No court of competent jurisdiction has issued any injunction, restraining order or other order which prohibits consummation of the execution, delivery and performance transactions contemplated in respect of this Amendment No. 6 and the Term Loan Agreements, and no governmental or other action or proceeding has been threatened or commenced in the United States of America, seeking any injunction, restraining order or other order which seeks to void or otherwise modify the transactions described in this Amendment Document in connection therewithNo. 6 and the Term Loan Agreements. Neither the execution and delivery of this Amendment No. 6, nor the consummation of any of the transactions contemplated herein by this Amendment No. 6 and the Term Loan Agreements, nor compliance with the provisions thereof, shall violate any Federal or therein (i) are in contravention of state securities laws or any other law or regulation or any order or decree of any court or governmental instrumentality in respect or shall conflict with or result in the breach of, or constitute a default in any respect under, any indenture, agreement or other material mortgage, agreement, instrument or undertaking (including the Indenture) to which any Borrower or Guarantor is a party or by which any Borrower may be bound, or Guarantor or its property are bound or (ii) violates violate any provision of the Certificate of Incorporation, Certificate of Formation, Operating Agreement, By-Laws or other governing organizational documents of any Borrower or Guarantor.
(e) After giving effect to the increase in the Commitments and the Maximum Credit provided for herein, the Indebtedness under the Loan Agreement constitutes “Permitted Indebtedness” under (and as defined in) the Indenture.or
Appears in 1 contract
Sources: Loan and Security Agreement (Pep Boys Manny Moe & Jack)
Additional Representations, Warranties and Covenants. Borrowers and Guarantors, jointly and severally, represent, warrant and covenant with and to Agent and Lenders as follows, which representations, warranties and covenants are continuing and shall survive the execution and delivery hereof, and the truth and accuracy of, or compliance with each, together with the representations, warranties and covenants in the other Financing Agreements, being a continuing condition of the making of Loans by Lenders to Borrowers:
(a) This Amendment and the other Financing Agreements executed and/or delivered by any Borrower or Guarantor in connection herewith (together with this Amendment, the “Amendment Documents”) have has been duly authorized, executed and delivered by all necessary action on the part of each Borrower and Guarantor which is a party hereto and thereto and, if necessary, their respective members or stockholders, as the case may be, and is in full force and effect as of the date hereof, as the case may be, and the agreements and obligations of Borrowers and Guarantors contained herein or therein constitute legal, valid and binding obligations of Borrowers and Guarantors enforceable against them in accordance with their terms, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or similar laws of general applicability affecting the enforcement of creditors’ rights and (ii) the application of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(b) As of the date hereof, all of the representations and warranties set forth in the Loan Agreement and the other Financing Agreements are true and correct in all material respects on and as of the date hereof as if made on the date hereof, except to the extent any such representation or warranty is made as of a specified date, in which case such representation or warranty shall have been true and correct as of such date.
(c) As of the date hereof, no Default or Event of Default exists or has occurred and is continuing.
(d) Neither the execution, delivery and performance of this Amendment or any other Amendment Document in connection therewith, nor the consummation of any of the transactions contemplated herein or therein (i) are in contravention of law or any indenture, agreement or undertaking (including the Indenture) to which any Borrower or Guarantor is a party or by which any Borrower or Guarantor or its property are bound or (ii) violates any provision of the Certificate of Incorporation, Certificate of Formation, Operating Agreement, By-Laws or other governing documents of any Borrower or Guarantor.
(e) After giving effect to the increase in the Commitments and the Maximum Credit provided for herein, the Indebtedness under the Loan Agreement constitutes “Permitted Indebtedness” under (and as defined in) the Indenture.
Appears in 1 contract
Additional Representations, Warranties and Covenants. Borrowers Each Borrower and GuarantorsGuarantor, jointly and severally, representrepresents, warrant warrants and covenant covenants with and to Agent and Lenders as follows, which representations, warranties and covenants are continuing and shall survive the execution and delivery hereof, and the truth and accuracy of, or compliance with each, together with the representations, warranties and covenants in the other Financing Agreements, being a continuing condition of the making of Loans by Lenders Agent or any Lender to Borrowers:
(a) Other than the Acknowledged Events of Defaults, no Event of Default and no event, act or condition which with notice or passage of time or both would constitute an Event of Default, exists or has occurred as of the date of this Amendment No. 12;
(b) Borrowers agree that concurrently with the consummation of the Sale, Borrowers shall cause to be remitted to Agent for the benefit of Lenders all proceeds of the Sale;
(c) Huffy has not granted any lien or security interest to or for the benefit of ▇▇▇▇▇ Road or any other Person in connection with the HSSI Guarantee and the obligations of Huffy thereunder are unsecured;
(d) Huffy has not granted any lien or security interest to or for the benefit of ▇▇▇▇▇ Fargo or any other Person in connection with the First Team Guarantee and the obligations of Huffy thereunder are unsecured; and
(e) This Amendment and the other Financing Agreements executed and/or delivered by any Borrower or Guarantor in connection herewith (together with this Amendment, the “Amendment Documents”) have No. 12 has been duly authorized, executed and delivered by all necessary action on the part of each Borrower and Guarantor which is a party hereto and, if necessary, their respective members or stockholders, as the case may be, and is in full force and effect as of the date hereof, as the case may be, hereof and the agreements and obligations of Borrowers each Borrower and Guarantors Guarantor contained herein or therein constitute legal, valid and binding obligations of Borrowers each Borrower and Guarantors Guarantor enforceable against each of them in accordance with their respective terms, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or similar laws of general applicability affecting the enforcement of creditors’ rights and (ii) the application of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(b) As of the date hereof, all of the representations and warranties set forth in the Loan Agreement and the other Financing Agreements are true and correct in all material respects on and as of the date hereof as if made on the date hereof, except to the extent any such representation or warranty is made as of a specified date, in which case such representation or warranty shall have been true and correct as of such date.
(c) As of the date hereof, no Default or Event of Default exists or has occurred and is continuing.
(d) Neither the execution, delivery and performance of this Amendment or any other Amendment Document in connection therewith, nor the consummation of any of the transactions contemplated herein or therein (i) are in contravention of law or any indenture, agreement or undertaking (including the Indenture) to which any Borrower or Guarantor is a party or by which any Borrower or Guarantor or its property are bound or (ii) violates any provision of the Certificate of Incorporation, Certificate of Formation, Operating Agreement, By-Laws or other governing documents of any Borrower or Guarantor.
(e) After giving effect to the increase in the Commitments and the Maximum Credit provided for herein, the Indebtedness under the Loan Agreement constitutes “Permitted Indebtedness” under (and as defined in) the Indenture.
Appears in 1 contract
Additional Representations, Warranties and Covenants. Borrowers and Guarantors, jointly and severally, represent, warrant and covenant with and to Agent and Lenders as follows, which representations, warranties and covenants are continuing and shall survive the execution and delivery hereof, and the truth and accuracy of, or compliance with each, together with the representations, warranties and covenants in the other Financing Agreements, being a continuing condition of the making of Loans by Lenders to Borrowers:
(a) This Amendment and the other Financing Agreements executed and/or delivered by any Borrower or Guarantor in connection herewith (together with this Amendment, the “Amendment Documents”) have been duly authorized, executed and delivered by all necessary action on the part of each Borrower and Guarantor which is a party hereto and, if necessary, their respective members or stockholders, as the case may be, and is in full force and effect as of the date hereof, as the case may be, and the agreements and obligations of Borrowers and Guarantors contained herein or therein constitute legal, valid and binding obligations of Borrowers and Guarantors enforceable against them in accordance with their terms, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or similar laws of general applicability affecting the enforcement of creditors’ rights and (ii) the application of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(b) As of the date hereof, all of the representations and warranties set forth in the Loan Agreement and the other Financing Agreements are true and correct in all material respects on and as of the date hereof as if made on the date hereof, except to the extent any such representation or warranty is made as of a specified date, in which case such representation or warranty shall have been true and correct as of such date.
(c) As of the date hereof, no Default or Event of Default exists or has occurred and is continuing.
(d) Neither the execution, delivery and performance of this Amendment or any other Amendment Document in connection therewithDocument, nor the consummation of any of the transactions contemplated herein or therein (i) are in contravention of law or any indenture, agreement or undertaking (including the Indenture) to which any Borrower or Guarantor is a party or by which any Borrower or Guarantor or its property are bound bound, or (ii) violates any provision of the Certificate of Incorporation, Certificate of Formation, Operating Agreement, By-Laws or other governing documents of any Borrower or Guarantor.
(ed) After giving effect to the increase in the Commitments and the Maximum Credit provided for herein, the Indebtedness under the Loan Agreement constitutes continues to constitute “Permitted Indebtedness” under (and as defined in) the Indenture.
(e) As of the date of this Amendment and after giving effect hereto, no Default or Event of Default exists or has occurred and is continuing.
Appears in 1 contract
Additional Representations, Warranties and Covenants. Borrowers and Guarantors, jointly and severally, represent, warrant and covenant with and to Agent and Lenders as follows, which representations, warranties and covenants are continuing and shall survive the execution and delivery hereof, and the truth and accuracy of, or compliance with each, together with the representations, warranties and covenants in the other Financing Agreements, being a continuing condition of the making of Loans by Lenders to Borrowers:
(a) This Amendment and the other Financing Agreements executed and/or delivered by any Borrower or Guarantor in connection herewith (together with this Amendment, the “Amendment Documents”) have has been duly authorized, executed and delivered by all necessary action on the part of each Borrower and Guarantor which is a party hereto and, if necessary, their respective members or stockholders, as the case may be, and is in full force and effect as of the date hereof, as the case may be, and the agreements and obligations of Borrowers and Guarantors contained herein or therein constitute legal, valid and binding obligations of Borrowers and Guarantors enforceable against them in accordance with their terms, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or similar laws of general applicability affecting the enforcement of creditors’ rights and (ii) the application of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(b) As of the date hereof, all of the representations and warranties set forth in the Loan Agreement and the other Financing Agreements are true and correct in all material respects on and as of the date hereof as if made on the date hereof, except to the extent any such representation or warranty is made as of a specified date, in which case such representation or warranty shall have been true and correct as of such date.
(c) As of the date hereof and after giving effect to the provisions of Section 4 hereof, no Default or Event of Default exists or has occurred and is continuing.
(d) Neither the execution, delivery and performance of this Amendment or any other Amendment Document Financing Agreements in connection therewith, nor the consummation of any of the transactions contemplated herein or therein (i) are in contravention of law or any indenture, agreement or undertaking (including the Indenture) to which any Borrower or Guarantor is a party or by which any Borrower or Guarantor or its property are bound or (ii) violates any provision of the Certificate of Incorporation, Certificate of Formation, Operating Agreement, Incorporation or By-Laws or other governing documents of any Borrower or Guarantor.
(e) After giving effect to the increase in the Commitments and the Maximum Credit provided for herein, the Indebtedness under the Loan Agreement constitutes “Permitted Indebtedness” under (and as defined in) the Indenture.
Appears in 1 contract
Additional Representations, Warranties and Covenants. Borrowers and Guarantors, jointly and severally, represent, warrant and covenant with and to Agent and Lenders as follows, which representations, warranties and covenants are continuing and shall survive the execution and delivery hereof, and the truth and accuracy of, or compliance with each, together with the representations, warranties and covenants in the other Financing Agreements, being a continuing condition of the making of Loans by Lenders to Borrowers:
(a) This Amendment and the other Financing Agreements executed and/or delivered by any Borrower or Guarantor in connection herewith (together with this Amendment, the “Amendment Documents”) have been duly authorized, executed and delivered by all necessary action on the part of each Borrower and Guarantor which is a party hereto and, if necessary, their respective members or stockholders, as the case may be, and is in full force and effect as of the date hereof, as the case may be, and the agreements and obligations of Borrowers and Guarantors contained herein or therein constitute legal, valid and binding obligations of Borrowers and Guarantors enforceable against them in accordance with their terms, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or similar laws of general applicability affecting the enforcement of creditors’ rights and (ii) the application of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(b) As of the date hereof, all of the representations and warranties set forth in the Loan Agreement and the other Financing Agreements are true and correct in all material respects on and as of the date hereof as if made on the date hereof, except to the extent any such representation or warranty is made as of a specified date, in which case such representation or warranty shall have been true and correct as of such date.
(c) As of the date hereof, no Default or Event of Default exists or has occurred and is continuing.
(d) Neither the execution, delivery and performance of this Amendment or any other Amendment Document in connection therewithDocument, nor the consummation of any of the transactions contemplated herein or therein (i) are in contravention of law or any indenture, agreement or undertaking (including the Indenture) to which any Borrower or Guarantor is a party or by which any Borrower or Guarantor or its property are bound bound, or (ii) violates any provision of the Certificate of Incorporation, Certificate of Formation, Operating Agreement, By-Laws or other governing documents of any Borrower or Guarantor.
(ed) After giving effect to As of the increase in the Commitments date of this Amendment, no Default or Event of Default exists or has occurred and the Maximum Credit provided for herein, the Indebtedness under the Loan Agreement constitutes “Permitted Indebtedness” under (and as defined in) the Indentureis continuing.
Appears in 1 contract
Additional Representations, Warranties and Covenants. Borrowers and Guarantors, jointly and severally, represent, warrant and covenant with and to Agent and Lenders as follows, which representations, warranties and covenants are continuing and shall survive the execution and delivery hereof, and the truth and accuracy of, or compliance with each, together with the representations, warranties and covenants in the other Financing Agreements, being a continuing condition of the making of Loans by Lenders to Borrowers:
(a) This Amendment and the each other Financing Agreements agreement or instrument to be executed and/or and delivered by any Borrower or Guarantor Borrowers and Guarantors in connection herewith (collectively, together with this Amendment, the “Amendment Documents”) have been duly authorized, executed and delivered by all necessary action on the part of each Borrower and Guarantor which is a party hereto and thereto and, if necessary, their respective members or stockholders, as the case may be, and is in full force and effect as of the date hereof, as the case may be, and the agreements and obligations of Borrowers and Guarantors contained herein or and therein constitute legal, valid and binding obligations of Borrowers and Guarantors enforceable against them in accordance with their terms, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or similar laws of general applicability affecting the enforcement of creditors’ rights and (ii) the application of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(b) None of the transactions contemplated by this Amendment or any of the other Amendment Documents are in contravention of any applicable law, or the terms of any agreement to which any Borrower or Guarantor is a party or by which any property of any Borrower or Guarantor is bound.
(c) As of the date hereof, all of the representations and warranties set forth in the Loan Agreement and the other Financing Agreements are true and correct in all material respects on and as of the date hereof as if made on the date hereof, except to the extent any such representation or warranty is made as of a specified date, in which case such representation or warranty shall have been true and correct as of such date.
(cd) As of the date hereof, no Default or Event of Default exists or has occurred and is continuing.
(d) Neither the execution, delivery and performance of this Amendment or any other Amendment Document in connection therewith, nor the consummation of any of the transactions contemplated herein or therein (i) are in contravention of law or any indenture, agreement or undertaking (including the Indenture) to which any Borrower or Guarantor is a party or by which any Borrower or Guarantor or its property are bound or (ii) violates any provision of the Certificate of Incorporation, Certificate of Formation, Operating Agreement, By-Laws or other governing documents of any Borrower or Guarantor.
(e) After giving effect to the increase in the Commitments and the Maximum Credit provided for herein, the Indebtedness under the Loan Agreement constitutes “Permitted Indebtedness” under (and as defined in) the Indenture.
Appears in 1 contract
Sources: Loan Agreement (Listerhill Total Maintenance Center LLC)
Additional Representations, Warranties and Covenants. Borrowers Each Borrower and GuarantorsGuarantor, jointly and severally, representrepresents, warrant warrants and covenant covenants with and to Agent and Lenders as follows, which representations, warranties and covenants are continuing and shall survive the execution and delivery hereof, and the truth and accuracy of, or compliance with each, together with the representations, warranties and covenants in the other Financing Agreements, being a continuing condition of the making of Loans by Lenders Agent or any Lender to Borrowers:
(a) This Amendment and the other Financing Agreements executed and/or delivered by any Borrower or Guarantor in connection herewith (together with this Amendment, collectively, the “"Amendment Documents”") have been duly authorized, executed and delivered by all necessary action on the part of each Borrower and Guarantor which is a party hereto and, if necessary, their respective members or stockholders, as the case may be, and is are in full force and effect as of the date hereof, as the case may be, and the agreements and obligations of Borrowers and Guarantors contained herein or therein constitute legal, valid and binding obligations of Borrowers and Guarantors enforceable against them in accordance with their terms, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or similar laws of general applicability affecting the enforcement of creditors’ rights and (ii) the application of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(b) As of the date hereof, all of the representations and warranties set forth in the Loan Agreement and the other Financing Agreements are true and correct in all material respects on and as of the date hereof as if made on the date hereof, except to the extent any such representation or warranty is made as of a specified date, in which case such representation or warranty shall have been true and correct as of such date.
(c) As of the date hereof, no Default or Event of Default exists or has occurred and is continuing.
(d) Neither the execution, delivery and performance of this Amendment or any other Amendment Document in connection therewithDocument, nor the consummation of any of the transactions contemplated herein or therein (i) are in contravention of law or any indenture, agreement or undertaking (including the Indenture) to which any Borrower or Guarantor is a party or by which any Borrower or Guarantor or its property are bound (including without limitation the Note Indenture and the Third Priority Agreements) or (ii) violates any provision of the Certificate certificate of Incorporationincorporation, Certificate certificate of Formationformation, Operating Agreementoperating agreement, Byby-Laws laws or other governing documents of any Borrower or Guarantor.
(ed) After giving effect to the increase in the Commitments Revolving Loan Limit and the Maximum Credit provided for herein, the Indebtedness under the Loan Agreement constitutes “"Permitted Indebtedness” " under (and as defined in) the Note Indenture.
Appears in 1 contract
Sources: Loan and Security Agreement (Atlantic Express Transportation Corp)
Additional Representations, Warranties and Covenants. Borrowers In addition to the continuing representations, warranties and Guarantorscovenants heretofore or hereafter made by each Borrower and Guarantor to Lender pursuant to the other Financing Agreements, each Borrower and Guarantor hereby jointly and severallyseverally represents, represent, warrant warrants and covenant covenants with and to Agent and Lenders Lender as follows, which representations, warranties and covenants are continuing and shall survive the execution and delivery hereof, hereof and shall be incorporated into and made a part of the truth and accuracy of, or compliance with each, together with the representations, warranties and covenants in the other Financing Agreements, being a continuing condition of the making of Loans by Lenders to Borrowers:
(a) This No Event of Default or condition or event which with notice or passage of time or both would constitute an Event of Default exists or has occurred as of the date of this Amendment (after giving effect to the amendments made and consents and waivers granted by Lender pursuant to this Amendment). As of the other Financing Agreements executed and/or delivered by date of any Borrower or Guarantor in connection herewith (together with this Amendmententering into the PNC Credit Card Documents and after giving effect to such transaction, the “aggregate amount of outstanding Exempted Debt represented by such transaction, when aggregated with all other outstanding Exempted Debt, shall not exceed the Exempted Debt Limit, and such transaction is and shall be in compliance with the terms and conditions set forth in the Pep Boys Indentures.
(b) This Amendment Documents”) have been duly authorized, and each other agreement or instrument to be executed and delivered by all necessary action on the part of Borrowers and Guarantors hereunder has been duly executed and delivered by each Borrower and Guarantor which is a party hereto and, if necessary, their respective members or stockholders, as the case may be, and is in full force and effect as of the date hereof, as the case may be, and the agreements and obligations of Borrowers and Guarantors each Borrower contained herein or and therein constitute legal, valid and binding obligations of Borrowers each Borrower and Guarantors Guarantor enforceable against them each Borrower and Guarantor in accordance with their terms, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or similar laws of general applicability affecting the enforcement of creditors’ rights and (ii) the application of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(b) As of the date hereof, all of the representations and warranties set forth in the Loan Agreement and the other Financing Agreements are true and correct in all material respects on and as of the date hereof as if made on the date hereof, except to the extent any such representation or warranty is made as of a specified date, in which case such representation or warranty shall have been true and correct as of such date.
(c) As Neither the execution and delivery of the date hereofPNC Credit Card Documents, no Default nor the consummation of the transactions contemplated by the PNC Credit Card Documents, nor compliance with the provisions of the PNC Credit Card Documents or Event instruments thereunder shall result in (i) the creation or imposition of Default exists any lien, claim, charge or has occurred encumbrance upon any of the Collateral, except in favor of Lender or as expressly permitted by Section 9.8 of the Loan Agreement (after giving effect to this Amendment) and is continuingby the other Financing Agreements or (ii) the incurrence, creation, assumption of any Indebtedness of any Borrower or Guarantor, except as expressly permitted under Section 9.9 and 9.10 of the Loan Agreement (after giving effect to this Amendment) and by the other Financing Agreements.
(d) No court of competent jurisdiction has issued any injunction, restraining order or other order which prohibits consummation of the transactions contemplated in respect of the PNC Credit Card Documents, and no governmental or other action or proceeding has been threatened or commenced in the United States of America, seeking any injunction, restraining order or other order which seeks to void or otherwise modify the transactions described in the PNC Credit Card Documents. Neither the execution, execution and delivery and performance of this Amendment or any other Amendment Document in connection therewiththe PNC Credit Card Documents, nor the consummation of any of the transactions contemplated herein by the PNC Credit Card Documents, nor compliance with the provisions thereof, shall violate any Federal or therein (i) are in contravention of state securities laws or any other law or regulation or any order or decree of any court or governmental instrumentality in respect or shall conflict with or result in the breach of, or constitute a default in any respect under, any indenture, agreement or other material mortgage, agreement, instrument or undertaking (including the Indenture) to which any Borrower or Guarantor is a party or by which any Borrower may be bound, or Guarantor or its property are bound or (ii) violates violate any provision of the Certificate of Incorporation, Certificate of Formation, Operating Agreement, By-Laws or other governing organizational documents of any Borrower or Guarantor.
(e) After giving Each Borrower and Guarantor shall take such steps and execute and deliver, and cause to be executed and delivered, to Lender, such additional UCC financing statements and termination statements, and other and further agreements, documents and instruments as Lender may require in order to more fully evidence, perfect and protect Lender's security interest in Collateral.
(f) The PNC Credit Card Documents have been duly authorized, executed and delivered by each Borrower and Guarantor and are in full force and effect to as of the increase in the Commitments and the Maximum Credit provided for herein, the Indebtedness under the Loan Agreement constitutes “Permitted Indebtedness” under (and as defined in) the Indenturedate hereof.
Appears in 1 contract
Sources: Loan and Security Agreement (Pep Boys Manny Moe & Jack)
Additional Representations, Warranties and Covenants. Borrowers and Guarantors, jointly and severally, represent, warrant and covenant with and to Agent and Lenders as follows, which representations, warranties and covenants are continuing and shall survive the execution and delivery hereof, and the truth and accuracy of, or compliance with each, together with the representations, warranties and covenants in the other Financing Agreements, being a continuing condition of the making of Loans by Lenders to Borrowers:
(a) This Amendment and the other Financing Agreements executed and/or delivered by any Borrower or Guarantor in connection herewith (together with this Amendment, the “Amendment Documents”) have been duly authorized, executed and delivered by all necessary action on the part of each Borrower and Guarantor which is a party hereto and, if necessary, their respective members or stockholders, as the case may be, and is in full force and effect as of the date hereof, as the case may be, and the agreements and obligations of Borrowers and Guarantors contained herein or therein constitute legal, valid and binding obligations of Borrowers and Guarantors enforceable against them in accordance with their terms, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or similar laws of general applicability affecting the enforcement of creditors’ rights and (ii) the application of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(b) As of the date hereof, all of the representations and warranties set forth in the Loan Agreement and the other Financing Agreements are true and correct in all material respects on and as of the date hereof as if made on the date hereof, except to the extent any such representation or warranty is made as of a specified date, in which case such representation or warranty shall have been true and correct as of such date.
(c) As of the date hereof, no Default or Event of Default exists or has occurred and is continuing.
(d) Neither the execution, delivery and performance of this Amendment or any other Amendment Document in connection therewithor any of the ASAP Loan Documents, nor the consummation of any of the transactions contemplated herein or therein (i) are in contravention of law or any indenture, agreement or undertaking (including the Indenture) to which ASAP, any Borrower or Guarantor is a party or by which ASAP, any Borrower or Guarantor or its property are bound or bound, (ii) violates any provision of the Certificate of Incorporation, Certificate of Formation, Operating Agreement, By-Laws or other governing documents of ASAP or any Borrower or Guarantor, or (iii) will not result in the creation or imposition of, or require or give rise to any obligation to grant, any lien, security interest, charge or other encumbrance upon any property of any Borrower or Guarantor.
(ed) After As of the date of this Amendment and after giving effect to the increase in the Commitments hereto, no Default or Event of Default exists or has occurred and the Maximum Credit provided for herein, the Indebtedness under the Loan Agreement constitutes “Permitted Indebtedness” under (and as defined in) the Indentureis continuing.
Appears in 1 contract
Additional Representations, Warranties and Covenants. Borrowers and Guarantors, jointly and severally, represent, warrant and covenant with and to Agent and Lenders as follows, which representations, warranties and covenants are continuing and shall survive the execution and delivery hereof, and the truth and accuracy of, or compliance with each, together with the representations, warranties and covenants in the other Financing Agreements, being a continuing condition of the making of Loans by Lenders to Borrowers:
(a) This Amendment and the other Financing Agreements executed and/or delivered by any Borrower or Guarantor in connection herewith (together with this Amendment, the “Amendment Documents”) have been duly authorized, executed and delivered by all necessary action on the part of each Borrower and Guarantor which is a party hereto and, if necessary, their respective members or stockholders, as the case may be, and is in full force and effect as of the date hereof, as the case may be, and the agreements and obligations of Borrowers and Guarantors contained herein or therein constitute legal, valid and binding obligations of Borrowers and Guarantors enforceable against them in accordance with their terms, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or similar laws of general applicability affecting the enforcement of creditors’ rights and (ii) the application of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(b) As of the date hereof, all of the representations and warranties set forth in the Loan Agreement and the other Financing Agreements are true and correct in all material respects on and as of the date hereof as if made on the date hereof, except to the extent any such representation or warranty is made as of a specified date, in which case such representation or warranty shall have been true and correct as of such date.
(c) As of the date hereof, no Default or Event of Default exists or has occurred and is continuing.
(d) Neither the execution, delivery and performance of this Amendment or any other Amendment Document in connection therewithDocument, nor the consummation of any of the transactions contemplated herein or therein (i) are in contravention of law or any indenture, agreement or undertaking (including the Indenture) to which any Borrower or Guarantor is a party or by which any Borrower or Guarantor or its property are bound bound, or (ii) violates any provision of the Certificate of Incorporation, Certificate of Formation, Operating Agreement, By-Laws or other governing documents of any Borrower or Guarantor.
(ed) After giving effect to the increase in the Commitments and the Maximum Credit provided for herein, the Indebtedness under the Loan Agreement constitutes continues to constitute “Permitted Indebtedness” under (and as defined in) the Indenture.
(e) As of the date of this Amendment and after giving effect hereto, no Default or Event of Default exists or has occurred and is continuing.
Appears in 1 contract
Additional Representations, Warranties and Covenants. Borrowers Borrower and Guarantors, each hereby jointly and severallyseverally represents, represent, warrant warrants and covenant with and covenants to Agent and Lenders Lender as follows, which representations, warranties and covenants are continuing and shall survive the execution and delivery hereof, and the truth and accuracy of, or compliance with each, together with the representations, warranties and covenants in the other Financing Agreements, being a continuing condition of the making of Loans loans and providing other financial accommodations by Lenders Lender to BorrowersBorrower:
(a) This Amendment On or about the date hereof, Borrower has sold to Purchaser all of the Sale Assets pursuant to the Sale Contract (as in effect on the date hereof).
(b) A true, correct and complete copy of the other Financing Agreements executed and/or delivered by any Borrower or Guarantor in connection herewith (Sale Contract, together with this Amendmentall exhibits and schedules thereto, as executed by the “Amendment Documents”parties thereto is annexed hereto as Exhibit A.
(c) have been duly authorizedThe security interests in and liens of Lender upon the Collateral (as such term is defined in the Loan Agreement), executed other than the Sale Assets, are and delivered shall continue to be in full force and effect, including, but not limited to, all amounts at any time payable to Borrower, any Guarantor or any of their respective affiliates pursuant to the Sale Contract (and all related agreements, documents and instruments), and all rights, benefits and remedies of Borrower, any Guarantor or any of their respective affiliates pursuant to the Sale Contract (and all related agreements, documents and instruments).
(d) Borrower and Guarantors shall cause all amounts at any time payable to Borrower, any Guarantor or any of their respective affiliates pursuant to the Sale Contract or any related agreements, documents and instruments to be paid by all necessary action Purchaser directly to Lender for application to the Obligations (as such term is defined in the Loan Agreement) in such order and manner as Lender shall determine. The net amount payable by Purchaser to Borrower in cash or other immediately available funds pursuant to the Sale Contract shall be not less than $255,000, $175,000 of which shall be payable in cash or other immediately available funds on the part date hereof, $40,000 of each Borrower which shall be payable in cash or other immediately available funds on the first anniversary of the date hereof (subject to the terms of the Sale Contract as in effect on the date hereof) and Guarantor $40,000 of which is a party hereto andshall be payable in cash or other immediately available funds on the second anniversary of the date hereof.
(e) In the event Borrower, if necessary, Guarantors or any of their respective members affiliates receives any amounts at any time payable to Borrower, any Guarantor or stockholdersany of their respective affiliates pursuant to the Sale Contract or any related agreement, document or instrument, such amounts shall be collected by Borrower, such Guarantor or such affiliate, as the case may be, and is in full force and effect as of the date hereof, as the case may be, property of Lender and the agreements and obligations of Borrowers and Guarantors contained herein held by it or therein constitute legal, valid and binding obligations of Borrowers and Guarantors enforceable against them in accordance with their terms, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or similar laws of general applicability affecting the enforcement of creditors’ rights trust for Lender and (ii) the application of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(b) As of the date hereof, all of the representations and warranties set forth in the Loan Agreement and the other Financing Agreements are true and correct in all material respects on and as of the date hereof as if made shall on the date hereofreceived be remitted to Lender in the form received, except with any necessary assignments or endorsements, for application to the extent any Obligations in such representation or warranty is made order and manner as of a specified date, in which case such representation or warranty Lender shall have been true and correct as of such datedetermine.
(c) As of the date hereof, no Default or Event of Default exists or has occurred and is continuing.
(d) Neither the execution, delivery and performance of this Amendment or any other Amendment Document in connection therewith, nor the consummation of any of the transactions contemplated herein or therein (i) are in contravention of law or any indenture, agreement or undertaking (including the Indenture) to which any Borrower or Guarantor is a party or by which any Borrower or Guarantor or its property are bound or (ii) violates any provision of the Certificate of Incorporation, Certificate of Formation, Operating Agreement, By-Laws or other governing documents of any Borrower or Guarantor.
(e) After giving effect to the increase in the Commitments and the Maximum Credit provided for herein, the Indebtedness under the Loan Agreement constitutes “Permitted Indebtedness” under (and as defined in) the Indenture.
Appears in 1 contract
Sources: Loan and Security Agreement (Health Fitness Corp /Mn/)
Additional Representations, Warranties and Covenants. Borrowers and Guarantors, jointly and severally, represent, warrant and covenant with and to Agent and Lenders as follows, which representations, warranties and covenants are continuing and shall survive the execution and delivery hereof, and the truth and accuracy of, or compliance with each, together with the representations, warranties and covenants in the other Financing Agreements, being a continuing condition of the making of Loans by Lenders to Borrowers:
(a) This Amendment and the other Financing Agreements executed and/or delivered by any Borrower or Guarantor in connection herewith (together with this Amendment, the “Amendment Documents”) have been duly authorized, executed and delivered by all necessary action on the part of each Borrower and Guarantor which is a party hereto and, if necessary, their respective members or stockholders, as the case may be, and is in full force and effect as of the date hereof, as the case may be, and the agreements and obligations of Borrowers and Guarantors contained herein or therein constitute legal, valid and binding obligations of Borrowers and Guarantors enforceable against them in accordance with their terms, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or similar laws of general applicability affecting the enforcement of creditors’ rights and (ii) the application of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(b) As of the date hereof, all of the representations and warranties set forth in the Loan Agreement and the other Financing Agreements are true and correct in all material respects on and as of the date hereof as if made on the date hereof, except to the extent any such representation or warranty is made as of a specified date, in which case such representation or warranty shall have been true and correct as of such date.
(c) As of the date hereof, no Default or Event of Default exists or has occurred and is continuing.
(d) Neither the execution, delivery and performance of this Amendment or any other Amendment Document in connection therewithDocument, nor the consummation of any of the transactions contemplated herein or therein (i) are in contravention of law or any indenture, agreement or undertaking (including the Indenture) to which any Borrower or Guarantor is a party or by which any Borrower or Guarantor or its property are bound bound, or (ii) violates any provision of the Certificate of Incorporation, Certificate of Formation, Operating Agreement, By-Laws or other governing documents of any Borrower or Guarantor.
(ed) After giving effect to the increase change in the Commitments and the Maximum Credit as provided for herein, the Indebtedness under the Loan Agreement constitutes continues to constitute “Permitted Indebtedness” under (and as defined in) the Indenture.
(e) As of the date of this Amendment and after giving effect to the waiver of the Acknowledged Event of Default granted herein, no Default or Event of Default exists or has occurred and is continuing.
Appears in 1 contract
Additional Representations, Warranties and Covenants. Borrowers and Guarantors, Guarantors hereby jointly and severally, severally represent, warrant and covenant with and to Agent and Lenders Lender as follows, which representations, warranties and covenants are continuing and shall survive the execution and delivery hereof, and the truth and accuracy of, or compliance with each, together with the representations, warranties and covenants in the other Financing Agreements, being a continuing condition of the making of Loans loans and providing other financial accommodations by Lenders Lender to Borrowers:
(a) This Amendment On or about the date hereof, Worksafe has sold to Arbill all of the Sale Assets pursuant to the Sale Agreement other than the Sale Assets consisting of the Distribution Division Accounts (as hereinafter defined) and on or about January 12, 1999 all of the proceeds thereof have been or shall be remitted to Lender for application to the Obligations (other Financing Agreements than the principal amount of the Term Loan) in such order and manner as Lender determines. The net cash proceeds from the sale of such Sale Assets are not less than the amount equal to: $2,450,000 plus the amount equal to ninety (90%) percent of the Distribution Division Accounts, minus $315,000 which is represented by the Promissory Note issued by Arbill payable to Worksafe. By no later than March 31, 1999, (i) Worksafe shall sell the Distribution Division Accounts to Arbill in accordance with the terms of the Sale Agreement (as in effect on the date hereof), (ii) Borrowers shall deliver to Lender a true, correct and complete list of the Distribution Division Accounts which are being sold to Arbill and a true, correct and complete list of the Distribution Division Accounts which are being retained by Worksafe, and (iii) Borrowers shall cause all proceeds of such sale to be paid by Arbill directly to Lender for application to the Obligations in such order and manner as Lender determines (other than the principal amount of the Term Loan, so long as no Event of Default exists or has occurred). In respect of the purchase price for the Distribution Division Accounts, Worksafe shall receive not less than the amount equal to ninety (90%) percent of the Distribution Division Accounts. Exhibit A hereto contains a true, correct and complete list of all of the assets and properties of Worksafe sold to Arbill pursuant to the Sale Agreement as of the date hereof. No assets or properties of Borrowers or Guarantors other than those listed on Exhibit A hereto have been sold to Arbill as of the date hereof.
(b) Exhibit B hereto is a true, correct and complete copy of the Sale Agreement, together with all exhibits and schedules thereto, as executed and/or by the parties thereto (other than Schedules 3.15, 3.24 and 3.26 to the Sale Agreement, true, correct and complete copies of which shall be delivered to Lender by no later than January 15, 1999).
(c) The security interests in and liens upon the Collateral of Lender are and shall continue to be in full force and effect (including, but not limited to, all of the Distribution Division Accounts and all amounts at any time payable to any Borrower, Guarantor or any of its affiliates pursuant to the Sale Agreement (and all related agreements, documents and instruments), and all rights, benefits and remedies of any Borrower or Guarantor pursuant to the Sale Agreement and all related agreements, documents and instruments), except for the Sale Assets sold to Arbill as of the date hereof (which do not include the Distribution Division Accounts).
(d) Borrowers and Guarantors shall cause all amounts at any time payable to any Borrower, Guarantor or any of its affiliates pursuant to the Sale Agreement or any related agreements, documents and instruments to be paid by Arbill directly to Lender for application to the Obligations in connection herewith such order and manner as Lender shall determine (together other than the principal amount of the Term Loan, so long as no Event of Default exists or has occurred). The net amount payable by Arbill to Worksafe in cash or other immediately available funds pursuant to the Sale Agreement shall be not less than $2,450,000 (minus $315,000 paid pursuant to the Promissory Note issued by Arbill payable to Worksafe) in respect of all Sale Assets other than the Distribution Division Accounts and not less than ninety (90%) percent of the Distribution Division Accounts in respect of the Sale Assets consisting of the Distribution Division Accounts.
(e) In the event any Borrower or Guarantor receives any amounts at any time pursuant to the Sale Agreement or any related agreement, document or instrument, such amounts shall be collected by such Borrower or Guarantor as the property of Lender and held by it in trust for Lender and shall on the day received be remitted to Lender in the form received, with this Amendmentany necessary assignments or endorsements, for application to the “Amendment Documents”Obligations in such order and manner as Lender shall determine (other than the principal amount of the Term Loan, so long as no Event of Default exists or has occurred).
(f) On or about December 17, 1998, Eastco Industrial Safety Corp. changed its name to Worksafe Industries Inc. and all references to Eastco Industrial Safety Corp. in any of the Financing Agreements shall be deemed to refer to Worksafe and its successors and assigns. Borrowers and Guarantors have been delivered to Lender a true, correct and complete copy of the amendment to the certificate of incorporation effectuating such name change as certified by the New York Secretary of State. On or about December 24, 1998, Puerto Rico Safety Corporation changed its name to Worksafe Industries of Puerto Rico Inc. and all references to Puerto Rico Safety Corporation in any of the Financing Agreements shall be deemed to refer to PR Safety and its successors and assigns. Borrowers and Guarantors have delivered to Lender a true, correct and complete copy of the amendment to the certificate of incorporation to effectuate such name change as certified by the New York Secretary of State.
(g) Borrowers and Guarantors shall physically segregate and clearly and conspicuously mark and label all goo▇▇ ▇f any Borrower or Guarantor at any time located at any premises owned or leased by Arbill.
(h) By no later than February 5, 1999, (i) Lender shall have received, in form and substance satisfactory to Lender, UCC-3 Amendments with respect to each UCC-1 financing statement between Worksafe, as debtor, and Lender, as secured party, amending such financing statements to change the name of Worksafe from Eastco Industrial Safety Corporation to Worksafe Industries Inc., duly authorized, executed and delivered by all necessary action on the part of Worksafe, and (ii) Lender shall have received, in form and substance satisfactory to Lender, UCC-3 Amendments with respect to each Borrower and Guarantor which is a party hereto and, if necessary, their respective members or stockholdersUCC-1 financing statement between PR Safety, as debtor, and Lender, as secured party, amending such financing statements to change the case may bename of PR Safety from Puerto Rico Safety Corp. to Worksafe Industries of Puerto Rico Inc., duly authorized, executed and delivered by PR Safety.
(i) No Event of Default or act, condition or event which with notice or passage of time or both would constitute an Event of Default exists or has occurred as of the date of this Amendment (after giving effect to the amendments to the Financing Agreements made by this Amendment).
(j) This Amendment has been duly executed and delivered by Borrowers and Guarantors and is in full force and effect as of the date hereof, as the case may be, hereof and the agreements and obligations of Borrowers and Guarantors contained herein or therein constitute legal, valid and binding obligations of Borrowers and Guarantors enforceable against each of them in accordance with their its terms, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or similar laws of general applicability affecting the enforcement of creditors’ rights and (ii) the application of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(b) As of the date hereof, all of the representations and warranties set forth in the Loan Agreement and the other Financing Agreements are true and correct in all material respects on and as of the date hereof as if made on the date hereof, except to the extent any such representation or warranty is made as of a specified date, in which case such representation or warranty shall have been true and correct as of such date.
(c) As of the date hereof, no Default or Event of Default exists or has occurred and is continuing.
(d) Neither the execution, delivery and performance of this Amendment or any other Amendment Document in connection therewith, nor the consummation of any of the transactions contemplated herein or therein (i) are in contravention of law or any indenture, agreement or undertaking (including the Indenture) to which any Borrower or Guarantor is a party or by which any Borrower or Guarantor or its property are bound or (ii) violates any provision of the Certificate of Incorporation, Certificate of Formation, Operating Agreement, By-Laws or other governing documents of any Borrower or Guarantor.
(e) After giving effect to the increase in the Commitments and the Maximum Credit provided for herein, the Indebtedness under the Loan Agreement constitutes “Permitted Indebtedness” under (and as defined in) the Indenture.
Appears in 1 contract
Additional Representations, Warranties and Covenants. Borrowers and GuarantorsEach Borrower, jointly and severally, representrepresents, warrant warrants and covenant covenants with and to Agent and Lenders as follows, which representations, warranties and covenants are continuing and shall survive the execution and delivery hereof, and the truth and accuracy of, or compliance with each, together with the representations, warranties and covenants in the other Financing AgreementsLoan Documents, being a continuing condition of the making of Loans by Lenders to Borrowers:
(a) This Borrowers and Guarantors shall not, directly or indirectly, amend, modify, alter or change the terms of any of the Bubble Store Disposition Documents, or enter into any Bubble Store Disposition Documents not in effect as of the date hereof without in each case the prior written consent of the Agent;
(b) Borrowers and Guarantors shall furnish to Agent all notices or demands in connection with the Bubble Store Disposition Documents either received by any Borrower or Guarantor or on its behalf promptly after the receipt thereof, or sent by any Borrower or Guarantor or on its behalf concurrently with the sending thereof, as the case may be;
(c) this Amendment and the other Financing Agreements agreements, documents and instruments to be executed and/or delivered by any Borrower or Guarantor in connection herewith or related hereto (together with this Amendment, collectively, the “Amendment Documents”) have been duly authorized, executed and delivered by all necessary action on the part of each Borrower and Guarantor which is a party hereto and thereto and, if necessary, their respective members or stockholders, as the case may be, and is in full force and effect as of the date hereof, as the case may be, its stockholders and the agreements and obligations of Borrowers and Guarantors contained herein or and therein constitute legal, valid and binding obligations of Borrowers and Guarantors each Borrower enforceable against them such Borrower in accordance with their respective terms;
(d) neither the execution and delivery of this Amendment, except as such enforceability may be limited by nor the consummation of the transactions herein contemplated, nor compliance with the provisions hereof (i) bankruptcydoes or shall conflict with or result in the breach of, insolvencyor constitute a default in any respect under, reorganizationany mortgage, moratorium deed of trust, security agreement, agreement or similar laws of general applicability affecting the enforcement of creditors’ rights and instrument to which any Borrower is a party or may be bound, or (ii) shall violate any provision of the application Certificate of general principles Incorporation or By-Laws of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).any Borrower; and
(be) As of the date hereof, all of the representations and warranties set forth in the Loan Agreement and the other Financing Agreements are true and correct in all material respects on and as of the date hereof as if made on the date hereof, except to the extent any such representation or warranty is made as of a specified date, in which case such representation or warranty shall have been true and correct as of such date.
(c) As of the date hereofthis Amendment, no Default or Event of Default exists or has occurred and is continuingoccurred.
(d) Neither the execution, delivery and performance of this Amendment or any other Amendment Document in connection therewith, nor the consummation of any of the transactions contemplated herein or therein (i) are in contravention of law or any indenture, agreement or undertaking (including the Indenture) to which any Borrower or Guarantor is a party or by which any Borrower or Guarantor or its property are bound or (ii) violates any provision of the Certificate of Incorporation, Certificate of Formation, Operating Agreement, By-Laws or other governing documents of any Borrower or Guarantor.
(e) After giving effect to the increase in the Commitments and the Maximum Credit provided for herein, the Indebtedness under the Loan Agreement constitutes “Permitted Indebtedness” under (and as defined in) the Indenture.
Appears in 1 contract
Additional Representations, Warranties and Covenants. Borrowers Each Borrower and GuarantorsGuarantor represents, jointly warrants and severallycovenants with, represent, warrant to and covenant with and to in favor of Agent and Lenders as follows, which representations, warranties and covenants are continuing and shall survive the execution and delivery hereof, and the truth and accuracy of, or compliance with each, together with the representations, warranties and covenants in the other Financing Agreements, being a condition of the effectiveness of this Amendment and a continuing condition of the making or providing of any Revolving Loans or Letters of Credit by Agent and Lenders to Borrowers:
(a) 4.1 This Amendment and the each other Financing Agreements agreement or instrument to be executed and/or and delivered by any Borrower Borrowers or Guarantor in connection herewith (together with this Amendment, the “Amendment Documents”) Guarantors hereunder have been duly authorized, executed and delivered by all necessary action on the part of each Borrower Borrowers and Guarantor Guarantors which is a party hereto and thereto and, if necessary, their respective members or stockholders, as the case may be, and is in full force and effect as of the date hereof, as the case may be, and the agreements and obligations of Borrowers and Guarantors or Guarantors, as the case may be, contained herein or and therein constitute legal, valid and binding obligations of Borrowers and Guarantors Guarantors, as the case may be, enforceable against them in accordance with their terms, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or similar laws of general applicability affecting the enforcement of creditors’ rights and (ii) the application of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(b) As of the date hereof, all 4.2 All of the representations and warranties set forth in the Loan Agreement as amended hereby, and the other Financing Agreements Agreements, are true and correct in all material respects on and as after giving effect to the provisions of the date hereof as if made on the date hereofthis Amendment, except to the extent any such representation or warranty is made as of a specified date, in which case such representation or warranty shall have been true and correct as of such date.
(c) As of 4.3 Borrowers and Guarantors are not required to obtain any consents, waivers or approvals to the date hereoftransactions contemplated by this Amendment from any other Person with respect to any agreement, no mortgage, instrument with any other Person to which any Borrower or Guarantor is a party or may be bound.
4.4 No Default or Event of Default exists or has occurred and is continuing.
(d) Neither continuing as of the execution, delivery and performance date of this Amendment or any other Amendment Document in connection therewith, nor the consummation of any of the transactions contemplated herein or therein (i) are in contravention of law or any indenture, agreement or undertaking (including the Indenture) to which any Borrower or Guarantor is a party or by which any Borrower or Guarantor or its property are bound or (ii) violates any provision of the Certificate of Incorporation, Certificate of Formation, Operating Agreement, By-Laws or other governing documents of any Borrower or GuarantorAmendment.
(e) After giving effect to the increase in the Commitments and the Maximum Credit provided for herein, the Indebtedness under the Loan Agreement constitutes “Permitted Indebtedness” under (and as defined in) the Indenture.
Appears in 1 contract
Sources: Loan and Security Agreement (New York & Company, Inc.)
Additional Representations, Warranties and Covenants. Borrowers In addition to the continuing representations, warranties and Guarantorscovenants heretofore or hereafter made by each Borrower and Guarantor to Agent and Lenders pursuant to the other Financing Agreements, each Borrower and Guarantor hereby jointly and severallyseverally represents, represent, warrant warrants and covenant covenants with and to Agent and Lenders as follows, which representations, warranties and covenants are continuing and shall survive the execution and delivery hereof, hereof and shall be incorporated into and made a part of the truth and accuracy of, or compliance with each, together with the representations, warranties and covenants in the other Financing Agreements, being a continuing condition of the making of Loans by Lenders to Borrowers:
(a) No Event of Default or condition or event which with notice or passage of time or both would constitute an Event of Default exists or has occurred as of the date of this Amendment No. 5 (after giving effect to the amendments made and consents granted by Agent and Lenders pursuant to this Amendment No. 5).
(b) This Amendment No. 5 and the each other Financing Agreements executed and/or delivered by any Borrower agreement or Guarantor in connection herewith (together with this Amendment, the “Amendment Documents”) have been duly authorized, instrument to be executed and delivered by all necessary action on the part of Borrowers and Guarantors hereunder has been duly executed and delivered by each Borrower and Guarantor which is a party hereto and, if necessary, their respective members or stockholders, as the case may be, and is in full force and effect as of the date hereof, as the case may be, and the agreements and obligations of Borrowers and Guarantors each Borrower contained herein or and therein constitute legal, valid and binding obligations of Borrowers each Borrower and Guarantors Guarantor enforceable against them each Borrower and Guarantor in accordance with their terms, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or similar laws of general applicability affecting the enforcement of creditors’ rights and (ii) the application of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(b) As of the date hereof, all of the representations and warranties set forth in the Loan Agreement and the other Financing Agreements are true and correct in all material respects on and as of the date hereof as if made on the date hereof, except to the extent any such representation or warranty is made as of a specified date, in which case such representation or warranty shall have been true and correct as of such date.
(c) As Neither the execution and delivery of this Amendment No. 5, nor the consummation of the date hereoftransactions contemplated by this Amendment No. 5 and the Term Loan Agreements nor compliance with the provisions of this Amendment No. 5 or instruments thereunder or the Term Loan Agreements shall result in (i) the creation or imposition of any lien, no Default claim, charge or Event encumbrance upon any of Default exists the Collateral, except in favor of Agent and Lenders or has occurred (ii) the incurrence, creation, assumption of any Indebtedness of any Borrower or Guarantor, except as expressly permitted under Section 9.9 of the Loan Agreement (after giving effect to this Amendment No. 5) and is continuingby the other Financing Agreements.
(d) Neither No court of competent jurisdiction has issued any injunction, restraining order or other order which prohibits consummation of the execution, delivery and performance transactions contemplated in respect of this Amendment No. 5 and the Term Loan Agreements, and no governmental or other action or proceeding has been threatened or commenced in the United States of America, seeking any injunction, restraining order or other order which seeks to void or otherwise modify the transactions described in this Amendment Document in connection therewithNo. 5 and the Term Loan Agreements. Neither the execution and delivery of this Amendment No. 5, nor the consummation of any of the transactions contemplated herein by this Amendment No. 5 and the Term Loan Agreements, nor compliance with the provisions thereof, shall violate any Federal or therein (i) are in contravention of state securities laws or any other law or regulation or any indentureorder or decree of any court or governmental instrumentality in respect or shall conflict with or result in the breach of, agreement or undertaking constitute a default in any respect under, any indenture (including the Pep Boys Senior Note Indentures and the 1998 Senior Note Indenture but excluding the 1997 Senior Note Indenture) , or other material mortgage, agreement, instrument or undertaking to which any Borrower or Guarantor is a party or by which any Borrower may be bound, or Guarantor or its property are bound or (ii) violates violate any provision of the Certificate of Incorporation, Certificate of Formation, Operating Agreement, By-Laws or other governing organizational documents of any Borrower or Guarantor.
(e) After giving effect Each Borrower and Guarantor shall take such steps and execute and deliver, and cause to be executed and delivered, to Agent, such additional UCC financing statements and termination statements, and other and further agreements, documents and instruments as Agent may require in order to more fully evidence, perfect and protect Agent and Lenders’ security interest in Collateral.
(f) Upon the increase payment in full of the Commitments Indebtedness outstanding in respect of the 1997 and the Maximum Credit provided for herein1998 Senior Note Indentures, the Indebtedness under term “Exempted Debt” (or any equivalent or similar term) does not exist in any other Pep Boys Indenture in effect on the Loan Agreement constitutes “Permitted Indebtedness” under (and as defined in) the Indenture.date hereof
Appears in 1 contract
Sources: Loan and Security Agreement (Pep Boys Manny Moe & Jack)
Additional Representations, Warranties and Covenants. Borrowers Each Borrower and GuarantorsGuarantor, jointly and severally, representrepresents, warrant warrants and covenant covenants with and to Agent and Lenders as follows, which representations, warranties and covenants are continuing and shall survive the execution and delivery hereof, and the truth and accuracy of, or compliance with each, together with the representations, warranties and covenants in the other Financing Agreements, being a continuing condition of the making of Loans by Lenders Agent or any Lender to Borrowers:
(a) Other than the Acknowledged Events of Defaults, no Event of Default and no event, act or condition which with notice or passage of time or both would constitute an Event of Default, exists or has occurred as of the date of this Amendment No. 13;
(b) Borrowers agree that concurrently with the consummation of the Huffy Sports Division Sale, Borrowers shall cause to be remitted to Agent for the benefit of Lenders all proceeds of the Huffy Sports Division Sale; and
(c) This Amendment and the other Financing Agreements executed and/or delivered by any Borrower or Guarantor in connection herewith (together with this Amendment, the “Amendment Documents”) have No. 13 has been duly authorized, executed and delivered by all necessary action on the part of each Borrower and Guarantor which is a party hereto and, if necessary, their respective members or stockholders, as the case may be, and is in full force and effect as of the date hereof, as the case may be, hereof and the agreements and obligations of Borrowers each Borrower and Guarantors Guarantor contained herein or therein constitute legal, valid and binding obligations of Borrowers each Borrower and Guarantors Guarantor enforceable against each of them in accordance with their respective terms, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or similar laws of general applicability affecting the enforcement of creditors’ rights and (ii) the application of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(b) As of the date hereof, all of the representations and warranties set forth in the Loan Agreement and the other Financing Agreements are true and correct in all material respects on and as of the date hereof as if made on the date hereof, except to the extent any such representation or warranty is made as of a specified date, in which case such representation or warranty shall have been true and correct as of such date.
(c) As of the date hereof, no Default or Event of Default exists or has occurred and is continuing.
(d) Neither the execution, delivery and performance of this Amendment or any other Amendment Document in connection therewith, nor the consummation of any of the transactions contemplated herein or therein (i) are in contravention of law or any indenture, agreement or undertaking (including the Indenture) to which any Borrower or Guarantor is a party or by which any Borrower or Guarantor or its property are bound or (ii) violates any provision of the Certificate of Incorporation, Certificate of Formation, Operating Agreement, By-Laws or other governing documents of any Borrower or Guarantor.
(e) After giving effect to the increase in the Commitments and the Maximum Credit provided for herein, the Indebtedness under the Loan Agreement constitutes “Permitted Indebtedness” under (and as defined in) the Indenture.
Appears in 1 contract
Additional Representations, Warranties and Covenants. Borrowers and Guarantors, jointly and severally, severally represent, warrant and covenant with and to Agent and Lenders Lender as follows, which representationsrepresenta tions, warranties and covenants are continuing and shall survive the execution and delivery hereof, and the truth and accuracy of, or compliance with each, together with the representations, warranties and covenants in the other Financing Agreements, being a continuing condition of the making of any and all Loans by Lenders Lender to Borrowers:
(a) No Event of Default or condition or event which with notice or passage of time or both would constitute an Event of Default exists or has occurred as of the date of this Amendment (after giving effect to the amendments made and con sents and waiver granted by Lender pursuant to this Amendment).
(b) This Amendment and the each other Financing Agreements executed and/or delivered by any Borrower agreement or Guarantor in connection herewith (together with this Amendment, the “Amendment Documents”) have been duly authorized, instrument to be executed and delivered by all necessary action on the part of each Borrower Borrowers hereunder has been duly executed and Guarantor which is a party hereto and, if necessary, their respective members or stockholders, as the case may be, delivered by Borrowers and is in full force and effect as of the date hereof, as the case may be, and the agreements and obligations of Borrowers and Guarantors contained herein or and therein constitute legal, valid and binding obligations of Borrowers and Guarantors each Borrower enforceable against them each Borrower in accordance with their terms, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or similar laws of general applicability affecting the enforcement of creditors’ rights and (ii) the application of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(b) As of the date hereof, all of the representations and warranties set forth in the Loan Agreement and the other Financing Agreements are true and correct in all material respects on and as of the date hereof as if made on the date hereof, except to the extent any such representation or warranty is made as of a specified date, in which case such representation or warranty shall have been true and correct as of such date.
(c) As Neither the execution and delivery of the date hereofDPL Purchase Agreements, no Default nor the consummation of the transactions contemplated by the DPL Purchase Agreements, nor compliance with the provisions of the DPL Purchase Agreements or Event instruments thereunder shall result in the creation or imposition of Default exists any lien, claim, charge or has occurred encumbrance upon any of the Collateral or the incurrence, creation, assumption of any liability, obligation or indebtedness, except the unsecured indebtedness of ORC to Reunion as permitted under, and is continuingsubject to the limitations contained in Section 10.10(l) of the Loan Agreement as added hereby.
(d) Neither the execution, execution and delivery and performance of this Amendment or any other Amendment Document in connection therewith, the DPL Purchase Agreements nor the consummation of the transactions therein contemplated or otherwise to be taken pursuant to the DPL Acquisition, nor compliance with the provisions thereof will subject Borrowers to any tax, duty, fee or other charge, including, without limitation, any registration or transfer tax, stamp or other duty or levy, imposed by or within the United States of America, the Republic of Ireland, Bermuda, the European Union or any political subdivision or taxing authority of or in any of the transactions contemplated herein or therein (i) are in contravention of law or any indenture, agreement or undertaking (including the Indenture) to which any Borrower or Guarantor is a party or by which any Borrower or Guarantor or its property are bound or (ii) violates any provision of the Certificate of Incorporation, Certificate of Formation, Operating Agreement, By-Laws or other governing documents of any Borrower or Guarantorforegoing.
(e) After giving effect to the increase consummation of the acquisitions of stock effected pursuant to the DPL Acquisition, all of the issued and outstanding shares of capital stock of the members of the DPL Group, shall be directly and beneficially owned and held by the shareholders set forth on Exhibit B hereto who own the number of shares or percentages of the issued and outstanding shares set forth next to their names, and all of such shares shall have been duly authorized and shall be fully paid and non-assessable, free and clear of all claims, liens, pledges and encumbrances of any kind.
(f) The DPL 27.5% Share Purchase Agreement and the transactions contemplated thereunder have been duly executed, delivered and performed in accordance with their terms by the respective parties thereto in all respects, including the fulfillment (not merely the waiver, except as may be disclosed to Lender and consented to in writing by Lender) of all conditions precedent set forth therein.
(g) After giving effect to the terms of the DPL 27.5% Share Purchase Agreement and the instruments and documents to be executed and delivered by the parties to the DPL 27.5% Share Purchase Agreement (or any of their affiliates or subsidiaries) thereunder, DPLAC has acquired good and marketable title to twenty-seven and one-half (27.5%) percent of the issued and outstanding voting stock of DPL and, upon execution, delivery and performance of the transactions contemplated pursuant to the DPL 68% Share Purchase Agreement, DPLAC shall have acquired good and marketable title to an additional sixty-eight (68%) percent of the issued and outstanding voting stock of DPL. ORC has delivered, or caused to be delivered, to Lender, true, correct and complete copies of the DPL 27.5% Share Purchase Agreement together with all other DPL Purchase Agreements relating to the acquisition by DPLAC of twenty- seven and one-half (27.5%) percent of the voting stock of DPL.
(h) All actions and proceedings required by the DPL 27.5% Share Purchase Agreement, applicable law or regulation (including, without limitation, compliance with all applicable laws and regulations of the Republic of Ireland, Bermuda and the European Union) have been taken and the transactions required thereunder have been duly and validly taken and consummated.
(i) No court of competent jurisdiction has issued any injunction, restraining order or other order which prohibits consummation of the transactions contemplated as part of the DPL Acquisition and no governmental or other action or proceeding has been threatened or commenced in the Commitments United States of America, Bermuda, the Republic of Ireland or any other country, seeking any injunction, restraining order or other order which seeks to void or otherwise modify the transactions described in the DPL 27.5% Share Purchase Agreement or otherwise contemplated as part of the portion of the DPL Acquisition relating to the acquisition by DPLAC of twenty-seven and one-half (27.5%) percent of the issued and outstanding voting stock of DPL.
(j) Neither the execution and delivery of the DPL Purchase Agreements and the Maximum Credit provided for hereinReunion DPL Subordinated Notes, nor the consummation of the transactions therein contemplated or otherwise contemplated as part of the DPL Acquisition, nor compliance with the provisions thereof, has violated or shall violate any Federal or state securities laws or any other law or regulation (including without limitation all applicable laws and regulations of the Republic of Ireland, Bermuda and the European Union) or any order or decree of any court or governmental instrumentality in any respect or does or shall conflict with or result in the breach of, or constitute a default in any respect under, any indenture, mortgage, deed of trust, security agreement, agreement or instrument to which either Borrower, any member of the DPL Group, is a party or may be bound, or violate any provision of the organizational documents of ORC or any members of the DPL Group.
(k) ORC shall provide Lender not less than five (5) days prior written notice before the consummation of any of the transactions related to the DPL Acquisition described on Exhibit A hereto, which notice shall describe in reasonable detail the transactions to be consummated.
(l) ORC shall provide Lender not less than five (5) days prior written notice before the consummation of the transactions contemplated by the DPL 68% Share Purchase Agreement and the other DPL Purchase Agreements relating to the acquisition by DPLAC of sixty-eighty (68%) percent of the issued and outstanding voting stock of DPL, accompanied by true, correct and complete copies of the final forms of the DPL 68% Share Purchase Agreement and all other DPL Purchase Agreements related thereto.
(m) Prior to or contemporaneously with the consummation of the transactions contemplated by the DPL 68% Share Purchase Agreement (i) ORC shall deliver, or cause to be delivered, to Lender a true, correct and complete copy of the Reunion DPL Subordinated Note in the original principal amount of $1,050,000, duly authorized, executed and delivered by the parties thereto and (ii) ORC shall deliver, or cause to be delivered, to Lender, evidence that ORC has received from or on behalf of Reunion, cash or other immediately available funds in the aggregate principal amount of $1,050,000 constituting the proceeds of the loan by Reunion to ORC evidenced by the Reunion DPL Subordinated Note in the original principal amount of $1,050,000. As of the consummation of the transactions contemplated by the DPL 68% Share Purchase Agreement, the Indebtedness under representations and warranties contained in Sections 11(f), (g), (h) and (i) of this Amendment shall be true and correct as applied, mutatis mutandis, to the DPL 68% Share Purchase Agreement and the acquisition by DPLAC of sixty-eight (68%) percent of the issued and outstanding voting stock of DPL.
(n) The final form of DPL 68% Share Purchase Agreement, as executed and delivered by the parties thereto, shall be substantially in the form of Exhibit E annexed hereto, and neither the DPL 68% Share Purchase Agreement nor any of the other DPL Purchase Agreements relating to the acquisition by DPLAC of sixty-eight (68%) percent of the issued and outstanding voting stock of DPL shall impose any obligations, liabilities or responsibilities on either Borrower or contain any provisions that directly or indirectly conflict with or are otherwise inconsistent with any of the terms and conditions of this Amendment or the Loan Agreement constitutes “Permitted Indebtedness” under as amended hereby.
(o) The portion of the DPL Acquisition consisting of the acquisition by DPLAC pursuant to the DPL 68% Share Purchase Agreement of sixty-eight (68%) percent of the issued and outstanding voting stock of DPL, shall close, as defined in) the Indenturepermitted hereby, on or before January 31, 1997.
Appears in 1 contract
Sources: Loan and Security Agreement (Reunion Industries Inc)
Additional Representations, Warranties and Covenants. Borrowers Each Borrower and GuarantorsGuarantor represents, jointly warrants and severallycovenants with, represent, warrant to and covenant with and to in favor of Agent and Lenders as follows, which representations, warranties and covenants are continuing and shall survive the execution and delivery hereof, and the truth and accuracy of, or compliance with each, together with the representations, warranties and covenants in the other Financing Agreements, being a condition of the effectiveness of this Amendment and a continuing condition of the making or providing of any Revolving Loans or Letters of Credit by Agent and Lenders to Borrowers:
(a) 7.1 This Amendment and the each other Financing Agreements agreement or instrument to be executed and/or and delivered by any Borrower Borrowers or Guarantor in connection herewith (together with this Amendment, the “Amendment Documents”) Guarantors hereunder have been duly authorized, executed and delivered by all necessary action on the part of each Borrower Borrowers and Guarantor Guarantors which is a party hereto and thereto and, if necessary, their respective members or stockholders, as the case may be, and is in full force and effect as of the date hereof, as the case may be, and the agreements and obligations of Borrowers and Guarantors or Guarantors, as the case may be, contained herein or and therein constitute legal, valid and binding obligations of Borrowers and Guarantors Guarantors, as the case may be, enforceable against them in accordance with their terms, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or similar laws of general applicability affecting the enforcement of creditors’ rights and (ii) the application of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(b) As of the date hereof, all 7.2 All of the representations and warranties set forth in the Loan Agreement as amended hereby, and the other Financing Agreements Agreements, are true and correct in all material respects on and as after giving effect to the provisions of the date hereof as if made on the date hereofthis Amendment, except to the extent any such representation or warranty is made as of a specified date, in which case such representation or warranty shall have been true and correct as of such date.
7.3 Borrowers and Guarantors are not required to obtain any consents, waivers or approvals to the transactions contemplated by this Amendment from any other Person with respect to any agreement, mortgage, instrument with any other Person to which any Borrower or Guarantor is a party or may be bound.
7.4 Borrowers and Guarantors have delivered to Agent (ca) a true and correct copy of the amendment to articles of incorporation of ▇▇▇▇▇▇ Outlet, as filed and recorded with the Secretary of State of the Commonwealth of Massachusetts reflecting the change of name of Jasmine Company, Inc. to ▇▇▇▇▇▇ New York Outlet, Inc. as certified by such Secretary of State, and (b) evidence, in form and substance satisfactory to Agent, that ▇▇▇▇▇▇ Outlet has filed an amendment to each of its certificates of authority to business as a foreign corporation in all of the jurisdictions in which ▇▇▇▇▇▇ Outlet has qualified to do business as a foreign corporation.
7.5 As of the date hereof, Borrowers and Guarantors hereby represent and warrant that no liens, claims, mortgages, pledges, security interests, encumbrances or charges of any kind or nature have been incurred or exist on any of the assets and properties of ▇▇▇▇▇▇ Outlet, other than those permitted under the Loan Agreement.
7.6 Within thirty (30) days after the date hereof, Borrowers shall have delivered to Agent evidence, in form and substance satisfactory to Agent, that Borrowers have taken all steps necessary to preserve or protect the security interest or lien of Agent in any of the assets or property of ▇▇▇▇▇▇ Outlet, including, without limitation, (a) any filings with the United States Patent and Trademark Office to reflect the change of name of Jasmine Company, Inc. to ▇▇▇▇▇▇ New York Outlet, Inc. of any trademarks owned by ▇▇▇▇▇▇ Outlet, and (b) arranging for a Credit Card Acknowledgment to be delivered to Bank of America, N.A. with respect to the credit processing services provided in connection with Credit Card Receivables arising from payments by customers using MasterCard or VISA bank credit or debit cards. If requested by Agent, Borrower shall deliver to Agent promptly any changes to the stock certificates or stock powers previously delivered to Agent to reflect the change of name of Jasmine Company, Inc. to ▇▇▇▇▇▇ New York Outlet, Inc.
7.7 No Default or Event of Default exists or has occurred and is continuing.
(d) Neither continuing as of the execution, delivery and performance date of this Amendment or any other Amendment Document in connection therewith, nor the consummation of any of the transactions contemplated herein or therein (i) are in contravention of law or any indenture, agreement or undertaking (including the Indenture) to which any Borrower or Guarantor is a party or by which any Borrower or Guarantor or its property are bound or (ii) violates any provision of the Certificate of Incorporation, Certificate of Formation, Operating Agreement, By-Laws or other governing documents of any Borrower or GuarantorAmendment.
(e) After giving effect to the increase in the Commitments and the Maximum Credit provided for herein, the Indebtedness under the Loan Agreement constitutes “Permitted Indebtedness” under (and as defined in) the Indenture.
Appears in 1 contract
Sources: Loan and Security Agreement (New York & Company, Inc.)
Additional Representations, Warranties and Covenants. Borrowers and Guarantors, jointly and severally, represent, warrant and covenant with and to Agent and Lenders as follows, which representations, warranties and covenants are continuing and shall survive the execution and delivery hereof, and the truth and accuracy of, or compliance with each, together with the representations, warranties and covenants in the other Financing Agreements, being a continuing condition of the making of Loans by Lenders to Borrowers:
(a) This Amendment and the other Financing Agreements executed and/or delivered by any Borrower or Guarantor in connection herewith (together with this Amendment, the “Amendment Documents”) have been duly authorized, executed and delivered by all necessary action on the part of each Borrower and Guarantor which is a party hereto and, if necessary, their respective members or stockholders, as the case may be, and is in full force and effect as of the date hereof, as the case may be, and the agreements and obligations of Borrowers and Guarantors contained herein or therein constitute legal, valid and binding obligations of Borrowers and Guarantors enforceable against them in accordance with their terms, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or similar laws of general applicability affecting the enforcement of creditors’ rights and (ii) the application of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(b) As of the date hereof, all of the representations and warranties set forth in the Loan Agreement and the other Financing Agreements are true and correct in all material respects on and as of the date hereof as if made on the date hereof, except to the extent any such representation or warranty is made as of a specified date, in which case such representation or warranty shall have been true and correct as of such date.
(c) As of the date hereof, no Default or Event of Default exists or has occurred and is continuing.
(d) Neither the execution, delivery and performance of this Amendment or any other Amendment Document in connection therewith, nor the consummation of any of the transactions contemplated herein or therein (i) are in contravention of law or any indenture, agreement or undertaking (including the Indenture) to which any Borrower or Guarantor is a party or by which any Borrower or Guarantor or its property are bound bound, or (ii) violates any provision of the Certificate of Incorporation, Certificate of Formation, Operating Agreement, By-Laws or other governing documents of any Borrower or Guarantor.
(ed) After As of the date of this Amendment and after giving effect to the increase in the Commitments hereto, no Default or Event of Default exists or has occurred and the Maximum Credit provided for herein, the Indebtedness under the Loan Agreement constitutes “Permitted Indebtedness” under (and as defined in) the Indentureis continuing.
Appears in 1 contract
Additional Representations, Warranties and Covenants. Borrowers and Guarantors, jointly and severally, represent, warrant and covenant with and to Agent and Lenders as follows, which representations, warranties and covenants are continuing and shall survive the execution and delivery hereof, and the truth and accuracy of, or compliance with each, together with the representations, warranties and covenants in the other Financing Agreements, being a continuing condition of the making of Loans by Lenders to Borrowers:
(a) This Amendment and the other Financing Agreements executed and/or delivered by any Borrower or Guarantor in connection herewith (together with this Amendment, the “Amendment Documents”) have been duly authorized, executed and delivered by all necessary action on the part of each Borrower and Guarantor which is a party hereto and, if necessary, their respective members or stockholders, as the case may be, and is in full force and effect as of the date hereof, as the case may be, and the agreements and obligations of Borrowers and Guarantors contained herein or therein constitute legal, valid and binding obligations of Borrowers and Guarantors enforceable against them in accordance with their terms, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or similar laws of general applicability affecting the enforcement of creditors’ rights and (ii) the application of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(b) As of the date hereof, all of the representations and warranties set forth in the Loan Agreement and the other Financing Agreements are true and correct in all material respects on and as of the date hereof as if made on the date hereof, except to the extent any such representation or warranty is made as of a specified date, in which case such representation or warranty shall have been true and correct as of such date.
(c) As of the date hereof, no Default or Event of Default exists or has occurred and is continuing.
(d) Neither the execution, delivery and performance of this Amendment or any other Amendment Document in connection therewith, nor the consummation of any of the transactions contemplated herein or therein (i) are in contravention of law or any indenture, agreement or undertaking (including the Indenture) to which any Borrower or Guarantor is a party or by which any Borrower or Guarantor or its property are bound or (ii) violates any provision of the Certificate of Incorporation, Certificate of Formation, Operating Agreement, By-Laws or other governing documents of any Borrower or Guarantor.
(ed) After giving effect to the increase in the Commitments and the Maximum Credit provided for herein, the Indebtedness under the Loan Agreement constitutes “Permitted Indebtedness” under (and as defined in) the Indenture.
(e) As of the date hereof, no Default or Event of Default exists or has occurred and is continuing.
Appears in 1 contract
Additional Representations, Warranties and Covenants. Borrowers and GuarantorsBorrowers, jointly and severally, represent, warrant and covenant with and to Agent and Lenders Lender as follows, which representations, warranties and covenants are continuing and shall survive the execution and delivery hereof, and the truth and accuracy of, or compliance with each, together with the representations, warranties and covenants in the other Financing Agreements, being a continuing condition of the making of any and all Loans by Lenders Lender to BorrowersBorrowers and/or to ORC, as the surviving corporation of the OMPC-NC Merger:
(a) No Event of Default or act, condition or event which with notice or passage of time or both would constitute an Event of Default exists or has occurred as of the date of this Amendment (after giving effect to the amendments made and consents granted by Lender pursuant to this Amendment).
(b) This Amendment and the each other Financing Agreements executed and/or delivered by any Borrower agreement or Guarantor in connection herewith (together with this Amendment, the “Amendment Documents”) have been duly authorized, instrument to be executed and delivered by all necessary action on the part of each Borrower Borrowers hereunder has been duly executed and Guarantor which is a party hereto and, if necessary, their respective members or stockholders, as the case may be, delivered by Borrowers and is in full force and effect as of the date hereof, as the case may be, and the agreements and obligations of Borrowers and Guarantors contained herein or and therein constitute legal, valid and binding obligations of Borrowers and Guarantors enforceable against them Borrowers in accordance with their terms, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or similar laws of general applicability affecting the enforcement of creditors’ rights and (ii) the application of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(bc) As Neither the execution and delivery of the date hereofQMP Purchase Agreements or the OMPC-NC Merger Agreements, all nor the consummation of the representations transactions contemplated by the QMP Purchase Agreements or the OMPC-NC Merger Agreements, nor compliance with the provisions of the QMP Purchase Agreements or the OMPC-NC Merger Agreements or instruments thereunder, as the case may be, shall result in the creation or imposition of any lien, claim, charge or encumbrance upon any of the Collateral, other than the lien of Lender pursuant hereto and warranties set forth in the Loan Agreement and the other Financing Agreements.
(d) The QMP Purchase Agreements are true and correct the transactions contemplated thereunder have been duly executed, delivered and, contemporaneously herewith, have been performed in accordance with their terms by the respective parties thereto in all material respects on and respects, including the fulfillment (not merely the waiver, except as may be consented to in writing by Lender) of all conditions precedent to the obligations of the date hereof parties to close the transactions contemplated thereunder, and ORC has acquired and presently has good and marketable title to the QMP Purchased Assets, free and clear of all claims, liens, pledges and encumbrances of any kind, except as if made permitted under the Loan Agreement as amended hereby.
(e) On or before the close of business on the date hereof, except the OMPC-NC Merger shall become effective in accordance with the terms of the OMPC- NC Merger Agreements and the provisions of corporation statutes of the states of New York and North Carolina, and ORC shall be the surviving corporation pursuant to the extent any such representation or warranty is made as of a specified date, in which case such representation or warranty shall have been true OMPC-NC Merger Agreements and correct as of such dateapplicable law.
(cf) As All actions and proceedings required by the QMP Purchase Agreements and the OMPC-NC Merger Agreements, applicable law or regulation (including, but not limited to, if applicable, compliance with the ▇▇▇▇-▇▇▇▇▇- ▇▇▇▇▇▇ Anti-Trust Improvements Act of 1976, as amended) have been duly and validly taken and have occurred, excluding, however, compliance with Article 6 of the North Carolina Uniform Commercial Code, if applicable, compliance with which by QMP has been waived by ORC upon QMP's and ▇▇▇▇'▇ indemnification of ORC for claims relating thereto as provided in the QMP Purchase Agreements (as in effect on the date hereof, no Default or Event of Default exists or has occurred and is continuing).
(dg) No court of competent jurisdiction has issued any injunction, restraining order or other order which prohibits consummation of the transactions described in the QMP Purchase Agreements or the OMPC-NC Merger Agreements and no governmental or other action or proceeding has been threatened or commenced, seeking any injunction, restraining order or other order which seeks to void or otherwise modify the transactions described in or contemplated by the QMP Purchase Agreements or the OMPC-NC Merger Agreements.
(h) ORC has delivered, or caused to be delivered, to Lender, true, correct and complete copies of the QMP Purchase Agreements and the OMPC-NC Merger Agreements.
(i) Neither the execution, execution and delivery and performance of this Amendment the QMP Purchase Agreements or any other Amendment Document in connection therewith, the OMPC-NC Merger Agreements nor the consummation of the transactions therein contemplated, nor compliance with the provisions thereof, has violated or shall violate any federal or state securities laws or any other law or regulation or any order or decree of any court or governmental instrumentality in any respect (except for any non-compliance by QMP with Article 6 of the transactions contemplated herein North Carolina Uniform Commercial Code, if applicable, upon the waiver by ORC of such compliance as described in Section 14(f) hereof) or therein (i) are does or shall conflict with or result in contravention of law the breach of, or constitute a default in any respect under, any indenture, mortgage, deed of trust, security agreement, lease, agreement or undertaking (including the Indenture) instrument to which any Borrower ORC or Guarantor OMPC-NC or, to ORC's knowledge, QMP is a party or by which any Borrower may be bound, or Guarantor or its property are bound or (ii) violates violate any provision of the Certificate of Incorporation, Certificate of Formation, Operating Agreement, Incorporation or By-Laws of ORC or, to ORC's knowledge, QMP, or, in the case of the OMPC-NC Merger, violate any provision of the Certificate of Incorporation or other governing documents By-Laws of any Borrower or GuarantorOMPC-NC.
(ej) After giving effect Within ninety (90) days from the date hereof, ORC agrees to deliver to Lender, in form and substance satisfactory to Lender, evidence that the Real Property of ORC located in ▇▇▇▇▇ City, North Carolina acquired pursuant to the increase in QMP Purchase Agreements is classified as an industrial zone under applicable state and local laws of the Commitments and the Maximum Credit provided for herein, the Indebtedness under the Loan Agreement constitutes “Permitted Indebtedness” under (and as defined in) the IndentureState of North Carolina.
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Sources: Loan and Security Agreement (Reunion Industries Inc)