BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants that: (a) immediately upon giving effect to this Amendment (i) the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), and (ii) no Event of Default has occurred and is continuing; (b) Borrower has the corporate power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment; (c) the certificate of incorporation and by-laws of Borrower (collectively, “Organizational Documents”) delivered to Bank on or prior to the date hereof are true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documents; (d) the execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate action on the part of Borrower; (e) this Amendment has been duly executed and delivered by the Borrower and is the binding obligation of Borrower, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; and (f) as of the date hereof, Borrower has no defenses against the obligations to pay any amounts under the Obligations. Borrower acknowledges that Bank has acted in good faith and has conducted in a commercially reasonable manner its relationships with Borrower in connection with this Amendment and in connection with the Loan Documents. Borrower understands and acknowledges that Bank is entering into this Amendment in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriate.
Appears in 10 contracts
Sources: Loan and Security Agreement (Unwired Planet, Inc.), Loan and Security Agreement (Unwired Planet, Inc.), Loan and Security Agreement (Unwired Planet, Inc.)
BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants that:
(a) immediately upon giving effect to this Amendment Amendment, (i) the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), and (ii) no Event of Default has occurred and is continuing;
(b) Borrower has the corporate power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment;
(c) the certificate of incorporation incorporation, bylaws and by-laws other organizational documents of Borrower (collectively, “Organizational Documents”) delivered to Bank on or prior to the date hereof are Effective Date remain true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documentseffect;
(d) the execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate action on the part of Borrower;
(e) this Amendment has been duly executed and delivered by the Borrower and is the binding obligation of Borrower, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; and
(f) as of the date hereof, Borrower it has no defenses against the obligations to pay any amounts under the Obligations. Borrower acknowledges that Bank has acted in good faith and has conducted in a commercially reasonable manner its relationships with such Borrower in connection with this Amendment and in connection with the Loan Documents. Borrower understands and acknowledges that Bank is entering into this Amendment in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriate.
Appears in 10 contracts
Sources: Loan and Security Agreement (Radisys Corp), Loan and Security Agreement (Radisys Corp), Loan and Security Agreement (Radisys Corp)
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants that:
(a) immediately upon giving effect to this Amendment (i) the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), and (ii) no Event of Default has occurred and is continuing;
(b) The Borrower has the corporate power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment;
(c) the certificate or articles of incorporation incorporation, bylaws and by-laws other organizational documents of the Borrower (collectively, “Organizational Documents”) delivered to Bank the Lender on or prior to the date hereof are Closing Date remain true, accurate and complete and have not been amended, restated, supplemented or restated and are otherwise modified and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documentseffect;
(d) the execution and delivery by the Borrower of this Amendment and the performance by the Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate action on the part of the Borrower;
(e) this Amendment has been duly executed and delivered by the Borrower and is the binding obligation of the Borrower, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rightsrights generally; and
(f) as of the date hereof, the Borrower has no defenses against the obligations to pay any amounts under the Obligations. The Borrower acknowledges that Bank the Lender has acted in good faith and has conducted in a commercially reasonable manner its relationships with the Borrower in connection with this Amendment and in connection with the Loan Documents. The Borrower understands and acknowledges that Bank the Lender is entering into this Amendment in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriate.
Appears in 7 contracts
Sources: Loan and Security Agreement, Loan and Security Agreement (Aveo Pharmaceuticals Inc), Loan and Security Agreement (Enphase Energy, Inc.)
BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants that:
(a) immediately upon giving effect to this Amendment (i) the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), and (ii) no Event of Default has occurred and is continuing;
(b) Borrower has the corporate power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment;
(c) the certificate of incorporation incorporation, bylaws and by-laws other organizational documents of Borrower (collectively, “Organizational Documents”) delivered to Bank on or prior to the date hereof are Effective Date remain true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documentseffect;
(d) the execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate action on the part of Borrower;
(e) this Amendment has been duly executed and delivered by the Borrower and is the binding obligation of Borrower, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; and
(f) as of the date hereof, Borrower it has no defenses against the obligations to pay any amounts under the Obligations. Borrower acknowledges that Bank has acted in good faith and has conducted in a commercially reasonable manner its relationships with such Borrower in connection with this Amendment and in connection with the Loan Documents. Borrower understands and acknowledges that Bank is entering into this Amendment in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriate.
Appears in 7 contracts
Sources: Loan and Security Agreement (Radisys Corp), Loan and Security Agreement (Radisys Corp), Loan and Security Agreement (Rae Systems Inc)
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants that:
(a) immediately upon giving effect it is registered as a company under the Act, and has the power to this Amendment (i) the representations carry on its business and warranties contained own its property in the Loan Documents are true, accurate manner and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, locations in which case they are true and correct as of such date), and (ii) no Event of Default has occurred and business is continuingpresently being carried on or property owned;
(b) Borrower it has the corporate full power and authority under its constitution:
(i) to execute enter into this Agreement and deliver this Amendment and the Security;
(ii) to perform its obligations under the Loan Agreement, as amended do all things required by this AmendmentAgreement and the Security;
(iii) all necessary meetings have been held;
(iv) all required resolutions have been passed; and
(v) any other action necessary to authorise the execution and performance of this Agreement and the Security has been taken; this Agreement and the Security will each constitute the legal, valid, binding and enforceable obligation of the Borrower in accordance with their respective terms;
(c) the certificate of incorporation and by-laws of Borrower (collectively, “Organizational Documents”) delivered to Bank on or prior except as disclosed in writing to the date hereof are trueLender and dispensed with in writing by the Lender, accurate and complete and have not been amendedneither the execution nor the performance of this Agreement or the Security will:
(i) violate in any respect any statute, supplemented decree, rule or restated and are and continue regulation or any determination, order or award of any court or any governmental, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers of the Borrower or on the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict with, or result in full force and effect as any breach of, or require any consent or approval under, any mortgage, agreement or other undertaking or instrument to which the Borrower is a party or which is binding on the Borrower or any of the date hereofBorrower’s assets;
(iv) result in a mortgage, and Borrower shall promptly deliver to Bank any amendmentscharge, supplements, restatements lien or other modifications encumbrance over any of the Borrower’s assets; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to such Organizational Documentsbe exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower is not in default or difficulty under any deed, agreement or other document or obligation to which it is a party or by which it is bound, or in respect of any financial commitment or obligation, including obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect the ability of the Borrower to comply with its obligations under this Agreement or the Security;
(d) the execution Borrower is in full and delivery by ongoing compliance with its constitution and all companies and securities legislation and regulations, and all other legislation and regulations to which the Borrower of this Amendment may any time and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate action on the part of Borrowerfrom time to time be subject;
(e) this Amendment has been duly executed no event of default or event which, with the giving of notice or the lapse of time or both, would be an event of default and, having occurred, is continuing to subsist;
(f) except as disclosed in writing to the Lender and delivered dispensed with in writing by the Borrower and is Lender, no litigation or administrative or other proceedings before, or of, any court or governmental authority, agency or other tribunal have, to the binding obligation knowledge of the Borrower, enforceable been initiated or threatened against it in accordance the Borrower or any of the Borrower’s assets which would or might have a material adverse effect on the business, assets or financial condition of the Borrower;
(g) the Borrower does not have, and will not during the currency of this Agreement have, any right of set-off, counterclaim, any right to rescind or any other claim with its termsrespect to this Agreement by way of cross-action against the Lender;
(h) all of the most recent annual or half-yearly or both, as the case requires, accounts of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as such enforceability may be limited otherwise disclosed in writing to the Lender and dispensed with in writing by bankruptcythe Lender, insolvency, reorganization, liquidation, moratorium or other similar laws no material adverse change has occurred since the date of general application and equitable principles relating those accounts to or affecting creditors’ rightsthe financial condition of the Borrower; and
(fi) as the Borrower is not the trustee of the date hereof, Borrower has no defenses against the obligations to pay any amounts under the Obligations. Borrower acknowledges that Bank has acted in good faith trust and has conducted in a commercially reasonable manner its relationships with Borrower in connection with this Amendment and in connection with the Loan Documents. Borrower understands and acknowledges that Bank is entering accordingly enters into this Amendment in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriateAgreement on its own behalf.
Appears in 6 contracts
Sources: Loan Agreement (Australian Oilseeds Holdings LTD), Loan Agreement (Australian Oilseeds Holdings LTD), Loan Agreement (Australian Oilseeds Holdings LTD)
BORROWER'S REPRESENTATIONS AND WARRANTIES. Each Borrower represents and warrants that:
(a) immediately upon giving effect to this Amendment (i) hereby reaffirms all of the representations and warranties contained set forth in the Loan Documents are to be true, accurate and complete correct in all material respects as of the date hereof (except of this Agreement to the extent such representations and warranties relate to an earlier dateare not matters which, in which case they are by their nature, can no longer be true and correct as a result of such date)the passage of time, and except for changes in circumstances arising from actions or events occurring after the date of the Loan Agreement that do not otherwise constitute a Default thereunder, including, without limitation, the execution of new Leases or new contracts that are not prohibited by the terms of the Loan Agreement or any other Loan Document. Each Borrower further represents and warrants that as of the Effective Date (iia) the information included in the Beneficial Ownership Certification, if applicable, is true and correct in all respects; (b) to each Borrower’s knowledge, no Event of Default or Potential Default has occurred and is continuing;
(b) Borrower has the corporate power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment;
; (c) each Borrower is a limited liability company which is duly organized and validly existing under the certificate of incorporation and by-laws of the State of Delaware; (d) there have been no material changes in formation documents of any Borrower (collectively, “Organizational Documents”) delivered to Bank on or prior to since the date hereof are true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as inception of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documents;
Loan; (de) the execution and delivery by Borrower of this Amendment and the performance Agreement do not contravene, result in a breach of, or constitute a default under, any mortgage, loan agreement, indenture or other contract or agreement to which any Borrower is a party or by which any Borrower or any of its properties may be bound (nor would such execution and delivery constitute such a default with the passage of time or the giving of notice or both), and do not violate or contravene any law, order, decree, rule, regulation or restriction to which any Borrower or any Property is subject; (f) this Agreement constitutes the legal, valid and binding obligations under of each Borrower enforceable in accordance with its terms; (g) the Loan Agreementexecution and delivery of, as amended by and performance under, this Amendment, Agreement are within each Borrower’s power and authority without the joinder or consent of any other party and have been duly authorized by all necessary corporate action on the part of Borrower;
(e) this Amendment has been duly executed and delivered by the Borrower and is the binding obligation of Borrower, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; and
(f) as of the date hereof, Borrower has no defenses against the obligations to pay any amounts under the Obligations. Borrower acknowledges that Bank has acted in good faith and has conducted in a commercially reasonable manner its relationships with Borrower in connection with this Amendment and in connection with the Loan Documents. Borrower understands and acknowledges that Bank is entering into this Amendment in reliance uponrequisite action, and are not in partial consideration forcontravention of any law, the above representations and warrantiesor of any Borrower’s articles of organization or operating agreement or of any indenture, and agrees that such reliance agreement or undertaking to which any Borrower is reasonable and appropriatea party or by which it is bound.
Appears in 5 contracts
Sources: Loan Modification Agreement (KBS Real Estate Investment Trust III, Inc.), Loan Modification and Extension Agreement (KBS Real Estate Investment Trust III, Inc.), Loan Modification Agreement (KBS Real Estate Investment Trust III, Inc.)
BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants thatto Lender as follows:
(a) immediately upon giving effect to this Amendment (i) There are now in existence no leases or occupancy agreements affecting the representations Property except those leases and warranties contained in amendments listed on the Loan Documents are true, accurate and complete in all material respects as of the date hereof (except Rent Roll delivered to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), and (ii) no Event of Default has occurred and is continuing;
(b) Borrower has the corporate power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment;
(c) the certificate of incorporation and by-laws of Borrower (collectively, “Organizational Documents”) delivered to Bank on or prior to the date hereof are true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect Lender as of the date hereof, and Borrower shall promptly deliver has delivered to Bank Lender true, correct and complete copies of all leases, including amendments (collectively, “Existing Leases”) and all guaranties and amendments of guaranties given in connection with the Existing Leases (the “Guaranties”).
(b) There are no defaults by Borrower under the Existing Leases and Guaranties and, to the best knowledge of Borrower, there are no defaults by any amendmentstenants under the Existing Leases or any guarantors under the Guaranties except as otherwise previously disclosed in writing to Lender. The Existing Leases and the Guaranties are in full force and effect.
(c) To the best knowledge of Borrower, supplementsnone of the tenants now occupying 10% or more of the Property or having a current lease affecting 10% or more of the Property is the subject of any bankruptcy, restatements reorganization or insolvency proceeding or any other modifications debtor-creditor proceeding except as otherwise previously disclosed in writing to such Organizational Documents;Lender.
(d) the execution Except as may be provided therein for specific purposes (e.g., a purchase option, lease relocation right, etc.) no Existing Leases may be amended, terminated or canceled unilaterally by a tenant and delivery by Borrower of this Amendment and the performance by Borrower of no tenant may be released from its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate action on the part of Borrower;
(e) this Amendment has been duly executed and delivered by the Borrower and is the binding obligation of Borrower, enforceable against it in accordance with its termsobligations, except as such enforceability may be limited by bankruptcyin the event of (i) material damage to, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; and
(f) as of the date hereof, Borrower has no defenses against the obligations to pay any amounts under the Obligations. Borrower acknowledges that Bank has acted in good faith and has conducted in a commercially reasonable manner its relationships with Borrower in connection with this Amendment and in connection with the Loan Documents. Borrower understands and acknowledges that Bank is entering into this Amendment in reliance upon, and in partial consideration fordestruction of, the above representations and warranties, and agrees that such reliance is reasonable and appropriateProperty or (ii) condemnation.
Appears in 4 contracts
Sources: Mortgage, Security Agreement and Fixture Filing (Florida East Coast Industries Inc), Mortgage, Security Agreement and Fixture Filing (Florida East Coast Industries Inc), Mortgage, Security Agreement and Fixture Filing (Florida East Coast Industries Inc)
BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants that:
(a) immediately upon giving effect to this Amendment Modification (i) the representations and warranties contained in the Existing Loan Documents are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate qualified in the updated Representations deliverable to an earlier date, in which case they are true and correct as of such datePFG on or before the Modification Effective Date), and (ii) no Event of Default has occurred and is continuing;
(b) Borrower has the corporate power and authority to execute and deliver this Amendment Modification and to perform its obligations under the Existing Loan AgreementDocuments, as amended by this AmendmentModification;
(c) the certificate of incorporation incorporation, bylaws and by-laws other organizational documents of Borrower (collectively, “Organizational Documents”) delivered to Bank on or prior to the date hereof are PFG remain true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documentseffect;
(d) the execution and delivery by Borrower of this Amendment Modification and the performance by Borrower of its obligations under the Existing Loan AgreementDocuments, as amended by this AmendmentModification, have been duly authorized by all necessary corporate action on the part of Borrower;
(e) this Amendment Modification has been duly executed and delivered by the Borrower and is the binding obligation of Borrower, enforceable against it in accordance with its termsthe terms of this Modification, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; and;
(f) as of the date hereof, Borrower has no defenses against its obligation to repay the obligations to pay Obligations and it has no claims of any amounts under the Obligationskind against PFG. Borrower acknowledges that Bank PFG has acted in good faith and has conducted in a commercially reasonable manner its relationships relationship with such Borrower in connection with this Amendment Modification and in connection with the Existing Loan Documents;
(g) the Security Documents relating to Intellectual Property either disclose an accurate, complete and current listing of all Collateral that consists of Intellectual Property; and
(h) Borrower hereby ratifies, confirms and reaffirms, all and singular, the terms and disclosures contained in the Representations dated as the Modification Effective Date, appended as Exhibit B hereto, and acknowledges, confirms and agrees that the disclosures and information Borrower provided to PFG therein remain true, correct, accurate and complete as of the Modification Effective Date. Borrower understands and acknowledges that Bank PFG is entering into this Amendment Modification in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriate.
Appears in 4 contracts
Sources: Loan and Security Agreement (Sonic Foundry Inc), Loan and Security Agreement (Sonic Foundry Inc), Loan and Security Agreement (Sonic Foundry Inc)
BORROWER'S REPRESENTATIONS AND WARRANTIES. Each Borrower represents and warrants that:
(a) immediately upon giving effect to this Amendment (i) the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), and (ii) no Event of Default has occurred and is continuing;
(b) each Borrower has the corporate power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment;
(c) the certificate of incorporation or articles of incorporation (as applicable), bylaws and by-laws other organizational documents of each Borrower (collectively, “Organizational Documents”) delivered to Bank on or prior to the date hereof are Effective Date remain true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documentseffect;
(d) the execution and delivery by each Borrower of this Amendment and the performance by each Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate action on the part of each Borrower;
(e) this Amendment has been duly executed and delivered by the each Borrower and is the binding obligation of such Borrower, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; and
(f) as of the date hereof, such Borrower has no defenses against the obligations to pay any amounts under the Obligations. Each Borrower acknowledges that Bank has acted in good faith and has conducted in a commercially reasonable manner its relationships with such Borrower in connection with this Amendment and in connection with the Loan Documents. Each Borrower understands and acknowledges that Bank is entering into this Amendment in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriate.
Appears in 4 contracts
Sources: Loan and Security Agreement (Sunrise Telecom Inc), Loan and Security Agreement (Covad Communications Group Inc), Loan and Security Agreement (Sunrise Telecom Inc)
BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants that:
(a) immediately upon giving effect to this Amendment (i) the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date, and except to the extent any such representations and warranties are altered by information disclosed in Borrower’s reports filed with the US Securities and Exchange Commission subsequent to the Closing Date), and (ii) no Event of Default has occurred and is continuing;
(b) Borrower has the corporate power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment;
(c) the certificate of incorporation incorporation, bylaws and by-laws other organizational documents of Borrower (collectively, “Organizational Documents”) delivered to Bank on or prior to the date hereof are Closing Date remain true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documentseffect;
(d) the execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate action on the part of Borrower;; and
(e) this Amendment has been duly executed and delivered by the Borrower and is the binding obligation of Borrower, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; and
(f) as of the date hereof, Borrower has no defenses against the obligations to pay any amounts under the Obligations. Borrower acknowledges that Bank has acted in good faith and has conducted in a commercially reasonable manner its relationships with Borrower in connection with this Amendment and in connection with the Loan Documents. Borrower understands and acknowledges that Bank is entering into this Amendment in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriate.
Appears in 3 contracts
Sources: Loan and Security Agreement (Tivo Inc), Loan and Security Agreement (Tivo Inc), Loan and Security Agreement (Tivo Inc)
BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants that:
(a) immediately upon giving effect to this Amendment (i) the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct in all material respects as of such date), and (ii) no Event of Default has occurred and is continuing;
(b) Borrower has the corporate power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment;
(c) the certificate of incorporation incorporation, bylaws and by-laws other organizational documents of Borrower (collectively, “Organizational Documents”) delivered to Bank on or prior to the date hereof are Effective Date remain true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documentseffect;
(d) the execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate action on the part of Borrower;
(e) this Amendment has been duly executed and delivered by the Borrower and is the binding obligation of Borrower, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; and
(f) as of the date hereof, Borrower has no defenses against the obligations to pay any amounts under the Obligations. Borrower acknowledges that Bank has acted in good faith and has conducted in a commercially reasonable manner its relationships with Borrower in connection with this Amendment and in connection with the Loan Documents. Borrower understands and acknowledges that Bank is entering into this Amendment in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriate.
Appears in 3 contracts
Sources: Loan and Security Agreement (U.S. Auto Parts Network, Inc.), Loan and Security Agreement (U.S. Auto Parts Network, Inc.), Loan and Security Agreement (U.S. Auto Parts Network, Inc.)
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants thatto a Lender and the Agent that each of the following matters is true and correct at the execution date of this Agreement and at the Drawdown Date. In the event that any of the following matters is found to be untrue or incorrect, the Borrower shall fully indemnify all of the losses and costs incurred by the Lender and the Agent by such untrue or incorrect representation and warranty:
(i) The Borrower is a stock company (kabushiki kaisya) duly incorporated and validly existing under the laws of Japan.
(ii) The Borrower has a legal capacity (sui juris) necessary for execution and performance of this Agreement, the execution and performance of this Agreement by the Borrower and any transactions associated herewith are within the corporate purposes of the Borrower and the Borrower has duly completed all procedures necessary therefor under the Laws and Ordinances, the Articles of Incorporation and other internal company rules of the Borrower.
(iii) The execution and performance of this Agreement by the Borrower and any transactions associated herewith does not result in (a) immediately upon giving effect to this Amendment any violation of Laws and Ordinances which bind the Borrower, (ib) the representations any breach of its Articles of Incorporation and warranties contained in the Loan Documents are true, accurate and complete in all material respects as other internal company rules of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date)Borrower, and (iic) no Event any material breach of Default has occurred a third-party contract to which the Borrower is a party or which binds the Borrower or the assets of the Borrower.
(iv) The person who signed or attached his/her name and seal to this Agreement is authorized to sign or attach his/her name and seal to this Agreement as the representative of the Borrower by all procedures necessary pursuant to the Laws and Ordinances, Articles of Incorporation or other internal company rules of the Borrower.
(v) This Agreement constitutes legal, valid and binding obligations of the Borrower, and is continuing;enforceable against the Borrower in accordance with the terms of this Agreement.
(bvi) All Reports prepared by the Borrower has are accurately and duly prepared in accordance with the corporate power accounting standards which is generally accepted as fair and authority to execute appropriate one in Japan.
(vii) After the last day of the fiscal year ended on March 31, 2003, no material change, which will cause a material deterioration of the business, assets, or financial condition of the Borrower described in the audited fiscal statement of that fiscal year and deliver which may materially affect the performance of the obligations of the Borrower under this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment;has occurred.
(cviii) the certificate of incorporation and by-laws of Borrower (collectivelyNo lawsuit, “Organizational Documents”) delivered to Bank on arbitration, administrative procedure, or prior any other dispute has commenced or, to the date hereof are true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as knowledge of the date hereofBorrower, and Borrower shall promptly deliver is likely to Bank any amendmentscommence with respect to the Borrower, supplements, restatements which will or other modifications to such Organizational Documents;
(d) the execution and delivery by Borrower of this Amendment and may materially cause adverse effects on the performance by Borrower of its obligations under this Agreement.
(ix) No matter described in the Loan Agreementitems of Clauses 22.1 and 22.2 has occurred or is likely to occur.
(x) The Guarantor owns 100% of the shares of FMH outstanding, as amended by this AmendmentFMH owns not less than 40% of the shares of FASL LLC outstanding, and FASL LLC owns 100% of the shares of the Borrower outstanding.
(xi) The Borrower has not provided any collateral to any third party to secure the Borrower’s obligations, other than the securities described in Schedule FOUR.
(xii) The assets described in Schedule FOUR will constitute all assets that are necessary to keep the Borrower’s business and have been duly authorized by all necessary corporate action on the part of Borrower;
(e) this Amendment has been duly executed and delivered by the Borrower and is the binding obligation of Borrower, enforceable against it in accordance with its terms, except provided as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; and
(f) as of the date hereof, Borrower has no defenses against the obligations to pay any amounts under the Obligations. Borrower acknowledges that Bank has acted in good faith and has conducted in a commercially reasonable manner its relationships with Borrower in connection with this Amendment and in connection with the Loan Documents. Borrower understands and acknowledges that Bank is entering into this Amendment in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriatecollateral.
Appears in 3 contracts
Sources: Loan Agreement (Advanced Micro Devices Inc), Loan Agreement (Spansion Inc.), Loan Agreement (Advanced Micro Devices Inc)
BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants that:
(a) immediately a. Immediately upon giving effect to this Amendment (i) the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), and (ii) no Event of Default has occurred and is continuing;continuing with respect to which Borrower has not been notified in writing by Bank.
(b) b. Borrower has the corporate power and authority to execute and deliver this Amendment and to perform its obligations under the Loan AgreementLSA, as amended by this Amendment;.
(c) the c. The certificate of incorporation incorporation, bylaws and by-laws other organizational documents of Borrower (collectively, “Organizational Documents”) delivered to Bank on or prior to the date hereof are Closing Date remain true, accurate and complete and have not been amended, supplemented or restated (except for such amendments delivered to Bank on or prior to the date hereof) and are and continue to be in full force and effect effect, as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documents;amended.
(d) the d. The execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan AgreementLSA, as amended by this Amendment, have been duly authorized by all necessary corporate action on the part of Borrower;.
(e) this e. This Amendment has been duly executed and delivered by the Borrower and is the binding obligation of Borrower, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; and
(f) as f. As of the date hereof, Borrower it has no defenses against the obligations to pay any amounts under the Obligations. Borrower acknowledges that Bank has acted in good faith and has conducted in a commercially reasonable manner its relationships with Borrower in connection with this Amendment and in connection with the Loan Documents. Borrower understands and acknowledges that Bank is entering into this Amendment in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriate.
Appears in 3 contracts
Sources: Loan and Security Agreement (Backblaze, Inc.), Loan and Security Agreement (Backblaze, Inc.), Loan and Security Agreement (Backblaze, Inc.)
BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants that:
(a) immediately 2.1 Immediately upon giving effect to this Amendment (i) the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), and (ii) no Event of Default has occurred and is continuing;continuing with respect to which Borrower has not been notified in writing by Lender.
(b) 2.2 Borrower has the corporate power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment;.
(c) the 2.3 The certificate of incorporation incorporation, bylaws and by-laws other organizational documents of Borrower (collectively, “Organizational Documents”) delivered to Bank Lender on or prior to the date hereof are Closing Date remain true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documents;effect.
(d) the 2.4 The execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate action on the part of Borrower;.
(e) this 2.5 This Amendment has been duly executed and delivered by the Borrower and is the binding obligation of Borrower, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; and
(f) as 2.6 As of the date hereof, Borrower it has no defenses against the obligations to pay any amounts under the Obligations. Borrower acknowledges that Bank Lender has acted in good faith and has conducted in a commercially reasonable manner its relationships with Borrower in connection with this Amendment and in connection with the Loan Documents. Borrower understands and acknowledges that Bank Lender is entering into this Amendment in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriate.
Appears in 3 contracts
Sources: Loan and Security Agreement (Neos Therapeutics, Inc.), Loan and Security Agreement (Paratek Pharmaceuticals, Inc.), Loan and Security Agreement (Acelrx Pharmaceuticals Inc)
BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants that:
(a) immediately upon giving effect to this Amendment (i) the representations a. Borrower will comply with all laws, statutes, regulations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as of the date hereof (except ordinances pertaining to the extent such representations conduct of Borrower’s business and warranties relate promises to an earlier datehold Lender harmless from any damages, liabilities, costs, expenses (including attorneys’ fees) or other harm arising out of any violation thereof;
b. Borrower is duly organized, licensed, validly existing and in good standing under the laws of its state of formation and shall hereafter remain in good standing in that state, and is duly qualified, licensed and in good standing in every other state in which case they are true and correct as of such date)it is doing business, and (ii) no Event shall hereafter remain duly qualified, licensed and in good standing in every other state in which it is doing business, and shall hereafter remain duly qualified, licensed and in good standing in every other state in which the failure to qualify or become licensed could have a material adverse effect on the financial condition, business or operations of Default Borrower. Notwithstanding the foregoing, at the time of this Note, Borrower has occurred a provisional registration for the operation of a RMD and is continuingseeking a Final Certificate of Registration;
(b) Borrower has c. the corporate power execution, delivery and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment;
(c) the certificate of incorporation and by-laws of Borrower (collectively, “Organizational Documents”) delivered to Bank on or prior to the date hereof are true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documents;
(d) the execution and delivery by Borrower performance of this Amendment Agreement and the performance by Borrower of its obligations under the Loan Agreementany other document executed in connection herewith, as amended by this Amendmentare within Borrower’s powers, have been duly authorized by all necessary corporate action on authorized, are not in contravention of law or the part terms of Borrower’s charter, by-laws or other organization papers, or of any indenture, agreement or undertaking to which Borrower is a party;
(e) this Amendment has been duly executed and delivered by the d. Borrower and is the binding obligation of Borrower, enforceable against it in accordance compliance with its termsorganization documents and by-laws, except as such enforceability all contractual requirements by which it may be limited by bankruptcybound and all applicable laws, insolvencyrules and regulations other than laws, reorganizationrules or regulations the validity or applicability of which it is contesting in good faith or provisions of any of the foregoing the failure to comply with which cannot reasonably be expected to materially adversely affect its financial condition, liquidation, moratorium business or other similar laws prospects or the value of general application and equitable principles relating to or affecting creditors’ rightsthe Collateral; and
(f) as e. There is no action, suit, proceeding or investigation pending or, to Borrower’s knowledge, threatened against or affecting it or any of the date hereofits assets before or by any court or other governmental authority which, Borrower has no defenses against the obligations if determined adversely to pay any amounts under the Obligations. Borrower acknowledges that Bank has acted in good faith and has conducted in it, would have a commercially reasonable manner material adverse effect on its relationships with Borrower in connection with this Amendment and in connection with the Loan Documents. Borrower understands and acknowledges that Bank is entering into this Amendment in reliance uponfinancial condition, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriatebusiness or prospects.
Appears in 3 contracts
Sources: Consulting Agreement (AmeriCann, Inc.), Consulting Agreement (AmeriCann, Inc.), Consulting Agreement (AmeriCann, Inc.)
BORROWER'S REPRESENTATIONS AND WARRANTIES. To induce the Lender to make the Loan provided hereunder, the Borrower represents and warrants that:to the Lender that the following representations and warranties are accurate as of the date of this Loan Agreement.
(a) immediately upon giving effect The Borrower is duly organized and existing in good standing under the laws of the state of its incorporation, is duly qualified to this Amendment (i) the representations transact business and warranties contained is in the Loan Documents are true, accurate and complete good standing in all material respects as of the date hereof (except to the extent such representations states and warranties relate to an earlier date, other jurisdictions in which case they are true and correct as of failure to qualify would have a Material Adverse Effect upon such date)Borrower, and (ii) no Event of Default has occurred and is continuing;
(b) Borrower has the corporate power and authority to execute own its properties and deliver this Amendment assets and to transact the business in which it is engaged, and is or will be qualified in those states and other jurisdictions wherein it proposes to transact material business operations in the future.
(b) The Borrower has the corporate power and requisite authority to execute, deliver and perform its obligations under the Loan AgreementDocuments to be executed by the Borrower. The Borrower is duly authorized to, as amended and has taken all corporate action necessary to authorize such to, execute, deliver and perform the Loan Documents executed by this Amendment;Borrower. The Borrower is and will continue to be duly authorized to perform the Loan Documents executed by it.
(c) Neither the certificate of incorporation execution and by-laws of Borrower (collectively, “Organizational Documents”) delivered to Bank on or prior to the date hereof are true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as delivery of the date hereofLoan Documents, nor the consummation of any of the transactions therein contemplated, nor compliance with the terms and provisions thereof, will contravene or materially conflict with any provision of law, statute or regulation to which Borrower shall promptly deliver is subject, or any judgment, license, order or permit applicable to Bank Borrower, or any amendmentsindenture, supplementsloan agreement, restatements mortgage, deed of trust, or other modifications agreement or instrument to such Organizational Documents;which Borrower is a party or by which Borrower may be bound, or to which Borrower may be subject, or violate any provision of the charter or bylaws of Borrower. No consent, approval, authorization or order of any court or governmental authority or third party is required in connection with the execution and delivery of the Loan Documents by Borrower, or to consummate the transactions contemplated hereby or thereby.
(d) the execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the The Loan Agreement, as amended by this Amendment, Documents have been duly authorized by all necessary corporate action on the part of Borrower;
(e) this Amendment has been duly executed and delivered by the Borrower and is are the legal and binding obligation obligations of the Borrower, enforceable against it in accordance with its their respective terms, except as such enforceability may be limited by any applicable bankruptcy, insolvency, reorganization, liquidation, moratorium insolvency or other similar laws of general application and equitable principles relating to now or hereafter in effect affecting creditors’ rights; and' rights generally.
(e) To the best of our knowledge and belief after current investigation, there is no material fact that Borrower has not disclosed to Lender which could have a material adverse effect on the properties, business, prospects or condition (financial or otherwise) of Borrower. Neither the financial statements, nor any business plan, offering memorandum or prospectus, certificate or statement delivered herewith or heretofore by Borrower to Lender in connection with negotiations of this Loan Agreement, contains any untrue statement of a material fact or omits to state any material fact necessary to keep the statements contained herein or therein from being misleading.
(f) as No event has occurred and is continuing with constitutes an event of default under the Note or this Agreement.
(g) There are no actions, suits, investigations, arbitrations or administrative proceedings pending, or to the knowledge of Borrower threatened, against Borrower, and there has been no change in the status of any of the date hereofactions, suits, investigations, litigation or proceedings disclosed to Lender which could have a materially adverse affect on Borrower has no defenses against or on any transactions contemplated by any Loan Document.
(h) To the obligations best knowledge of the Borrower, it is not a party to, or bound by, any contract or agreement, the faithful performance of which is so onerous so as to pay any amounts under create or to likely create a material adverse effect on the Obligations. Borrower acknowledges that Bank has acted in good faith and has conducted in a commercially reasonable manner its relationships with business, operations or financial condition of the Borrower.
(i) All tax returns to be filed by the Borrower in connection any jurisdiction have been filed (or are subject to valid extensions of time to file as approved by the relevant taxing authority or authorities) and all taxes (including mortgage recording taxes), assessments, fees and other governmental charges upon Borrower or upon any of its properties, income or franchises have been paid.
(j) To the best knowledge of the Borrower is in compliance with all laws, rules, regulations, orders and decrees which are applicable to it, or its properties by reason of any governmental authority which are material to the conduct of the business of Borrower, or any of their properties.
(k) To the best knowledge of the Borrower, all properties of Borrower are in compliance with all federal state or local environmental protection laws, statutes and regulations which are material to the conduct of the business of Borrower, or its properties, and Borrower is currently in compliance with all material reporting requirements, rules, and regulations which are applicable to Borrower or its properties, by reason of such governmental environmental protective agencies.
(l) Neither the business nor the properties of Borrower is currently affected by any environmental hazard, fire, explosion, accident, strike, lockout or other labor dispute, drought, storm, hail, earthquake, embargo, act of God or other casualty (whether or not covered by insurance), which could have a material adverse effect.
(m) Borrower is not an "investment company" as defined in Section 3 of the 1940 Act or a company that would be an investment company except for the exclusions from the definition of an investment company in Section 3(c) of the 1940 Act, and Borrower is not controlled by such a company.
(n) Borrower is, and after consummation of this Amendment Loan Agreement and giving effect to all Indebtedness incurred and transactions contemplated in connection with the Loan Documents. Borrower understands and acknowledges that Bank is entering into this Amendment in reliance uponherewith will be, and in partial consideration for, the above solvent.
(o) All representations and warrantieswarranties by the Borrower and all of its subsidiaries, if any, shall survive the loan closing, any investigation at any time made by or on behalf of the Lender shall not diminish Lender's right to rely on the Borrower's representations and agrees that such reliance is reasonable and appropriatewarranties as herein set forth.
Appears in 3 contracts
Sources: Loan Agreement (Tor Minerals International Inc), Loan Agreement (Tor Minerals International Inc), Loan Agreement (Tor Minerals International Inc)
BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants that:
(a) immediately 2.1 Immediately upon giving effect to this Amendment (i) the representations and warranties contained in the Loan Documents are true, accurate true and complete correct in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct in all material respects as of such date), date and (ii) no Event of Default has occurred and is continuing;continuing with respect to which Borrower has not been notified in writing by Agent or Lender.
(b) 2.2 Borrower has the corporate power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment;.
(c) the certificate of incorporation and by-laws of Borrower (collectively, “Organizational Documents”) delivered to Bank on or prior to the date hereof are true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documents;
(d) the 2.3 The execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate action on the part of Borrower;.
(e) this 2.4 This Amendment has been duly executed and delivered by the Borrower and is the binding obligation of Borrower, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; and.
(f) as 2.5 As of the date hereof, Borrower it has no defenses against the obligations to pay any amounts under the Obligations. Borrower acknowledges that Bank has each of Agent and Lender has, as of the date hereof, acted in good faith and has conducted in a commercially reasonable manner its relationships with Borrower in connection with this Amendment and in connection with the Loan Documents. Borrower understands and acknowledges that Bank each of Agent and Lender is entering into this Amendment in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriate.
Appears in 3 contracts
Sources: Loan and Security Agreement (Aveo Pharmaceuticals, Inc.), Loan and Security Agreement (Aveo Pharmaceuticals, Inc.), Loan and Security Agreement (Paratek Pharmaceuticals, Inc.)
BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants that:
(a) immediately 2.1 Immediately upon giving effect to this Amendment (i) the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), after giving effect in all cases to any standard(s) of materiality contained in the Loan Agreement as to such representations and warranties and (ii) no Event of Default has occurred and is continuing;continuing with respect to which Borrower has not been notified in writing by Agent or Lender.
(b) 2.2 Borrower has the corporate power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment;.
(c) the 2.3 The certificate of incorporation incorporation, bylaws and by-laws other organizational documents of Borrower (collectively, “Organizational Documents”) delivered to Bank Agent and/or Lender on or prior to the date hereof are Closing Date remain true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documents;effect.
(d) the 2.4 The execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate action on the part of Borrower;.
(e) this 2.5 This Amendment has been duly executed and delivered by the Borrower and is the binding obligation of Borrower, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; and.
(f) as 2.6 As of the date hereof, Borrower it has no defenses against the obligations to pay any amounts under the Secured Obligations. Borrower acknowledges that Bank each of Agent and Lender has acted in good faith and has conducted in a commercially reasonable manner its relationships with Borrower in connection with this Amendment and in connection with the Loan Documents. Borrower understands and acknowledges that Bank each of Agent and Lender is entering into this Amendment in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriate.
Appears in 3 contracts
Sources: Loan and Security Agreement (Oak Street Health, Inc.), Loan and Security Agreement (Oak Street Health, Inc.), Loan and Security Agreement (Oak Street Health, Inc.)
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants that:
(a) immediately upon giving effect to this Amendment (i) the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), and (ii) no Event of Default has occurred and is continuing;
(b) the Borrower has the corporate power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment;
(c) the certificate or articles of incorporation incorporation, bylaws and by-laws other organizational documents of the Borrower (collectively, “Organizational Documents”) previously delivered to Bank on or prior to the date hereof are Lender remain true, accurate and complete and have not been amended, restated, supplemented or restated and are otherwise modified and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documentseffect;
(d) the execution and delivery by the Borrower of this Amendment and the performance by the Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate action on the part of the Borrower;
(e) this Amendment has been duly executed and delivered by the Borrower and is the binding obligation of the Borrower, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rightsrights generally; and
(f) as of the date hereof, the Borrower has no defenses against the obligations to pay any amounts under the Obligations. The Borrower acknowledges that Bank the Lender has acted in good faith and has conducted in a commercially reasonable manner its relationships with the Borrower in connection with this Amendment and in connection with the Loan Documents. The Borrower understands and acknowledges that Bank the Lender is entering into this Amendment in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriate.
Appears in 2 contracts
Sources: Loan and Security Agreement (Enphase Energy, Inc.), Loan and Security Agreement (Enphase Energy, Inc.)
BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants that:
(a) immediately upon giving effect to this Amendment (i) the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), and (ii) no Event of Default has occurred and is continuingcontinuing with respect to which Borrower has not been notified in writing by Lender;
(b) Borrower has the corporate company power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment;
(c) the certificate of incorporation incorporation, bylaws and by-laws other organizational documents of Borrower (collectively, “Organizational Documents”) delivered to Bank Lender on or prior to the date hereof are Closing Date remain true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documentseffect;
(d) the execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate company action on the part of Borrower;
(e) this Amendment has been duly executed and delivered by the Borrower and is the binding obligation of Borrower, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; and
(f) as of the date hereof, Borrower it has no defenses against the obligations to pay any amounts under the Obligations. Borrower acknowledges that Bank Lender has acted in good faith and has conducted in a commercially reasonable manner its relationships with Borrower in connection with this Amendment and in connection with the Loan Documents. Borrower understands and acknowledges that Bank Lender is entering into this Amendment in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriate.
Appears in 2 contracts
Sources: Loan and Security Agreement (Quanterix Corp), Loan and Security Agreement (Quanterix Corp)
BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants that:
(a) immediately upon giving effect to this Amendment (i) the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), and (ii) no Event of Default has occurred and is continuing;
(b) Borrower has the corporate power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment;
(c) the certificate of incorporation and by-laws bylaws of Borrower (collectively, “Organizational Documents”) delivered to Bank on or prior to the date hereof Fourth Amendment Effective Date are true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documents;
(d) the execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate action on the part of Borrower;
(e) this Amendment has been duly executed and delivered by the Borrower and is the binding obligation of Borrower, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; and
(f) as of the date hereof, Borrower it has no defenses against the obligations to pay any amounts under the Obligations. Borrower acknowledges that Bank has acted in good faith and has conducted in a commercially reasonable manner its relationships with Borrower in connection with this Amendment and in connection with the Loan Documents. Borrower understands and acknowledges that Bank is entering into this Amendment in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriate.
Appears in 2 contracts
Sources: Loan and Security Agreement (Saba Software Inc), Loan and Security Agreement (Saba Software Inc)
BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants that:
that (a) immediately upon giving effect to this Amendment (i) it is in good standing under the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as laws of the date hereof (state of its formation, duly qualified to do business and will remain duly qualified during the term of each Loan in each state where necessary to carry on its present business and operations, including the jurisdiction(s) where the Collateral will be located as specified on each Exhibit A to each Note, except where failure to the extent such representations and warranties relate be so qualified could not reasonable be expected to an earlier date, in which case they are true and correct as of such date), and (ii) no Event of Default has occurred and is continuing;
have a Material Adverse Effect; (b) Borrower it has the corporate power and full authority to execute and deliver this Amendment Security Agreement and to the Notes and perform its the terms hereof and thereof, and this Security Agreement and the Notes have been duly authorized, executed and delivered and constitute valid and binding obligations under the Loan Agreement, as amended by this Amendment;
of Borrower enforceable in accordance with their terms; (c) the certificate of incorporation and by-laws of Borrower (collectively, “Organizational Documents”) delivered to Bank on or prior to the date hereof are true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documents;
(d) the execution and delivery by Borrower of this Amendment Security Agreement and the performance by Notes will not contravene any law, regulation or judgment affecting Borrower or result in any breach of its obligations under the Loan Agreementany material agreement or other instrument binding on Borrower; (d) no consent of Borrower's shareholders or holder of any indebtedness, or filing with, or approval of, any governmental agency or commission, which has not already been obtained or performed, as amended by appropriate, is a condition to the performance of the terms of this Amendment, have been duly authorized by all necessary corporate action on Security Agreement or the part of Borrower;
Notes; (e) this Amendment has been duly executed and delivered by there is no action or proceeding pending or threatened against Borrower before any court or administrative agency which might have a Material Adverse Effect on the Borrower and is the binding obligation business, financial condition or operations of Borrower, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; and
(f) as at the time any Loan is made hereunder, Borrower owns and will keep all of the date hereofCollateral free and clear of all liens, claims and encumbrances other than Permitted Liens, and, except for this Security Agreement, there is no deed of trust, mortgage, security agreement or other third party interest against any of the Collateral other than Permitted Liens; (g) at the time any Loan is made hereunder, Borrower has no defenses against good and marketable title to the obligations Collateral; (h) at the time any Loan is made hereunder, all Collateral has been received, installed and is ready for use and is satisfactory in all respects for the purposes of this Security Agreement; (i) the Collateral is, and will remain at all times under applicable law, removable personal property, which is free and clear of any lien or encumbrance except in favor of Lender and except for Permitted Liens, notwithstanding the manner in which the Collateral may be attached to pay any amounts under real property; (j) all credit and financial information submitted to Lender herewith or at any other time is and will at the Obligationstime given be true and correct in all material respects; and (k) the security interest granted to Lender hereunder is a first priority security interest, and (l) on or before January 1, 2000, Borrower's computer system shall be Year 2000 performance compliant and will thus be able to accurately process date data from, into and between the twentieth and twenty-first centuries including leap year calculations. Borrower acknowledges that Bank has acted "Permitted Liens" shall mean and include: (i) liens for taxes or other governmental charges not at the time delinquent or thereafter payable without penalty or being contested in good faith faith; and has conducted (ii) liens of carriers, warehousemen, mechanics, materialmen, vendors, landlords and other liens arising by operation of law for obligations incurred in a commercially reasonable manner its relationships with Borrower the ordinary course of business not at the time delinquent or thereafter payable without penalty or being contested in connection with this Amendment and in connection with the Loan Documents. Borrower understands and acknowledges that Bank is entering into this Amendment in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriategood faith.
Appears in 2 contracts
Sources: Senior Loan and Security Agreement (Avanex Corp), Senior Loan and Security Agreement (Avanex Corp)
BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants that:
(a) immediately Immediately upon giving effect to this Amendment (i) the representations and warranties contained in the Loan Documents are true, accurate true and complete correct in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), and (ii) no Event of Default has occurred and is continuing;continuing with respect to which Borrower has not been notified in writing by Lender.
(b) Borrower has the corporate power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment;
(c) the The certificate of incorporation organization, operating agreement and by-laws other organizational documents of Borrower (collectively, “Organizational Documents”) previously delivered to Bank on or prior to the date hereof are Lender remain true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documents;effect.
(dc) the The execution and delivery by Borrower of this Amendment and the performance by Borrower of all of its agreements and obligations under the Loan AgreementAgreement and other Loan Documents, as amended by this Amendment, have been duly authorized by all necessary corporate company action on the part of Borrower;. With respect to Borrower, the execution and delivery by Borrower of this Amendment does not and will not require any registration with, consent or approval of, or notice to any Person (including any governmental authority).
(ed) this Amendment has been duly executed This Amendment, the Loan Agreement and delivered by the other Loan Documents, as amended hereby, constitute the legal, valid and binding obligations of Borrower and is the binding obligation of Borrower, enforceable against it Borrower in accordance with its their terms, except as such enforceability may be is limited by bankruptcy, insolvency, reorganization, liquidationmoratorium, moratorium general equitable principles or other similar laws of general application and equitable principles relating to or affecting generally the enforcement of, creditors’ rights; andrights and except to the extent that availability of the remedy of specific performance or injunctive relief is subject to the discretion of the court before which any proceeding therefor may be brought.
(fe) as of the date hereof, Borrower has no defenses against the obligations Immediately after giving effect to pay any amounts under the Obligations. Borrower acknowledges that Bank has acted in good faith and has conducted in a commercially reasonable manner its relationships with Borrower in connection with this Amendment and in connection (i) no fact or condition exists that would (or would, with the Loan Documents. Borrower understands and acknowledges that Bank is entering into this Amendment in reliance uponpassage of time, the giving of notice, or both) constitute an Event of Default, and in partial consideration for, the above representations (ii) no event that has had or could reasonably be expected to have a Material Adverse Effect has occurred and warranties, and agrees that such reliance is reasonable and appropriatecontinuing.
Appears in 2 contracts
Sources: Loan and Security Agreement (Genocea Biosciences, Inc.), Loan and Security Agreement (Genocea Biosciences, Inc.)
BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower hereby represents and warrants that:
(a) immediately upon giving effect to this Amendment (i) warrants, as of the representations Effective Date and warranties contained in the Loan Documents are true, accurate and complete in all material respects as of the date hereof (except of the Initial Closing and the Second Closing, to the extent Lender(s) that (any reference in this Section 10 to the Borrower shall be deemed to apply to the Borrower and all Group Companies):
10.1. The Borrower is a corporation duly organized and validly existing under the laws of the state of its incorporation and has the power to own and lease its properties and to carry on its business as now being conducted and as proposed to be conducted.
10.2. Assuming provision of the Initial Tranche and the Second Tranche pursuant to this agreement, the Borrower is not "insolvent", within the meaning prescribed by applicable law, or unable to pay its debts and liabilities (including contingent, future or subordinated) when due, nor could it be deemed by a court to be insolvent or unable to pay such representations and warranties relate to an earlier datedebts when due, nor, in which case they are true and correct any such case, will it become so as a result of such date)entering into this Agreement, and (ii) no Event of Default has occurred and is continuing;or performing any transaction contemplated by the Transaction Documents.
(b) 10.3. The Borrower has the corporate full power and authority to execute and deliver consummate the transactions contemplated hereunder. Unless otherwise provided in this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment;
(c) no consents, authorizations or approvals of any kind of any governmental authority or other third party are required in connection with the certificate of incorporation and by-laws of Borrower (collectively, “Organizational Documents”) delivered to Bank on execution or prior to the date hereof are true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as performance of the date hereofTransaction Documents by Borrower, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documents;consents have been obtained.
(d) 10.4. The consummation of the execution and delivery by Borrower of this Amendment transactions contemplated hereunder and the performance of the Transaction Documents by the Borrower do not violate the provisions of its obligations the Articles of Association of the Borrower, or any applicable law, and will not result in any breach of, or constitute a default under, any agreement or instrument to which the Borrower is a party or under which it is bound. The execution and performance of the Loan Agreement, as amended Transaction Documents by this Amendment, the Borrower have been duly authorized by all necessary corporate action on actions, and the part of Borrower;
(e) this Amendment has Transaction Documents have been duly executed and delivered by the Borrower. The Transaction Documents are valid and binding upon the Borrower and is the binding obligation of Borrower, enforceable against it in accordance with its their terms.
10.5. The execution and performance of the Transaction Documents by the Borrower will not (a) give to others any rights, except including rights of termination, cancellation or acceleration, in or with respect to any agreement, contract or commitment referred to in this paragraph, or to any of the properties of the Borrower, or (b) unless otherwise provided in this Agreement, require the consent or approval of any person or entity.
10.6. In this Agreement, all patents, trademarks, service marks, trade names, copyrights and all trade secrets, including know-how, invention, designs, processes, computer programs, algorithms, drawings, photographs, models, and any other form of intellectual property, shall collectively referred to herein as such enforceability “Intellectual Property”. The Borrower's registered or registrable Intellectual Property is listed on Appendix E hereof (“Registered IP”). Intellectual Property which is not listed in Appendix E shall be referred to as “Un-Registered IP”. The Borrower possesses all right, title, and interest in and to the Registered IP (it being understood that with respect to patents, the foregoing representations shall apply only to the ownership of a patent application and the inventions covered thereunder and not as a representation regarding the patentability of any invention or the scope of any patent that may be limited granted pursuant to such application). All Un-Registered IP which the Borrower currently uses or intends to use is either owned by bankruptcythe Borrower or the Borrower has the right to use such Un-Registered IP pursuant to written license, insolvencysublicense, reorganizationagreement, liquidationor permission, moratorium free and clear of any security interest, third party rights and royalties or other similar laws fees. Each item of general application Intellectual Property owned or used by the Borrower immediately prior to either the Initial Closing or the Second Closing hereunder, as the case may be, will be owned or available for use by the Borrower on substantially the same terms and equitable principles relating conditions immediately subsequent to the Initial Closing or affecting creditors’ rights; and
(f) the Second Closing hereunder, as of the date applicable. The Borrower's Funded-IP is also listed on Appendix E hereof, Borrower has no defenses against the obligations to pay any amounts under the Obligations. Borrower acknowledges that Bank has acted in good faith and has conducted in a commercially reasonable manner its relationships with Borrower in connection with this Amendment and in connection with the Loan Documents. Borrower understands and acknowledges that Bank is entering into this Amendment in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriate.
Appears in 2 contracts
Sources: Loan Financing Agreement (Ivy Jerry Lafe JR), Loan Financing Agreement (On Track Innovations LTD)
BORROWER'S REPRESENTATIONS AND WARRANTIES. As a material inducement to the Administrative Agent and the Lenders to execute and deliver this Amendment, the Borrower represents and warrants to the Lenders (with the knowledge and intent that the Lenders are relying upon the same in entering into this Amendment) that as of the Amendment Effective Date and as of the date of its execution of this Amendment, that:
(a) immediately upon This Amendment, the Credit Agreement as amended hereby, and each other Loan Document have been duly authorized, executed and delivered by the Borrower and constitute its legal, valid and binding obligations enforceable against it in accordance with their respective terms (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting creditors’ rights generally and to general principles of equity).
(b) There has been no event or circumstance since the date of the financial statements dated as of December 31, 2004 delivered pursuant to Section 6.01(a) of the Credit Agreement which has or could reasonably be expected to have a Material Adverse Effect. The representations and warranties set forth in Article V of the Credit Agreement are true and correct in all material respects on and as of the Amendment Effective Date, after giving effect to this Amendment (i) the representations Amendment, as if made on and warranties contained in the Loan Documents are true, accurate and complete in all material respects as of the date hereof (Amendment Effective Date except to the extent such representations and warranties relate solely to an earlier date, in which case case, they are shall be true and correct as of such date).
(c) As of the date hereof, at the time of and (ii) after giving effect to this Amendment, no Default or Event of Default has occurred and is continuing;
(b) Borrower has the corporate power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment;
(c) the certificate of incorporation and by-laws of Borrower (collectively, “Organizational Documents”) delivered to Bank on or prior to the date hereof are true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documents;.
(d) No approval, consent, exemption, authorization or other action by, or notice to, or filing with, any Governmental Authority is required to be obtained or made by the execution Borrower by any material statutory law or regulation applicable to it as a condition to the execution, delivery or performance by, or enforcement against, the Borrower of this Amendment. The execution, delivery and delivery performance by the Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have has been duly authorized by all necessary corporate action or other organizational action, and does not and will not (i) violate the terms of any of the Borrower’s Organization Documents, (ii) result in any breach of, constitute a default under, or require pursuant to the express provisions thereof, the creation of any consensual Lien on the part properties of Borrower;
(e) this Amendment has been duly executed and delivered by the Borrower and under, any Contractual Obligation to which the Borrower is a party or any order, injunction, writ or decree of any Governmental Authority to which the binding obligation of BorrowerBorrower or its property is subject, enforceable against it or (iii) violate any Law, in accordance each case with its termsrespect to the preceding clauses (i) through (iii), except as such enforceability may which would reasonably be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating expected to or affecting creditors’ rights; and
(f) as of the date hereof, Borrower has no defenses against the obligations to pay any amounts under the Obligations. Borrower acknowledges that Bank has acted in good faith and has conducted in have a commercially reasonable manner its relationships with Borrower in connection with this Amendment and in connection with the Loan Documents. Borrower understands and acknowledges that Bank is entering into this Amendment in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriateMaterial Adverse Effect.
Appears in 2 contracts
Sources: Credit Agreement (Enbridge Energy Partners Lp), Credit Agreement (Enbridge Energy Partners Lp)
BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants that:
that (a) immediately upon giving effect to this Amendment (i) it is in good standing under the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as laws of the date hereof (state of its formation, duly qualified to do business and will remain duly qualified during the term of each Loan in each state where necessary to carry on its present business and operations, including the jurisdiction(s) where the Collateral will be located as specified on each Exhibit A to each Note, except where failure to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), and (ii) no Event of Default has occurred and is continuing;
be so qualified would not have a Material Adverse Effect; (b) Borrower it has the corporate power and full authority to execute and deliver this Amendment Security Agreement and to the Notes and perform its the terms hereof and thereof, and this Security Agreement and the Notes have been duly authorized, executed and delivered and constitute valid and binding obligations under the Loan Agreement, as amended by this Amendment;
of Borrower enforceable in accordance with their terms; (c) the certificate of incorporation and by-laws of Borrower (collectively, “Organizational Documents”) delivered to Bank on or prior to the date hereof are true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documents;
(d) the execution and delivery by Borrower of this Amendment Security Agreement and the performance by Notes will not contravene any law, regulation or judgment affecting Borrower or result in any breach of its obligations under the Loan Agreementany material agreement or other instrument binding on Borrower; (d) no consent of Borrower's shareholders or holder of any indebtedness, or filing with, or approval of, any governmental agency or commission, which has not already been obtained or performed, as amended by appropriate, is a condition to the performance of the terms of this Amendment, have been duly authorized by all necessary corporate action on Security Agreement or the part of Borrower;
Notes; (e) this Amendment has been duly executed and delivered by there is no action or proceeding pending or threatened against Borrower before any court or administrative agency which might have a Material Adverse Effect on the Borrower and is the binding obligation business, financial condition or operations of Borrower, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; and
(f) as at the time any Loan is made hereunder, Borrower owns and will keep all of the date hereofCollateral free and clear of all liens, claims and encumbrances, and, except for this Security Agreement, there is no deed of trust, mortgage, security agreement or other third party interest against any of the Collateral; (g) at the time any Loan is made hereunder, Borrower has no defenses against good and marketable title to the obligations to pay Collateral; (h) at the time any amounts under Loan is made hereunder, all Collateral has been received, installed and is ready for use and is satisfactory in all respects for the Obligations. Borrower acknowledges that Bank has acted in good faith and has conducted in a commercially reasonable manner its relationships with Borrower in connection with purposes of this Amendment and in connection with Security Agreement; (i) the Loan Documents. Borrower understands and acknowledges that Bank is entering into this Amendment in reliance uponCollateral is, and will remain at all times under applicable law, removable personal property, which is free and clear of any lien or encumbrance except in partial consideration forfavor of Lender, notwithstanding the above representations manner in which the Collateral may be attached to any real property; (j) all credit and warrantiesfinancial information submitted to Lender herewith or at any other time is and will at the time given be true and correct in all material respects; and (k) the security interest granted to Lender hereunder is a first priority security interest, and agrees that such reliance is reasonable (l) on or before January 1, 2000, Borrower's computer system shall be Year 2000 performance compliant and appropriatewill thus be able to accurately process date data from, into and between the twentieth and twenty-first centuries including leap year calculations.
Appears in 2 contracts
Sources: Senior Loan and Security Agreement (Cybergold Inc), Senior Loan and Security Agreement (Play Co Toys & Entertainment Corp)
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants that:
(a) immediately upon giving effect to this Amendment (i) a Lender A and the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as Agent that each of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are following matters is true and correct as of such date)the Execution Date and the Drawdown Date. If any of the matters set forth under each of the following items is found to be untrue, the Borrower shall fully indemnify the Lender A and the Agent for all losses and expenses incurred thereby.
(i) The Borrower is a stock company duly incorporated and validly existing under the laws of Japan.
(ii) no Event The Borrower has full legal competence necessary for the execution and performance of Default the Relevant Agreements, the execution and performance of the Relevant Agreements by the Borrower and any transactions associated therewith are within the corporate purposes of the Borrower and the Borrower has occurred duly completed all procedures necessary therefor under Laws and is continuing;Ordinances, the Articles of Incorporation and other internal company rules of the Borrower.
(iii) The execution and performance of the Relevant Agreements by the Borrower and any transactions associated therewith will not result in (a) any violation of Laws and Ordinances that bind the Borrower, (b) Borrower has any breach of the corporate power and authority to execute and deliver this Amendment and to perform its obligations under Articles of Incorporation or other internal company rules of the Loan AgreementBorrower, as amended by this Amendment;
or (c) any breach in any material respect of a third-party contract to which the certificate Borrower is a party or which binds the Borrower or the assets of incorporation the Borrower.
(iv) The person who signs or attaches his or her name and by-laws of Borrower (collectively, “Organizational Documents”) delivered to Bank on or prior seal to the date hereof are trueRelevant Agreements is authorised to sign or attach his or her name and seal to the Relevant Agreements as the representative of the Borrower by all procedures necessary pursuant to Laws and Ordinances, accurate the Articles of Incorporation and complete other internal company rules of the Borrower.
(v) The Relevant Agreements constitute legal, valid and have not been amendedbinding obligations of the Borrower, supplemented or restated and are enforceable against the Borrower in accordance with the terms thereof.
(vi) The Relevant Agreements (other than this Agreement) are validly formed and continue exist with the same content as the agreements disclosed to be the Agent.
(vii) All Reports prepared by the Borrower are accurately and duly prepared in full force and effect as accordance with generally accepted accounting standards in Japan.
(viii) After the last day of the date hereoffiscal year ended in December 2004, and there has been no material change that will cause a significant deterioration of the business, assets, or financial condition of the Borrower shall promptly deliver to Bank any amendments, supplements, restatements described in the audited fiscal statement of that fiscal year or other modifications to such Organizational Documents;that may materially affect the performance of the obligations of the Borrower under the Relevant Agreements.
(dix) No lawsuit, arbitration, administrative procedure, or any other dispute has commenced, or is likely to commence to the execution and delivery by Borrower best knowledge of this Amendment and the Borrower, with respect to the Borrower, that will or may materially cause adverse effects on the performance by Borrower of its obligations under the Loan Relevant Agreements.
(x) No event described in the items of Clauses 24.1 and 24.2 has occurred or is likely to occur.
(xi) FUJITSU LIMITED owns 100% of the equity contributions to FMH, FMH’s equity contributions to Spansion LLC will not fall below 40%, and Spansion LLC owns 100% of the equity contributions to the Borrower.
(xii) The Borrower has not offered any security other than that described in Schedule 2.
(xiii) The assets required for the continuation of the Borrower’s business have been offered as security to FUJITSU LIMITED as described in Schedule 2.
(xiv) Except for the Accounts Receivables Trust Agreement, as amended by this Amendment, have been duly authorized by the Borrower has not entered into with a Lender or any third party any agreement creating a security interest on or assigning all necessary corporate action on of the part of Borrower;
(e) this Amendment has been duly executed and delivered accounts receivables either currently held by the Borrower and is against FUJITSU LIMITED or that will accrue in the binding obligation of Borrower, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; and
(f) as future before the termination date of the date hereof, Borrower has no defenses against the obligations to pay any amounts under the Obligations. Borrower acknowledges that Bank has acted in good faith and has conducted in a commercially reasonable manner its relationships with Borrower in connection with this Amendment and in connection with the Loan Documents. Borrower understands and acknowledges that Bank is entering into this Amendment in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriateAccounts Receivables Trust Agreement.
Appears in 2 contracts
Sources: Revolving Line Agreement (Advanced Micro Devices Inc), Revolving Line Agreement (Spansion Inc.)
BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants that:
(a) immediately 2.1 Immediately upon giving effect to this Amendment (i) the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), after giving effect in all cases to any standard(s) of materiality contained in the Loan Agreement as to such representations and warranties, (ii) no fact or condition exists that could (or could, with the passage of time, the giving of notice, or both) reasonably be expected to constitute an Event of Default and (iii) no event that has had or could reasonably be expected to have a Material Adverse Effect has occurred and or is continuing;.
(b) 2.2 Borrower has the corporate power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment;.
(c) the 2.3 The certificate of incorporation incorporation, bylaws and by-laws other organizational documents of Borrower (collectively, “Organizational Documents”) delivered to Bank Agent and/or Lender on or prior to the date hereof are Closing Date remain true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documents;effect.
(d) the 2.4 The execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate action on the part of Borrower;.
(e) this 2.5 This Amendment has been duly executed and delivered by the Borrower and is the binding obligation of Borrower, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; and.
(f) as 2.6 As of the date hereof, Borrower it has no defenses against the obligations to pay any amounts under the Secured Obligations. Borrower acknowledges that Bank each of Agent and Lender has acted in good faith and has conducted in a commercially reasonable manner its relationships with Borrower in connection with this Amendment and in connection with the Loan Documents. Borrower understands and acknowledges that Bank each of Agent and Lender is entering into this Amendment in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriate.
Appears in 2 contracts
Sources: Loan and Security Agreement (Antares Pharma, Inc.), Loan and Security Agreement (Genocea Biosciences, Inc.)
BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants that:
(a) immediately 2.1 Immediately upon giving effect to this Amendment (i) the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), after giving effect in all cases to any standard(s) of materiality contained in the Loan Agreement as to such representations and warranties and (ii) no Event of Default has occurred and is continuing;continuing with respect to which Borrower has not been notified in writing by Agent or Lender.
(b) 2.2 Borrower has the corporate power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment;.
(c) the 2.3 The certificate of incorporation incorporation, bylaws and by-laws other organizational documents of Borrower (collectively, “Organizational Documents”) delivered to Bank Agent and/or Lender on or prior to the date hereof are Closing Date remain true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documents;effect.
(d) the 2.4 The execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate action on the part of Borrower;.
(e) this 2.5 This Amendment has been duly executed and delivered by the Borrower and is the binding obligation of Borrower, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; and.
(f) as 2.6 As of the date hereof, Borrower it has no defenses against the obligations to pay any amounts under the Obligations. Borrower acknowledges that Bank each of Agent and Lender has acted in good faith and has conducted in a commercially reasonable manner its relationships with Borrower in connection with this Amendment and in connection with the Loan Documents. Borrower understands and acknowledges that Bank each of Agent and Lender is entering into this Amendment in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriate.
Appears in 2 contracts
Sources: Loan and Security Agreement (Verastem, Inc.), Loan and Security Agreement (Verastem, Inc.)
BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants that:
(a) immediately upon giving effect to this Amendment (i) the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), and (ii) no Event of Default has occurred and is continuing;
(b) Borrower has the corporate power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment;
(c) the certificate of incorporation as amended on November 10, 2008, and by-laws the bylaws and other organizational documents of Borrower (collectively, “Organizational Documents”) delivered to Bank on or prior to the date hereof are Effective Date, remain true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documentseffect;
(d) the execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate action on the part of Borrower;
(e) this Amendment has been duly executed and delivered by the Borrower and is the binding obligation of Borrower, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; and
(f) as of the date hereof, Borrower it has no defenses against the obligations to pay any amounts under the Obligations. Borrower acknowledges that Bank has acted in good faith and has conducted in a commercially reasonable manner its relationships with Borrower in connection with this Amendment and in connection with the Loan Documents. Borrower understands and acknowledges that Bank is entering into this Amendment in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriate.
Appears in 2 contracts
Sources: Loan and Security Agreement (Yodlee Inc), Loan and Security Agreement (Yodlee Inc)
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants that:
(a) immediately upon giving effect to this Amendment (i) hereby reaffirms all of the representations and warranties contained set forth in the Loan Documents are trueDocuments, accurate and complete in all material respects as further represents and warrants that (a) the Borrower is the sole legal and beneficial owner of the date hereof Property; (except b) the execution and delivery of this Modification Agreement do not contravene, result in a breach of, or constitute a default under, any mortgage, loan agreement, indenture or other contract or agreement to which the extent Borrower is a party or by which the Borrower or any of its properties may be bound (nor would such representations execution and warranties relate to an earlier date, in which case they are true and correct as delivery constitute such a default with the passage of such datetime or the giving of notice or both), and (ii) no Event of Default has occurred and do not violate or contravene any law, order, decree, rule, regulation or restriction to which the Borrower or the Property is continuing;
(b) Borrower has the corporate power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment;
subject; (c) this Modification Agreement constitutes the certificate of incorporation legal, valid and by-laws of Borrower (collectively, “Organizational Documents”) delivered to Bank on or prior to the date hereof are true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as binding obligations of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documents;
enforceable in accordance with its terms; (d) the execution and delivery by Borrower of, and performance under, this Agreement are within the Borrower’s power and authority without the joinder or consent of this Amendment any other party and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate action on the part requisite action, and are not in contravention of any law, or of Borrower;
’s articles of organization or operating agreement, or of any indenture, agreement or undertaking to which Borrower is a party or by which it is bound; (e) this Amendment has been there exists no uncured default by Borrower or Guarantors under the Notes or any of the other Loan Documents; (f) there are no offsets, claims, counterclaims, cross-claims or defenses with respect to the Obligations; and (g) Borrower is duly executed organized and delivered by legally existing under the laws of the State of Delaware and qualified to do business in the State of California. The Borrower further represents and is the binding obligation of Borrower, enforceable against it in accordance with its termswarrants that, except as such enforceability may be limited by bankruptcydisclosed to Administrative Agent in writing, insolvencythere is no suit, reorganizationjudicial or administrative action, liquidationclaim, moratorium investigation, inquiry, proceeding or demand pending (or, to the Borrower’s knowledge, threatened) against (i) the Borrower, or against any other similar laws of general application and equitable principles relating to person liable directly or affecting creditors’ rights; and
(f) as of the date hereof, Borrower has no defenses against the obligations to pay any amounts under indirectly for the Obligations. Borrower acknowledges that Bank has acted in good faith and has conducted in a commercially reasonable manner its relationships with Borrower in connection with this Amendment and in connection with , or (ii) which affects the Property or the Borrower’s title to the Property, or (iii) which affects the validity, enforceability or priority of any of the Loan Documents. The Borrower understands agrees to indemnify and acknowledges that Bank is entering into this Amendment hold the Administrative Agent and all Lenders harmless against any loss, claim, damage, liability or expense (including, without limitation, attorneys’ fees) incurred as a result of any representation or warranty made by the Borrower herein which proves to be untrue or inaccurate in reliance uponany respect, and in partial consideration for, any such occurrence shall constitute a default under the above representations and warranties, and agrees that such reliance is reasonable and appropriateLoan Documents.
Appears in 2 contracts
Sources: Construction Loan Modification Agreement, Construction Loan Agreement (Skechers Usa Inc)
BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants that:
(a) immediately upon giving effect to this Amendment (i) the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), and (ii) no Event of Default has occurred and is continuingcontinuing with respect to which Borrower has not been notified in writing by Lender;
(b) Borrower has the corporate power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment;
(c) the certificate of incorporation incorporation, bylaws and by-laws other organizational documents of Borrower (collectively, “Organizational Documents”) delivered to Bank Lender on or prior to the date hereof are Closing Date remain true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documentseffect;
(d) the execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate action on the part of Borrower;
(e) this Amendment has been duly executed and delivered by the Borrower and is the binding obligation of Borrower, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; and
(f) as of the date hereof, Borrower it has no defenses against the obligations to pay any amounts under the Obligations. Borrower acknowledges that Bank Lender has acted in good faith and has conducted in a commercially reasonable manner its relationships with Borrower in connection with this Amendment and in connection with the Loan Documents. .
(g) Borrower understands and acknowledges that Bank Lender is entering into this Amendment in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriate.
Appears in 2 contracts
Sources: Loan and Security Agreement (Dicerna Pharmaceuticals Inc), Loan and Security Agreement (Dicerna Pharmaceuticals Inc)
BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants that:
(a) immediately upon giving effect to this Amendment (i) the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), and (ii) no Event of Default has occurred and is continuing;
(b) Borrower has the corporate power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment;
(c) the certificate of incorporation incorporation, bylaws and by-laws other organizational documents of Borrower (collectively, “Organizational Documents”) delivered to Bank on or prior to the date hereof are Effective Date remain true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documentseffect;
(d) the execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate action on the part of Borrower;
(e) this Amendment has been duly executed and delivered by the Borrower and is the binding obligation of Borrower, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ ' rights; and
(f) as of the date hereof, Borrower it has no defenses against the obligations to pay any amounts under the Obligations. Borrower acknowledges that Bank has acted in good faith and has conducted in a commercially reasonable manner its relationships with such Borrower in connection with this Amendment and in connection with the Loan Documents. Borrower understands and acknowledges that Bank is entering into this Amendment in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriate.
Appears in 2 contracts
Sources: Loan and Security Agreement (Radisys Corp), Loan and Security Agreement (Radisys Corp)
BORROWER'S REPRESENTATIONS AND WARRANTIES. In order to induce Lenders to enter into this Amendment, Borrower represents and warrants thatto Lenders that after giving effect to this Amendment in the manner contemplated by Section 4.6 of this Amendment, each of the following is true and correct:
(a) immediately upon giving effect to this Amendment no event has occurred and is continuing which constitutes an Event of Default or Potential Event of Default;
(ib) the representations and warranties of Borrower and the other Credit Parties contained in the Credit Agreement and the other Loan Documents are true, accurate true and complete in all material respects correct on and as of the date hereof and as of the Effective Date (as defined below) to the same extent as though made on and as of the date hereof and as of the Effective Date except to the extent such representations and warranties specifically relate to an earlier date, in which case they are true and correct in all material respects as of such earlier date), and (ii) no Event of Default has occurred and is continuing;
(b) Borrower has the corporate power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment;
(c) the certificate of incorporation and by-laws each of Borrower (collectively, “Organizational Documents”) delivered and the other Credit Parties has performed all agreements on its part to Bank on or be performed prior to the date hereof are true, accurate as set forth in the Credit Agreement and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Loan Documents;
(d) each of Borrower and the Guarantors has all requisite corporate power and authority to enter into this Amendment and to carry out the transactions contemplated by, and perform its obligations under, the Credit Agreement;
(e) the execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have has been duly authorized by all necessary corporate action on the part of Borrower;
(e) this Amendment has been duly executed and delivered by the Borrower and is the binding obligation of Borrower, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rightsGuarantors; and
(f) as the execution and delivery by Borrower and the Guarantors of this Amendment does not and will not (i) violate any provision of any law or any governmental rule or regulation applicable to Borrower, the Guarantors or any of their respective Subsidiaries, the Certificate of Incorporation of Borrower, the Guarantors or any of their respective Subsidiaries or any order, judgment or decree of any court or other agency of government binding on Borrower, the Guarantors or any of their respective Subsidiaries, (ii) conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any Contractual Obligation of Borrower, the Guarantors or any of their respective Subsidiaries, (iii) result in or require the creation or imposition of any Lien upon any of the date hereofproperties or assets of Borrower, Borrower has no defenses against the obligations to pay Guarantors or any amounts of their respective Subsidiaries (other than any Liens created under the Obligations. Borrower acknowledges that Bank has acted in good faith and has conducted in a commercially reasonable manner its relationships with Borrower in connection with this Amendment and in connection with any of the Loan Documents. Borrower understands and acknowledges that Bank is entering into this Amendment Documents in reliance uponfavor of Collateral Agent on behalf of Lenders), and in partial consideration foror (iv) require any approval of stockholders or any approval or consent of any Person under any Contractual Obligation of Borrower, the above representations and warranties, and agrees that such reliance is reasonable and appropriateGuarantors or any of their respective Subsidiaries.
Appears in 2 contracts
Sources: Credit Agreement (Hartmarx Corp/De), Credit Agreement (Hartmarx Corp/De)
BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants that:
(a) immediately 2.1 Immediately upon giving effect to this Amendment Amendment, (i) the representations and warranties contained in the Loan Documents are true, accurate true and complete correct in all material respects as of the date hereof (except to the extent such representations and warranties expressly relate to an earlier date, in which case they are true and correct in all material respects as of such date), date and (ii) no default or Event of Default has occurred and is continuing;continuing with respect to which Borrower has not been notified in writing by Agent or Lenders.
(b) 2.2 Borrower has the corporate power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment;.
(c) the certificate of incorporation and by-laws of Borrower (collectively, “Organizational Documents”) delivered to Bank on or prior to the date hereof are true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documents;
(d) the 2.3 The execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate action on the part of Borrower;.
(e) this 2.4 This Amendment has been duly executed and delivered by the Borrower ▇▇▇▇▇▇▇▇ and is the binding obligation of Borrower, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; and.
(f) as 2.5 As of the date hereof, Borrower it has no defenses against the obligations to pay any amounts under the Secured Obligations. Borrower acknowledges that Bank has each of Agent and ▇▇▇▇▇▇▇ has, as of the date hereof, acted in good faith and has conducted in a commercially reasonable manner its relationships with Borrower in connection with this Amendment and in connection with the Loan Documents. Borrower ▇▇▇▇▇▇▇▇ understands and acknowledges that Bank each of Agent and ▇▇▇▇▇▇▇ is entering into this Amendment in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriate.
Appears in 2 contracts
Sources: Loan and Security Agreement (Replimune Group, Inc.), Loan and Security Agreement (Replimune Group, Inc.)
BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants that:
that (a) immediately upon giving effect to this Amendment (i) it is in good standing under the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as laws of the date hereof (state of its formation, duly qualified to do business and will remain duly qualified during the term of each Loan in each state where necessary to carry on its present business and operations, including the jurisdiction(s) where the Collateral will be located as specified on each Exhibit A to each Note, except where failure to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), and (ii) no Event of Default has occurred and is continuing;
be so qualified would not have a Material Adverse Effect; (b) Borrower it has the corporate power and full authority to execute and deliver this Amendment Security Agreement and to the Notes and perform its obligations under the Loan Agreement, as amended by this Amendment;
(c) the certificate of incorporation terms hereof and by-laws of Borrower (collectively, “Organizational Documents”) delivered to Bank on or prior to the date hereof are true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereofthereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documents;
(d) the execution and delivery by Borrower of this Amendment Security Agreement and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, Notes have been duly authorized by all necessary corporate action on the part of Borrower;
(e) this Amendment has been duly authorized, executed and delivered by the and constitute valid and binding obligations of Borrower and is the binding obligation of Borrower, enforceable against it in accordance with its terms, their terms except as such the enforceability thereof may be limited by bankruptcy, insolvency, reorganizationmoratorium, liquidation, moratorium reorganization or other similar laws affecting the enforcement of general application creditors' rights generally, and except for judicial limitations on the enforcement of the remedy of specific enforcement and other equitable principles relating remedies; (c) the execution and delivery of this Security Agreement and the Notes will not contravene any law, regulation or judgment affecting Borrower or result in any breach of any material agreement or other instrument binding on Borrower, which breach would have a Material Adverse Effect; (d) no consent of Borrower's shareholders or holder of any indebtedness, or filing with, or approval of, any governmental agency or commission, which has not already been obtained or performed, as appropriate, is a condition to the performance of the terms of this Security Agreement or affecting creditors’ rightsthe Notes; and
(e) there is no action or proceeding pending or threatened against Borrower before any court or administrative agency which might have a Material Adverse Effect on the business, financial condition or operations of Borrower; (f) as at the time any Loan is made hereunder, Borrower owns and will keep all of the date hereofCollateral free and clear of all liens, claims and encumbrances, and, except for this Security Agreement, there is no deed of trust, mortgage, security agreement or other third party interest against any of the Collateral other than such interest as may be contemplated in an intercreditor agreement to which the Lender is a party; (g) at the time any Loan is made hereunder, Borrower has no defenses against good and marketable title to the obligations to pay Collateral; (h) at the time any amounts under Loan is made hereunder, all Collateral has been received, installed and is ready for use and is satisfactory in all respects for the Obligations. Borrower acknowledges that Bank has acted in good faith and has conducted in a commercially reasonable manner its relationships with Borrower in connection with purposes of this Amendment and in connection with Security Agreement; (i) the Loan Documents. Borrower understands and acknowledges that Bank is entering into this Amendment in reliance uponCollateral is, and will remain at all times under applicable law, removable personal property, which is free and clear of any lien or encumbrance except in partial consideration forfavor of Lender, notwithstanding the above representations manner in which the Collateral may be attached to any real property other than such lien or encumbrance as may be contemplated in an intercreditor agreement to which the Lender is a party; (j) all credit and warranties, financial information submitted to Lender herewith or at any other time is and agrees that such reliance will at the time given be true and correct in all material respects; and (k) the security interest granted to Lender hereunder is reasonable and appropriatea first priority security interest.
Appears in 2 contracts
Sources: Senior Loan and Security Agreement (Allaire Corp), Senior Loan and Security Agreement (Allaire Corp)
BORROWER'S REPRESENTATIONS AND WARRANTIES. Each Borrower represents and warrants that:
(a) immediately upon giving effect to this Amendment (i) the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), and (ii) no Event of Default has occurred and is continuing;
(b) such Borrower has the corporate or limited liability company, as applicable, power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment;
(c) the certificate of incorporation incorporation, bylaws and by-laws other organizational documents of such Borrower (collectively, “Organizational Documents”) delivered to Bank Lender on or prior to the date hereof are Closing Date remain true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documentseffect;
(d) the execution and delivery by such Borrower of this Amendment and the performance by such Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate or limited liability company, as applicable, action on the part of such Borrower;
(e) this Amendment has been duly executed and delivered by the such Borrower and is the binding obligation of such Borrower, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; and
(f) as of the date hereof, such Borrower has no defenses against the obligations to pay any amounts under the Secured Obligations. Borrower acknowledges that Bank has acted in good faith and has conducted in a commercially reasonable manner its relationships with Borrower in connection with this Amendment and in connection with the Loan Documents. Each Borrower understands and acknowledges that Bank Lender is entering into this Amendment in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriate.
Appears in 2 contracts
Sources: Loan and Security Agreement (INSMED Inc), Loan and Security Agreement (INSMED Inc)
BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants thatto Lender as follows:
(a) immediately upon giving effect to this Amendment (i) There are now in existence no leases or occupancy agreements affecting the representations Property except those leases and warranties contained in amendments listed on the Loan Documents are true, accurate and complete in all material respects as of the date hereof (except Rent Roll delivered to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), and (ii) no Event of Default has occurred and is continuing;
(b) Borrower has the corporate power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment;
(c) the certificate of incorporation and by-laws of Borrower (collectively, “Organizational Documents”) delivered to Bank on or prior to the date hereof are true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect Lender as of the date hereof, and Borrower shall promptly deliver has delivered to Bank Lender true, correct and complete copies of all leases, including amendments (collectively, "Existing Leases") and all guaranties and amendments of guaranties given in connection with the Existing Leases (the "Guaranties").
(b) There are no defaults by Borrower under the Existing Leases and Guaranties and, to the best knowledge of Borrower, there are no defaults by any amendmentstenants under the Existing Leases or any guarantors under the Guaranties except as otherwise previously disclosed in writing to Lender. The Existing Leases and the Guaranties are in full force and effect.
(c) To the best knowledge of Borrower, supplementsnone of the tenants now occupying 10% or more of the Property or having a current lease affecting 10% or more of the Property is the subject of any bankruptcy, restatements reorganization or insolvency proceeding or any other modifications debtor-creditor proceeding except as otherwise previously disclosed in writing to such Organizational Documents;Lender.
(d) the execution Except as may be provided therein for specific purposes (e.g., a purchase option, lease relocation right, etc.) no Existing Leases may be amended, terminated or canceled unilaterally by a tenant and delivery by Borrower of this Amendment and the performance by Borrower of no tenant may be released from its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate action on the part of Borrower;
(e) this Amendment has been duly executed and delivered by the Borrower and is the binding obligation of Borrower, enforceable against it in accordance with its termsobligations, except as such enforceability may be limited by bankruptcyin the event of (i) material damage to, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; and
(f) as of the date hereof, Borrower has no defenses against the obligations to pay any amounts under the Obligations. Borrower acknowledges that Bank has acted in good faith and has conducted in a commercially reasonable manner its relationships with Borrower in connection with this Amendment and in connection with the Loan Documents. Borrower understands and acknowledges that Bank is entering into this Amendment in reliance upon, and in partial consideration fordestruction of, the above representations and warranties, and agrees that such reliance is reasonable and appropriateProperty or (ii) condemnation.
Appears in 2 contracts
Sources: Mortgage, Security Agreement and Fixture Filing (Florida East Coast Industries Inc), Mortgage, Security Agreement and Fixture Filing (Florida East Coast Industries Inc)
BORROWER'S REPRESENTATIONS AND WARRANTIES. 6.1 Save and except to the extent already disclosed under this Agreement, the Borrower represents hereby represents, warrants and warrants thatundertakes as follows:
(a) immediately upon giving effect All information furnished by the Borrower to the Lender from time to time, is true and correct and shall be deemed to form part of the representations and warranties on the basis of which the Lender has agreed to provide the said Loan. There is no litigation/ proceedings pending against the Borrower and the Borrower is not at present aware of any facts likely to give rise to such litigation/ proceedings or to material claims.
b) The execution of this Amendment Agreement has been and the execution of the Transaction Documents will be validly authorized and the obligations expressed as being assumed by the Borrower hereunder and under the Transaction Documents by the Borrower constitute and will constitute valid legal and binding obligations of the Borrower enforceable against the Borrower in accordance with their terms.
c) Neither the execution and delivery hereof and of the Transaction Documents by the Borrower nor the performance or observance of any of obligations of the Borrower thereunder shall: (i) conflict with or result in any breach of law, statute, rule, order, trust, agreement or other instrument, arrangement, obligation or duty by which the Borrower is bound; or (ii) cause any limitation on any of the powers whatsoever of the Borrower however imposed.
d) The Borrower has all the requisite legal power and authority to execute this Agreement and to carry out the terms, conditions and provisions, hereof and will not contravene any provision of, or constitute a default under, any other arrangement or instrument to which it is a part or by which it or its property may be bound.
e) The Borrower is not in default under any law, rule, regulation, order, mortgage, trust, instrument, agreement or other instrument, arrangement, obligation or duty by which the Borrower is bound.
f) The Borrower and its related party is of good financial standing and in a position to meet its ongoing obligations and has not been served with (or threatened with) a notice of insolvency or bankruptcy.
g) The Borrower(s) has/ have been included in any list of defaulters by any regulatory/ statutory authority and/ or banks and/ or financial institutions and/ or non-banking financial companies etc.
h) No Event of Default (as defined hereinafter) or potential Event of Default has occurred and/ or is in existence or continuing.
6.2 The Borrower undertakes to the Lender that the Borrower shall make arrangements satisfactory to the Lender for meeting shortfall, if any, in the resources of the Borrower for repayment of the said Loan.
6.3 The Borrower shall be deemed to repeat the representations and warranties contained in this clause on each day until the date of repayment of the entire amount due hereunder.
6.4 The Borrower does hereby agree, undertake, record, declare, admit, assure, promise, acknowledge and confirm to abide by, accept, satisfy, fulfill, carry out, perform and comply fully with all the terms, conditions, requirements, sanctions, provisions and stipulations or any amendments or modifications therein made or to be made by the Bank at any time or from time to time in its discretion concerning any of the Loan Documents are truelimits or accounts without any reference, accurate and complete notice or intimation by the Bank in all material respects as that behalf.
6.5 It is agreed by the Borrower, that without prejudice to any rights of the date hereof (except Bank, all acts/ steps as are necessary for the Bank to take in order to monitor the Loan and utilization thereof and/ or to recover amounts due to the extent Bank or any part or portion thereof, shall and/ or may be carried out by and/ or through such representations other person (including a company, a firm or body corporate) as may from time to time be appointed by the Bank in respect thereof. The Bank will at all times be entitled to share with any such other person that may thus be appointed by the Bank, all documents, statements of accounts and warranties relate other information of whatsoever nature pertaining to an earlier datethe Borrower and/ or the said Loan. Further, in which case they are true the Borrower expressly recognizes and correct as of such date), and (ii) no Event of Default has occurred and is continuing;
(b) Borrower has accepts that the corporate Bank shall have full power and authority to execute appoint one or more third parties of the Bank’s choice and deliver this Amendment to transfer or delegate to such third parties, the right and authority to collect on behalf of the Bank, all unpaid amounts and to perform its obligations under the Loan Agreementand execute all acts, as amended by this Amendment;
(c) the certificate of incorporation deeds, matters and by-laws of Borrower (collectively, “Organizational Documents”) delivered to Bank on things connected therewith or prior to the date hereof are true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documents;
(d) the execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate action on the part of Borrower;
(e) this Amendment has been duly executed and delivered by the Borrower and is the binding obligation of Borrower, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; and
(f) as of the date hereof, Borrower has no defenses against the obligations to pay any amounts under the Obligations. Borrower acknowledges that Bank has acted in good faith and has conducted in a commercially reasonable manner its relationships with Borrower in connection with this Amendment and in connection with the Loan Documents. Borrower understands and acknowledges that Bank is entering into this Amendment in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriateincidental thereto.
Appears in 2 contracts
Sources: Loan Agreement, Personal Loan Agreement
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants that:
(a) immediately upon giving effect to this Amendment (i) a Lender B and the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as Agent that each of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are following matters is true and correct as of such date)the Execution Date and the Drawdown Date. If any of the matters set forth under each of the following items is found to be untrue, the Borrower shall fully indemnify the Lender B and the Agent for all losses and expenses incurred thereby.
(i) The Borrower is a stock company duly incorporated and validly existing under the laws of Japan.
(ii) no Event The Borrower has full legal competence necessary for the execution and performance of Default the Relevant Agreements, the execution and performance of the Relevant Agreements by the Borrower and any transactions associated therewith are within the corporate purposes of the Borrower and the Borrower has occurred duly completed all procedures necessary therefor under Laws and is continuing;Ordinances, the Articles of Incorporation and other internal company rules of the Borrower.
(iii) The execution and performance of the Relevant Agreements by the Borrower and any transactions associated therewith will not result in (a) any violation of Laws and Ordinances that bind the Borrower, (b) Borrower has any breach of the corporate power and authority to execute and deliver this Amendment and to perform its obligations under Articles of Incorporation or other internal company rules of the Loan AgreementBorrower, as amended by this Amendment;
or (c) any breach in any material respect of a third-party contract to which the certificate Borrower is a party or which binds the Borrower or the assets of incorporation the Borrower.
(iv) The person who signs or attaches his or her name and by-laws of Borrower (collectively, “Organizational Documents”) delivered to Bank on or prior seal to the date hereof are trueRelevant Agreements is authorised to sign or attach his or her name and seal to the Relevant Agreements as the representative of the Borrower by all procedures necessary pursuant to Laws and Ordinances, accurate the Articles of Incorporation and complete other internal company rules of the Borrower.
(v) The Relevant Agreements constitute legal, valid and have not been amendedbinding obligations of the Borrower, supplemented or restated and are enforceable against the Borrower in accordance with the terms thereof.
(vi) The Relevant Agreements (other than this Agreement) are validly formed and continue exist with the same content as the agreements disclosed to be the Agent.
(vii) All Reports prepared by the Borrower are accurately and duly prepared in full force and effect as accordance with generally accepted accounting standards in Japan.
(viii) After the last day of the date hereoffiscal year ended in December 2004, and there has been no material change that will cause a significant deterioration of the business, assets, or financial condition of the Borrower shall promptly deliver to Bank any amendments, supplements, restatements described in the audited fiscal statement of that fiscal year or other modifications to such Organizational Documents;that may materially affect the performance of the obligations of the Borrower under the Relevant Agreements.
(dix) No lawsuit, arbitration, administrative procedure, or any other dispute has commenced, or is likely to commence to the execution and delivery by Borrower best knowledge of this Amendment and the Borrower, with respect to the Borrower, that will or may materially cause adverse effects on the performance by Borrower of its obligations under the Loan Relevant Agreements.
(x) No event described in the items of Clauses 24.1 and 24.2 has occurred or is likely to occur.
(xi) FUJITSU LIMITED owns 100% of the equity contributions to FMH, FMH’s equity contributions to Spansion LLC will not fall below 40%, and Spansion LLC owns 100% of the equity contributions to the Borrower.
(xii) The Borrower has not offered any security other than that described in Schedule 2.
(xiii) The assets required for the continuation of the Borrower’s business have been offered as security to FUJITSU LIMITED as described in Schedule 2.
(xiv) Except for the Accounts Receivables Trust Agreement, as amended by this Amendment, have been duly authorized by the Borrower has not entered into with a Lender or any third party any agreement creating a security interest on or assigning all necessary corporate action on of the part of Borrower;
(e) this Amendment has been duly executed and delivered accounts receivables either currently held by the Borrower and is against FUJITSU LIMITED or that will accrue in the binding obligation of Borrower, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; and
(f) as future before the termination date of the date hereof, Borrower has no defenses against the obligations to pay any amounts under the Obligations. Borrower acknowledges that Bank has acted in good faith and has conducted in a commercially reasonable manner its relationships with Borrower in connection with this Amendment and in connection with the Loan Documents. Borrower understands and acknowledges that Bank is entering into this Amendment in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriateAccounts Receivables Trust Agreement.
Appears in 2 contracts
Sources: Revolving Line Agreement (Advanced Micro Devices Inc), Revolving Line Agreement (Spansion Inc.)
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants thatthat on the date hereof and on the Delivery Date:
(a) immediately upon giving effect to this Amendment (i) the representations Borrower is a corporation duly organized and warranties contained validly existing in good standing pursuant to the Loan Documents are true, accurate and complete in all material respects as laws of the date hereof (except State of Colorado; is duly qualified to the extent such representations and warranties relate to an earlier date, do business as a foreign corporation in each jurisdiction in which case they are true its operations or the nature of its business requires, except where the failure to be so qualified would not have a material adverse effect on the Borrower or its business; is a U.S. Air Carrier; maintains its location (as such term is defined in Article 9 of the Uniform Commercial Code) in Colorado; and correct as of such date), and (ii) no Event of Default has occurred and is continuing;
(b) Borrower has the corporate power and authority to execute and deliver this Amendment engage in air transport and to carry on scheduled passenger service as presently conducted, to own the Aircraft and to enter into and perform its obligations under the Loan Agreement, as amended by this Amendment;
(c) the certificate of incorporation and by-laws of Borrower (collectively, “Organizational Documents”) delivered to Bank on or prior to the date hereof are true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Operative Documents;
(dii) the execution execution, delivery and delivery performance by the Borrower of this Amendment and the performance by Borrower of its obligations under Operative Documents will, on the Loan Agreement, as amended by this AmendmentDelivery Date, have been duly authorized by all necessary corporate action on the part of the Borrower, do not require any stockholder approval, or approval or consent of any trustee or holders of any indebtedness or obligations of the Borrower except such as have been duly obtained or by the Delivery Date will have been duly obtained and will on the Delivery Date be in full force and effect, and none of such Operative Documents contravenes any law, judgment, government rule, regulation or order binding on the Borrower or the articles of incorporation or bylaws of the Borrower or contravenes the provisions of, or constitutes a default under, or results in the creation of any Lien (other than Permitted Liens) upon the property of the Borrower under, any indenture, mortgage, contract or other agreement to which the Borrower is a party or by which it or its properties may be bound or affected;
(iii) neither the execution and delivery by the Borrower of the Operative Documents nor the performance by the Borrower of its obligations thereunder requires the consent or approval of, the giving of notice to, or the registration with, or the taking of any other action in respect of any Federal, state or foreign government authority or agency, except for (A) the orders, permits, waivers, exemptions, authorizations and approvals of the regulatory authorities having jurisdiction over the operation of the Aircraft by the Borrower, which orders, permits, waivers, exemptions, authorizations and approvals have been duly obtained or will on or prior to the Delivery Date be duly obtained, and will on the Delivery Date be in full force and effect, (B) any normal periodic and other reporting requirements under the Federal Aviation Act and the regulations promulgated thereunder and the applicable rules, and regulations of the FAA, in each case to the extent required to be given or obtained only after the Delivery Date, (C) any filings, registrations or applications specifically described in this Agreement, and (D) an air operator's certificate with respect to Airbus Model A319 aircraft, which certificate has been obtained by the Borrower;
(eiv) this Amendment has been duly executed and delivered by the Operative Documents to which the Borrower is a party delivered on or prior to the date hereof or the Delivery Date, as the case may be, each constitute legal, valid and is binding obligations of the binding obligation of Borrower, Borrower enforceable against it the Borrower in accordance with its terms, the terms thereof except as such enforceability may be limited by equitable principles or applicable bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights' rights generally;
(v) there are no pending or, to the best of Borrower's knowledge, threatened actions or proceedings before any court, arbitrator or administrative agency which individually (or in the aggregate in the case of any group of related lawsuits) is expected to have a material and adverse effect on the financial condition of the Borrower or the ability of the Borrower to perform its obligations under the Operative Documents;
(vi) except for (A) the filing for recording pursuant to the Federal Aviation Act of the FAA Bill of Sale for the Aircraft (and the application for registration of the Aircraft in ▇▇▇ name of the Borrower) and the Mortgage with the Mortgage Supplement for the Aircraft, (B) the filing of financing statements (and continuation statements at periodic intervals) with respect to the interests created by such documents under the Uniform Commercial Code of Colorado and such other states as may be specified in the opinion furnished pursuant to Section 4(b)(ix) hereof and (C) the affixation of the nameplates referenced in Section 3.04 of the Mortgage, no further action, including any filing or recording of any document (including any financing statement in respect thereof under Article 9 of the Uniform Commercial Code of any applicable jurisdiction), is necessary or advisable in order to establish and perfect the first mortgage Lien on the Aircraft in favor of the Administrative Agent pursuant to the Mortgage in any applicable jurisdiction in the United States;
(vii) there has not occurred any event which constitutes a Default or an Event of Default hereunder which is presently continuing;
(viii) the statements of financial position of the Borrower as of March 31, 2002 and the date of the most recently concluded fiscal quarter of the Borrower for which a statement of financial position has been provided and the related statements of earnings and cash flow of the Borrower in all material respects for the year and fiscal quarter, respectively, then ended, copies of which have been furnished to the Lenders, fairly present the financial condition of the Borrower at such date and the results of operations and cash flow of the Borrower for the period ended on such dates, in accordance with generally accepted accounting principles consistently applied, and subject, in the case of the statements pertaining to the Borrower's most recently concluded fiscal quarter, to normal year-end adjustments, and since March 31, 2002, there has been no material and adverse change in the business or financial condition of the Borrower;
(ix) on the Delivery Date the Borrower will have good title to the Mortgage Estate delivered on the Delivery Date free and clear of all Liens, except the Lien of the Mortgage, and Inchoate Liens;
(x) neither the Borrower nor anyone acting on behalf of the Borrower has directly or indirectly offered any interest in the Notes for sale to, or solicited any offer to acquire any of the same from, anyone other than the Lenders and not more than 35 other institutions believed capable of evaluating and bearing the risks of investment in the transactions contemplated hereby;
(xi) the Borrower has filed or caused to be filed all Federal, state, local and (to the best of Borrower's knowledge) foreign tax returns which are required to be filed and has paid or caused to be paid or provided adequate reserves for the payment of all taxes shown to be due and payable on such returns or (except to the extent being contested in good faith and by appropriate proceedings and for the payment of which adequate reserves have been provided in accordance with generally accepted accounting principles) on any assessment received by the Borrower, to the extent that such taxes have become due and payable, except such returns or taxes as do not materially and adversely affect the business, property or assets, operations or financial condition, of the Borrower and do not involve a material risk of the sale, forfeiture or loss of, or the creation of any Lien (other than a Permitted Lien) on the Aircraft;
(xii) the Borrower is not (x) in default under any indenture, mortgage, lease or Credit Agreement or under any other agreement or instrument of a material nature to which the Borrower is now a party or by which it is bound, and no event has occurred and is continuing which, under the provisions of any such indenture, mortgage, Credit Agreement or other material agreement or instrument, with the lapse of time or the giving of notice, or both, would constitute a default thereunder or (y) in violation of any law, order, injunction, decree, rule or regulation applicable to the Borrower of any court or administrative body, which violation (a) would reasonably be expected to materially and adversely affect the business, operations or financial condition of the Borrower or the Borrower's ability to execute, deliver and perform its obligations under the Operative Documents or (b) would involve a material risk of the sale, forfeiture or loss of, or the creation of any Lien (other than a Permitted Lien) on, any of the Mortgage Estate;
(xiii) the Borrower has not engaged in any transaction in connection with which the Borrower could be subjected to either a material civil penalty assessed pursuant to Section 502(i) of ERISA, or a material tax imposed by Section 4975 of the Code; (w) no material liability to the Pension Benefit Guaranty Corporation (other than liability for premiums) has been incurred by the Borrower with respect to any Plan; (x) there has been no event or condition which presents a material risk of termination of any Plan by the Pension Benefit Guaranty Corporation; (y) no accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Code), whether or not waived, exists with respect to any Plan; and (z) no material amount of "withdrawal liability," as that term is used in Section 4201 of ERISA, has been or is expected to be incurred by the Borrower nor has the Borrower or any affiliate of the Borrower been notified by any multi-employer plan (within the meaning of Section 3(37)(A) of ERISA) that such multi-employer plan is in reorganization or insolvency within the meaning of Section 4241 or Section 4245 of ERISA or that such multi-employer plan intends to terminate or has been terminated under Section 4041A of ERISA (for purposes of this subclause (z), the term "affiliate" shall mean any corporation or person which is a member of the same controlled group of corporations (within the meaning of Section 414(b) of the Code) as the Borrower or is under common control (within the meaning of Section 414(c) of the Code) with the Borrower);
(xiv) neither the Borrower nor any Plan nor any trust created thereunder has engaged in a "prohibited transaction," within the meaning of Section 406 of ERISA or Section 4975 of the Code with respect to the transactions contemplated hereby which could subject the Borrower to any tax or penalty pursuant to Section 4975 of the Code or Section 502(i) of ERISA;
(xv) the Borrower is not an "investment company" as defined in, or subject to regulation under, the Investment Company Act of 1940 and the Borrower is not a "holding company" as defined in, or subject to regulation under, the Public Utility Holding Company Act of 1935;
(xvi) none of the reports, financial statements, certificates or other information furnished by or on behalf of the Borrower to the Administrative Agent or the Lenders in connection with the negotiation of this Agreement or delivered hereunder (as modified or supplemented by other information so furnished) contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(xvii) no part of the proceeds of any Loan hereunder will be used, whether directly or indirectly, for any purpose that entails a violation of any of the Regulations of the Board of Governors of the Federal Reserve, including Regulations U and X;
(xviii) assuming the Lenders are acquiring their Notes in the ordinary course of their commercial banking business, none of the transactions contemplated by this Agreement will violate or result in a violation of the Securities Act of 1933, as amended, the securities Exchange Act of 1934, as amended, or any regulations issued pursuant thereto; and
(fxix) as no United States Federal or state non-banking governmental approval of any kind is required of any Lender for its execution of or performance under this Agreement or any agreement contemplated hereby solely by reason of any fact or circumstance peculiar to: (a) the Borrower, (b) the nature of the date hereofAircraft, Borrower has no defenses against or (c) the obligations to pay any amounts under Borrower's proposed operation or use of the Obligations. Borrower acknowledges that Bank has acted in good faith and has conducted in a commercially reasonable manner its relationships with Borrower in connection with this Amendment and in connection with the Loan Documents. Borrower understands and acknowledges that Bank is entering into this Amendment in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriateAircraft.
Appears in 2 contracts
Sources: Credit Agreement (Frontier Airlines Inc /Co/), Credit Agreement (Frontier Airlines Inc /Co/)
BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants that:
(a) immediately 2.1 Immediately upon giving effect to this Amendment (i) the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), and (ii) no Event of Default has occurred and is continuing;continuing with respect to which Borrower has not been notified in writing by Agent or Lender.
(b) 2.2 Borrower has the corporate power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment;.
(c) the 2.3 The certificate of incorporation incorporation, bylaws and by-laws other organizational documents of Borrower (collectively, “Organizational Documents”) delivered to Bank Lender on or prior to the date hereof are Closing Date remain true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documents;effect.
(d) the 2.4 The execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate action on the part of Borrower;.
(e) this 2.5 This Amendment has been duly executed and delivered by the Borrower and is the binding obligation of Borrower, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; and
(f) as 2.6 As of the date hereof, Borrower it has no defenses against the obligations to pay any amounts under the Obligations. Borrower acknowledges that Bank has Lender and Agent have acted in good faith and has conducted in a commercially reasonable manner its relationships with Borrower in connection with this Amendment and in connection with the Loan Documents. Borrower understands and acknowledges that Bank Lender is entering into this Amendment in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriate.
Appears in 2 contracts
Sources: Loan and Security Agreement (Egalet Corp), Loan and Security Agreement (Egalet Corp)
BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants thatwarrants, for the benefit of the Lenders and the Agents, as follows:
10.1 Borrower has all requisite power and authority under applicable law and under its certificate of incorporation and bylaws to execute, deliver and perform this Amendment, and to perform the Loan Documents as amended hereby. There have been no changes in the certificate of incorporation and bylaws of Borrower since the Closing Date.
10.2 all actions, waivers and consents (corporate, regulatory and otherwise) necessary or appropriate for the Borrower to execute, deliver and perform this Amendment, and to perform the Loan Documents as amended hereby, have been taken and/or received;
10.3 this Amendment, and the Loan Documents, as amended by this Amendment, constitute the legal, valid and binding obligation of the Borrower enforceable against it in accordance with the terms hereof (except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles, whether enforcement is sought by proceedings in equity or at law);
10.4 the execution, delivery and performance of this Amendment, and the performance of the Loan Documents, as amended hereby, will not (a) immediately violate or contravene any material requirement of Applicable Law, (b) result in any material breach or violation of, or constitute a material default under, any agreement or instrument by which the Borrower or any of its property may be bound, or (c) result in or require the creation of any Lien (other than pursuant to the Loan Documents) upon giving effect or with respect to this Amendment any properties of the Borrower, whether such properties are now owned or hereafter acquired (i) other than Permitted Liens);
10.5 the representations and warranties contained in the Credit Agreement and the other Loan Documents are true, accurate and complete correct in all material respects on and as of the date hereof (except of this Amendment, before and after giving effect to the extent such representations same, as though made on and warranties relate to an earlier date, in which case they are true and correct as of such datedate (other than any such representations or warranties that, by their terms, are specifically made as of a date other than the date hereof), and (ii) ; and
10.6 no Event of Default has occurred and is continuing;
(b) Borrower has the corporate power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment;
(c) the certificate of incorporation and by-laws of Borrower (collectively, “Organizational Documents”) delivered to Bank on or prior to the date hereof are true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documents;
(d) the execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate action on the part of Borrower;
(e) this Amendment has been duly executed and delivered by the Borrower and is the binding obligation of Borrower, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; and
(f) as of the date hereof, Borrower has no defenses against the obligations to pay any amounts under the Obligations. Borrower acknowledges that Bank has acted in good faith and has conducted in a commercially reasonable manner its relationships with Borrower in connection with this Amendment and in connection with the Loan Documents. Borrower understands and acknowledges that Bank is entering into this Amendment in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriate.
Appears in 1 contract
BORROWER'S REPRESENTATIONS AND WARRANTIES. In order to induce the Lender to enter into this Agreement the Borrower represents and warrants that:
(aand, in respect of Section 8.11, the Guarantor) immediately upon giving effect hereby REPRESENTS AND WARRANTS to this Amendment the Lender that at each Drawdown Date (i) the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects except where specifically stated to be given as of the date hereof (except to the extent such representations and warranties relate to an earlier another date, in which case they are true and correct as of such date), and (ii) no Event of Default has occurred and is continuing;):
(b) 8.1 The Borrower has the corporate power power, authority, and authority capacity to execute and deliver this Amendment enter into, exercise its rights under, and to perform perfom1and comply with its obligations under the Loan this Agreement, as amended by this Amendment;
(c) the certificate of incorporation and by-laws of Borrower (collectively, “Organizational Documents”) delivered to Bank on or prior to the date hereof are true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documents;
(d) that the execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have Agreement has been duly authorized authorised by all necessary corporate action on the part of Borroweractions;
(e) this Amendment has been duly executed and delivered 8.2 The obligations expressed as being assumed by the Borrower under this Agreement constitute the Borrower’s legal, valid and is the binding obligation of Borrowerobligations, enforceable against it the Borrower in accordance with its their respective terms, except as such enforceability may be limited by subject to the effect of any applicable bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws affecting creditors generally and general principles of general application and equitable principles relating to or affecting creditors’ rights; andequity;
(f) as 8.3 As of the date hereofAmendment Effective Date, Borrower has under the laws of the Republic of Trinidad & Tobago in force on the Amendment Effective Date, it is not necessary that this Agreement be filed, recorded or enrolled with any court or other authority in the Republic of Trinidad & Tobago or that any registration or similar Taxes (other than stamp duty) be paid on or in relation to this Agreement;
8.4 There is no defenses pending and, to the Borrower’s knowledge, no threatened material litigation against the obligations Borrower;
8.5 There are no pending and, to pay the Borrower’s knowledge, there are no threatened (i) written claims, complaints, notices or requests for information received by the Borrower with respect to any amounts alleged violation of any Environmental Laws by the Borrower, or (ii) written complaints notices or inquiries received by the Borrower regarding potential material liability of the Borrower under the Obligations. Borrower acknowledges that Bank has acted in good faith and has conducted any Environmental Laws;
8.6 Each Advance shall be used in a commercially reasonable manner its relationships with Borrower in connection with this Amendment and in connection consistent with the Loan Documents. Borrower understands and acknowledges that Bank purposes set out in Section 2 of this Agreement;
8.7 No Event of Default has occurred or is entering into this Amendment in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriate.continuing;
Appears in 1 contract
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower represents acknowledges, represents, warrants and warrants agrees that:
: (a) immediately upon after giving effect to this Amendment (i) Agreement, the representations and warranties contained in the Credit Agreement, as amended hereby, and the representations and warranties contained in the other Loan Documents are true, accurate true and complete correct in all material respects on and as of the Effective Date and on the date hereof (as if made on as and as of such date except to the extent that any such representations and warranties relate representation or warranty expressly relates solely to an earlier date, in which case they are such representation or warranty is true and correct in all material respects as of such earlier date (except that any such representation and warranty that is qualified by materiality is true and correct in all respects as of the applicable date), and (iiexcept that for purposes herein, the representations and warranties contained in Sections 5.05(a) no Event of Default has occurred and is continuing;
(b) Borrower has of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to Section 6.01 of the Credit Agreement; (b) the execution, delivery and performance of this Agreement are within the limited liability company or corporate power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment;
(c) the certificate of incorporation and by-laws of Borrower (collectively, “Organizational Documents”) delivered to Bank on or prior to the date hereof are true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, Borrower and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documents;
(d) the execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary appropriate limited liability company and corporate action on the part of Borrower;
and proceedings; (ec) this Amendment has been duly executed Agreement constitutes the legal, valid, and delivered by the Borrower and is the binding obligation of Borrower, the Borrower enforceable against it in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, liquidationmoratorium, moratorium or similar laws affecting the rights of creditors generally and general principles of equity, and no portion of the Obligations are subject to avoidance, subordination, recharacterization, recovery, attack, offset, counterclaim, or defense of any kind; (d) there are no governmental or other similar laws third party consents, licenses and approvals required to be made or obtained by it in connection with its execution, delivery, performance, validity and enforceability of general application this Agreement; (e) no Defaults or Events of Default shall have occurred and equitable principles relating to or affecting creditors’ rightsbe continuing; and
and (f) as since the date of the date hereoffinancial statements most recently delivered pursuant to Section 6.01(a) of the Credit Agreement, Borrower there has been no defenses against event or circumstance, either individually or in the obligations aggregate, that has had or could reasonably be expected to pay any amounts under the Obligations. Borrower acknowledges that Bank has acted in good faith and has conducted in have a commercially reasonable manner its relationships with Borrower in connection with this Amendment and in connection with the Loan Documents. Borrower understands and acknowledges that Bank is entering into this Amendment in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriateMaterial Adverse Effect.
Appears in 1 contract
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower represents makes the ----------------------------------------- following representations and warrants thatwarranties:
(a) immediately upon giving effect The Borrower is an Ohio corporation, duly organized and validly existing and in good standing under the laws of the State of Ohio, and authorized to this Amendment (i) the representations and warranties contained do business in the Loan Documents are trueState of Colorado, accurate with full power to own the Borrower's properties and complete in all material respects as of conduct the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), and (ii) no Event of Default has occurred and is continuing;
(b) Borrower's business. The Borrower has the corporate full legal right, power and authority to execute and deliver this Amendment Bond Purchase Agreement, the Agreement, the Notes, the Security Documents, the Financing Statements, the Remarketing Agreement, the Tax Regulatory Agreement and the Letter of Credit Agreement, to provide for the operation and management of the Project, and to perform its obligations under take any and all such action as may be required on the Loan Borrower's part to carry out, give effect to and consummate the transactions contemplated by this Bond Purchase Agreement, as amended by this Amendment;the Agreement, the Security Documents, the Financing Statements, the Remarketing Agreement, the Tax Regulatory Agreement and the Letter of Credit Agreement.
(cb) The Borrower has duly authorized, executed and delivered this Bond Purchase Agreement, the certificate of incorporation and by-laws of Borrower (collectivelyAgreement, “Organizational the Notes, the Security Documents”) delivered to Bank on or prior to , the date hereof are trueFinancing Statements, accurate and complete and have not been amendedthe Remarketing Agreement, supplemented or restated and are and continue to be in full force and effect as of the date hereofTax Regulatory Agreement, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements the Letter of Credit Agreement and has taken or other modifications to will take all such Organizational Documents;
(d) the execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, action as amended by this Amendment, have been duly authorized by all necessary corporate action may be required on the part of Borrower;
(e) this Amendment has been duly the Borrower to carry out, give effect to and consummate the transactions contemplated by each of the aforesaid documents. This Bond Purchase Agreement constitutes, and the Agreement, the Notes, the Security Documents, the Financing Statements, the Letter of Credit Agreement, the Remarketing Agreement and the Tax Regulatory Agreement, when executed and delivered by delivered, will constitute legal, valid and binding obligations of the Borrower and is the binding obligation of Borrower, enforceable against it in accordance with its their respective terms, except as such that enforceability may be limited by laws relating to bankruptcy, insolvency, reorganization, liquidation, moratorium reorganization or other similar laws affecting the rights of creditors, by the exercise of judicial discretion in accordance with general application principles of equity, and equitable principles relating by matters of public policy.
(c) Neither the execution and delivery of this Bond Purchase Agreement, the Agreement, the Notes, the Security Documents, the Financing Statements, the Letter of Credit Agreement, the Remarketing Agreement or the Tax Regulatory Agreement, nor the consummation of the transactions contemplated therein or the compliance with the provisions thereof, will conflict with, or constitute on the part of the Borrower a violation of, or a breach of or default under the Borrower's Articles of Incorporation, Code of Regulations, any action or resolution of its shareholders or Board of Directors, or any committee thereof, or any statute, indenture, mortgage, commitment, note or other agreement or instrument to which the Borrower is a party or by which the Borrower is bound, or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Borrower or any of the Borrower's activities or properties. All consents, approvals, authorizations and orders of governmental or regulatory authorities which are required for the Borrower's execution and delivery of, consummation of the transactions contemplated by and compliance with the provisions of this Bond Purchase Agreement, the Agreement, the Security Documents, the Financing Statements, the Notes, the Letter of Credit Agreement, the Remarketing Agreement and the Tax Regulatory Agreement have been, or at the time of execution thereof will have been, obtained except for such as cannot reasonably be obtained by such time, as disclosed to the Letter of Credit Bank and the Underwriter.
(d) Except as disclosed to the Letter of Credit Bank and the Underwriter, there is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, public board or body, pending or, to the best knowledge of the Borrower, threatened, against or affecting creditors’ rights; andthe Borrower or the actions taken or contemplated to be taken by the Borrower, nor, to the best knowledge of the Borrower, is there any basis therefor, wherein an unfavorable decision, ruling or finding would materially adversely affect the business, financial condition or operations of the Borrower, or the transactions contemplated by, or the validity or enforceability of, this Bond Purchase Agreement, the Tax Regulatory Agreement, the Agreement, the Security Documents, the Notes, the Financing Statements, the Remarketing Agreement or the Letter of Credit Agreement, or which would in any way question the tax-exempt status of the interest on the Series 2001A Bonds from and after the Closing.
(e) No event has occurred and no condition exists which, upon issuance of the Series 2001 Bonds, would constitute (or with the giving of notice or lapse of time, or both, would constitute) an Event of Default under the Agreement or the Letter of Credit Agreement.
(f) The Borrower is not in violation of any provision of, or in default under, its Articles of Incorporation, Code of Regulations, any action or resolution of its shareholders or directors, or any committee thereof, or any statute, indenture, mortgage, commitment, note or other agreement or instrument to which the Borrower is a party or by which it is bound, or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Borrower or any of the Borrower's activities or properties, other than violations or defaults the effect of which do not and will not have a material adverse effect on the Borrower's business, financial condition or operations, or the transactions contemplated hereby.
(g) The Borrower hereby authorizes the distribution of the Offering Memorandum. The information contained in the Offering Memorandum is, and as of the date hereofClosing will be, Borrower has no defenses against the obligations to pay any amounts under the Obligations. Borrower acknowledges that Bank has acted true and correct in good faith and has conducted in a commercially reasonable manner its relationships with Borrower in connection with this Amendment and in connection with the Loan Documents. Borrower understands and acknowledges that Bank is entering into this Amendment in reliance uponall material respects, and in partial consideration forthe Offering Memorandum, the above representations with respect to such information, does not and warranties, and agrees that such reliance is reasonable and appropriatewill not contain any untrue or misleading statement of a material fact.
Appears in 1 contract
BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants that:
(a) immediately 3.1. Immediately upon giving effect to this Amendment (i) the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), after giving effect in all cases to any standard(s) of materiality contained in the Loan Agreement as to such representations and warranties and (ii) no Event of Default has occurred and is continuing;continuing with respect to which Borrower has not been notified in writing by Agent or Lender.
(b) 3.2. Borrower has the corporate power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment;.
(c) the 3.3. The certificate of incorporation incorporation, bylaws and by-laws other organizational documents of Borrower (collectively, “Organizational Documents”) delivered to Bank on or prior to Agent and/or Lender in connection with the date hereof are Loan Agreement remain true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documents;effect.
(d) the 3.4. The execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate action on the part of Borrower;.
(e) this 3.5. This Amendment has been duly executed and delivered by the Borrower and is the binding obligation of Borrower, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; and
(f) as 3.6. As of the date hereof, Borrower it has no defenses against the obligations to pay any amounts under the Secured Obligations. Borrower acknowledges that Bank each of Agent and Lender has acted in good faith and has conducted in a commercially reasonable manner its relationships with Borrower in connection with this Amendment and in connection with the Loan Documents. Borrower understands and acknowledges that Bank each of Agent and Lender is entering into this Amendment in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriate.
Appears in 1 contract
Sources: Loan and Security Agreement (Merrimack Pharmaceuticals Inc)
BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants that:
(a) immediately upon It is a regulated utility and a corporation duly organized, validly existing and in good standing under the laws of the State of Maine and shall hereafter remain in good standing as a corporation in that state, and is duly qualified and in good standing in every other jurisdiction in which the nature or location of its assets or operations may require such qualification, other than any jurisdiction where the failure to so qualify will not have a material adverse effect on its financial condition, business or prospects, which other jurisdictions are listed on SCHEDULE A, annexed hereto, and shall hereafter remain duly qualified and in good standing in every such other jurisdiction. Borrower has identified on SCHEDULE B, annexed hereto, all of its subsidiaries and their respective jurisdictions of organization, addresses and the percentage of ownership. Each of Borrower's subsidiaries is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation and shall hereafter remain in good standing as a corporation in that jurisdiction, and is duly qualified and in good standing in every other jurisdiction in which, by reason of the nature or location of such subsidiary's assets or operations, such qualification may be necessary, which other jurisdictions are listed on SCHEDULE B, annexed hereto, and shall hereafter remain duly qualified and in good standing in such other jurisdictions. None of Borrower's subsidiaries has any subsidiaries.
(b) Borrower's exact legal name is as set forth in this Agreement and Borrower will not change its legal name, without giving effect Bank at least thirty (30) days' prior written notice of the same. Borrower represents that it does not conduct business under any other name, and will not do so without giving Bank at least thirty (30) days' prior written notice of the same. THE BORROWER'S CORPORATE CHARTER NUMBER IN THE STATE OF MAINE IS 19170013D.
(c) The execution, delivery and performance of this Agreement, and of any other documents executed in connection herewith, are within Borrower's corporate powers, have been duly authorized, are not in contravention of law or the terms of its articles of incorporation, bylaws or other governance documents, or of any indenture, agreement or undertaking to this Amendment which it is a party or by which it or any of its properties may be bound.
(d) The Articles of Incorporation of Borrower, and all amendments thereto, have been duly filed and are in proper order. All of Borrower's books and records including but not limited to its minute books, stock register and books of account, are all materially accurate and up to date and will be so maintained. All of Borrower's issued and outstanding stock interests were duly issued and are fully paid and non-assessable; the Borrower is a wholly-owned subsidiary of Maine & Maritimes Corporation, a Maine corporation.
(e) Borrower owns all of the assets reflected in its most recent financial statements provided to Bank, except leased assets or assets sold, transferred or otherwise disposed of, in the ordinary course of business since the date thereof, and such assets together with any assets acquired since such date, are free and clear of any lien, pledge, security interest, charge, mortgage or encumbrance of any nature whatsoever, except only the following (collectively, the "PERMITTED LIENS"): (i) the representations liens, security interests and warranties contained other encumbrances listed on SCHEDULE C annexed hereto, (ii) those leases (if any) set forth on SCHEDULE D annexed hereto in which Borrower is lessor, (iii) landlords', carriers', warehousemen's and other similar liens arising by operation of law in the Loan Documents ordinary course of its business, but only if the bills to which they relate are truepaid in the ordinary course or are the subject of good faith dispute; (iv) liens arising out of pledge or deposits under worker's compensation, accurate unemployment insurance, old age pension, social security, retirement benefits or other similar legislation; and complete (v) liens and security interests in favor of Bank or consented to in writing by Bank . Borrower leases no material amount of real or personal property as lessee, except for the leases described on SCHEDULE D; in each case such lease is in full force and effect and Borrower is not in material default thereunder.
(f) Borrower has made or filed all tax returns, reports and declarations relating to any material respects tax liability required by any jurisdiction to which it is subject; has paid all taxes shown or determined to be due thereon except those being diligently contested in good faith and which it has, prior to the date of such contest, identified in writing to Bank as being contested; and has made adequate provision for the payment of all taxes so contested, and has also made adequate provision for taxes due in respect of subsequent periods.
(g) Except for the restrictions, judgments, awards, decrees, orders, rules and regulations of the date hereof (except Maine Public Utilities Commission that are applicable to the extent such representations and warranties relate Borrower, the Borrower (i) is currently subject to an earlier dateno charter or other legal restriction, in or any judgment, award, decree, order, governmental rule or regulation or contractual restriction which case they are true and correct as of such date)could have a material adverse effect on its financial condition, business or prospects, and (ii) is in compliance with its articles of incorporation, bylaws, all contractual requirements by which it or any of its properties may be bound and all applicable laws, rules and regulations (including without limitation those relating to environmental protection) other than laws, rules or regulations (i) the validity or applicability of which it is diligently contesting in good faith and which it has, prior to the date of such contest, identified in writing to Bank as being contested, or (ii) the failure to comply with which cannot reasonably be expected to materially adversely affect its financial condition, business or prospects.
(h) There is no action, suit, proceeding or investigation pending or, to its knowledge, threatened against or affecting Borrower or any of its assets which, if determined adversely to it, would or could have a material adverse effect on its financial condition, business or prospects, except as set forth on SCHEDULE E.
(i) Borrower is in material compliance with ERISA with respect to any Plan; no Reportable Event of Default has occurred and is continuing;
(b) Borrower continuing with respect to any Plan; and it has no unfunded 5 vested liability under any Plan. The word "PLAN" as used in this Agreement means any employee plan subject to Title IV of the corporate power and authority to execute and deliver this Amendment and to perform its obligations under the Loan AgreementEmployee Retirement Income Security Act of 1974, as amended by this Amendment;
(c) the certificate of incorporation and by-laws of Borrower (collectively, “Organizational Documents”) delivered to Bank on or prior to the date hereof are true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documents;
(d"ERISA") the execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate action on the part of Borrower;
(e) this Amendment has been duly executed and delivered by the Borrower and is the binding obligation maintained for employees of Borrower, enforceable against it in accordance any subsidiary of Borrower or any other trade or business under common control with its termsBorrower within the meaning of Section 414(c) of the Internal Revenue Code of 1986, except as such enforceability may be limited by bankruptcyamended, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; andany regulations thereunder.
(fj) as of the date hereofBorrower is in material compliance with all other applicable federal, Borrower has no defenses against the obligations to pay any amounts under the Obligationsstate and local laws and ordinances. Borrower acknowledges that Bank has acted in good faith shall maintain at all times all necessary licenses, permits and has conducted in a commercially reasonable manner approvals to own and operate its relationships with Borrower in connection with this Amendment and in connection with the Loan Documentsbusiness. Borrower understands and acknowledges that Bank is entering into this Amendment in reliance uponIf required by Bank, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriateBorrower's counsel shall provide written opinions regarding these issues.
Appears in 1 contract
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants that:
(a) immediately upon giving effect to this Amendment (i) the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as Lender that each of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are following matters is true and correct as of the execution date of this Agreement and the Drawdown Date (when any specified date is described therein, as of such date). If it is found untrue at a later date, the Borrower shall immediately notify the Lender thereof in writing, and (ii) no Event of Default has occurred shall compensate the Lender for any and is continuing;all reasonable Loss incurred thereby.
(b1) The Borrower is a joint-stock company duly incorporated and validly existing under the laws of Japan.
(2) The Borrower does not fall under any of the items (a) to (i) specified in Clause (1) of the Exhibit 2 and does not engage in any of the relationships (a) to (e) specified in Clause (2) of the Exhibit 2.
(3) The Borrower has the corporate full power and authority necessary to execute enter into and deliver perform this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment;
(c) the certificate of incorporation and by-laws of Borrower (collectively, “Organizational Documents”) delivered to Bank on or prior to the date hereof are true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documents;
(d) the execution and delivery by Borrower performance of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate action on the part of Borrower;
(e) this Amendment has been duly executed and delivered Agreement by the Borrower and is any transactions hereunder are within the binding obligation corporate purposes of the Borrower and the Borrower has duly completed all procedures necessary therefor under the Laws and Ordinances, the articles of incorporation and other internal company rules of the Borrower.
(4) The execution and performance of this Agreement by the Borrower and any transactions hereunder does not result in (a) any violation of Laws and Ordinances which bind the Borrower, enforceable against it in accordance with (b) any breach of its termsarticles of incorporation and other internal company rules of the Borrower, except and (c) any breach (excluding any minor breach) of a third-party contract to which the Borrower is a party or which binds the Borrower or the assets of the Borrower.
(5) The person who signed or attached his/her name and seal to this Agreement is authorized to sign or affix his/her name and seal on this Agreement as such enforceability may be limited the representative of the Borrower by bankruptcyall procedures necessary pursuant to the Laws and Ordinances, insolvency, reorganization, liquidation, moratorium the articles of incorporation or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; and
(f) as internal company rules of the date hereof, Borrower has no defenses against the obligations to pay any amounts under the Obligations. Borrower acknowledges that Bank has acted in good faith and has conducted in a commercially reasonable manner its relationships with Borrower in connection with this Amendment and in connection with the Loan Documents. Borrower understands and acknowledges that Bank is entering into this Amendment in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriateBorrower.
Appears in 1 contract
BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants that:
(a) immediately Immediately upon giving effect to this Amendment (i) the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), and (ii) no Default or Event of Default has occurred and is continuingcontinuing with respect to which Borrower has not been notified in writing by Lender;
(b) Borrower has the corporate power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment;
(c) the certificate of incorporation incorporation, bylaws and by-laws other organizational documents of Borrower (collectively, “Organizational Documents”) delivered to Bank Lender on or prior to the date hereof are Closing Date remain true, accurate and complete and have not been amended, supplemented or restated since the Closing Date and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documentseffect;
(d) the execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate action on the part of Borrower;
(e) this Amendment has been duly executed and delivered by the Borrower and is the binding obligation of Borrower, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; and
(f) as of the date hereof, Borrower it has no defenses against the obligations to pay any amounts under the Secured Obligations. Borrower acknowledges that Bank Lender has acted in good faith and has conducted in a commercially reasonable manner in its relationships with Borrower in connection with this Amendment and in connection with the Loan Documents. Borrower understands and acknowledges that Bank Lender is entering into this Amendment in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriate.
Appears in 1 contract
BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants that:
that (a) immediately upon giving effect to this Amendment (i) it is in good standing under the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as laws of the date hereof (state of its formation, duly qualified to do business and will remain duly qualified during the term of each Loan in each state where necessary to carry on its present business and operations, including the jurisdiction(s) where the Collateral will be located as specified on each Exhibit A to each Note, except where failure to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), and (ii) no Event of Default has occurred and is continuing;
be so qualified would not have a Material Adverse Effect; (b) Borrower it has the corporate power and full authority to execute and deliver this Amendment Security Agreement and to the Notes and perform its the terms hereof and thereof, and this Security Agreement and the Notes have been duly authorized, executed and delivered and constitute valid and binding obligations under the Loan Agreement, as amended by this Amendment;
of Borrower enforceable in accordance with their terms; (c) the certificate of incorporation and by-laws of Borrower (collectively, “Organizational Documents”) delivered to Bank on or prior to the date hereof are true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documents;
(d) the execution and delivery by Borrower of this Amendment Security Agreement and the performance by Notes will not contravene any law, regulation or judgment affecting Borrower or result in any breach of its obligations under the Loan Agreementany material agreement or other instrument binding on Borrower; (d) no consent of Borrower’s shareholders or holder of any indebtedness, or filing with, or approval of, any governmental agency or commission, which has not already been obtained or performed, as amended by appropriate, is a condition to the performance of the terms of this Amendment, have been duly authorized by all necessary corporate action on Security Agreement or the part of Borrower;
Notes; (e) this Amendment has been duly executed and delivered by there is no action or proceeding pending or threatened against Borrower before any court or administrative agency which might have a Material Adverse Effect on the Borrower and is the binding obligation business, financial condition or operations of Borrower, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; and
(f) as at the time any Loan is made hereunder, Borrower owns and will keep all of the date hereofCollateral free and clear of all liens, claims and encumbrances, and, except for this Security Agreement, there is no deed of trust, mortgage, security agreement or other third party interest against any of the Collateral other than Permitted Liens (as defined below); (g) at the time any Loan is made hereunder, Borrower has no defenses against good and marketable title to the obligations to pay Collateral; (h) at the time any amounts under Loan is made hereunder, all Collateral has been received, installed and is ready for use and is satisfactory in all respects for the Obligations. Borrower acknowledges that Bank has acted in good faith and has conducted in a commercially reasonable manner its relationships with Borrower in connection with purposes of this Amendment and in connection with Security Agreement; (i) the Loan Documents. Borrower understands and acknowledges that Bank is entering into this Amendment in reliance uponCollateral is, and will remain at all times under applicable law, removable personal property, which is free and clear of any lien or encumbrance except in partial consideration forfavor of Lender other than Permitted Liens (as defined below), notwithstanding the above representations manner in which the Collateral may be attached to any real property; (j) all credit and warrantiesfinancial information submitted to Lender herewith or at any other time is and will at the time given be true and correct in all material respects; and (k) the security interest granted to Lender hereunder is a first priority security interest, and agrees that such reliance is reasonable and appropriate.(I) on or before January 1, 2000, Borrower’s computer system shall be Year
Appears in 1 contract
Sources: Senior Loan and Security Agreement (Xcyte Therapies Inc)
BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents Borrowers represent and warrants thatwarrant to the Lenders and the Agent as follows:
(a) immediately upon giving effect to The execution, delivery and performance of this Amendment (i) the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), and (ii) no Event of Default has occurred and is continuing;
(b) Borrower has the corporate power and authority to execute and deliver this First Amendment and to perform its obligations under the Loan Agreement, as amended all agreements and documents delivered pursuant hereto by this Amendment;
(c) the certificate of incorporation and by-laws of Borrower (collectively, “Organizational Documents”) delivered to Bank on or prior to the date hereof are true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documents;
(d) the execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, Borrowers have been duly authorized by all necessary corporate action on and do not and will not violate any provision of any law, rule, regulation, order, judgment, injunction, or writ presently in effect applying to Borrowers, or their articles of organization, operating agreement, articles of incorporation or bylaws, as applicable, or result in a breach of or constitute a default under any material agreement, lease or instrument to which any Borrower is a party or by which it or any of its properties may be bound or affected; (ii) no authorization, consent, approval, license, exemption or filing of a registration with any court or governmental department, agency or instrumentality is or will be necessary to the part valid execution, delivery or performance by Borrowers of Borrower;
this First Amendment and all agreements and documents delivered pursuant hereto; and (eiii) this First Amendment has been duly executed and all agreements and documents delivered pursuant hereto by each Borrower are the Borrower legal, valid and is the binding obligation obligations of each Borrower, as a signatory thereto, and enforceable against it each Borrower in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; andthe terms thereof.
(fb) After giving effect to the amendments contained in this First Amendment, the representations and warranties contained in Article VI of the Credit Agreement are true and correct on and as of the date hereofFirst Amendment Effective Date with the same force and effect as if made on and as of the First Amendment Effective Date, Borrower except that the representation in Section 6.4 of the Credit Agreement shall be deemed to refer to the financial statements of the Borrowers most recently delivered to the Lenders and the Agent prior to the First Amendment Effective Date.
(c) No Event of Default has no defenses against the obligations to pay any amounts occurred and is continuing or will exist under the Obligations. Borrower acknowledges that Bank has acted in good faith and has conducted in a commercially reasonable manner its relationships with Borrower in connection with this Credit Agreement as of the First Amendment and in connection with the Loan Documents. Borrower understands and acknowledges that Bank is entering into this Amendment in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriateEffective Date.
Appears in 1 contract
BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants that:
(a) immediately upon giving effect to this Amendment : (i) Borrower will comply with all laws, statutes, regulations and ordinances pertaining to the representations conduct of Borrowers business and warranties contained promises to hold Lender harmless from any damages, liabilities, costs, expenses (including attorneys' fees) or other harm arising out of any violation thereof, (ii) Borrower's principal executive office and the office where Borrower keeps its records concerning its accounts, contract rights and other property, is that shown in the Loan Documents are trueapplication; (iii) Borrower is duly organized, accurate licensed, validly existing and complete in all material respects as good standing under the laws of the date hereof (except to the extent such representations its state of formation and warranties relate to an earlier dateshall hereafter remain in good standing in that state, and is duly qualified, licensed and in good standing in every other state in which case they are it is doing business, and shall hereafter remain duly qualified, licensed and in good standing in every other state in which it is doing business, and shall hereafter remain duly qualified, licensed and in good standing in every other state in which the failure to qualify or become licensed could have a material adverse ODC App #: 855640 Customer: VAPOR HUB INTERNATIONAL INC effect on the financial condition, business or operations of Borrower; (iv) the true and correct as legal name of such date)the Borrower is set forth in the application; (v) the aggregate ownership percentage of the Signatories is greater than or equal to fifty percent (50%) of the Borrower's business; (vi) the execution, delivery and performance of this Agreement, and (ii) no Event of Default has occurred and is continuing;
(b) Borrower has the corporate power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreementany other document executed in connection herewith, as amended by this Amendment;
(c) the certificate of incorporation and by-laws of Borrower (collectively, “Organizational Documents”) delivered to Bank on or prior to the date hereof are true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documents;
(d) the execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendmentwithin Borrower's powers, have been duly authorized by all necessary corporate action on authorized, are not in contravention of law or the part terms of Borrower;
's charter, by-laws or other constating documents, or of any indenture, agreement or undertaking to which Borrower is a party; (evii) this Amendment has all organization papers and all amendments thereto of Borrower have been duly executed filed and delivered are in proper order and any capital stock issued by the Borrower and outstanding was and is the binding obligation properly issued and all books and records of BorrowerBorrower are accurate and up to date and will be so maintained; (viii) Borrower (a) is subject to no charter, enforceable against it corporate or other legal restriction, or any judgment, award, decree, order, governmental rule or regulation or contractual restriction that could have a material adverse effect on its financial condition, business or prospects, and (b) is in accordance compliance with its termscharter, except as such enforceability by-laws and other constating documents, all contractual requirements by which it may be limited by bankruptcybound and all applicable laws, insolvencyrules and regulations other than laws, reorganization, liquidation, moratorium rules or other similar laws regulations the validity or applicability of general application and equitable principles relating to or affecting creditors’ rights; and
(f) as of the date hereof, Borrower has no defenses against the obligations to pay any amounts under the Obligations. Borrower acknowledges that Bank has acted which it is contesting in good faith or provisions of any of the foregoing the failure to comply with which cannot reasonably be expected to materially adversely affect its financial condition, business or prospects or the value of the Collateral; and has conducted in (ix) there is no action, suit, proceeding or investigation pending or, to Borrowers knowledge, threatened against or affecting it or any of its assets before or by any court or other governmental authority which, if determined adversely to it, would have a commercially reasonable manner material adverse effect on its relationships with Borrower in connection with this Amendment and in connection with financial condition, business or prospects or the Loan Documents. Borrower understands and acknowledges that Bank is entering into this Amendment in reliance upon, and in partial consideration for, value of the above representations and warranties, and agrees that such reliance is reasonable and appropriateCollateral.
Appears in 1 contract
Sources: Business Loan and Security Agreement (Vapor Hub International Inc.)
BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants to PFG that:
(a) immediately upon giving effect to this Amendment Third Modification: (i) the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate qualified in the updated Representations delivered to an earlier date, in which case they are true and correct as of such datePFG on or before the Third Modification Effective Date), and (ii) no Event of Default has occurred and is continuing, other than the Specified Defaults;
(b) Borrower has the corporate power and authority to execute and deliver this Amendment Third Modification and to perform its obligations under the Loan AgreementDocuments, as amended modified by this AmendmentThird Modification;
(c) the certificate of incorporation and by-laws Constitutional Documents of Borrower (collectively, “Organizational Documents”) delivered to Bank on or prior to the date hereof are PFG remain true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documentseffect;
(d) the execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate action on the part of Borrower;
(e) this Amendment Third Modification has been duly authorized, executed and delivered by the Borrower and is (i) constitutes the binding obligation of Borrower, enforceable against it Borrower in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; and(ii) does not conflict with any law or regulation or judgment or the Constitutional Documents of Borrower, or any agreement or document to which Borrower is a party or which is binding upon it or any of its assets; and (iii) does not require any authorization, approval, consent (including stockholder or member consent) of any Person, or any license or registration in any jurisdiction, for its lawful authorization, execution, performance, validity or enforceability, except to the extent such authorization, approval, consent (including stockholder or member consent) of any Person, license or registration is secured on or prior to the Third Modification Effective Date and provided to PFG;
(fe) as of the date hereof, with Knowledge that PFG is relying on Borrower’s representations and warranties herein (including the Representations) as a basis for entering into this Third Modification at Borrower’s request, Borrower has no defenses against its obligation to repay the obligations to pay Obligations and it has no claims of any amounts under the Obligationskind against PFG. Borrower acknowledges that Bank PFG has acted in good faith and has conducted its relationship with Borrower in a commercially reasonable manner its relationships with Borrower manner, including in connection with this Amendment Third Modification and in connection with the Loan Documents;
(f) with respect to any Loan Documents binding upon a Person not party to this Third Modification, each such Person has been apprised of this Third Modification, has consented to Borrower’s execution and delivery of this Third Modification and, to the extent not executed concurrently with this Third Modification (or as a condition subsequent hereto), has agreed if so requested by PFG to promptly execute and deliver to PFG a reaffirmation of its obligations under any Loan Documents to which it is a party or is bound;
(g) the IPSA, the Collateral Agreements and Notices and their respective Schedules, taken as a whole and as last amended and delivered to PFG, contain an accurate, complete and current listing of all Collateral that consists of Intellectual Property;
(h) Borrower hereby ratifies, confirms and reaffirms, all and singular, the terms and disclosures contained in the Representations dated as of the Third Modification Effective Date; and
(i) Except as expressly stated in this Third Modification, neither PFG nor any agent, employee or representative of PFG has made any statement or representation to Borrower regarding any fact relied upon by Borrower in entering into this Third Modification, (ii) Borrower has made such investigation of the facts pertaining to this Third Modification and all of the matters appertaining thereto, as it deems necessary, and (iii) the terms of this Third Modification are contractual and not a mere recital. Borrower understands and acknowledges that Bank PFG is entering into this Amendment Third Modification in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriate.
Appears in 1 contract
BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants that:
(a) except as described on Schedule B hereto, immediately upon giving effect to this Amendment (i) the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), and (ii) no Event of Default has occurred and is continuing;
(b) Borrower has the corporate power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment;
(c) except as set forth in the Certificate of Amendment of Restated Certificate of Incorporation of Parent dated July 28, 2011 and filed as Exhibit 3.2 to Parent’s Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2011, which was filed with the U.S. Securities and Exchange Commission on August 8, 2011, the certificate or articles of incorporation incorporation, bylaws and by-laws other organizational documents of Borrower (collectively, “Organizational Documents”) delivered to Bank Lender on or prior to the date hereof are Closing Date remain true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documentseffect;
(d) the execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate action on the part of Borrower;
(e) this Amendment has been duly executed and delivered by the Borrower and is the binding obligation of Borrower, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; and
(f) as of the date hereof, Borrower it has no defenses against the obligations to pay any amounts under the Obligations. Borrower acknowledges that Bank Lender has acted in good faith and has conducted in a commercially reasonable manner its relationships with Borrower in connection with this Amendment and in connection with the Loan Documents. Borrower understands and acknowledges that Bank is entering into this Amendment in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriate.
Appears in 1 contract
Sources: Loan and Security Agreement (Alexza Pharmaceuticals Inc.)
BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants that:
(a) immediately 2.1 Immediately upon giving effect to this Second Amendment (i) the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), and (ii) no Event of Default has occurred and is continuing;continuing with respect to which Borrower has not been notified in writing by Agent.
(b) 2.2 Borrower has the corporate power and authority to execute and deliver this Second Amendment and to perform its obligations under the Loan Agreement, as amended by this Second Amendment;.
(c) the 2.3 The certificate of incorporation incorporation, bylaws and by-laws other organizational documents of Borrower (collectively, “Organizational Documents”) delivered to Bank Agent and Lender on or prior to the date hereof are Closing Date remain true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documents;effect.
(d) the 2.4 The execution and delivery by Borrower of this Second Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Second Amendment, have been duly authorized by all necessary corporate action on the part of Borrower;.
(e) this 2.5 This Second Amendment has been duly executed and delivered by the Borrower and is the binding obligation of Borrower, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; and
(f) as 2.6 As of the date hereof, Borrower it has no defenses against the obligations to pay any amounts under the Secured Obligations. Borrower acknowledges that Bank has Agent and Lender have acted in good faith and has have conducted in a commercially reasonable manner its their relationships with Borrower in connection with this Second Amendment and in connection with the Loan Documents. Borrower understands and acknowledges that Bank is Agent and Lender are entering into this Second Amendment in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriate.
Appears in 1 contract
Sources: Loan and Security Agreement (X4 Pharmaceuticals, Inc)
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower represents makes the following representations and warrants thatwarranties:
(a) immediately upon giving effect to this Amendment (i) The Borrower is a Georgia limited liability company duly organized and in good standing under the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as laws of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as State of such date), and (ii) no Event of Default has occurred Georgia and is continuing;
(b) duly qualified to conduct its business as presently conducted within the State of Georgia. The Borrower has the corporate full legal right, power and authority to execute and deliver this Amendment Bond Purchase Agreement, the Agreement, the Note, and the Reimbursement Agreement, to provide for the operation of the Project, and to perform take any and all such action as may be required on its obligations under part to carry out, give effect to and consummate the Loan transactions contemplated by this Bond Purchase Agreement and the Agreement.
(b) This Bond Purchase Agreement constitutes, and the Agreement, as amended by this Amendment;
(c) the certificate of incorporation Note, and by-laws of Borrower (collectivelythe Reimbursement Agreement when executed and delivered, “Organizational Documents”) delivered to Bank on or prior to the date hereof are truewill constitute legal, accurate valid and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as binding obligations of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documents;
(d) the execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate action on the part of Borrower;
(e) this Amendment has been duly executed and delivered by the Borrower and is the binding obligation of Borrower, enforceable against it in accordance with its their respective terms, except as such that enforceability may be limited by laws relating to bankruptcy, insolvency, reorganization, liquidation, moratorium reorganization or other similar laws affecting the rights of creditors, and by the exercise of judicial discretion in accordance with general application principles of equity.
(c) The Borrower hereby authorizes the distribution of the Offering Memorandum by the Underwriter, in both preliminary and equitable principles relating final form.
(d) The information contained in the Offering Memorandum under the captions “The Borrower” and “Use of Proceeds” is, and as of the Closing Date will be, true and correct in all material respects, and such information does not and will not contain any untrue or misleading statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they are made, not misleading.
(e) Except for the Federal securities laws or affecting creditors’ rights; andthe Blue Sky laws of any jurisdiction, with respect to which the Borrower makes no representation, neither the execution and delivery of this Bond Purchase Agreement, the Note, the Reimbursement Agreement and the Agreement nor the consummation by the Borrower of the transactions contemplated therein or the compliance by the Borrower with the provisions thereof, will conflict with, or constitute on the part of the Borrower a violation of, or a breach of or default under any statute, indenture, mortgage, commitment, note or other agreement or instrument to which the Borrower is a party or by which the Borrower is bound, or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Borrower or any of his activities or properties, where such violation, breach or default would materially adversely affect the validity or enforceability of this Bond Purchase Agreement, the Note, the Reimbursement Agreement or the Agreement. All consents, approvals, authorizations and orders of governmental or regulatory authorities which are required to be obtained by the Borrower on or before the date hereof for the Borrower’s execution and delivery of, consummation of the transactions contemplated by and compliance with the provisions of this Bond Purchase Agreement and the Agreement have been obtained.
(f) Except as may be disclosed in the Offering Memorandum, there is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, public board or body, pending or, to the knowledge of the Borrower, threatened, against or affecting the Borrower which would materially adversely affect the validity or enforceability of this Bond Purchase Agreement, the Agreement, the Note, or the Reimbursement Agreement.
(g) No event has occurred and no condition exists which, upon issuance of the Bonds, would constitute (or with the giving of notice or lapse of time, or both, would constitute) an event of default under the Agreement.
(h) The Borrower is not in violation of any provision of, or in default under, any statute, indenture, mortgage, commitment, note or other agreement or instrument to which it is a party or by which it is bound, or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Borrower or any of its activities or properties, other than violations or defaults the effect of which do not materially adversely affect the validity or enforceability of this Bond Purchase Agreement, the Agreement, the Note, or the Reimbursement Agreement.
(i) Any certificate signed by the Borrower and delivered to the Underwriter, the Letter of Credit Bank, each Confirming Bank or the Issuer shall be deemed a representation and warranty by the Borrower to the Underwriter, the Letter of Credit Bank, each Confirming Bank and the Issuer as to the truth of the statements therein contained.
(j) The Borrower has determined that the Preliminary Offering Memorandum was final as of its date, except for the omission of the offering prices, interest rates and redemption schedules, selling compensation and delivery dates, within the meaning of Rule 15c2-12 promulgated under Section 15(c) of the Securities Exchange Act of 1934, as amended;
(k) The Borrower will deliver, or cause to be delivered, a final Offering Memorandum within the meaning of Rule 15c2-12 to the Underwriter within seven business days of the date hereof, Borrower has no defenses against the obligations to pay any amounts under the Obligations. Borrower acknowledges that Bank has acted in good faith and has conducted in a commercially reasonable manner its relationships with Borrower in connection with of this Amendment and in connection with the Loan Documents. Borrower understands and acknowledges that Bank is entering into this Amendment in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriateBond Purchase Agreement.
Appears in 1 contract
BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants that:
(a) immediately upon giving effect to this Amendment Forbearance Extension (i) the representations and warranties contained in the Loan Documents Agreement are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct in all material respects as of such date), and (ii) no Default or Event of Default has occurred and is continuingcontinuing (other than the Continuing Defaults);
(b) Borrower has the corporate power and authority to execute and deliver this Amendment Forbearance Extension and to perform its obligations under the Existing Loan AgreementDocuments, as amended by this AmendmentForbearance Extension;
(c) the certificate of incorporation incorporation, bylaws and by-laws other organizational documents of Borrower (collectively, “Organizational Documents”) delivered to Bank PFG on or prior to the date hereof are Forbearance Extension Effective Date of the Loan Agreement either remain true, accurate and complete as delivered on such Forbearance Extension Effective Date or Borrower shall have delivered true and have not been correct copies of the foregoing, as amended, supplemented or restated and and, in each case, all of the foregoing are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documentseffect;
(d) the execution and delivery by Borrower of this Amendment Forbearance Extension and the performance by Borrower of its obligations under the Existing Loan AgreementDocuments, as amended by this AmendmentForbearance Extension, have been duly authorized by all necessary corporate action on the part of Borrower;
(e) this Amendment Forbearance Extension has been duly executed and delivered by the Borrower and is the binding obligation of Borrower, enforceable against it in accordance with its termsthe terms of this Forbearance Extension, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; and;
(f) as of the date hereof, Borrower has no defenses defenses, affirmative or otherwise, rights of setoff, rights of recoupment, claims, counterclaims, actions or causes of action of any kind or nature whatsoever against PFG or any past, present or future agent, attorney, legal representative, predecessor-in-interest, affiliate, successor, assign, employee, director or officer of PFG, directly or indirectly, arising out of, based upon, or in any manner connected with, any transaction, event, circumstance, action, failure to act, or occurrence of any sort or type, whether known or unknown, which occurred, existed, was taken, permitted, or began prior to the obligations execution of this Forbearance Extension and accrued, existed, was taken, permitted or begun in accordance with, pursuant to, or by virtue of the terms or conditions of the Existing Loan Documents, or which directly or indirectly relate to pay or arise out of or in any amounts under manner are connected with any of the ObligationsExisting Loan Documents;
(g) the proceeds of the Notified Financing will be used (in part) by Borrower to make the Special Permitted Payments;
(h) Borrower has freely and voluntarily entered into this Forbearance Extension after an adequate opportunity and sufficient period of time to review, analyze and discuss all terms and conditions of this Forbearance Extension and all factual and legal matters relevant hereto with counsel freely and independently chosen by it. Borrower further acknowledges that it has actively and with full understanding participated in the negotiation of this Forbearance Extension after consultation and review with its counsel and that this Forbearance Extension has been negotiated, prepared and executed without fraud, duress, undue influence or coercion of any kind or nature whatsoever having been exerted by or imposed upon any party to this Forbearance Extension.
(i) Borrower has not voluntarily or involuntarily, granted any Liens to any creditor not previously disclosed to PFG in writing on or before the Forbearance Extension Effective Date or taken any action or failed to take any action which could or would impair, change, jeopardize or otherwise adversely affect the priority, perfection, validity or enforceability of any Liens securing all or any portion of the Obligations or the priority or validity of PFG’s claims with respect to the Obligations relative to any other creditor of Borrower, subject only to Permitted Liens. Borrower acknowledges that Bank PFG has acted in good faith and has conducted in a commercially reasonable manner its relationships relationship with such Borrower in connection with this Amendment Forbearance Extension and in connection with the Existing Loan Documents;
(j) the Security Documents relating to Intellectual Property either disclose an accurate, complete and current listing of all Collateral that consists of Intellectual Property or Borrower has included revised and updated Intellectual Property schedules as part of an update to the Representations required in Section 11 of this Forbearance Extension;
(k) as of the Forbearance Extension Effective Date, Borrower ratifies, confirms and reaffirms, all and singular, the terms and disclosures contained in the Representations last delivered to PFG, as amended by any update to the Representations made since such date or delivered under or in connection with this Forbearance Extension, including under Section 11;
(l) except as expressly stated in this Forbearance Extension, neither PFG nor any agent, employee or representative of PFG has made any statement or representation to Borrower regarding any fact relied upon by Borrower in entering into this Forbearance Extension;
(m) Borrower has made such investigation of the facts pertaining to this Forbearance Extension and all of the matters appertaining thereto, as it deems necessary;
(n) the terms of this Forbearance Extension are contractual and not a mere recital;
(o) appended as Exhibit A hereto is a true, correct and complete capitalization to Borrower on a pre-Notified Financing basis and post Notified Financing basis which does reflect the issue of the Expiring Forbearance Warrants and the stock issuable under the Warrant Cancellation Agreement referenced in Section 4(i) but does not reflect the Forbearance Extension Warrants or the Forbearance Extension Stock, all of which Borrower has agreed and reaffirms its agreement to issue to PFG and its designees promptly following the initial consummation of the Notified Financing, all of the foregoing on a post-split basis.;
(p) Borrower represents and warrants that it is the sole and lawful owner of all right, title and interest in and to every claim and every other matter which it releases herein, and that it has not heretofore assigned or transferred, or purported to assign or transfer, to any person, firm or entity any claims or other matters herein released. Borrower shall indemnify PFG, defend and hold it harmless from and against all claims based upon or arising in connection with prior assignments or purported assignments or transfers of any claims or matters released herein. Borrower understands and acknowledges that Bank PFG is entering into this Amendment Forbearance Extension in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriate.
Appears in 1 contract
BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants that:
(a) immediately upon giving effect to this Amendment Fourth Modification (i) the representations and warranties contained in the Existing Loan Documents are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate qualified in the updated Representations deliverable to an earlier date, in which case they are true and correct as of such datePFG on or before the Fourth Modification Effective Date), and (ii) no Event of Default has occurred and is continuing;
(b) Borrower has the corporate power and authority to execute and deliver this Amendment Fourth Modification and to perform its obligations under the Existing Loan AgreementDocuments, in each case as amended contemplated by this AmendmentFourth Modification;
(c) the certificate of incorporation and by-laws Constitutional Documents of Borrower (collectively, “Organizational Documents”) delivered to Bank on or prior to the date hereof are PFG remain true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documentseffect;
(d) the execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate action on the part of Borrower;
(e) this Amendment Fourth Modification has been duly authorized, executed and delivered by the Borrower and is (i) constitutes the binding obligation of Borrower, enforceable against it Borrower in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; and(ii) does not conflict with any law or regulation or judgment or the Constitutional Documents of Borrower, or any agreement or document to which Borrower is a party or which is binding upon it or any of this assets; and (iii) does not require any authorization, approval, consent (including stockholder or member consent) of any Person, or any license or registration in any jurisdiction, for its lawful authorization, execution, performance, validity or enforceability, except to the extent such authorization, approval, consent (including stockholder or member consent) of any Person, license or registration is secured on or prior to the Fourth Modification Effective Date and provided to PFG;
(fe) as of the date hereof, with Knowledge that PFG is relying on Borrower’s representations and warranties herein (including the Representations) as a basis for entering into this Fourth Modification at Borrower’s request, Borrower has no defenses against its obligation to repay the obligations to pay Obligations and it has no claims of any amounts under the Obligationskind against PFG. Borrower acknowledges that Bank PFG has acted in good faith and has conducted its relationship with Borrower in a commercially reasonable manner its relationships with Borrower manner, including in connection with this Amendment Fourth Modification and in connection with the Existing Loan Documents;
(f) with respect to any Loan Documents binding upon a Person not party to this Fourth Modification, each such Person has been apprised of this Fourth Modification, has consented to Borrower’s execution and delivery of this Fourth Modification and, to the extent not executed concurrently with this Fourth Modification (or as a condition subsequent hereto), has agreed if so requested by PFG to promptly execute and deliver to PFG a reaffirmation of its obligations under any Existing Loan Documents to which it is a party or is bound;
(g) the IPSA and associated Collateral Agreements and Notices disclose an accurate, complete and current listing of all Collateral that consists of Intellectual Property (as defined in said IP Security Agreement) or Borrower has included revised and updated Intellectual Property schedules as part of an update to the Representations required in Section 6(e) of this Fourth Modification and as part of the Intellectual Property and Domain Rights update and, as required, the Reaffirmation of IPSA under Section 6(f) of this Fourth Modification;
(h) Borrower hereby ratifies, confirms and reaffirms, all and singular, the terms and disclosures contained in the Representations dated as of the Fourth Modification Effective Date;
(i) as of the Fourth Modification Effective Date, Borrower has not asserted any commercial tort claims against any Person and has no Knowledge of any basis for so doing; and
(j) Except as expressly stated in this Fourth Modification, neither PFG nor any agent, employee or representative of PFG has made any statement or representation to Borrower regarding any fact relied upon by Borrower in entering into this Fourth Modification, (ii) Borrower has made such investigation of the facts pertaining to this Fourth Modification and all of the matters appertaining thereto, as it deems necessary, and (iii) the terms of this Fourth Modification are contractual and not a mere recital. Borrower understands and acknowledges that Bank PFG is entering into this Amendment Fourth Modification in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriate.
Appears in 1 contract
BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents and ----------------------------------------- warrants thatto Provident as follows as of the date hereof and as of each Funding Date:
(a) immediately upon giving effect to this Amendment (i) Borrower is and shall at all times be, duly organized, validly existing and in good standing under the representations and warranties contained laws of the State set forth in the Loan Documents are truefirst paragraph of this Agreement and has, accurate and complete shall at all times have, full power and authority and legal right to engage in all material respects and carry on Borrower's business as now being conducted, to undertake the borrowings contemplated hereby and to execute and deliver each of the date hereof (except to Loan Documents. Borrower is qualified and licensed in each jurisdiction wherein the extent nature or conduct of its business make such representations qualification necessary or advisable. Borrower is currently qualified and warranties relate to an earlier datelicensed in good standing in each such jurisdiction. Borrower's name as set forth in the caption of this Agreement and as set forth on the signature page of this Agreement is Borrower's correct individual, in which partnership or corporate name, as the case they are true and correct as of such date), and (ii) no Event of Default has occurred and is continuing;may be.
(b) Borrower has the corporate full power and authority and legal right to execute enter into this Agreement and deliver this Amendment each of the other Loan Documents, and to perform perform, observe and comply with all of its agreements and obligations under each of such documents, including without limitation, the Loan Agreement, as amended making by this Amendment;Borrower of the borrowings contemplated hereby and the granting by Borrower of the security interest in the Collateral pursuant to Section 5.
(c) the certificate of incorporation and by-laws of Borrower (collectively, “Organizational Documents”) delivered to Bank on or prior to the date hereof are true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documents;
(d) the Thc execution and delivery by Borrower of this Amendment Agreement and the other Loan Documents, the performance by Borrower of all of its agreements and obligations under hereunder and thereunder and the Loan Agreement, as amended making by Borrower of the borrowings contemplated by this Amendment, Agreement have been duly authorized by all necessary corporate action on the part of Borrower;Borrower and do not and will not constitute a breach, violation or event of default (or an event which would become an event of default with the lapse of time or notice or both) under any judgment, decree, note, agreement, indenture or other instrument to which Borrower is a party or otherwise subject.
(d) Borrower owns or possesses all rights, licenses, permits, franchises and the like necessary for the conduct of its business as presently conducted and proposed to be conducted, All of the foregoing rights, licenses, permits and franchises are in full force and effect, and Borrower is in compliance with all of the foregoing. No event has occurred which permits, or after notice or lapse of time or both would permit, the revocation or termination of any such right, license, permit or franchise, or affects the rights of Borrower thereunder.
(e) this Amendment has been duly executed The balance sheets, statements of income and other financial statements previously delivered by to Provident present fairly the financial condition and results of operations of Borrower as of the dates thereof and is for the binding obligation fiscal periods then ended. There are no material liabilities or obligations, secured and unsecured (whether accrued, absolute or actual, contingent or otherwise), which were not reflected in the balance sheets of Borrower, enforceable against it in accordance with its terms, except Borrower as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; andthe dates thereof.
(f) as No changes have occurred in the assets, liabilities or financial condition of Borrower from those reflected on the most recent balance sheet delivered to Provident (the "Current Balance Sheet") which, individually or in the aggregate, have been adverse. Since the date of the date hereofCurrent Balance Sheet, there has been no adverse development in the business or in the operations or prospects of Borrower.
(g) Borrower has no defenses against is the obligations to pay any amounts under the Obligations. Borrower acknowledges that Bank has acted in good faith sole owner of and has conducted good and marketable title to the Collateral, free and clear of all Liens and encumbrances whatsoever, except for the security interest granted by Borrower pursuant to Section 5. All information furnished to Provident concerning the Collateral is and will be complete, accurate and correct in a commercially reasonable manner its relationships with Borrower in connection with this Amendment and in connection with the Loan Documents. Borrower understands and acknowledges that Bank is entering into this Amendment in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriateall respects when furnished.
Appears in 1 contract
Sources: Warehouse Loan and Security Agreement (Loraca International Inc)
BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants that:
(a) immediately 2.1 Immediately upon giving effect to this Fourth Amendment (i) the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), and (ii) no Event of Default has occurred and is continuing;continuing with respect to which Borrower has not been notified in writing by Agent.
(b) 2.2 Borrower has the corporate power and authority to execute and deliver this Fourth Amendment and to perform its obligations under the Loan Agreement, as amended by this Fourth Amendment;.
(c) the 2.3 The certificate of incorporation incorporation, bylaws and by-laws other organizational documents of Borrower (collectively, “Organizational Documents”) delivered to Bank Agent and Lender on or prior to the date hereof are Closing Date remain true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documents;effect.
(d) the 2.4 The execution and delivery by Borrower of this Fourth Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Fourth Amendment, have been duly authorized by all necessary corporate action on the part of Borrower;.
(e) this 2.5 This Fourth Amendment has been duly executed and delivered by the Borrower and is the binding obligation of Borrower, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; and
(f) as 2.6 As of the date hereof, Borrower it has no defenses against the obligations to pay any amounts under the Secured Obligations. Borrower acknowledges that Bank has Agent and Lender have acted in good faith and has have conducted in a commercially reasonable manner its their relationships with Borrower in connection with this Fourth Amendment and in connection with the Loan Documents. Borrower understands and acknowledges that Bank is Agent and Lender are entering into this Fourth Amendment in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriate.
Appears in 1 contract
Sources: Loan and Security Agreement (X4 Pharmaceuticals, Inc)
BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants that:
that (a) immediately upon giving effect to this Amendment (i) it is in good standing under the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as laws of the date hereof (state of its formation, duly qualified to do business and will remain duly quality during the term of each Loan in each state where necessary to carry on its present business and operations, including the jurisdiction(s) where the Collateral will be located as specified on each Exhibit A to each Note, except where failure to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), and (ii) no Event of Default has occurred and is continuing;
be so qualified would not have a Material Adverse Effect; (b) Borrower it has the corporate power and full authority to execute and deliver this Amendment Security Agreement and to the Notes and perform its the terms hereof and thereof, and this Security Agreement and the Notes have been duly authorized, executed and delivered and constitute valid and binding obligations under the Loan Agreement, as amended by this Amendment;
of Borrower enforceable in accordance with their terms; (c) the certificate of incorporation and by-laws of Borrower (collectively, “Organizational Documents”) delivered to Bank on or prior to the date hereof are true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documents;
(d) the execution and delivery by Borrower of this Amendment Security Agreement and the performance by Notes will not contravene any law, regulation or judgment affecting Borrower or result in any breach of its obligations under the Loan Agreementany material agreement or other instrument binding on Borrower; (d) no consent of Borrower's shareholders or holder of any indebtedness, or filing with, or approval of, any governmental agency or commission, which has not already been obtained or performed, as amended by appropriate, is a condition to the performance of the terms of this Amendment, have been duly authorized by all necessary corporate action on Security Agreement or the part of Borrower;
Notes; (e) this Amendment has been duly executed and delivered by to the Borrower and is the binding obligation best of Borrower's knowledge, enforceable there is no action or proceeding pending or threatened against it in accordance with its termsBorrower before any court or administrative agency which might have a Material Adverse Effect on the business, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium financial condition or other similar laws operations of general application and equitable principles relating to or affecting creditors’ rightsBorrower; and
(f) as at the time any Loan is made hereunder, Borrower owns and will keep all of the date hereofCollateral; (g) at the time any Loan is made hereunder, Borrower all Collateral has no defenses against been received, installed and is ready for use and is satisfactory in all respects for the obligations to pay any amounts under purposes of this Security Agreement; (i) the Obligations. Borrower acknowledges that Bank has acted in good faith and has conducted in a commercially reasonable manner its relationships with Borrower in connection with this Amendment and in connection with the Loan Documents. Borrower understands and acknowledges that Bank is entering into this Amendment in reliance uponCollateral is, and will remain at all times under applicable law, removable personal property, which is free and clear of any lien or encumbrance except in partial consideration forfavor of Lender, notwithstanding the above representations manner in which the Collateral may be attached to any real property; (j) all credit and warrantiesfinancial information submitted to Lender herewith or at any other time is and will at the time given be true and correct in all material respects; and (k) the security interest granted to Lender hereunder is a first priority security interest, and agrees that such reliance is reasonable (l) on or before January 1, 2000, Borrower's computer system shall be Year 2000 performance compliant and appropriatewill thus be able to accurately process date data from, into and between the years 1999 and 2000, including leap year calculations.
Appears in 1 contract
Sources: Senior Loan and Security Agreement (Embark Com Inc)
BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants that:
(a) immediately 2.1 Immediately upon giving effect to this Amendment (i) the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), and (ii) no Event of Default has occurred and is continuing;continuing with respect to which Borrower has not been notified in writing by Agent or Lender.
(b) 2.2 Borrower has the corporate power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment;.
(c) the 2.3 The certificate of incorporation incorporation, bylaws and by-laws other organizational documents of Borrower (collectively, “Organizational Documents”) delivered to Bank Lender on or prior to the date hereof are Closing Date remain true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documents;effect.
(d) the execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate action on the part of Borrower;
(e) this 2.4 This Amendment has been duly executed and delivered by the Borrower and is the binding obligation of Borrower, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; and
(f) as 2.5 As of the date hereof, Borrower it has no defenses against the obligations to pay any amounts under the Obligations. Borrower acknowledges that Bank has Lender and Agent have acted in good faith and has conducted in a commercially reasonable manner its relationships with Borrower in connection with this Amendment and in connection with the Loan Documents. Borrower understands and acknowledges that Bank Lender is entering into this Amendment in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriate.
Appears in 1 contract
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants that:
(a) immediately upon giving effect to this Amendment (i) a Lender and the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as Agent that each of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are following items is true and correct as of such date)the execution date of this Agreement and each Drawdown Date.:
(i) The Borrower is a stock company duly incorporated and validly existing under the laws of Japan.
(ii) The execution and performance of this Agreement by the Borrower and any transactions associated herewith are within the corporate purposes of the Borrower and the Borrower has duly completed all procedures necessary therefor under the Laws and Ordinances, the Articles of Incorporation and other internal company rules of the Borrower.
(iii) The execution and performance of this Agreement by the Borrower and any transactions associated herewith does not result in (a) any violation of Laws and Ordinances which bind the Borrower, (b) any breach of its Articles of Incorporation and other internal company rules of the Borrower, and (iic) any breach of a third-party contract to which the Borrower is a party or which binds the Borrower or the assets of the Borrower.
(iv) The person representing the Borrower who signed or attached his/her name and seal to this Agreement is authorized to sign or attach his/her name and seal to this Agreement as the representative of the Borrower by all procedures necessary pursuant to the Laws and Ordinances, Articles of Incorporation or other internal company rules of the Borrower.
(v) This Agreement constitutes legal, valid and binding obligations of the Borrower, and is enforceable against the Borrower in the performance of this Agreement in accordance with the provisions of this Agreement.
(vi) The Financial Statements (if an audit is obliged to be conducted on such Financial Statements pursuant to the Laws and Ordinances and other audits are conducted, the audited Financial Statements) (if the Borrower prepares the Reports, the Reports) prepared by the Borrower are accurately and duly prepared in accordance with the accounting standards which is generally accepted as fair and appropriate one in Japan.
(vii) No material change, which may materially affect the performance of obligations by the Borrower under this Agreement in respect to information provided by the Borrower to the Agent or the Lender in relation to this Agreement, has occurred, and after the last day of the Accounting Period ended March 2011, no Event material change, which may cause a deterioration of Default the business, assets, or financial condition of the Borrower described in the Financial Statements (if an audit is obliged to be conducted on such Financial Statements pursuant to the Laws and Ordinances and other audits are conducted, the audited Financial Statements) (if the Borrower prepares the Reports, the Reports) prepared by the Borrower for such Accounting Period and the accounting documents and which may materially affect the performance of the obligations of the Borrower under this Agreement, has occurred.
(viii) No lawsuit, arbitration, administrative procedure, or any other dispute has commenced or is likely to commence with respect to the Borrower, which will or may materially cause adverse effects on the performance of its obligations under this Agreement.
(ix) No event set forth in items of paragraph 1 or 2 of Article 21, nor an event constituting such an event due to notices or the passage of time or due to the both, has occurred or is likely to occur.
(x) The Borrower shall not fall under any of the following (a) through (h).
(a) An organized crime group (boryokudan) (meaning a group the members (including the members of the member group of such group) of which may promote violent and is continuing;unlawful acts, etc. collectively or habitually; the same shall apply hereinafter in this item)
(b) Borrower has An organized crime group member (meaning a member constituting an organized group; the corporate power and authority to execute and deliver same shall apply hereinafter in this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment;item)
(c) A quasi member of an organized crime group (meaning a person who has a relation with organized crime groups other than the certificate member of incorporation an organized crime group and by-laws of Borrower (collectivelymay conduct violent and unlawful acts, “Organizational Documents”) delivered to Bank etc. on or prior to the date hereof are true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as back of the date hereofforce of an organized crime group, and Borrower or a person who cooperates in or is involved with the maintenance or operation of an organized crime group for example by providing funds or weapons, etc. to an organized crime group member; the same shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documents;apply hereinafter in this item)
(d) An organized crime group related enterprise (meaning an enterprise where an organized crime group member is actually involved with its management, or an enterprise managed by the quasi member of an organized crime group or a former organized crime group member, which is actively cooperates in or is involved with the maintenance or operation of the organized crime group for example by providing funds or weapons, etc. to an organized crime group, or an enterprise that actively uses an organized crime group and cooperates in the maintenance or operation of the organized crime group such as in the execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate action on the part of Borrower;business)
(e) this Amendment has been duly executed A corporate racketeer (soukaiya), etc. (meaning a corporate racketeer or a corporate ▇▇▇▇▇▇▇, etc. who may conduct violent and delivered by unlawful acts, etc. in pursuit of illegal interest targeting at enterprises, etc. and poses a threat to the Borrower and is the binding obligation security of Borrower, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; andcivilian life)
(f) as of the date hereof, Borrower has no defenses against the obligations to pay any amounts under the Obligations. Borrower acknowledges that Bank has acted in good faith and has conducted in A ▇▇▇▇▇▇▇ calling for a commercially reasonable manner its relationships with Borrower in connection with this Amendment and in connection with the Loan Documents. Borrower understands and acknowledges that Bank is entering into this Amendment in reliance uponsocial movement (meaning one which conducts a false social movement or political activity or calls for it, and in partial consideration for, the above representations may conduct violent and warranties, and agrees that such reliance is reasonable and appropriate.unlawful acts,
Appears in 1 contract
Sources: Term Loan Agreement (Ubic, Inc.)
BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants that:
(a) immediately Immediately upon giving effect to this Amendment (i) the representations and warranties contained in the Loan Documents are true, accurate true and complete correct in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), and (ii) no Event of Default has occurred and is continuing;continuing with respect to which Borrower has not been notified in writing by Lender.
(b) Borrower has the corporate power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment;
(c) the The certificate of incorporation organization, operating agreement and by-laws other organizational documents of Borrower (collectively, “Organizational Documents”) previously delivered to Bank on or prior to the date hereof are Lender remain true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documents;effect.
(dc) the The execution and delivery by Borrower of this Amendment and the performance by Borrower of all of its agreements and obligations under the Loan AgreementAgreement and other Loan Documents, as amended by this Amendment, have been duly authorized by all necessary corporate company action on the part of Borrower;. With respect to Borrower, the execution and delivery by Borrower of this Amendment does not and will not require any registration with, consent or approval of, or notice to any Person (including any governmental authority).
(ed) this Amendment has been duly executed This Amendment, the Loan Agreement and delivered by the other Loan Documents, as amended hereby, constitute the legal, valid and binding obligations of Borrower and is the binding obligation of Borrower, enforceable against it Borrower in accordance with its their terms, except as such enforceability may be is limited by bankruptcy, insolvency, reorganization, liquidationmoratorium, moratorium general equitable principles or other similar laws of general application and equitable principles relating to or affecting generally the enforcement of, creditors’ rights; andrights and except to the extent that availability of the remedy of specific performance or injunctive relief is subject to the discretion of the court before which any proceeding therefor may be brought.
(e) Immediately after giving effect to this Amendment (i) no fact or condition exists that would (or would, with the passage of time, the giving of notice, or both) constitute an Event of Default, and (ii) no event that has had or could reasonably be expected to have a Material Adverse Effect has occurred and is continuing.
(f) as of the date hereofBy its signature below, Borrower has no defenses against the obligations to pay any amounts under the Obligations. Borrower acknowledges that Bank has acted in good faith and has conducted in a commercially reasonable manner its relationships with Borrower in connection with this Amendment and in connection with the Loan Documents. Borrower understands and acknowledges that Bank is entering into this Amendment in reliance upon, and in partial consideration for, the above representations and warranties, and hereby agrees that such reliance is reasonable and appropriateit shall constitute an Event of Default if any representation or warranty made herein should be false or misleading in any material respect when made.
Appears in 1 contract
Sources: Loan and Security Agreement (Genocea Biosciences, Inc.)
BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants that:
(a) immediately upon giving effect to this Amendment (i) the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), and (ii) no Event of Default has occurred and is continuing;
(b) Borrower has the corporate power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment;
(c) the certificate of incorporation incorporation, bylaws and by-laws other organizational documents of Borrower (collectively, “Organizational Documents”) delivered to Bank on or prior to the date hereof are Effective Date remain true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documentseffect;
(d) the execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate action on the part of Borrower;
(e) this Amendment has been duly executed and delivered by the Borrower and is the binding obligation of Borrower, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; and
(f) as of the date hereof, Borrower it has no defenses against the obligations to pay any amounts under the Obligations. Borrower acknowledges that Bank has acted in good faith and has conducted in a commercially reasonable manner its relationships with Borrower in connection with this Amendment and in connection with the Loan Documents. Borrower understands and acknowledges that Bank is entering into this Amendment in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriate.
Appears in 1 contract
Sources: Loan and Security Agreement (Ikanos Communications)
BORROWER'S REPRESENTATIONS AND WARRANTIES. 2.1 Borrower represents and warrants that:
(a) immediately upon giving effect to this Amendment (i) the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), and (ii) no Event of Default has occurred and is continuing;
(b) Borrower has the corporate power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment;
(c) the certificate of incorporation incorporation, bylaws and by-laws other organizational documents of Borrower (collectively, “Organizational Documents”) delivered to Bank on or prior to in connection with the date hereof are execution of the Loan Agreement, remain true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documentseffect;
(d) the execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate action on the part of Borrower;
(e) this Amendment has been duly executed and delivered by the Borrower and is the binding obligation of Borrower, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; and
(f) as of the date hereof, Borrower it has no defenses against the obligations to pay any amounts under the Obligations. Borrower acknowledges that Bank has acted in good faith and has conducted in a commercially reasonable manner its relationships with Borrower in connection with this Amendment and in connection with the Loan Documents. .
2.2 Borrower understands and acknowledges that Bank is entering into this Amendment in reliance upon, and in partial consideration for, the above representations and warrantieswarranties in Section 2.1, and agrees that such reliance is reasonable and appropriate.
Appears in 1 contract
Sources: Loan and Security Agreement (Mips Technologies Inc)
BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents hereby makes the following representations and warrants thatwarranties and acknowledges and agrees that each and every one of the following representations and warranties shall survive closing and shall continue for as long as the Loan remains outstanding:
(a) immediately upon giving The Borrower has been duly organized and validly exists as a limited liability company under the laws of the State of New York, has power to enter into this Agreement and the Note evidencing the debt obligation of the Borrower to the Lender hereunder and has authorized the taking of all action necessary to carry out and give effect to the transactions contemplated by this Amendment (i) the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), and (ii) no Event of Default has occurred and is continuing;Agreement.
(b) There is no action or proceeding pending or to the Borrower's knowledge threatened against the Borrower has before any court or administrative agency that might adversely affect the corporate power and authority to execute and deliver this Amendment and ability of the Borrower to perform its obligations under this Agreement and all authorizations, consents and approvals of governmental bodies or agencies, required in connection with the Loan Agreement, as amended performance of the Borrower's obligations hereunder have been obtained and will be obtained whenever required hereunder or by this Amendment;law.
(c) Neither the certificate execution and delivery of incorporation and by-laws of Borrower (collectivelythis Agreement, “Organizational Documents”) delivered to Bank on or prior to the date hereof are true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as consummation of the date hereoftransactions contemplated hereby, nor the fulfillment of or compliance with the terms and conditions of this Agreement is prevented, limited by, or conflicts with or results in a breach of, the terms, conditions, or provisions of any corporate restrictions or any evidence of indebtedness, agreement or instrument of whatever nature to which the Borrower shall promptly deliver to Bank is now a party or by which it is bound, or constitutes a default under any amendments, supplements, restatements or other modifications to such Organizational Documents;of the foregoing.
(d) All tax returns and reports of the execution and delivery Borrower required by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, law to be filed have been duly authorized filed and all taxes, assessments, fees and other governmental charges upon the Borrower or upon any of its respective properties, assets, income or franchises which are due and payable pursuant to such returns and reports, or pursuant to any assessment received by all necessary corporate action on the part of Borrower;Borrower have been paid other than those which may be presently payable without penalty or interest.
(e) this Amendment has been duly executed The Borrower has, or will have, title to all the Collateral whenever acquired or arising free and delivered clear of all liens and claims, encumbrances, set-offs, defenses and counterclaims, except those stated in Exhibit C attached hereto or permitted by the Borrower Security Agreement, and is has not made and will not make any assignment, pledge, mortgage, hypothecation or transfer (other than sales or leases in the binding obligation ordinary course of Borrower, enforceable against it in accordance with its terms, except as business) of any such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium Collateral or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; andthe proceeds thereof.
(f) as All statements, representations and warranties made by the Borrower in its application to the Lender, and any materials furnished in support of the date request for Lender financial assistance and this Agreement are true. It is specifically understood by the Borrower that all such statements, representations and warranties shall be deemed to have been relied upon by the Lender as an inducement to make the Loan and that if any such statements, representations or warranties were materially false at the time they were made or are breached during the term hereof, the Lender may, in its sole discretion, consider any such misrepresentation or breach an event of default.
(g) The chief executive office of the Borrower is located at ▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇. None of the Borrower's books or records are maintained at any other location. The Borrower shall notify the Lender in writing of any change in the location of the Borrower's chief executive office.
(h) Borrower represents to the Lender that it has at all times pertinent to this Agreement been represented by advisors of its own selection, including but not limited to attorneys-at-law and/or certified public accountants; that it has not relied upon any statement, representation, warranty, agreement or information provided by the Lender, its employees, agents or attorneys; that it acknowledges that it is informed by its advisors of its respective rights, duties, and obligations with respect to the Loan under all applicable laws, that it has no set-offs, defenses or counterclaims against the obligations Lender with respect to pay any amounts under the Obligations. Borrower acknowledges that Bank has acted in good faith and has conducted in a commercially reasonable manner its relationships with Borrower in connection with this Amendment and in connection with the Loan Documents. Borrower understands and acknowledges that Bank is entering into this Amendment in reliance uponLoan, and that it is indebted to the Lender for the amounts stated in partial consideration for, the above representations and warranties, this Agreement.
(i) Borrower further acknowledges and agrees that such reliance is reasonable the Lender has made no statements, representations, warranties, agreements or provided information to it in order to induce the execution of this Agreement. Borrower further acknowledges and appropriateagrees that all agreements of the parties are set forth in this Agreement or in the financing documents executed by Borrower prior to or on even date hereof.
(j) Owners of the Borrower shall not form any start-ups venture without the express prior consent of the Lender from the date hereof and ending two years after the Investment has been fully repaid.
Appears in 1 contract
Sources: Convertible Loan Agreement (X-Factor Communications Holdings, Inc.)
BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants that:
(a) immediately 2.1 Immediately upon giving effect to this First Amendment (i) the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), and (ii) no Event of Default has occurred and is continuing;continuing with respect to which Borrower has not been notified in writing by Agent.
(b) 2.2 Borrower has the corporate power and authority to execute and deliver this First Amendment and to perform its obligations under the Loan Agreement, as amended by this First Amendment;.
(c) the 2.3 The certificate of incorporation incorporation, bylaws and by-laws other organizational documents of Borrower (collectively, “Organizational Documents”) delivered to Bank Agent and Lender on or prior to the date hereof are Closing Date remain true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documents;effect.
(d) the 2.4 The execution and delivery by Borrower of this First Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this First Amendment, have been duly authorized by all necessary corporate action on the part of Borrower;.
(e) this 2.5 This First Amendment has been duly executed and delivered by the Borrower and is the binding obligation of Borrower, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; and
(f) as 2.6 As of the date hereof, Borrower it has no defenses against the obligations to pay any amounts under the Secured Obligations. Borrower acknowledges that Bank has Agent and Lender have acted in good faith and has have conducted in a commercially reasonable manner its their relationships with Borrower in connection with this First Amendment and in connection with the Loan Documents. Borrower understands and acknowledges that Bank is Agent and Lender are entering into this First Amendment in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriate.
Appears in 1 contract
Sources: Loan and Security Agreement (X4 Pharmaceuticals, Inc)
BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents joins in this Agreement for the purpose of making and warrants thatgiving the representations, warranties, covenants, agreements and indemnities set forth below and for the purpose of releasing Assignor from any and all claims arising out of the Term Loans and the Transaction Documents as follows:
(a) immediately upon giving effect There are no obligations of Borrower, contingent or otherwise, owing to this Amendment (i) Assignor nor in favor of any other Person which are entitled to the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as security of or any other benefit of any of the date hereof (except Transaction Documents other than the obligations assigned hereby. There is no obligation of Assignor under the Transaction Documents to the extent such representations and warranties relate make any future advance or to an earlier date, in which case they are true and correct as incur any liability on behalf of such date), and (ii) no Event of Default has occurred and is continuingBorrower;
(b) Borrower has the corporate power Exhibit A to this Agreement contains a complete and authority to execute accurate listing of all Transaction Documents as such term is used in and deliver this Amendment and to perform its obligations under contemplated by the Loan Agreement, as amended by this Amendment;
(c) All signatures on each of the certificate of incorporation Transaction Documents are genuine and by-laws authorized, this Agreement constitutes a valid and binding obligation of Borrower and is enforceable against Borrower in accordance with its terms, and Borrower and its subsidiaries have taken all action necessary to enable Assignee to obtain the benefits of the Collateral and to foreclose upon the Collateral upon the occurrence of an Event of Default;
(collectivelyd) There are no amendments or modifications to any of the Transaction Documents except for those described in Exhibit A, “Organizational which is attached hereto and made a part hereof by reference; there are no waivers by Assignor of Borrower’s compliance with the terms of any provision of the Transaction Documents”, except that Assignor waived all prepayment fees contemplated by the Loan Agreement; the repayment terms for the Term Loan advances and all other terms are as set forth in the Transaction Documents except that Assignor waived all prepayment fees contemplated by the Loan Agreement; and there exists no other written or oral agreement or understanding which would change, amend or waive the provisions of the Transaction Documents identified on Exhibit A, except that Assignor waived all prepayment fees contemplated by the Loan Agreement;
(e) delivered As of the date of this Agreement, Borrower has no defense to Bank on payment, counterclaim or prior setoff, including without limitation, usury, with respect to the date hereof are trueTransaction Documents or to the indebtedness evidenced thereby;
(f) There is no insolvency proceeding currently pending against Borrower, accurate and complete no litigation is currently pending between Assignor and have not been amendedany party to the Transaction Documents relating in any way to the Transaction Documents;
(g) The Term Loan amounts set forth in Section 2 above, supplemented or restated and are and continue to be in full force and effect all as of the date hereof, represent the total indebtedness due to Assignor and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational evidenced by the Transaction Documents;
(dh) There are no duplicate originals of the execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate action on the part of BorrowerTerm Notes;
(ei) Borrower hereby releases Assignor from any and all obligations Assignor may have had, or, but for the provisions of this Amendment Agreement might otherwise have had in the future to Borrower with respect to the Term Loans and under the Transaction Documents. Borrower further releases Assignor from any and all actions, claims and demands whatsoever, in law or equity, which it may have ever had, now has been duly executed or may hereafter have against Assignor arising out of or in connection with the Term Loans and delivered the Transaction Documents. From and after the date hereof, Borrower shall indemnify, defend and hold harmless Assignor from and against any and all demands, claims, complaints, actions, causes of action, suits, proceedings, investigations, arbitrations, assessments, losses, damages, liabilities, costs and expenses which may be asserted against, imposed upon or suffered by Assignor, directly or indirectly, as a result of, on account of, by reason of, or arising from the Borrower and is Term Loans or the binding obligation of Borrower, enforceable against it in accordance with its termsTransaction Documents, except as such enforceability may be limited caused by bankruptcythe gross negligence or intentional misconduct of Assignor, insolvencyincluding without limitation, reorganization, liquidation, moratorium reasonable attorneys’ fees. The language in this Section 5(i) does not mean Assignor would not assist Assignee or other similar laws Borrower in correcting any clerical errors or corrections necessary to make this Agreement legally correct or in correcting any mathematical error inconsistent with the intention of general application and equitable principles relating the parties to or affecting creditors’ rightsthis Agreement; and
(fj) Borrower intends that the assignment of the Transaction Documents shall in no way constitute a novation, but shall continue the obligations of Borrower under the Transaction Documents in full force and effect. Borrower further ratifies and confirms all of the terms and covenants of the Transaction Documents and agrees that the same do and shall remain in full force and effect, enforceable in accordance with their respective terms. Borrower represents and warrants to Assignee that except as described in Exhibit C attached hereto all of the representations and warranties set forth in the Transaction Documents are true as of the date hereof as if made by Borrower to Assignee as of the date hereof, Borrower has no defenses against the obligations to pay any amounts under the Obligations. Borrower acknowledges that Bank has acted in good faith and has conducted in a commercially reasonable manner its relationships with Borrower in connection with this Amendment and in connection with the Loan Documents. Borrower understands and acknowledges that Bank is entering into this Amendment in reliance upon, and in partial consideration for, the above representations and warranties, releases Assignee from and agrees that such reliance is reasonable Assignee shall not be liable for any breaches of the Transaction Documents by Assignor or any liability of Assignor to Borrower under the Transaction Documents or otherwise whether arising prior or subsequent to the effective date of this Agreement. Borrower agrees that the only liabilities or obligations Assignee shall have under the Transaction Documents are those arising under the Transaction Documents after the date hereof.
(k) Borrower agrees that a breach of any representation, warranty, covenant, agreement or indemnity contained in this Agreement shall be deemed to be an Event of Default under the Transaction Documents.
(l) Borrower represents and appropriatewarrants that: the The Hannibal National Bank changed its name to HNB National Bank on May 1, 2003; HNB Bancorp, Inc. changed its name to HNB Financial Services, Inc. on December 13, 2001; and Mercantile Trust and Savings Bank changed its name to Mercantile Bank on January 1, 2008.
Appears in 1 contract
BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants that:
(a) immediately 2.1 Immediately upon giving effect to this Amendment (i) the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), after giving effect in all cases to any standard(s) of materiality contained in the Loan Agreement as to such representations and warranties and (ii) no Event of Default has occurred and is continuing;continuing with respect to which Borrower has not been notified in writing by Agent or Lender.
(b) 2.2 Borrower has the corporate power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment;.
(c) the 2.3 The certificate of incorporation incorporation, bylaws and by-laws other organizational documents of Borrower (collectively, “Organizational Documents”) delivered to Bank Agent and/or Lender on or prior to the date hereof Fifth Amendment Closing Date are true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documents;effect.
(d) the 2.4 The execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate action on the part of Borrower;.
(e) this 2.5 This Amendment has been duly executed and delivered by the Borrower and is the binding obligation of Borrower, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; and.
(f) as 2.6 As of the date hereof, Borrower it has no defenses against the obligations to pay any amounts under the Secured Obligations. Borrower acknowledges that Bank has acted in good faith and has conducted in a commercially reasonable manner its relationships with Borrower in connection with this Amendment and in connection with the Loan Documents. Borrower understands and acknowledges that Bank is entering into this Amendment in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriate.
Appears in 1 contract
Sources: Loan and Security Agreement (Paratek Pharmaceuticals, Inc.)
BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants that:
(a) immediately 2.1 Immediately upon giving effect to this Amendment (i) the representations and warranties contained in the Loan Documents are true, accurate true and complete correct in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct in all material respects as of such date), provided that the representation in Section 5.15 of the Loan Agreement shall also include confirmation that Motus ISR is not deemed insolvent under the Israeli Insolvency Law; and (ii) no default or Event of Default has occurred and is continuing;continuing with respect to which B▇▇▇▇▇▇▇ has not been notified in writing by Agent or Lender.
(b) 2.2 Borrower has the corporate or other applicable company power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment;
. Motus ISR has not been declared nor has it been warned that it may be declared a “breaching company” (c) the certificate of incorporation and by-laws of Borrower (collectively, “Organizational Documentshevrah meferah”) delivered to Bank on or prior to by the date hereof are trueIsraeli Companies Registrar, accurate and complete and have not been amended, supplemented or restated and are and continue to be as such term is defined in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documents;Israeli Companies Law.
(d) the 2.3 The execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate or other applicable company action on the part of Borrower;.
(e) this 2.4 This Amendment has been duly executed and delivered by the Borrower B▇▇▇▇▇▇▇ and is the binding obligation of Borrower, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidationreceivership, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; andrights generally and by general principles of equity.
(f) as 2.5 As of the date hereof, Borrower B▇▇▇▇▇▇▇ has no defenses against the obligations to pay any amounts under the Secured Obligations. Borrower acknowledges that Bank has each of Agent and L▇▇▇▇▇ has, as of the date hereof, acted in good faith and has conducted in a commercially reasonable manner its relationships with Borrower in connection with this Amendment and in connection with the Loan Documents. Borrower B▇▇▇▇▇▇▇ understands and acknowledges that Bank each of Agent and L▇▇▇▇▇ is entering into this Amendment in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriate.
Appears in 1 contract
Sources: Loan and Security Agreement (Orchestra BioMed Holdings, Inc.)
BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants that:
(a) immediately upon giving effect to this Amendment Modification (i) the representations and warranties contained in the Existing Loan Documents are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate qualified in the updated Representations deliverable to an earlier date, in which case they are true and correct as of such datePFG on or before the Stated Modification Date), and (ii) no Event of Default has occurred and is continuing, other than the Pending Defaults;
(b) Borrower has the corporate power and authority to execute and deliver this Amendment Modification, to amend the PFG Warrants and to perform its obligations under the Existing Loan AgreementDocuments and PFG Warrants, as amended contemplated by this AmendmentModification;
(c) the certificate of incorporation and by-laws Constitutional Documents of Borrower (collectively, “Organizational Documents”) delivered to Bank on or prior to the date hereof are PFG remain true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documentseffect;
(d) the execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate action on the part of Borrower;
(e) this Amendment Modification has been duly authorized, executed and delivered by the Borrower and is (i) constitutes the binding obligation of Borrower, enforceable against it Borrower in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; and(ii) does not conflict with any law or regulation or judgment or the Constitutional Documents of Borrower, or any agreement or document to which Borrower is a party or which is binding upon it or any of this assets; and (iii) does not require any authorization, approval, consent (including stockholder or member consent) of any Person, or any license or registration in any jurisdiction, for its lawful authorization, execution, performance, validity or enforceability, except to the extent such authorization, approval, consent (including stockholder or member consent) of any Person, license or registration is secured on or prior to the Stated Modification Date and provided to PFG;
(fe) as of the date hereof, with Knowledge that PFG is relying on Borrower’s representations and warranties herein (including the Representations) as a basis for entering into this Modification at Borrower’s request, Borrower has no defenses against its obligation to repay the obligations to pay Obligations and it has no claims of any amounts under the Obligationskind against PFG. Borrower acknowledges that Bank PFG has acted in good faith and has conducted its relationship with Borrower in a commercially reasonable manner its relationships with Borrower manner, including in connection with this Amendment Modification and in connection with the Existing Loan Documents;
(f) with respect to any Loan Documents binding upon a Person not party to this Modification, each such Person has been apprised of this Modification, has consented to Borrower’s execution and delivery of this Modification and, to the extent not executed concurrently with this Modification (or as a condition subsequent hereto), has agreed if so requested by PFG to promptly execute and deliver to PFG a reaffirmation of its obligations under any Existing Loan Documents to which it is a party or is bound;
(g) the IPSA and associated Collateral Agreements and Notices disclose an accurate, complete and current listing of all Collateral that consists of Intellectual Property (as defined in said IP Security Agreement) or Borrower has included revised and updated Intellectual Property schedules as part of an update to the Representations required in Section 7(f) of this Modification and as part of the Reaffirmation of IPSA required in Section 7(h) of this Modification (and in their respective associated Exhibits and Schedules);
(h) Borrower hereby ratifies, confirms and reaffirms, all and singular, the terms and disclosures contained in the Representations dated as of the Stated Modification Date; and
(i) Except as expressly stated in this Modification, neither PFG nor any agent, employee or representative of PFG has made any statement or representation to Borrower regarding any fact relied upon by Borrower in entering into this Modification, (ii) Borrower has made such investigation of the facts pertaining to this Modification and all of the matters appertaining thereto, as it deems necessary, and (iii) the terms of this Modification are contractual and not a mere recital. Borrower understands and acknowledges that Bank PFG is entering into this Amendment Modification in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriate.
Appears in 1 contract
BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants that:
(a) immediately 3.1 Immediately upon giving effect to this Amendment (i) the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as of the date hereof Third Amendment Date (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), and (ii) no Event of Default has occurred and is continuing;continuing with respect to which Borrower has not been notified in writing by Lender.
(b) 3.2 Borrower has the corporate power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment;.
(c) the 3.3 The certificate of incorporation incorporation, bylaws and by-laws other organizational documents of Borrower (collectively, “Organizational Documents”) delivered to Bank Lender on or prior to the date hereof are Closing Date remain true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documents;effect.
(d) the 3.4 The execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate action on the part of Borrower;.
(e) this 3.5 This Amendment has been duly executed and delivered by the Borrower and is the binding obligation of Borrower, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; and
(f) as 3.6 As of the date hereofThird Amendment Date, Borrower it has no defenses against the obligations to pay any amounts under the Obligations. Borrower acknowledges that Bank Lender has acted in good faith and has conducted in a commercially reasonable manner its relationships with Borrower in connection with this Amendment and in connection with the Loan Documents. Borrower understands and acknowledges that Bank Lender is entering into this Amendment in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriate.
Appears in 1 contract
Sources: Loan and Security Agreement (Acelrx Pharmaceuticals Inc)
BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants that:
(a) immediately 2.1 Immediately upon giving effect to this First Amendment (i) the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such datedate in all material respects), and (ii) no Event of Default has occurred and is continuing;continuing with respect to which Borrower has not been notified in writing by Agent.
(b) 2.2 Borrower has the corporate power and authority to execute and deliver this First Amendment and to perform its obligations under the Loan Agreement, as amended by this First Amendment;.
(c) the 2.3 The certificate of incorporation incorporation, bylaws and by-laws other organizational documents of Borrower (collectively, “Organizational Documents”) delivered to Bank Agent and Lender on or prior to the date hereof are Closing Date remain true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documents;effect.
(d) the 2.4 The execution and delivery by Borrower of this First Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this First Amendment, have been duly authorized by all necessary corporate action on the part of Borrower;.
(e) this 2.5 This First Amendment has been duly executed and delivered by the Borrower and is the binding obligation of Borrower, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; and
(f) as 2.6 As of the date hereof, Borrower it has no defenses against the obligations to pay any amounts under the Secured Obligations. Borrower acknowledges that Bank has Agent and Lender have acted in good faith and has have conducted in a commercially reasonable manner its their relationships with Borrower in connection with this First Amendment and in connection with the Loan Documents. Borrower understands and acknowledges that Bank is Agent and Lender are entering into this First Amendment in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriate.
Appears in 1 contract
BORROWER'S REPRESENTATIONS AND WARRANTIES. 4.1 The Borrower represents and warrants to the Lender that:
(a) immediately upon giving effect to this Amendment (i) the representations Borrower is a reporting issuer only in British Columbia and warranties contained is not in the Loan Documents are true, accurate and complete in all material respects as default of any requirement of the date hereof British Columbia Securities Act and Rules promulgated thereto (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date"Act"), and (ii) no Event of Default has occurred and is continuing;
(b) the Borrower has is a corporation duly incorporated, validly existing and in good standing with respect to filing of annual reports with the corporate power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this AmendmentRegistrar of Companies for British Columbia;
(c) the certificate of incorporation Borrower has all requisite corporate power and by-laws of Borrower (collectivelyauthority to own and use its property, “Organizational Documents”) delivered to Bank carry on or prior its business as now being conducted, to enter into this Agreement and to execute and deliver the date hereof are true, accurate Note and complete to carry out the obligations contemplated herein and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documentstherein;
(d) the execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate action on of the part directors of Borrowerthe Borrower to authorize the execution, delivery and performance of this Agreement has been taken;
(e) this Amendment Agreement has been duly executed and delivered by on behalf of the Borrower and is the constitutes a legal, valid and binding obligation of the Borrower, enforceable against it by the Lender in accordance with its terms;
(f) the authorized capital of the Borrower consists of 100,000,000 common shares without par value of which 9,434,650 common shares are validly issued and outstanding as at September 10, except 1998;
(g) the Shares to be allotted and issued pursuant to the due and valid conversion, in whole or in part, of the principal indebtedness of the Loan have been duly and validly authorized to be issued as such enforceability may fully paid and non-assessable common shares upon receipt by the Borrower of a notice of conversion;
(h) the Warrant Shares to be limited allotted and issued pursuant to the due and valid exercise, in whole or in part, of the Warrants have been duly and validly authorized to be issued as fully paid and non-assessable common shares upon receipt by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws the Borrower of general application full payment therefor;
(i) the common shares of the Borrower are listed and equitable principles relating to or affecting creditors’ rightsposted for trading only on the Exchange; and
(fj) no Default (as of the date hereof, Borrower has no defenses against the obligations to pay any amounts under the Obligations. Borrower acknowledges that Bank has acted in good faith and has conducted in a commercially reasonable manner its relationships with Borrower in connection with this Amendment and in connection defined below) or event which with the Loan Documents. Borrower understands and acknowledges that Bank giving of notice or the lapse of time would become a Default has occurred or is entering into this Amendment in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriatecontinuing.
Appears in 1 contract
Sources: Convertible Loan Agreement (Idaho Consolidated Metals Corp)
BORROWER'S REPRESENTATIONS AND WARRANTIES. Each Borrower represents and warrants that:
(a) immediately upon giving effect to this Amendment (i) the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), and (ii) no Event of Default has occurred and is continuing;
(b) such Borrower has the corporate power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment;
(c) the certificate of incorporation incorporation, bylaws and by-laws other organizational documents of such Borrower (collectively, “Organizational Documents”) delivered to Bank Lender on or prior to the date hereof are Closing Date remain true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documentseffect;
(d) the execution and delivery by such Borrower of this Amendment and the performance by such Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate action on the part of such Borrower;
(e) this Amendment has been duly executed and delivered by the Borrower Borrowers and is the binding obligation of each Borrower, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; and
(f) as of the date hereof, Borrower it has no defenses against the obligations to pay any amounts under the Obligations. Each Borrower acknowledges that Bank Lender has acted in good faith and has conducted in a commercially reasonable manner its relationships with Borrower Borrowers in connection with this Amendment and in connection with the Loan Documents. Each Borrower understands and acknowledges that Bank Lender is entering into this Amendment in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriate.
Appears in 1 contract
BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants that:
(a) immediately upon giving effect to this Amendment Fifth Modification (i) the representations and warranties contained in the Existing Loan Documents are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate qualified in the updated Representations deliverable to an earlier date, in which case they are true and correct as of such datePFG on or before the Fifth Modification Effective Date), and (ii) no Event of Default (other than the Specified Defaults) has occurred and is continuing;
(b) Borrower has the corporate power and authority to execute and deliver this Amendment Fifth Modification and to perform its obligations under the Existing Loan AgreementDocuments, in each case as amended contemplated by this AmendmentFifth Modification;
(c) the certificate of incorporation and by-laws Constitutional Documents of Borrower (collectively, “Organizational Documents”) delivered to Bank on or prior to the date hereof are PFG remain true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documentseffect;
(d) the execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate action on the part of Borrower;
(e) this Amendment Fifth Modification has been duly authorized, executed and delivered by the Borrower and is (i) constitutes the binding obligation of Borrower, enforceable against it Borrower in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; and(ii) does not conflict with any law or regulation or judgment or the Constitutional Documents of Borrower, or any agreement or document to which Borrower is a party or which is binding upon it or any of this assets; and (iii) does not require any authorization, approval, consent (including stockholder or member consent) of any Person, or any license or registration in any jurisdiction, for its lawful authorization, execution, performance, validity or enforceability, except to the extent such authorization, approval, consent (including stockholder or member consent) of any Person, license or registration is secured on or prior to the Fifth Modification Effective Date and provided to PFG;
(fe) as of the date hereof, with Knowledge that PFG is relying on Borrower’s representations and warranties herein (including the Representations) as a basis for entering into this Fifth Modification at Borrower’s request, Borrower has no defenses against its obligation to repay the obligations to pay Obligations and it has no claims of any amounts under the Obligationskind against PFG. Borrower acknowledges that Bank PFG has acted in good faith and has conducted its relationship with Borrower in a commercially reasonable manner its relationships with Borrower manner, including in connection with this Amendment Fifth Modification and in connection with the Existing Loan Documents;
(f) with respect to any Loan Documents binding upon a Person not party to this Fifth Modification, each such Person has been apprised of this Fifth Modification, has consented to Borrower’s execution and delivery of this Fifth Modification and, to the extent not executed concurrently with this Fifth Modification (or as a condition subsequent hereto), has agreed if so requested by PFG to promptly execute and deliver to PFG a reaffirmation of its obligations under any Existing Loan Documents to which it is a party or is bound;
(g) the IPSA and associated Collateral Agreements and Notices disclose an accurate, complete and current listing of all Collateral that consists of Intellectual Property (as defined in said IP Security Agreement) or Borrower has included revised and updated Intellectual Property schedules as part of an update to the Representations required in Section 7(e) of this Fifth Modification and as part of the Intellectual Property and Domain Rights update and, as required, the Reaffirmation of IPSA under Section 7(f) of this Fifth Modification;
(h) Borrower hereby ratifies, confirms and reaffirms, all and singular, the terms and disclosures contained in the Representations dated as of the Fifth Modification Effective Date;
(i) as of the Fifth Modification Effective Date, Borrower has not asserted any commercial tort claims against any Person and has no Knowledge of any basis for so doing; and
(j) Except as expressly stated in this Fifth Modification, neither PFG nor any agent, employee or representative of PFG has made any statement or representation to Borrower regarding any fact relied upon by Borrower in entering into this Fifth Modification, (ii) Borrower has made such investigation of the facts pertaining to this Fifth Modification and all of the matters appertaining thereto, as it deems necessary, and (iii) the terms of this Fifth Modification are contractual and not a mere recital. Borrower understands and acknowledges that Bank PFG is entering into this Amendment Fifth Modification in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriate.
Appears in 1 contract
BORROWER'S REPRESENTATIONS AND WARRANTIES. As a material inducement to the Administrative Agent and the Lenders to execute and deliver this Second Amendment, the Borrower represents and warrants to the Lenders (with the knowledge and intent that the Lenders are relying upon the same in entering into this Second Amendment) that as of the Second Amendment Effective Date and as of the date of its execution of this Second Amendment, that:
(a) immediately upon This Second Amendment, the Credit Agreement as amended hereby, and each other Loan Document have been duly authorized, executed and delivered by the Borrower and constitute its legal, valid and binding obligations enforceable against it in accordance with their respective terms (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and similar laws affecting creditors’ rights generally and to general principles of equity).
(b) There has been no event or circumstance since the date of the financial statements dated as of December 31, 2003 delivered pursuant to Section 6.01(a) of the Credit Agreement which has or could reasonably be expected to have a Material Adverse Effect. The representations and warranties set forth in Article V of the Credit Agreement are true and correct in all material respects on and as of the Second Amendment Effective Date, after giving effect to this Amendment (i) the representations Second Amendment, as if made on and warranties contained in the Loan Documents are true, accurate and complete in all material respects as of the date hereof (Second Amendment Effective Date except to the extent such representations and warranties relate solely to an earlier date, in which case case, they are shall be true and correct as of such date).
(c) As of the date hereof, at the time of and (ii) after giving effect to this Second Amendment, no Default or Event of Default has occurred and is continuing;
(b) Borrower has the corporate power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment;
(c) the certificate of incorporation and by-laws of Borrower (collectively, “Organizational Documents”) delivered to Bank on or prior to the date hereof are true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documents;.
(d) No approval, consent, exemption, authorization or other action by, or notice to, or filing with, any Governmental Authority is required to be obtained or made by the execution and Borrower by any material statutory law or regulation applicable to it as a condition to the execution, delivery by or performance by, or enforcement against, the Borrower of this Amendment Second Amendment. The execution, delivery and the performance by the Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have Second Amendment has been duly authorized by all necessary corporate action or other organizational action, and does not and will not (i) violate the terms of any of the Borrower’s Organization Documents, (ii) result in any breach of, constitute a default under, or require pursuant to the express provisions thereof, the creation of any consensual Lien on the part properties of Borrower;
(e) this Amendment has been duly executed and delivered by the Borrower and under, any Contractual Obligation to which the Borrower is a party or any order, injunction, writ or decree of any Governmental Authority to which the binding obligation of BorrowerBorrower or its property is subject, enforceable against it or (iii) violate any Law, in accordance each case with its termsrespect to the preceding clauses (i) through (iii), except as such enforceability may which would reasonably be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating expected to or affecting creditors’ rights; and
(f) as of the date hereof, Borrower has no defenses against the obligations to pay any amounts under the Obligations. Borrower acknowledges that Bank has acted in good faith and has conducted in have a commercially reasonable manner its relationships with Borrower in connection with this Amendment and in connection with the Loan Documents. Borrower understands and acknowledges that Bank is entering into this Amendment in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriateMaterial Adverse Effect.
Appears in 1 contract
BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants that:
(a) immediately 3.1 Immediately upon giving effect to this Amendment (i) the representations and warranties contained in the Loan Documents are true, accurate true and complete correct in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true ny-2529003.5 and correct in all material respects as of such date), date and (ii) no default or Event of Default has occurred and is continuing;continuing with respect to which Borrower has not been notified in writing by Agent or Lender.
(b) 3.2 Borrower has the corporate power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment;.
(c) the certificate of incorporation and by-laws of Borrower (collectively, “Organizational Documents”) delivered to Bank on or prior to the date hereof are true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documents;
(d) the 3.3 The execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate action on the part of Borrower;.
(e) this 3.4 This Amendment has been duly executed and delivered by the Borrower ▇▇▇▇▇▇▇▇ and is the binding obligation of Borrower, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; and.
(f) as 3.5 As of the date hereof, Borrower it has no defenses against the obligations to pay any amounts under the Obligations. Borrower acknowledges that Bank has each of Agent and the Lenders have, as of the date hereof, acted in good faith and has conducted in a commercially reasonable manner its relationships with Borrower in connection with this Amendment and in connection with the Loan Documents. Borrower ▇▇▇▇▇▇▇▇ understands and acknowledges that Bank is Agent and the Lenders are each entering into this Amendment in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriate.
Appears in 1 contract
BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants that:
(a) immediately upon giving effect to this Amendment (i) the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), and (ii) no Event of Default has occurred and is continuing;
(b) Borrower has the corporate power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment;
(c) the certificate of incorporation incorporation, bylaws and by-laws other organizational documents of Borrower (collectively, “Organizational Documents”) delivered to Bank on or prior to the date hereof are Closing Date remain true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documentseffect;
(d) the execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate action on the part of Borrower;
(e) this Amendment has been duly executed and delivered by the Borrower and is the binding obligation of Borrower, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; and
(f) as of the date hereof, Borrower it has no defenses against the obligations to pay any amounts under the Obligations. Borrower acknowledges that Bank has acted in good faith and has conducted in a commercially reasonable manner its relationships with Borrower in connection with this Amendment and in connection with the Loan Documents. Borrower understands and acknowledges that Bank is entering into this Amendment in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriate.
Appears in 1 contract
BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants that:
(a) immediately Immediately upon giving effect to this Amendment (i) the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), and (ii) no Default or Event of Default has occurred and is continuingcontinuing with respect to which Borrower has not been notified in writing by Lender;
(b) Borrower has the corporate power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment;
(c) the certificate of incorporation incorporation, bylaws and by-laws other organizational documents of Borrower (collectively, “Organizational Documents”) delivered to Bank Lender on or prior to the date hereof are Closing Date remain true, accurate and complete and have not been amended, supplemented or restated since the Closing Date and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documentseffect;
(d) the execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate action on the part of Borrower;
(e) this Amendment has been duly executed and delivered by the Borrower and is the binding obligation of Borrower, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; and
(f) as of the date hereof, Borrower it has no defenses against the obligations to pay any amounts under the Secured Obligations. Borrower acknowledges that Bank Lender has acted in good faith and has conducted in a commercially reasonable manner in its relationships with Borrower in connection with this Amendment and in connection with the Loan Documents. Borrower understands and acknowledges that Bank is entering into this Amendment in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriate.
Appears in 1 contract
BORROWER'S REPRESENTATIONS AND WARRANTIES. In order to induce Lenders to enter into this Amendment, Borrower represents and warrants thatto Lenders that after giving effect to this Amendment in the manner contemplated by Section 4.6 of this Amendment, each of the following is true and correct:
(a) immediately upon giving effect to this Amendment no event has occurred and is continuing which constitutes an Event of Default or Potential Event of Default;
(ib) the representations and warranties of Borrower and the other Credit Parties contained in the Credit Agreement and the other Loan Documents are true, accurate true and complete in all material respects correct on and as of the date hereof and as of the Effective Date (as defined below) to the same extent as though made on and as of the date hereof and as of the Effective Date except to the extent such representations and warranties specifically relate to an earlier date, in which case they are true and correct in all material respects as of such earlier date), and (ii) no Event of Default has occurred and is continuing;
(b) Borrower has the corporate power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment;
(c) the certificate of incorporation and by-laws each of Borrower (collectively, “Organizational Documents”) delivered and the other Credit Parties has performed all agreements on its part to Bank on or be performed prior to (x) the date hereof are trueand (y) the Effective Date, accurate in each case as set forth in the Credit Agreement and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Loan Documents;
(d) each of Borrower and the Guarantors has all requisite corporate power and authority to enter into this Amendment and to carry out the transactions contemplated by, and perform its obligations under, the Credit Agreement;
(e) the execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have has been duly authorized by all necessary corporate action on the part of Borrower;
(e) this Amendment has been duly executed and delivered by the Borrower and is the binding obligation of Borrower, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rightsGuarantors; and
(f) as the execution and delivery by Borrower and the Guarantors of this Amendment does not and will not (i) violate any provision of any law or any governmental rule or regulation applicable to Borrower, the Guarantors or any of their respective Subsidiaries, the Certificate of Incorporation of Borrower, the Guarantors or any of their respective Subsidiaries or any order, judgment or decree of any court or other agency of government binding on Borrower, the Guarantors or any of their respective Subsidiaries, (ii) conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any Contractual Obligation of Borrower, the Guarantors or any of their respective Subsidiaries, (iii) result in or require the creation or imposition of any Lien upon any of the date hereofproperties or assets of Borrower, Borrower has no defenses against the obligations to pay Guarantors or any amounts of their respective Subsidiaries (other than any Liens created under the Obligations. Borrower acknowledges that Bank has acted in good faith and has conducted in a commercially reasonable manner its relationships with Borrower in connection with this Amendment and in connection with any of the Loan Documents. Borrower understands and acknowledges that Bank is entering into this Amendment Documents in reliance uponfavor of Collateral Agent on behalf of Lenders), and in partial consideration foror (iv) require any approval of stockholders or any approval or consent of any Person under any Contractual Obligation of Borrower, the above representations and warranties, and agrees that such reliance is reasonable and appropriateGuarantors or any of their respective Subsidiaries.
Appears in 1 contract
Sources: Credit Agreement (Hartmarx Corp/De)
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants that:
(a) immediately upon giving effect to this Amendment (i) the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), and (ii) no Event of Default has occurred and is continuing;
(b) the Borrower has the corporate power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment;
(c) the certificate Amended and Restated Certificate of incorporation Incorporation and by-laws of the Amended and Restated Bylaws, filed by the Borrower (collectivelywith the Securities and Exchange Commission on March 12, “Organizational Documents”) delivered 2012 as Exhibits 3.3 and 3.5, respectively, to Bank on or prior Amendment No. 7 to the date hereof are Form S-1, remain true, accurate and complete and have not been amended, restated, supplemented or restated and are otherwise modified and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documentseffect;
(d) the execution and delivery by the Borrower of this Amendment and the performance by the Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate action on the part of the Borrower;
(e) this Amendment has been duly executed and delivered by the Borrower and is the binding obligation of the Borrower, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rightsrights generally; and
(f) as of the date hereof, the Borrower has no defenses against the obligations to pay any amounts under the Obligations. Borrower acknowledges that Bank has acted in good faith and has conducted in a commercially reasonable manner its relationships with Borrower in connection with this Amendment and in connection with the Loan Documents. The Borrower understands and acknowledges that Bank the Lender is entering into this Amendment in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriate.
Appears in 1 contract
BORROWER'S REPRESENTATIONS AND WARRANTIES. In order to induce Lenders to enter into this Amendment, Borrower represents and warrants thatto each Lender:
(a) immediately upon giving effect to this Amendment (i) the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), and (ii) no Event of Default has occurred and is continuing;
(b) A. Borrower has the all requisite corporate power and authority to execute and deliver enter into this Amendment and to perform its obligations under carry out the Loan transactions contemplated by the Amended Credit Agreement, as amended by this Amendment;
(c) the certificate of incorporation and by-laws of Borrower (collectively, “Organizational Documents”) delivered to Bank on or prior to the date hereof are true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documents;
(d) B. the execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, Amended Agreement have been duly authorized by all necessary corporate action on the part of Borrower;
(e) C. the execution and delivery by Borrower of this Amendment and the performance by Borrower of the Amended Credit Agreement do not and will not (i) violate any provision of any law or any governmental rule or regulation applicable to Parent or any of its Subsidiaries, the Organizational Documents of Parent or any of its Subsidiaries or any order, judgment or decree of any court or other Government Authority binding on Parent or any of its Subsidiaries, (ii) conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any Contractual Obligation of Parent or any of its Subsidiaries, (iii) result in or require the creation or imposition of any Lien upon any of the properties or assets of Parent or any of its Subsidiaries (other than Liens created under any of the Loan Documents in favor of Administrative Agent on behalf of Lenders or as otherwise permitted under the Amended Agreement), or (iv) require any approval of stockholders or any approval or consent of any Person under any Contractual Obligation of Parent or any of its Subsidiaries, except for such approvals or consents which will be obtained on or before the First Amendment Effective Date and except, in each case, to the extent such violation, conflict, breach, Lien or failure to obtain such approval or consent could not reasonably be expected to result in a Material Adverse Effect;
D. the execution and delivery by Borrower of this Amendment and the performance by Borrower of the Amended Credit Agreement do not and will not require any Governmental Authorization, except as has been duly obtained and is in full force and effect unless the failure to obtain such Governmental Authorization could not reasonably be expected to have a Material Adverse Effect;
E. this Amendment and the Amended Credit Agreement have been duly executed and delivered by the Borrower and is are the legally valid and binding obligation obligations of Borrower, enforceable against it Borrower in accordance with its their respective terms, except as such enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting limiting creditors’ rights; andrights generally or by equitable principles (whether considered in a proceeding in equity or at law) relating to enforceability;
(f) F. the representations and warranties contained in Section 5 of the Credit Agreement are and will be true, correct and complete in all material respects on and as of the date hereofhereof and the First Amendment Effective Date (as defined below) to the same extent as though made on and as of such dates, Borrower except to the extent such representations and warranties specifically relate to an earlier date, in which case they were true, correct and complete in all material respects on and as of such earlier date; and
G. no event has no defenses against occurred and is continuing or will result from the obligations to pay any amounts under consummation of the Obligations. Borrower acknowledges that Bank has acted in good faith and has conducted in a commercially reasonable manner its relationships with Borrower in connection with transactions contemplated by this Amendment and in connection with the Loan Documents. Borrower understands and acknowledges that Bank is entering into this Amendment in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriatewould constitute an Event of Default or a Potential Event of Default.
Appears in 1 contract
BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants that:
(a) immediately upon Borrower is a corporation duly organized, validly existing and in good standing under the laws of the State of Indiana and shall hereafter remain as such and is duly qualified and in good standing in every other jurisdiction in which it is doing business other than any jurisdiction where the failure to so qualify will not have a material adverse effect on its financial condition, business or prospects, which other jurisdictions are listed on Schedule A, annexed hereto, and shall hereafter remain duly qualified and in good standing in every other jurisdiction in which, by reason of the nature or location of its assets or operations, such qualification may be necessary. Borrower has identified on Schedule B, annexed hereto, all of its subsidiaries and their respective jurisdictions of organization, addresses and the percentage of ownership. Each of Borrower's subsidiaries is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation and shall hereafter remain in good standing as a corporation in that jurisdiction, and is duly qualified and in good standing, and shall hereafter so remain, in every other jurisdiction in which it is doing business other than any jurisdictions where the failure to so qualify will not have a material adverse effect on its financial condition, business or prospects, which other jurisdictions are listed on Schedule B, annexed hereto. None of Borrower's subsidiaries has any subsidiaries.
(b) Borrower's exact legal name is as set forth in this Agreement and Borrower will not undertake or commit to undertake any act which will result in a change of Borrower's legal name, without giving effect Bank at least thirty (30) days' prior written notice of the same. Borrower does not conduct business under any other name, and will not do so without giving Bank at least thirty (30) days' prior written notice of the same.
(c) The execution, delivery and performance of this Agreement, and of any other documents executed in connection herewith, are within Borrower's legal powers, have been duly authorized, are not in contravention of law or the terms of Borrower's articles of incorporation or other organizational papers, or of any indenture, agreement or undertaking to this Amendment which Borrower is a party or by which it or any of its properties may be bound.
(d) Borrower owns all of the assets reflected in its most recent financial statements provided to Bank, except assets sold or otherwise disposed of in the ordinary course of business since the date thereof, and such assets together with any assets acquired since such date, are free and clear of any lien, pledge, security interest, charge, mortgage or encumbrance of any nature whatsoever, except only (i) the representations liens, security interests and warranties contained other encumbrances listed on Schedule C annexed hereto, (ii) those leases (if any) set forth on Schedule D annexed hereto, (iii) liens on assets acquired through Borrower's acquisition of equity or assets of another entity (so long as such liens existed on such assets prior to Borrower's acquisition and so long as such liens extend to no other property), (iv) landlords', carriers', warehousemen's, mechanics' and other similar liens arising by operation of law in the Loan Documents are trueordinary course of Borrower's business; (v) liens arising out of pledge or deposits under worker's compensation, accurate and complete unemployment insurance, old age pension, social security, retirement benefits or other similar legislation; (vi) purchase money liens arising in all material respects the ordinary course of business (so long as (i) the indebtedness secured thereby does not exceed the lesser of the date hereof cost or fair market value of the property subject thereto, (ii) such lien extends to no other property and (iii) the aggregate principal amount secured by purchase money liens does not at any time exceed $1,000,000; and (vi) liens and security interests in favor of Bank or consented to in writing by Bank (collectively, the "Permitted Liens").
(e) Borrower has made or filed all tax returns, reports and declarations relating to any material tax liability required by any jurisdiction to which it is subject; has paid all taxes shown or determined to be due thereon except those being diligently contested in good faith and which it has, prior to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as date of such date)contest, identified in writing to Bank as being contested; and has made adequate provision for the payment of all taxes so contested.
(f) Borrower, except as set forth in Schedule E, (i) is subject to no charter or other legal restriction, or any judgment, award, decree, order, governmental rule or regulation or contractual restriction which could have a material adverse effect on its financial condition, business or prospects, and (ii),, is in compliance with its charter, all contractual requirements by which it or any of its properties may be bound and all applicable laws, rules and regulations (including without limitation those relating to environmental protection) other than laws, rules or regulations (i) the validity or applicability of which it is diligently contesting in good faith and which it has, prior to the date of such contest, identified in writing to Bank as being contested, or (ii) the failure to comply with which cannot reasonably be expected to materially adversely affect its financial condition, business or prospects.
(g) There is no action, suit, proceeding or investigation pending or, to its knowledge, threatened against or affecting Borrower or any of its assets which, if determined adversely to it, would or could have a material adverse effect on its financial condition, business or prospects, except as set forth on Schedule E.
(h) Borrower is in compliance with ERISA with respect to any Plan; no Reportable Event of Default has occurred and is continuing;
(b) Borrower continuing with respect to any Plan; and it has met its minimum funding requirements with respect to all Plans. The word "Plan" as used in this Agreement means any employee plan subject to Title IV of the corporate power and authority to execute and deliver this Amendment and to perform its obligations under the Loan AgreementEmployee Retirement Income Security Act of 1974, as amended by this Amendment;
(c) the certificate of incorporation and by-laws of Borrower (collectively, “Organizational Documents”) delivered to Bank on or prior to the date hereof are true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documents;
(d"ERISA") the execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate action on the part of Borrower;
(e) this Amendment has been duly executed and delivered by the Borrower and is the binding obligation maintained for employees of Borrower, enforceable against it in accordance any subsidiary of Borrower or any other trade or business under common control with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws Borrower within the meaning of general application and equitable principles relating to or affecting creditors’ rights; and
(fSection 414(c) as of the date hereofInternal Revenue Code of 1986, Borrower has no defenses against the obligations to pay as amended, or any amounts under the Obligations. Borrower acknowledges that Bank has acted in good faith and has conducted in a commercially reasonable manner its relationships with Borrower in connection with this Amendment and in connection with the Loan Documents. Borrower understands and acknowledges that Bank is entering into this Amendment in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriateregulations thereunder.
Appears in 1 contract
Sources: Loan Agreement (Control Devices Inc)
BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants thatto Lender, upon which representations and warranties Lender relies and which shall be deemed made as of the date of this Master Agreement and again on the date of each Loan Supplement and each Note, as follows:
(a) immediately upon giving effect Borrower is, as applicable, a corporation, partnership, limited liability company or proprietorship duly organized, validly existing, and in good standing under the laws of its jurisdiction of organization; Borrower has the lawful power to this Amendment (i) the representations own its properties and warranties contained to engage in the Loan Documents are truebusiness it conducts, accurate and complete Borrower is duly qualified and in all material respects good standing as a foreign entity in the jurisdictions wherein the nature of the date hereof (except to the extent business transacted by it or property owned by it makes such representations and warranties relate to an earlier date, in which case they are true and correct as of such date)qualifications necessary, and (ii) no Event of Default Borrower has occurred and is continuing;not changed its name, or been the surviving entity in a merger.
(b) Borrower is not directly or indirectly controlled by, or acting on behalf of, any person or entity which is an “Investment Company”, within the meaning of the Investment Company Act of 1940, as amended.
(c) Borrower is not in default with respect to any of its existing indebtedness, and the making and performance of any of the Notes, any Loan Agreement and this Master Agreement and each Loan Agreement and Note will not (immediately or with the passage of time, the giving of notice, or both) violate the Certificate or Articles of Incorporation or by-laws of Borrower, if a corporation, or its partnership agreement, if a partnership, or its organizational documents, if other than the foregoing.
(d) Borrower has the corporate power and authority to execute enter into and deliver perform each Note and Loan Agreement and this Amendment Master Agreement and to perform its incur the obligations under provided for therein or herein, and has taken all actions necessary to authorize the execution, delivery, and performance of each Note and Loan Agreement and this Master Agreement, as amended and each Note and Loan Agreement and this Master Agreement have been duly authorized, executed, and delivered by this Amendment;Borrower.
(ce) Each Note and Loan Agreement and this Master Agreement are genuine, legal, valid and binding obligations of Borrower, enforceable against Borrower in accordance with their respective terms, subject to applicable bankruptcy and other similar laws affecting creditor’s rights generally, and the certificate execution, delivery and performance of incorporation each Note and by-Loan Agreement and this Master Agreement will not violate or create a default under any law (including any applicable usury law, regulation, judgment, or order), instrument, contract, agreement or charter document to which Borrower is a party or by which Borrower or its property is bound.
(f) The individual or individuals executing each Note and Loan Agreement and this Master Agreement have the authority to bind Borrower to such Note, Loan Agreement and this Master Agreement.
(g) Any and all financial information furnished to Lender, and any Assignee, as applicable, by Borrower is and will be true and correct in all material respects and prepared in accordance with generally accepted accounting principles.
(h) Except as otherwise permitted herein, Borrower has filed all federal, state, and local tax returns and other reports required by any applicable laws of Borrower (collectively, “Organizational Documents”) delivered to Bank on or have been filed prior to the date hereof are truehereof, accurate and complete and have not been amended, supplemented has paid or restated and are and continue caused to be in full force paid all taxes, assessments, and effect as of other governmental charges that are due and payable prior to the date hereof, and Borrower shall promptly deliver to Bank any amendmentshas made adequate provisions for the payment of such taxes, supplementsassessments, restatements or other modifications to such Organizational Documents;charges accruing but not yet payable, and Borrower has no knowledge of any deficiency or additional assessment in a materially important amount in connection with any taxes, assessments, or other charges not provided for on its financial records.
(di) There is no action, suit or proceeding pending or threatened affecting Borrower before any court, administrative agency, arbitrator or governmental body involving an amount which would materially and adversely affect the execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate action on the part of Borrower;
(e) this Amendment has been duly executed and delivered by the Borrower and is the binding obligation financial condition or operations of Borrower, enforceable against it except for outstanding litigation discussed in accordance the Borrower’s SEC filings, Form 10K and 10Q. Borrower acknowledges with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating respect to or affecting creditors’ rights; and
(f) each Loan Agreement as of the date hereofof execution of each Loan Agreement that (a) it has independently ordered the Licensed Software, Hardware and/or Services, if any, as applicable, constituting the applicable Financed Product from the applicable Product Provider based on its own judgment, and expressly disclaims any reliance upon statements, if any, made to Borrower has no defenses against by Lender or any Assignee with respect to such Financed Product; and (b) this Master Agreement and, as applicable, each Note and Loan Agreement are separate and distinct from the obligations to pay any amounts under the Obligations. Borrower acknowledges that Bank has acted in good faith and has conducted in a commercially reasonable manner its relationships with Borrower in connection with this Amendment and in connection applicable Product Provider Agreement with the Loan Documents. Borrower understands and acknowledges that Bank is entering into this Amendment in reliance uponapplicable Product Provider, and in partial consideration for, the above representations terms and warranties, and agrees that conditions of such reliance is reasonable and appropriateProduct Provider Agreement are not incorporated into nor made a part hereof.
Appears in 1 contract
BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants that:
(a) immediately upon giving effect to this Amendment (i) the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), and (ii) no Event of Default has occurred and is continuingcontinuing with respect to which Borrower has not been notified in writing by Lender;
(b) Borrower has the corporate power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment;
(c) the certificate of incorporation incorporation, bylaws and by-laws other organizational documents of Borrower (collectively, “Organizational Documents”) delivered to Bank Lender on or prior to the date hereof are Closing Date remain true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documentseffect;
(d) the execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate action on the part of Borrower;
(e) this Amendment has been duly executed and delivered by the Borrower and is the binding obligation of Borrower, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; and
(f) as of the date hereof, Borrower it has no defenses against the obligations to pay any amounts under the Obligations. Borrower acknowledges that Bank Lender has acted in good faith and has conducted in a commercially reasonable manner its relationships with Borrower in connection with this Amendment and in connection with the Loan Documents. Borrower understands and acknowledges that Bank Lender is entering into this Amendment in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriate.
Appears in 1 contract
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower hereby represents and warrants that:
(a) immediately upon giving effect to this Amendment (i) the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations of execution and warranties relate to an earlier date, in which case they are true delivery of this Amendment and correct as of such date), and (ii) no Event of Default has occurred and is continuing;the Effective Date:
(b) 5.1 The Borrower has the corporate full power and authority to execute enter into and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment;
(c) the certificate of incorporation and by-laws of Borrower (collectively, “Organizational Documents”) delivered to Bank on or prior to the date hereof are true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver has taken all necessary action to Bank any amendments, supplements, restatements or other modifications to such Organizational Documents;
(d) the authorize its execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate action on the part of Borrower;.
(e) this 5.2 This Amendment has been duly executed and delivered by the Borrower and is constitutes the legal, valid and binding obligation of the Borrower, enforceable against it in accordance with its termsthe terms hereof and thereof, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, liquidation, moratorium or insolvency and other similar laws of general application and equitable principles relating to or affecting creditors’ rights; andrights generally and subject to general equitable principles.
(f) as of the date hereof, Borrower has no defenses against the obligations to pay any amounts under the Obligations. Borrower acknowledges that Bank has acted in good faith 5.3 All governmental authorizations and has conducted in a commercially reasonable manner its relationships with Borrower in connection with this Amendment and actions necessary in connection with the Loan Documents. Borrower understands execution and acknowledges that Bank is entering into delivery by it of this Amendment and the performance of its obligations hereunder have been obtained or performed and remain valid and in reliance uponfull force and effect.
5.4 Execution, delivery and performance of this Amendment by the Borrower (i) do not and will not contravene any provisions of the Borrower’s organizational documents, or any law, rule, regulation, order, judgment or decree applicable to or binding on the Borrower or any of its properties, (ii) do not and will not contravene, or result in any breach of or constitute any default under, any agreement or instrument to which the Borrower is a party or by which the Borrower or any of its properties may be bound or affected, and in partial consideration for, (iii) do not and will not require the above representations consent of any Person under any existing law or agreement which has not already been obtained.
5.5 No Default or Event of Default has occurred or is continuing.
5.6 The Borrower has delivered to the Administrative Agent a true and warranties, and agrees that such reliance is reasonable and appropriatecomplete copy of the Tax Sharing Agreement.
Appears in 1 contract
BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower hereby represents and warrants thatas follows:
(a) immediately this Forbearance Agreement, the Loan Agreement and the Other Documents are and shall continue to be legal, valid and binding obligations of Borrower and are enforceable against Borrower in accordance with their respective terms;
(b) with the exception of the Designated Defaults, upon giving effect to the effectiveness of this Amendment (i) the Forbearance Agreement, Borrower hereby reaffirms all covenants, representations and warranties contained made in the Loan Documents and the Other Documents and agrees that all such covenants, representations and warranties shall be deemed to have been remade and are true, accurate true and complete correct in all material respects as of the effective date hereof (of this Forbearance Agreement, except to the extent for such representations and warranties relate to an earlier datewhich, in which case they by their terms, are true and correct only made as of such a previous date), and (ii) no Event of Default has occurred and is continuing;
(bc) Borrower has the corporate power limited liability company power, and authority has been duly authorized by all requisite limited liability company action, to execute and deliver this Amendment Forbearance Agreement and to perform its obligations under the Loan Agreement, as amended by hereunder; and this Amendment;
(c) the certificate of incorporation and by-laws of Borrower (collectively, “Organizational Documents”) delivered to Bank on or prior to the date hereof are true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documents;
(d) the execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate action on the part of Borrower;
(e) this Amendment Forbearance Agreement has been duly executed and delivered by Borrower;
(d) Borrower’s execution, delivery and performance of this Forbearance Agreement does not and will not (1) violate any law, rule, regulation or court order to which Borrower is subject, (2) conflict with or result in a breach of Borrower’s organizational documents or any agreement or instrument to which Borrower is a party or by which it or its properties are bound, or (3) result in the Borrower and is the binding obligation creation or imposition of any lien, security interest or encumbrance on any property of Borrower, enforceable against it whether not owned or hereafter acquired, other than Liens in accordance favor of Agent;
(e) Agent, for itself and for the ratable benefit of Lenders, have and will continue to have a valid first priority lien and security interest in all property in which Liens were granted to Agent by Borrower or any third party as security for the Obligations (the “Collateral”), and Borrower expressly reaffirms all Liens granted to Agent pursuant to the Loan Agreement and the Other Documents.
(f) the recitals set forth in the “Background” paragraphs of this Forbearance Agreement are truthful and accurate and are operative parts of this Forbearance Agreement.
(g) no defaults or events of default are in existence under the Loan Agreement and the Other Documents other than the Designated Defaults.
(h) Borrower has no defense, counterclaim or offset with its termsrespect to the Loan Agreement, except as such enforceability may be limited by bankruptcythe Other Documents, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating any Lien granted to or affecting creditors’ rightsAgent and/or the Obligations; and
(fi) as of the date hereof, Borrower has no defenses against the obligations to pay any amounts under the Obligations. Borrower acknowledges that Bank has acted in good faith and has conducted in a commercially reasonable manner its relationships with Borrower in connection with this Amendment and in connection with the Loan Documents. Borrower understands Agreement and acknowledges that Bank is entering into this Amendment the Other Documents are in reliance uponfull force and effect, and in partial consideration for, the above representations are hereby ratified and warranties, and agrees that such reliance is reasonable and appropriateconfirmed.
Appears in 1 contract
Sources: Forbearance and Amendment Agreement (P&f Industries Inc)
BORROWER'S REPRESENTATIONS AND WARRANTIES. 2.1 Each Borrower jointly and severally represents and warrants that:
(a) immediately upon giving effect to this Amendment (i) the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), and (ii) no Event of Default has occurred and is continuing;
(b) each Borrower has the corporate power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment;
(c) the certificate of incorporation incorporation, bylaws and by-laws other organizational documents of Borrower (collectively, “Organizational Documents”) Borrowers delivered to Bank on or prior to in connection with the date hereof are execution of the Loan Agreement, remain true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documentseffect;
(d) the execution and delivery by Borrower Borrowers of this Amendment and the performance by Borrower Borrowers of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate action on the part of each Borrower;
(e) this Amendment has been duly executed and delivered by the each Borrower and is the binding obligation of each Borrower, enforceable against it each Borrower and both Borrowers in accordance with its termsthe terms of this Amendment, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; and
(f) as of the date hereof, neither Borrower has no any defenses against the obligations to pay any amounts under the Obligations. Each Borrower acknowledges that Bank has acted in good faith and has conducted in a commercially reasonable manner its relationships with Borrower Borrowers in connection with this Amendment and in connection with the Loan Documents. .
2.2 Each Borrower understands and acknowledges that Bank is entering into this Amendment in reliance upon, and in partial consideration for, the above representations and warrantieswarranties in Section 2.1, and agrees that such reliance is reasonable and appropriate.
Appears in 1 contract
Sources: Loan and Security Agreement (Sciclone Pharmaceuticals Inc)
BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants that:
(a) immediately a. Immediately upon giving effect to this Amendment (i) the representations and warranties contained in the Loan Documents Agreement are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct in all material respects as of such date), and (ii) no Event of Default has occurred and is continuing;.
(b) b. Borrower has the corporate organizational power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment;.
(c) the c. The certificate of incorporation incorporation, bylaws and by-laws other organizational documents of Borrower (collectively, “Organizational Documents”) B▇▇▇▇▇▇▇ delivered to Bank Agent on or prior to the date hereof are Closing Date remain true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documents;effect.
(d) the d. The execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate company action on the part of Borrower;.
(e) this e. This Amendment has been duly executed and delivered by the Borrower B▇▇▇▇▇▇▇ and is the binding obligation of Borrower, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; and
(f) as f. As of the date hereof, Borrower it has no defenses against the obligations to pay any amounts arising under the ObligationsLoan and Security Agreement. Borrower acknowledges that Bank has L▇▇▇▇▇▇ and Agent have acted in good faith and has conducted in a commercially reasonable manner its relationships with Borrower in connection with this Amendment and in connection with the Loan Documents. Borrower B▇▇▇▇▇▇▇ understands and acknowledges that Bank is L▇▇▇▇▇▇ and Agent are entering into this Amendment in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriate.
Appears in 1 contract
BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents To induce Lender to execute this Agreement and warrants thatperform its obligations hereunder, Borrowers hereby represent and warrant to Lender as follows:
(a) immediately upon giving effect Each Borrower lawfully possesses and holds fee simple title to this Amendment (i) the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as of the date hereof its Project (except for 92 Brick Road, LLC, which holds leasehold title to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such dateits Project), free and (ii) no Event clear of Default has occurred all liens, claims, encumbrances, covenants, conditions and restrictions, security interest and claims of others, except only the Permitted Exceptions. Each Borrower is continuing;a Single Purpose Entity.
(b) Except as set forth in Exhibit D, there is no litigation or proceedings pending, or to Borrower's Knowledge threatened, against any Project, Borrower, or Guarantor, which would reasonably be expected to, if adversely determined, cause a Material Adverse Change with respect to any Borrower, Guarantor or any Project. There are no Environmental Proceedings and no Borrower has the corporate power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment;Knowledge of any threatened Environmental Proceedings.
(c) Each Borrower is a duly formed and validly existing limited liability company and is in good standing under the certificate of incorporation and by-laws of the State of Delaware, with its principal place of business at 1001 Urban Center Drive, Suite 501, Birmingham, Alabama 35242. Each ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ perform all Loan Documents to which such Borrower (collectively, “Organizational Documents”) delivered to Bank on or prior to the date hereof are true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereofis a party, and Borrower shall promptly deliver to Bank any amendmentssuch execution, supplements, restatements or other modifications to such Organizational Documents;
(d) the execution delivery and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate requisite action on the part of such Borrower;
(e) this Amendment has . The Loan Documents have each been duly executed and delivered by and each constitutes the Borrower duly authorized, valid and is the legally binding obligation of BorrowerBorrowers and the Guarantors, as the case may be, enforceable against it Borrowers and the Guarantors, as the case may be, in accordance with their respective terms. Borrower does not uses any trade names other than its termsactual names set forth herein. The direct and indirect ownership interests in each Borrower and Guarantor are shown on Schedule 5.1(c) attached hereto.
(d) The REIT is a corporation duly organized, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar validly existing and in good standing under the laws of general application the State of Maryland, with its principal place of business at 1001 Urban Center Drive, Suite 501, Birmingham, Alabama 35242. MPT O▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ed, validly existing and equitable principles in good standing under the laws of the State of Delaware, with its principal place of business at 1001 Urban Center Drive, Suite 501, Birmingham, Alabama 35242. Each ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇ Loan Documents on its own behalf.
(e) A true and complete copy the articles of incorporation and by-laws, articles of organization/certificate of formation and limited liability company operating agreement or certificate of limited partnership and partnership agreement, as the case may be, creating each Borrower and Guarantor, and all other documents creating and governing each Borrower and Guarantor and any and all amendments thereto (collectively, the "ORGANIZATIONAL DOCUMENTS") has been furnished to Lender. There are no other material agreements, oral or written, among any of the partners or members of any Borrower or any Guarantor relating to Borrower or affecting creditors’ rights; andGuarantor, as the case may be. The Organizational Documents were duly executed and delivered, are in full force and effect, and binding upon and enforceable against each Borrower and Guarantor, as applicable, in accordance with their terms. The Organizational Documents constitute the entire understanding among the shareholders, partners, members of each Borrower, and Guarantor. No breach exists under the Organizational Documents and no act has occurred and no condition exists which, with the giving of notice or the passage of time would reasonably be expected to constitute a breach under the Organizational Documents.
(f) No consent, approval or authorization of or declaration, registration or filing with any Governmental Authority or nongovernmental person or entity, including any creditor, partner, or member of any Borrower or Guarantor, is required in connection with the execution, delivery and performance of this Agreement or any of the other Loan Documents by Borrower other than the recordation of the Mortgages and the filing of UCC Financing Statements, except for such consents, approvals or authorizations of or declarations or filings with any Governmental Authority or non-governmental person or entity where the failure to so obtain would not have a material adverse effect on any Borrower or Guarantor or which have been obtained as of any date on which this representation is made or remade. None of the date hereofBorrowers or Guarantors is insolvent and there has been no: (i) assignment made for the benefit of the creditors of any of them; (ii) appointment of a receiver for any of them or for the property of any of them; or (iii) bankruptcy, reorganization, or liquidation proceeding instituted by or against any of them.
(g) There is no Default under this Agreement or the other Loan Documents, nor any condition, which, after notice or the passage of time or both, would reasonably be expected to constitute a Default or an Event of Default under, said documents. In addition, no Borrower is in default under any material contract, agreement or commitment to which it is a party. The execution, delivery and compliance by each Borrower with the terms and provisions of this Agreement and the other Loan Documents will not (i) to such Borrower's Knowledge, violate any provisions of law or any applicable regulation, order or other decree of any court or governmental entity, or (ii) materially conflict or be materially inconsistent with, or result in any material default under, any contract, agreement or commitment to which such Borrower is bound. Borrowers have delivered to Lender copies of any material agreements between any Borrower and any Affiliate of any Borrower or Guarantor related in any way to any Project.
(h) To each Borrowers' Knowledge, (1) no condemnation of any portion of any Project, (2) no condemnation or relocation of any roadways abutting any Project, and (3) no proceeding to deny access to any Project from any point or planned point of access to any Project, has commenced or is contemplated by any Governmental Authority.
(i) To Borrowers' Knowledge, the use of each Project for its Primary Intended Use (as defined in the applicable Project Lease), including the present and contemplated accessory uses do not materially violate (i) any Laws (including subdivision, zoning, building, environmental protection and wetland protection Laws), or (ii) any building permits, covenants, conditions and restrictions of record affecting any Project or any part thereof. Except as shown in the Title Policies and the surveys of the Projects, to Borrowers' Knowledge, no defenses against building or other improvement encroaches upon any property line, building line, set back line, side yard line or any recorded or visible easement (or other easement of which a Borrower is aware) with respect to any Project. Except as shown in the obligations Title Policies and the surveys of the Projects, to pay Borrowers' Knowledge, no Project is situated in an area designated as having special flood hazards as defined by the Flood Disaster Protection Act of 1973, as amended, or as a wetland by any amounts under governmental entity having jurisdiction over a Project. To Borrowers' Knowledge, all Governmental Approvals required for the Obligationsoperation of the Projects have been obtained, except where the failure to so obtain would not reasonably be expected to have a material adverse effect on the Project. Borrower acknowledges that Bank To Borrowers' Knowledge, all Laws relating to the operation of the Improvements have been materially complied with and all material permits and licenses required for the operation of the Projects have been obtained. To Borrowers' Knowledge, each Project is accessible through fully improved and dedicated roads, accepted for maintenance and public use by public authority having jurisdiction. To Borrowers' Knowledge, each Project has acted in good faith adequate water, gas and has conducted in a commercially reasonable manner its relationships with Borrower electrical supply, storm and sanitary sewerage facilities, other required public utilities, and means of access between the Project and public highways; none of the foregoing will be foreseeably delayed or impeded by virtue of any requirements To each Borrower's Knowledge, there are no, nor are there any alleged or asserted, violations of Law, regulations, ordinances, codes, permits, licenses, declarations, covenants, conditions or restrictions of record, or other agreements relating to any Project, or any part thereof.
(j) No brokerage fees or commissions are payable by or to any person in connection with this Amendment and Agreement or the Loan to be disbursed hereunder with whom any Borrower or Guarantor has dealt other than to L.J. Melody & Company.
(k) All financial statements ▇▇▇▇iously furnished by any Borrower or Guarantor to Lender in connection with the Loan Documents. Borrower understands are complete and acknowledges that Bank is entering into this Amendment correct in reliance uponall material respects and fairly present the financial conditions of the subjects thereof as of the respective dates thereof (except for the absence of footnotes and subject to normal year-end adjustments which, in the aggregate, are not material), and no Material Adverse Change with respect to any Borrower or Guarantor or any Project has occurred since the most-recent financial statement furnished to Lender with respect to such Borrower or Guarantor. None of the Borrowers nor any Guarantor has any material liability, contingent or otherwise, not disclosed in partial consideration forsuch financial statements if such disclosure would be required pursuant to GAAP.
(l) Each Project is taxed separately without regard to any other real property and for all purposes each Project may be mortgaged, conveyed and otherwise dealt with as an independent parcel. There are no unpaid or outstanding real estate or other taxes or assessments on or against the Projects or any part thereof, except general real estate taxes for the current tax year not yet due or payable. To any Borrower's Knowledge, there is no pending or contemplated action pursuant to which any special assessment may be levied against any portion of the Projects.
(m) Each of the Borrowers represents and warrants that (i) it is a party to a Project Lease, as listed on Schedule 5(m) attached hereto, (ii) a true, correct and complete copy of each Project Lease has been delivered to Lender, (iii) except for the subject Project Lease (and as permitted thereunder), there are no leases or subleases affecting such Borrower's Project or any portion of the Property, (iv) no Borrowers have issued or received any notice of default under any Project Lease, (v) no Borrowers and, to each Borrower's Knowledge, no Project Lessee is in material default under the terms of any Project Lease, (vi) each Project Lease materially complies with all applicable laws, (vii) no rent payment under any Project Lease has been paid more than thirty (30) days in advance, (viii) no rents or charges under any Project Lease have been waived, released or otherwise discharged or compromised and (ix) except as provided in the Project Leases, there are no outstanding options or rights of first offer or refusal to purchase all or any portion of the Projects or Borrowers' interest therein or any portion thereof.
(n) The proceeds of the Loan shall be used for proper business purposes. The Loan is not being made for the purpose of purchasing or carrying "margin stock" within the meaning of Regulation T, U or X issued by the Board of Governors of the Federal Reserve System and no portion of the proceeds of the Loan shall be used in any matter that would violate such Regulations or otherwise violate the Securities Act of 1933 or the Securities Exchange Act of 1934, and Borrowers agree to execute all instruments necessary to comply with all the requirements of Regulation U of the Federal Reserve System.
(o) No Borrower is a party in interest to any plan defined or regulated under ERISA, and no assets of any Borrower are "plan assets" of any employee benefit plan covered by ERISA or Section 4975 of the Internal Revenue Code.
(p) No Borrower is or will be, and no legal or beneficial interest of a partner or member in Borrower is or will be held directly or (other than by reason of transfers of ownership interests in the REIT) indirectly by a "foreign corporation", "foreign partnership", "foreign trust", "foreign estate", "foreign person", "affiliate" of a "foreign person" or a "United States intermediary" of a "foreign person" within the meaning of the Internal Revenue Code Sections 897, 1445 or 7701, the above representations and warrantiesForeign Investments in Real Property Tax Act of 1980, and agrees that the International Foreign Investment Survey Act of 1976, the Agricultural Foreign Investment Disclosure Act of 1978, or the regulations promulgated pursuant to such reliance is reasonable and appropriateActs or any amendments to such Acts.
Appears in 1 contract
BORROWER'S REPRESENTATIONS AND WARRANTIES. 2.1 Borrower represents and warrants that:
(a) immediately upon giving effect to this Amendment (i) the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), and (ii) no Event of Default has occurred and is continuing;
(b) Borrower has the corporate power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment;
(c) the certificate of incorporation and by-laws of Borrower (collectively, “Organizational Documents”) delivered to Bank on or prior in connection with this Amendment and the bylaws and other organizational documents of Borrower delivered to Bank in connection with the date hereof are execution of the Loan Agreement, remain true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documentseffect;
(d) the execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate action on the part of Borrower;
(e) this Amendment has been duly executed and delivered by the Borrower and is the binding obligation of Borrower, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; and
(f) as of the date hereof, Borrower it has no defenses against the obligations to pay any amounts under the Obligations. Borrower acknowledges that Bank has acted in good faith and has conducted in a commercially reasonable manner its relationships with Borrower in connection with this Amendment and in connection with the Loan Documents. .
2.2 Borrower understands and acknowledges that Bank is entering into this Amendment in reliance upon, and in partial consideration for, the above representations and warrantieswarranties in Section 2.1, and agrees that such reliance is reasonable and appropriate.
Appears in 1 contract
Sources: Loan and Security Agreement (Mips Technologies Inc)
BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants that:
(a) immediately upon giving effect to this Amendment (i) the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), and (ii) no Event of Default has occurred and is continuing;
(b) Borrower has the corporate power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment;
(c) the certificate of incorporation and by-laws bylaws of Borrower (collectively, “Organizational Documents”) delivered to Bank on or prior to the date hereof First Amendment Effective Date are true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereofFirst Amendment Effective Date, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documents;
(d) the execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate action on the part of Borrower;
(e) this Amendment has been duly executed and delivered by the Borrower and is the binding obligation of Borrower, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; and
(f) as of the date hereof, Borrower it has no defenses against the obligations to pay any amounts under the Obligations. Borrower acknowledges that Bank has acted in good faith and has conducted in a commercially reasonable manner its relationships with Borrower in connection with this Amendment and in connection with the Loan Documents. Borrower understands and acknowledges that Bank is entering into this Amendment in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriate.
Appears in 1 contract
BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants thatas follows:
(a) immediately upon giving effect to this Amendment (i) the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), and (ii) no Event of Default has occurred and is continuing;
(b) 2.1 Borrower has the corporate full power and authority to execute and deliver this Amendment and to perform its obligations under consummate the Loan Agreement, as amended transactions contemplated by this Amendment;Agreement.
(c) 2.2 Borrower has full power and lawful right to convey and mortgage the certificate Real Property, and the same is free and clear of incorporation all encumbrances except the Mortgage, current taxes which are not yet due and by-laws payable, and covenants, restrictions and easements of Borrower (collectivelyrecord acceptable to Lender.
2.3 To the best of borrower’s knowledge, “Organizational Documents”) delivered to Bank no materials of any kind have been placed on the Real Property by anyone, and no work or labor has been performed thereon, for 90 days prior to the date hereof of this Agreement; there are no unpaid bills whatsoever for labor, materials, supplies or services furnished upon the Real Property; and no Notice of Commencement or claim of lien affecting the Real Property has been filed in the public records of the county in which the Real Property is located, and no such Notice of Commencement or claim of lien will be so filed prior to the recording of the Mortgage.
2.4 All utilities services of whatever nature necessary for the current use and operation of the Real Property, are and will be available for the use at the boundaries of the Real Property.
2.5 Adequate vehicular, pedestrian and utility access to and from the Real Property from publicly owned and maintained paved roadways are and will be available when needed at the Real Property.
2.6 To the best of Borrower’s knowledge, all representations made by Borrower in any documents (including financial statements) that have been furnished to Lender in connection with Borrower’s applying for the Loan are true, accurate and complete and have not been amended, supplemented or restated and are and continue to be correct in full force and effect all respects as of the date hereof, and Borrower shall promptly deliver has not suffered any material adverse change in financial position since the respective dates those documents were furnished to Bank Lender.
2.7 Any licenses and permits required by applicable law to allow for the operation of the Real Property as currently and customarily operated are in full force and effect.
2.8 There are no actions, suits, or proceedings pending, or, to the knowledge of Borrower, threatened against or affecting Borrower or any amendmentsof the Collateral, supplementsor involving the validity or enforceability of the Mortgage or the priority of the lien thereof, restatements at law or other modifications in equity, or before or by any governmental authority, and Borrower is not in default with respect to such Organizational Documents;any order, writ, injunction, decree or demand of any court or any governmental authority, or in material breach of any contract with any third party.
(d) 2.9 To the best of borrower’s knowledge, the execution and delivery by Borrower of this Amendment the Loan Documents, and the performance and consummation of the transactions thereby contemplated will not result in any breach of, or constitute a default under, any mortgage, lease, bank loan or credit agreement, corporate charter, bylaws, partnership agreement, joint venture agreement, or other instrument to which Borrower is a party or by which Borrower may be bound or affected.
2.10 No Event of its obligations Default, presently exists under the Loan AgreementDocuments, as amended by this Amendmentand no event has occurred and is continuing which, have with notice, the passage of time or both, would constitute an Event of Default under the Loan Documents.
2.11 The proceeds of the Loan will be used solely for the purposes specified herein and in the other Loan Documents.
2.12 The Loan has been duly authorized by all necessary corporate action on by the part of Borrower;
(e) this Amendment has , and the Loan Documents have been duly executed and delivered by the Borrower and is the constitute legal, valid and binding obligation of Borrower, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; and
(f) as obligations of the date hereofrespective parties thereto.
2.13 The Borrower is are financially responsible, Borrower has no defenses against and fully capable and willing to fulfill their respective obligations under this Agreement, the Notes and the other Loan Documents, including the obligations to pay any make payments in the amounts under and at the Obligations. Borrower acknowledges that Bank has acted in good faith and has conducted in a commercially reasonable manner its relationships with Borrower in connection with this Amendment and in connection with the Loan Documents. Borrower understands and acknowledges that Bank is entering into this Amendment in reliance upontimes required thereby, and to operate, repair and maintain the Real Property.
2.14 Each of the representations and warranties set forth in partial consideration forthis Section 2 will be true on the date of each advance hereunder, shall survive the above making of this Agreement and the issuance of the Notes, and shall be deemed to remain so represented and warranted pending contrary written notice to Lender. The acceptance of any advance hereunder by Borrower shall be deemed to be a reaffirmation of each and every one of said representations and warranties, and agrees that such reliance is reasonable and appropriate.
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BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants that:
(a) immediately upon giving effect to this Amendment : (i) the representations Borrower will comply with all laws, statutes, regulations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as of the date hereof (except ordinances pertaining to the extent such representations conduct of Borrower’s business and warranties relate promises to an earlier datehold Lender harmless from any damages, in which case they are true and correct as liabilities, costs, expenses (including attorneys’ fees) or other harm arising out of such date), and any violation thereof; (ii) no Event Borrower’s principal executive office and the office where Borrower keeps its records concerning its accounts, contract rights and other property, is that shown in the Application; (iii) Borrower is duly organized, licensed, validly existing and in good standing under the laws of Default has occurred its state of formation and shall hereafter remain in good standing in that state, and is continuing;
duly qualified, licensed and in good standing in every other state in which it is doing business, and shall hereafter remain duly qualified, licensed and in good standing in every other state in which it is doing business, and shall hereafter remain duly qualified, licensed and in good standing in every other state in which the failure to qualify or become licensed could have a material adverse effect on the financial condition, business or operations of Borrower; (biv) the exact legal name of the Borrower has is set forth in the corporate power Application; (v) the execution, delivery and authority to execute and deliver performance of this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment;
(c) the certificate of incorporation Application and by-laws of Borrower (collectivelyany other document executed in connection herewith, “Organizational Documents”) delivered to Bank on or prior to the date hereof are true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documents;
(d) the execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendmentwithin Borrower’s powers, have been duly authorized by all necessary corporate action on authorized, are not in contravention of law or the part terms of Borrower;
’s charter, by-laws or other organization papers, or of any indenture, agreement or undertaking to which Borrower is a party; (evi) this Amendment has all organization papers and all amendments thereto of Borrower have been duly executed filed and delivered are in proper order and any capital stock issued by the Borrower and outstanding was and is the binding obligation properly issued and all books and records of BorrowerBorrower are accurate and up to date and will be so maintained; (vii) Borrower (a) is subject to no charter, enforceable against it corporate or other legal restriction, or any judgment, award, decree, order, governmental rule or regulation or contractual restriction that could have a material adverse effect on its financial condition, business or prospects, and (b) is in accordance compliance with its termsorganization documents and by-laws, except as such enforceability all contractual requirements by which it may be limited by bankruptcybound and all applicable laws, insolvencyrules and regulations other than laws, reorganization, liquidation, moratorium rules or other similar laws regulations the validity or applicability of general application and equitable principles relating to or affecting creditors’ rights; and
(f) as of the date hereof, Borrower has no defenses against the obligations to pay any amounts under the Obligations. Borrower acknowledges that Bank has acted which it is contesting in good faith or provisions of any of the foregoing the failure to comply with which cannot reasonably be expected to materially adversely affect its financial condition, business or prospects or the value of the Collateral; and has conducted in (viii) there is no action, suit, proceeding or investigation pending or, to Borrower’s knowledge, threatened against or affecting it or any of its assets before or by any court or other governmental authority which, if determined adversely to it, would have a commercially reasonable manner material adverse effect on its relationships with Borrower in connection with this Amendment and in connection with financial condition, business or prospects or the Loan Documents. Borrower understands and acknowledges that Bank is entering into this Amendment in reliance upon, and in partial consideration for, value of the above representations and warranties, and agrees that such reliance is reasonable and appropriateCollateral.
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Sources: Business Loan and Security Agreement (Applied Minerals, Inc.)
BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants that:
(a) immediately upon giving effect In order to this Amendment (i) induce the LENDER to advance funds against the NOTE, the BORROWER makes the following representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as of the date hereof (except to the extent such LENDER, which representations and warranties relate to an earlier date, in which case they are true shall be unaffected by any investigation heretofore or hereafter made by LENDER and correct as shall survive the closing of such date), and (ii) no Event of Default the transactions contemplated hereby:
a. BORROWER has occurred and is continuing;
(b) Borrower has the corporate all requisite power and authority to execute enter into this Agreement and deliver this Amendment the other LOAN DOCUMENTS, including, without limitation, the NOTE, and to perform its obligations under carry out the Loan Agreementtransactions contemplated hereby.
b. BORROWER warrants and represents that it is not now insolvent, as amended bankrupt, or contemplating bankruptcy; or, that there are no bankruptcy or undisclosed material claims filed or threatened against BORROWER, whether judged with or without merit by this Amendment;
(c) the certificate BORROWER, or aware of incorporation and by-laws of Borrower (collectively, “Organizational Documents”) delivered to Bank on or prior other impediments to the date hereof are true, accurate and complete and have not been amended, supplemented sale or restated and are and continue to be in full force and effect as transfer of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documents;STOCK.
(d) the c. The execution and delivery by Borrower of this Amendment Agreement, the NOTE and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate action on the part of Borrower;
(e) this Amendment has been duly other LOAN DOCUMENTS and instruments to be executed and delivered by the Borrower BORROWER are not subject to any authorization not herein contemplated, subject to recall, restriction on voting, use, or other limitations.
d. The Agreement constitutes, and is when executed and delivered, the NOTE and other LOAN DOCUMENTS, will constitute valid binding obligation agreements of Borrowerthe BORROWER, enforceable against it in accordance with its their respective terms, except such as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium reorganization or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; and' rights generally.
(f) as e. Neither the execution and delivery of this Agreement, the NOTE or the other LOAN DOCUMENTS and Instruments to be executed and delivered by BORROWER pursuant hereto, nor the consummation by BORROWER of the date hereoftransactions contemplated hereby, Borrower will require any authorization, consent, approval, exemption or other action by, or notice to, any governmental entity except as specifically provided herein.
f. BORROWER has no defenses against material tax deficiencies, federal, state, foreign, county, local and other, which would or could affect the obligations solvency, financial status of, or otherwise compromise BORROWER in its ability to pay any amounts under transfer the Obligations. Borrower acknowledges that Bank has acted in good faith and has conducted in a commercially reasonable manner STOCK.
g. To the best of its relationships with Borrower in connection with this Amendment knowledge, the information supplied by BORROWER to the LENDER (verbally and in connection with the Loan Documentswriting) contained no untrue statement of material fact or omits or shall omit a material fact, which would make such statements misleading. Borrower understands All statements and acknowledges that Bank is entering into this Amendment information contained in reliance uponany certificate, and in partial consideration forinstrument, the above schedule or document delivered by BORROWER shall be deemed representations and warranties, and agrees that such reliance is reasonable and appropriatewarranties made by BORROWER.
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BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants that:
(a) immediately upon giving effect to this Amendment (i) the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), and (ii) no Event of Default has occurred and is continuing;
(b) The Borrower has the corporate power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment;
(c) the certificate or articles of incorporation incorporation, bylaws and by-laws other organizational documents of the Borrower (collectively, “Organizational Documents”) delivered to Bank the Lender on or prior to the date hereof are Closing Date remain true, accurate and complete and have not been amended, restated, supplemented or restated and are otherwise modified and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documentseffect;
(d) the execution and delivery by the Borrower of this Amendment and the performance by the Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate action on the part of the Borrower;
(e) this Amendment has been duly executed and delivered by the Borrower and is the binding obligation of the Borrower, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rightsrights generally; and
(f) as of the date hereof, the Borrower has no defenses against the obligations to pay any amounts under the Obligations. Borrower acknowledges that Bank has acted in good faith and has conducted in a commercially reasonable manner its relationships with Borrower in connection with this Amendment and in connection with the Loan Documents. The Borrower understands and acknowledges that Bank the Lender is entering into this Amendment in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriate.
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BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants that::
(a) immediately 3.1. Immediately upon giving effect to this Consent and Amendment (i) the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct in all material respects as of such date), date (in all cases without duplication of any standard(s) of materiality contained in the Loan Documents as to such representations and warranties) and (ii) no Event of Default has occurred and is continuingcontinuing with respect to which Borrower has not been notified in writing by Agent or Lender;
(b) 3.2. Borrower has the corporate or other applicable company power and authority to execute and deliver this Consent and Amendment and to perform its obligations under the Amended Loan Agreement, as amended by this Amendment;;
(c) the certificate of incorporation and by-laws of Borrower (collectively, “Organizational Documents”) delivered to Bank on or prior to the date hereof are true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational Documents;3.3. [Reserved.]
(d) the 3.4. The execution and delivery by Borrower of this Consent and Amendment and the performance by Borrower of its obligations under the Amended Loan Agreement, as amended by this Amendment, Agreement have been duly authorized by all necessary corporate or other applicable company action on the part of Borrower;
(e) 3.5. Subject to any matters which are set out as qualifications or reservations as to matters of law of general application in the legal opinions delivered to the Lender pursuant to the Loan Agreement, this Consent and Amendment has been duly executed and delivered by the Borrower and is the binding obligation of Borrower, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights; and
(f) as ▇.▇. ▇▇ of the date hereof, Borrower it has no defenses against the obligations to pay any amounts under the Secured Obligations. Borrower acknowledges that Bank each of Agent and Lender has acted in good faith and has conducted in a commercially reasonable manner its relationships with Borrower in connection with this Consent and Amendment and in connection with the Loan Documents. Borrower understands and acknowledges that Bank each of Agent and Lender is entering into this Consent and Amendment in reliance upon, and in partial consideration for, the above representations and warranties, and agrees that such reliance is reasonable and appropriate..
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