Representations of Borrowers. The Borrowers hereby represent and warrant to Lender and Collateral Agent the following: (A) Each Borrower (i) is a limited partnership duly organized, validly existing and in good standing under the laws of the State of Delaware and in all jurisdictions in which qualification or licensing is required; and (ii) has the power and authority to own, and lease its Property and conduct its business as it is now conducted. There are no proceedings or actions pending, threatened or contemplated for the liquidation, reorganization, termination or dissolution of any Borrower. (B) There have been no material adverse changes, financial or otherwise, in the condition of any Borrower from that previously disclosed to Lender and Collateral Agent by each Borrower, or in any supporting data submitted in connection with the Loan, and all of the information contained therein was true and correct in all material respects when submitted and is now substantially materially true and correct on the date hereof. (C) No proceedings in bankruptcy or insolvency have ever been instituted by or against any Borrower or any affiliate thereof, and no such proceeding is now pending or contemplated. (D) Each Borrower, and the partners of each Borrower are solvent pursuant to the laws of the United States and the state in which the Borrower is organized, as reflected by the entries in such Borrower's books and records and as reflected by the actual facts. (E) The Note, the Security Instruments and the other Loan Documents, and all other notes and loan documents evidencing all other obligations of Borrowers to Lender, if any, have been duly authorized, executed and delivered by Borrowers and constitute valid and binding obligations of Borrowers, enforceable against Borrowers in accordance with their respective terms, except as the enforcement of them may be limited by bankruptcy, insolvency, moratorium and other applicable debtor relief laws, and by equitable principles. No approval, consent, order or authorization of any governmental authority and no designation, registration, declaration or filing with any governmental authority is required in connection with the execution and delivery of the Note, the Security Instruments or any of the Loan Documents, except as may have already been obtained. (F) The execution, delivery, and performance of the Loan Documents will not violate or contravene in any way the organizational documents of any Borrower or any indenture, agreement or instrument to which any Borrower is a party or by which it or its property may be bound, or be in conflict with, result in a breach of or constitute a default under any such indenture, agreement or other instrument, or result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the property or assets of any Borrower, except as contemplated by the provisions of such instrument, and no action or approval with respect thereto by any third person is required. (G) The proceeds of the Loan will be used by Borrowers to make a distribution to partners of the Borrowers, and not for any other purpose. (H) There is no litigation, legal or administrative proceeding, investigation or other action of any nature commenced, pending, or, to Borrowers' actual knowledge, threatened against or affecting any Borrower, its Property or any interest or right therein which has not been disclosed in writing to Lender and Collateral Agent and which may involve the possibility of any judgment or liability not fully covered by insurance, or materially or adversely affecting any of the assets of any Borrower or any Borrower's right to carry on business as now conducted, or affecting the continued employment of any officer or director of any Borrower. (I) Each Borrower has good title to its Property and has the right to mortgage, grant, bargain, sell, pledge, assign, warrant, transfer and convey the same and each Borrower possesses a fee simple absolute estate in the Land (as defined in the Security Instruments) and the Improvements (as defined in the Security Instruments), and each Borrower owns its Property free and clear of all liens, encumbrances and charges whatsoever except for those exceptions which are shown in the title insurance policy insuring the lien of the Security Instruments, or which are Permitted Encumbrances. Each respective Borrower shall forever warrant, defend and preserve the title and the validity and priority of the lien of its Security Instrument and shall forever warrant and defend the same to Lender against the claims of all persons whomsoever. (J) No portion of the improvements on the Properties is located in an area identified by the Secretary of Housing and Urban Development or any successor thereto as an area having special flood hazards pursuant to the Flood Insurance Acts, or if any portion of the improvements is located within such area; the applicable Borrower has obtained, or has caused the Tenant to obtain, and will maintain the insurance prescribed in the applicable Lease. (K) To each Borrower's actual knowledge, its Property is in good repair and free of any material damage, waste or defective condition that would materially and adversely affect the value of such Property in use under the applicable Lease, and there is no proceeding pending for the total or partial condemnation of its Property. (L) Each Borrower has paid in full for, and is the owner of, all furnishings, fixtures and equipment (other than Tenant's property) used in connection with the operation of its Property, free and clear of any and all security interests, liens or encumbrances, except for the lien and security interest which are created by its Security Instrument, or are Permitted Encumbrances. (M) Each Borrower is not a "foreign person" within the meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended and the related Treasury Department regulations, including temporary regulations. (i) Each Borrower is the sole owner of the entire lessor's interest in its Lease; (ii) its Lease is valid and enforceable and in full force and effect; (iii) to each Borrower's actual knowledge, no party under its Lease is in default; (iv) all Rents (as defined in the applicable Security Instrument) due have been paid in full; (v) there are no modifications or amendments to any Lease; (vi) none of the Rents reserved in any Lease have been assigned or otherwise pledged or hypothecated except in connection with the applicable Security Instrument; (vii) none of the Rents have been collected for more than one (1) month in advance (except a security deposit shall not be deemed rent collected in advance); (viii) there exist no offsets or defenses to the payment of any portion of the Rents;
Appears in 1 contract
Representations of Borrowers. The Borrowers hereby represent to the Banks, which representations shall survive the Fourth Amendment Effective Date and warrant to Lender and Collateral Agent be deemed incorporated into Article IV of the followingCredit Agreement, that:
(A) Each Borrower (i) is a limited partnership duly organized, validly existing a. the representations and warranties contained in good standing under the laws Article IV of the State of Delaware Existing Credit Agreement and contained in all jurisdictions in which qualification or licensing is required; and (ii) has the power and authority to own, and lease its Property and conduct its business as it is now conducted. There are no proceedings or actions pending, threatened or contemplated for the liquidation, reorganization, termination or dissolution of any Borrower.
(B) There have been no material adverse changes, financial or otherwise, in the condition of any Borrower from that previously disclosed to Lender and Collateral Agent by each Borrower, or in any supporting data submitted in connection with the Loan, and all of the information contained therein was other Loan Documents (other than representations and warranties which expressly speak only as of a different date, which shall be true and correct in all material respects when submitted and is now substantially materially as of such date) are true and correct on and as of the Fourth Amendment Effective Date in all material respects as though such representations and warranties had been made on and as of the Fourth Amendment Effective Date, except to the extent that such representations and warranties are not true and correct as a result of a change which is permitted by the Credit Agreement or by any other Loan Document or which has been otherwise consented to by Agent Bank or, where applicable, the Requisite Lenders;
b. since the date hereof.
(C) No proceedings of the most recent financial statements referred to in bankruptcy or insolvency have ever been instituted by or against any Borrower or any affiliate thereofSection 5.08 of the Existing Credit Agreement, no Material Adverse Change has occurred and no such proceeding event or circumstance which could reasonably be expected to result in a Material Adverse Change has occurred;
c. no event has occurred and is now pending continuing which constitutes a Default or contemplated.
(D) Each Borrower, and Event of Default under the partners of each Borrower are solvent pursuant to the laws terms of the United States and Credit Agreement; and
d. the state in which the Borrower is organized, as reflected by the entries in such Borrower's books and records and as reflected by the actual facts.
(E) The Note, the Security Instruments and the other Loan Documents, and all other notes and loan documents evidencing all other obligations of Borrowers to Lender, if any, have been duly authorized, executed and delivered by Borrowers and constitute valid and binding obligations of Borrowers, enforceable against Borrowers in accordance with their respective terms, except as the enforcement of them may be limited by bankruptcy, insolvency, moratorium and other applicable debtor relief laws, and by equitable principles. No approval, consent, order or authorization of any governmental authority and no designation, registration, declaration or filing with any governmental authority is required in connection with the execution and delivery of the Note, the Security Instruments or any of the Loan Documents, except as may have already been obtained.
(F) The execution, delivery, delivery and performance of the Loan Documents will not violate or contravene in any way the organizational documents of any Borrower or any indenture, agreement or instrument to which any Borrower is a party or this Fourth Amendment has been duly authorized by which it or its property may be bound, or be in conflict with, result in a breach of or constitute a default under any such indenture, agreement or other instrument, or result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the property or assets of any Borrower, except as contemplated by the provisions of such instrument, and no action or approval with respect thereto by any third person is required.
(G) The proceeds of the Loan will be used by Borrowers to make a distribution to partners of the Borrowers, and not for any other purpose.
(H) There is no litigation, legal or administrative proceeding, investigation or other all necessary action of any nature commencedBorrowers and this Fourth Amendment constitutes the valid, pending, or, to Borrowers' actual knowledge, threatened against or affecting any Borrower, its Property or any interest or right therein which has not been disclosed in writing to Lender and Collateral Agent and which may involve the possibility of any judgment or liability not fully covered by insurance, or materially or adversely affecting any of the assets of any Borrower or any Borrower's right to carry on business as now conducted, or affecting the continued employment of any officer or director of any Borrower.
(I) Each Borrower has good title to its Property and has the right to mortgage, grant, bargain, sell, pledge, assign, warrant, transfer and convey the same and each Borrower possesses a fee simple absolute estate in the Land (as defined in the Security Instruments) and the Improvements (as defined in the Security Instruments), and each Borrower owns its Property free and clear of all liens, encumbrances and charges whatsoever except for those exceptions which are shown in the title insurance policy insuring the lien of the Security Instruments, or which are Permitted Encumbrances. Each respective Borrower shall forever warrant, defend and preserve the title and the validity and priority of the lien of its Security Instrument and shall forever warrant and defend the same to Lender against the claims of all persons whomsoever.
(J) No portion of the improvements on the Properties is located in an area identified by the Secretary of Housing and Urban Development or any successor thereto as an area having special flood hazards pursuant to the Flood Insurance Acts, or if any portion of the improvements is located within such area; the applicable Borrower has obtained, or has caused the Tenant to obtain, and will maintain the insurance prescribed in the applicable Lease.
(K) To each Borrower's actual knowledge, its Property is in good repair and free of any material damage, waste or defective condition that would materially and adversely affect the value of such Property in use under the applicable Lease, and there is no proceeding pending for the total or partial condemnation of its Property.
(L) Each Borrower has paid in full for, and is the owner of, all furnishings, fixtures and equipment (other than Tenant's property) used in connection with the operation of its Property, free and clear of any and all security interests, liens or encumbrances, except for the lien and security interest which are created by its Security Instrument, or are Permitted Encumbrances.
(M) Each Borrower is not a "foreign person" within the meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended and the related Treasury Department regulations, including temporary regulations.
(i) Each Borrower is the sole owner of the entire lessor's interest in its Lease; (ii) its Lease is valid binding and enforceable and in full force and effect; (iii) to each Borrower's actual knowledge, no party under its Lease is in default; (iv) all Rents (as defined in the applicable Security Instrument) due have been paid in full; (v) there are no modifications or amendments to any Lease; (vi) none obligation of the Rents reserved in any Lease have been assigned or otherwise pledged or hypothecated except in connection with the applicable Security Instrument; (vii) none of the Rents have been collected for more than one (1) month in advance (except a security deposit shall not be deemed rent collected in advance); (viii) there exist no offsets or defenses to the payment of any portion of the Rents;Borrowers.
Appears in 1 contract
Representations of Borrowers. The Borrowers hereby represent to the Banks, which representations shall survive the Sixth Amendment Effective Date and warrant to Lender and Collateral Agent be deemed incorporated into Article IV of the followingCredit Agreement, that:
(A) Each Borrower (i) is a limited partnership duly organized, validly existing a. the representations and warranties contained in good standing under the laws Article IV of the State of Delaware Existing Credit Agreement and contained in all jurisdictions in which qualification or licensing is required; and (ii) has the power and authority to own, and lease its Property and conduct its business as it is now conducted. There are no proceedings or actions pending, threatened or contemplated for the liquidation, reorganization, termination or dissolution of any Borrower.
(B) There have been no material adverse changes, financial or otherwise, in the condition of any Borrower from that previously disclosed to Lender and Collateral Agent by each Borrower, or in any supporting data submitted in connection with the Loan, and all of the information contained therein was other Loan Documents (other than representations and warranties which expressly speak only as of a different date, which shall be true and correct in all material respects when submitted and is now substantially materially as of such date) are true and correct on and as of the Sixth Amendment Effective Date in all material respects as though such representations and warranties had been made on and as of the Sixth Amendment Effective Date, except to the extent that such representations and warranties are not true and correct as a result of a change which is permitted by the Credit Agreement or by any other Loan Document or which has been otherwise consented to by Agent Bank or, where applicable, the Requisite Lenders;
b. since the date hereof.
(C) No proceedings of the most recent financial statements referred to in bankruptcy or insolvency have ever been instituted by or against any Borrower or any affiliate thereofSection 5.08 of the Existing Credit Agreement, no Material Adverse Change has occurred and no such proceeding is now pending event or contemplated.circumstance which could reasonably be expected to result in a Material Adverse Change has occurred;
(D) Each Borrower, c. the IP Sale Agreement and the partners of each Borrower are solvent pursuant Consent Order delivered to the laws Agent Bank as of the United States Sixth Amendment Effective Date have not been further revised or modified;
d. after giving effect to the Sixth Amendment, no event has occurred and is continuing which constitutes a Default or Event of Default under the state in which the Borrower is organized, as reflected by the entries in such Borrower's books and records and as reflected by the actual facts.
(E) The Note, the Security Instruments and the other Loan Documents, and all other notes and loan documents evidencing all other obligations of Borrowers to Lender, if any, have been duly authorized, executed and delivered by Borrowers and constitute valid and binding obligations of Borrowers, enforceable against Borrowers in accordance with their respective terms, except as the enforcement of them may be limited by bankruptcy, insolvency, moratorium and other applicable debtor relief laws, and by equitable principles. No approval, consent, order or authorization of any governmental authority and no designation, registration, declaration or filing with any governmental authority is required in connection with the execution and delivery terms of the Note, Credit Agreement; and
e. the Security Instruments or any of the Loan Documents, except as may have already been obtained.
(F) The execution, delivery, delivery and performance of the Loan Documents will not violate or contravene in any way the organizational documents of any Borrower or any indenture, agreement or instrument to which any Borrower is a party or this Sixth Amendment has been duly authorized by which it or its property may be bound, or be in conflict with, result in a breach of or constitute a default under any such indenture, agreement or other instrument, or result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the property or assets of any Borrower, except as contemplated by the provisions of such instrument, and no action or approval with respect thereto by any third person is required.
(G) The proceeds of the Loan will be used by Borrowers to make a distribution to partners of the Borrowers, and not for any other purpose.
(H) There is no litigation, legal or administrative proceeding, investigation or other all necessary action of any nature commencedBorrowers and this Sixth Amendment constitutes the valid, pending, or, to Borrowers' actual knowledge, threatened against or affecting any Borrower, its Property or any interest or right therein which has not been disclosed in writing to Lender and Collateral Agent and which may involve the possibility of any judgment or liability not fully covered by insurance, or materially or adversely affecting any of the assets of any Borrower or any Borrower's right to carry on business as now conducted, or affecting the continued employment of any officer or director of any Borrower.
(I) Each Borrower has good title to its Property and has the right to mortgage, grant, bargain, sell, pledge, assign, warrant, transfer and convey the same and each Borrower possesses a fee simple absolute estate in the Land (as defined in the Security Instruments) and the Improvements (as defined in the Security Instruments), and each Borrower owns its Property free and clear of all liens, encumbrances and charges whatsoever except for those exceptions which are shown in the title insurance policy insuring the lien of the Security Instruments, or which are Permitted Encumbrances. Each respective Borrower shall forever warrant, defend and preserve the title and the validity and priority of the lien of its Security Instrument and shall forever warrant and defend the same to Lender against the claims of all persons whomsoever.
(J) No portion of the improvements on the Properties is located in an area identified by the Secretary of Housing and Urban Development or any successor thereto as an area having special flood hazards pursuant to the Flood Insurance Acts, or if any portion of the improvements is located within such area; the applicable Borrower has obtained, or has caused the Tenant to obtain, and will maintain the insurance prescribed in the applicable Lease.
(K) To each Borrower's actual knowledge, its Property is in good repair and free of any material damage, waste or defective condition that would materially and adversely affect the value of such Property in use under the applicable Lease, and there is no proceeding pending for the total or partial condemnation of its Property.
(L) Each Borrower has paid in full for, and is the owner of, all furnishings, fixtures and equipment (other than Tenant's property) used in connection with the operation of its Property, free and clear of any and all security interests, liens or encumbrances, except for the lien and security interest which are created by its Security Instrument, or are Permitted Encumbrances.
(M) Each Borrower is not a "foreign person" within the meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended and the related Treasury Department regulations, including temporary regulations.
(i) Each Borrower is the sole owner of the entire lessor's interest in its Lease; (ii) its Lease is valid binding and enforceable and in full force and effect; (iii) to each Borrower's actual knowledge, no party under its Lease is in default; (iv) all Rents (as defined in the applicable Security Instrument) due have been paid in full; (v) there are no modifications or amendments to any Lease; (vi) none obligation of the Rents reserved in any Lease have been assigned or otherwise pledged or hypothecated except in connection with the applicable Security Instrument; (vii) none of the Rents have been collected for more than one (1) month in advance (except a security deposit shall not be deemed rent collected in advance); (viii) there exist no offsets or defenses to the payment of any portion of the Rents;Borrowers.
Appears in 1 contract
Representations of Borrowers. The Borrowers hereby represent to the Banks, which representations shall survive the First Amendment Effective Date and warrant to Lender and Collateral Agent be deemed incorporated into Article IV of the followingCredit Agreement, that:
(A) Each Borrower (i) is a limited partnership duly organized, validly existing a. the representations and warranties contained in good standing under the laws Article IV of the State of Delaware Existing Credit Agreement and contained in all jurisdictions in which qualification or licensing is required; and (ii) has the power and authority to own, and lease its Property and conduct its business as it is now conducted. There are no proceedings or actions pending, threatened or contemplated for the liquidation, reorganization, termination or dissolution of any Borrower.
(B) There have been no material adverse changes, financial or otherwise, in the condition of any Borrower from that previously disclosed to Lender and Collateral Agent by each Borrower, or in any supporting data submitted in connection with the Loan, and all of the information contained therein was other Loan Documents (other than representations and warranties which expressly speak only as of a different date, which shall be true and correct in all material respects when submitted and is now substantially materially as of such date) are true and correct on and as of the First Amendment Effective Date in all material respects as though such representations and warranties had been made on and as of the First Amendment Effective Date, except to the extent that such representations and warranties are not true and correct as a result of a change which is permitted by the SGRI Waivers and Consents, the Credit Agreement or by any other Loan Document or which has been otherwise consented to by Agent Bank or, where applicable, the Requisite Lenders;
b. since the date hereof.
(C) No proceedings of the most recent financial statements referred to in bankruptcy or insolvency have ever been instituted by or against any Borrower or any affiliate thereofSection 5.08 of the Existing Credit Agreement, no Material Adverse Change has occurred and no such proceeding is now pending event or contemplated.circumstance which could reasonably be expected to result in a Material Adverse Change has occurred;
(D) Each Borrower, and the partners of each Borrower are solvent pursuant c. after giving effect to the laws SGRI Waivers and Consents, no event has occurred and is continuing which constitutes a Default or Event of Default under the terms of the United States and Credit Agreement; and
d. the state in which the Borrower is organized, as reflected by the entries in such Borrower's books and records and as reflected by the actual facts.
(E) The Note, the Security Instruments and the other Loan Documents, and all other notes and loan documents evidencing all other obligations of Borrowers to Lender, if any, have been duly authorized, executed and delivered by Borrowers and constitute valid and binding obligations of Borrowers, enforceable against Borrowers in accordance with their respective terms, except as the enforcement of them may be limited by bankruptcy, insolvency, moratorium and other applicable debtor relief laws, and by equitable principles. No approval, consent, order or authorization of any governmental authority and no designation, registration, declaration or filing with any governmental authority is required in connection with the execution and delivery of the Note, the Security Instruments or any of the Loan Documents, except as may have already been obtained.
(F) The execution, delivery, delivery and performance of this First Amendment, the Loan Documents will not violate or contravene in any way the organizational documents of any Borrower or any indenture, agreement or instrument to which any Borrower is a party or by which it or its property may be bound, or be in conflict with, result in a breach of or constitute a default under any such indenture, agreement or other instrument, or result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any Revolving Credit Note and each of the property or assets related documents has been duly authorized by all necessary action of any BorrowerBorrowers and this First Amendment, except as contemplated by the provisions of such instrument, Revolving Credit Note and no action or approval with respect thereto by any third person is required.
(G) The proceeds each of the Loan will be used by Borrowers to make a distribution to partners of the Borrowersrelated documents constitute valid, and not for any other purpose.
(H) There is no litigation, legal or administrative proceeding, investigation or other action of any nature commenced, pending, or, to Borrowers' actual knowledge, threatened against or affecting any Borrower, its Property or any interest or right therein which has not been disclosed in writing to Lender and Collateral Agent and which may involve the possibility of any judgment or liability not fully covered by insurance, or materially or adversely affecting any of the assets of any Borrower or any Borrower's right to carry on business as now conducted, or affecting the continued employment of any officer or director of any Borrower.
(I) Each Borrower has good title to its Property and has the right to mortgage, grant, bargain, sell, pledge, assign, warrant, transfer and convey the same and each Borrower possesses a fee simple absolute estate in the Land (as defined in the Security Instruments) and the Improvements (as defined in the Security Instruments), and each Borrower owns its Property free and clear of all liens, encumbrances and charges whatsoever except for those exceptions which are shown in the title insurance policy insuring the lien of the Security Instruments, or which are Permitted Encumbrances. Each respective Borrower shall forever warrant, defend and preserve the title and the validity and priority of the lien of its Security Instrument and shall forever warrant and defend the same to Lender against the claims of all persons whomsoever.
(J) No portion of the improvements on the Properties is located in an area identified by the Secretary of Housing and Urban Development or any successor thereto as an area having special flood hazards pursuant to the Flood Insurance Acts, or if any portion of the improvements is located within such area; the applicable Borrower has obtained, or has caused the Tenant to obtain, and will maintain the insurance prescribed in the applicable Lease.
(K) To each Borrower's actual knowledge, its Property is in good repair and free of any material damage, waste or defective condition that would materially and adversely affect the value of such Property in use under the applicable Lease, and there is no proceeding pending for the total or partial condemnation of its Property.
(L) Each Borrower has paid in full for, and is the owner of, all furnishings, fixtures and equipment (other than Tenant's property) used in connection with the operation of its Property, free and clear of any and all security interests, liens or encumbrances, except for the lien and security interest which are created by its Security Instrument, or are Permitted Encumbrances.
(M) Each Borrower is not a "foreign person" within the meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended and the related Treasury Department regulations, including temporary regulations.
(i) Each Borrower is the sole owner of the entire lessor's interest in its Lease; (ii) its Lease is valid binding and enforceable and in full force and effect; (iii) to each Borrower's actual knowledge, no party under its Lease is in default; (iv) all Rents (as defined in the applicable Security Instrument) due have been paid in full; (v) there are no modifications or amendments to any Lease; (vi) none obligation of the Rents reserved in any Lease have been assigned or otherwise pledged or hypothecated except in connection with the applicable Security Instrument; (vii) none of the Rents have been collected for more than one (1) month in advance (except a security deposit shall not be deemed rent collected in advance); (viii) there exist no offsets or defenses to the payment of any portion of the Rents;Borrowers.
Appears in 1 contract
Representations of Borrowers. The Borrowers hereby represent to the Banks, which representations shall survive the Second Amendment Effective Date and warrant to Lender and Collateral Agent be deemed incorporated into Article IV of the followingCredit Agreement, that:
(A) Each Borrower (i) is a limited partnership duly organized, validly existing a. the representations and warranties contained in good standing under the laws Article IV of the State of Delaware Existing Credit Agreement and contained in all jurisdictions in which qualification or licensing is required; and (ii) has the power and authority to own, and lease its Property and conduct its business as it is now conducted. There are no proceedings or actions pending, threatened or contemplated for the liquidation, reorganization, termination or dissolution of any Borrower.
(B) There have been no material adverse changes, financial or otherwise, in the condition of any Borrower from that previously disclosed to Lender and Collateral Agent by each Borrower, or in any supporting data submitted in connection with the Loan, and all of the information contained therein was other Loan Documents (other than representations and warranties which expressly speak only as of a different date, which shall be true and correct in all material respects when submitted and is now substantially materially as of such date) are true and correct on and as of the Second Amendment Effective Date in all material respects as though such representations and warranties had been made on and as of the Second Amendment Effective Date, except to the extent that such representations and warranties are not true and correct as a result of a change which is permitted by the Credit Agreement or by any other Loan Document or which has been otherwise consented to by Agent Bank or, where applicable, the Requisite Lenders;
b. since the date hereof.
(C) No proceedings of the most recent financial statements referred to in bankruptcy or insolvency have ever been instituted by or against any Borrower or any affiliate thereofSection 5.08 of the Existing Credit Agreement, no Material Adverse Change has occurred and no such proceeding is now pending event or contemplated.circumstance which could reasonably be expected to result in a Material Adverse Change has occurred;
(D) Each Borrower, and the partners of each Borrower are solvent pursuant c. after giving effect to the laws Second Amendment, no event has occurred and is continuing which constitutes a Default or Event of Default under the terms of the United States and Credit Agreement; and
d. the state in which the Borrower is organized, as reflected by the entries in such Borrower's books and records and as reflected by the actual facts.
(E) The Note, the Security Instruments and the other Loan Documents, and all other notes and loan documents evidencing all other obligations of Borrowers to Lender, if any, have been duly authorized, executed and delivered by Borrowers and constitute valid and binding obligations of Borrowers, enforceable against Borrowers in accordance with their respective terms, except as the enforcement of them may be limited by bankruptcy, insolvency, moratorium and other applicable debtor relief laws, and by equitable principles. No approval, consent, order or authorization of any governmental authority and no designation, registration, declaration or filing with any governmental authority is required in connection with the execution and delivery of the Note, the Security Instruments or any of the Loan Documents, except as may have already been obtained.
(F) The execution, delivery, delivery and performance of the Loan Documents will not violate or contravene in any way the organizational documents of any Borrower or any indenture, agreement or instrument to which any Borrower is a party or this Second Amendment has been duly authorized by which it or its property may be bound, or be in conflict with, result in a breach of or constitute a default under any such indenture, agreement or other instrument, or result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the property or assets of any Borrower, except as contemplated by the provisions of such instrument, and no action or approval with respect thereto by any third person is required.
(G) The proceeds of the Loan will be used by Borrowers to make a distribution to partners of the Borrowers, and not for any other purpose.
(H) There is no litigation, legal or administrative proceeding, investigation or other all necessary action of any nature commencedBorrowers and this Second Amendment constitutes the valid, pending, or, to Borrowers' actual knowledge, threatened against or affecting any Borrower, its Property or any interest or right therein which has not been disclosed in writing to Lender and Collateral Agent and which may involve the possibility of any judgment or liability not fully covered by insurance, or materially or adversely affecting any of the assets of any Borrower or any Borrower's right to carry on business as now conducted, or affecting the continued employment of any officer or director of any Borrower.
(I) Each Borrower has good title to its Property and has the right to mortgage, grant, bargain, sell, pledge, assign, warrant, transfer and convey the same and each Borrower possesses a fee simple absolute estate in the Land (as defined in the Security Instruments) and the Improvements (as defined in the Security Instruments), and each Borrower owns its Property free and clear of all liens, encumbrances and charges whatsoever except for those exceptions which are shown in the title insurance policy insuring the lien of the Security Instruments, or which are Permitted Encumbrances. Each respective Borrower shall forever warrant, defend and preserve the title and the validity and priority of the lien of its Security Instrument and shall forever warrant and defend the same to Lender against the claims of all persons whomsoever.
(J) No portion of the improvements on the Properties is located in an area identified by the Secretary of Housing and Urban Development or any successor thereto as an area having special flood hazards pursuant to the Flood Insurance Acts, or if any portion of the improvements is located within such area; the applicable Borrower has obtained, or has caused the Tenant to obtain, and will maintain the insurance prescribed in the applicable Lease.
(K) To each Borrower's actual knowledge, its Property is in good repair and free of any material damage, waste or defective condition that would materially and adversely affect the value of such Property in use under the applicable Lease, and there is no proceeding pending for the total or partial condemnation of its Property.
(L) Each Borrower has paid in full for, and is the owner of, all furnishings, fixtures and equipment (other than Tenant's property) used in connection with the operation of its Property, free and clear of any and all security interests, liens or encumbrances, except for the lien and security interest which are created by its Security Instrument, or are Permitted Encumbrances.
(M) Each Borrower is not a "foreign person" within the meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended and the related Treasury Department regulations, including temporary regulations.
(i) Each Borrower is the sole owner of the entire lessor's interest in its Lease; (ii) its Lease is valid binding and enforceable and in full force and effect; (iii) to each Borrower's actual knowledge, no party under its Lease is in default; (iv) all Rents (as defined in the applicable Security Instrument) due have been paid in full; (v) there are no modifications or amendments to any Lease; (vi) none obligation of the Rents reserved in any Lease have been assigned or otherwise pledged or hypothecated except in connection with the applicable Security Instrument; (vii) none of the Rents have been collected for more than one (1) month in advance (except a security deposit shall not be deemed rent collected in advance); (viii) there exist no offsets or defenses to the payment of any portion of the Rents;Borrowers.
Appears in 1 contract
Representations of Borrowers. The Borrowers hereby represent to the Banks, which representations shall survive the execution and warrant to Lender delivery of the Second Amendment and Collateral Agent shall be deemed incorporated into Article IV of the followingCredit Agreement, that:
(A) Each Borrower (i) is a limited partnership duly organized, validly existing a. the representations and warranties contained in good standing under the laws Article IV of the State of Delaware Existing Credit Agreement and contained in all jurisdictions in which qualification or licensing is required; and (ii) has the power and authority to own, and lease its Property and conduct its business as it is now conducted. There are no proceedings or actions pending, threatened or contemplated for the liquidation, reorganization, termination or dissolution of any Borrower.
(B) There have been no material adverse changes, financial or otherwise, in the condition of any Borrower from that previously disclosed to Lender and Collateral Agent by each Borrower, or in any supporting data submitted in connection with the Loan, and all of the information contained therein was other Loan Documents (other than representations and warranties which expressly speak only as of a different date, which shall be true and correct in all material respects when submitted and is now substantially materially as of such date) are true and correct on the date hereof.
(C) No proceedings in bankruptcy or insolvency have ever been instituted by or against any Borrower or any affiliate thereof, and no such proceeding is now pending or contemplated.
(D) Each Borrower, and the partners of each Borrower are solvent pursuant to the laws of the United States and the state in which the Borrower is organized, as reflected by the entries in such Borrower's books and records and as reflected by the actual facts.
(E) The Note, the Security Instruments and the other Loan Documents, and all other notes and loan documents evidencing all other obligations of Borrowers to Lender, if any, have been duly authorized, executed and delivered by Borrowers and constitute valid and binding obligations of Borrowers, enforceable against Borrowers in accordance with their respective terms, except as the enforcement of them may be limited by bankruptcy, insolvency, moratorium and other applicable debtor relief laws, and by equitable principles. No approval, consent, order or authorization of any governmental authority and no designation, registration, declaration or filing with any governmental authority is required in connection with the execution and delivery of the NoteSecond Amendment in all material respects as though such representations and warranties had been made on and as of the execution and delivery of the Second Amendment, except to the extent that such representations and warranties are not true and correct as a result of a change which is permitted by the Credit Agreement or by any other Loan Document or which has been otherwise consented to by Agent Bank or, where applicable, the Security Instruments or any Requisite Lenders;
b. since the date of the Loan Documentsmost recent financial statements referred to in Section 5.08 of the Existing Credit Agreement, except as may have already been obtained.no Material Adverse Change has occurred and no event or circumstance which could reasonably be expected to result in a Material Adverse Change has occurred;
(F) The c. after giving effect to the Second Amendment, no event has occurred and is continuing which constitutes a Default or Event of Default under the terms of the Credit Agreement; and
d. the execution, delivery, delivery and performance of the Loan Documents will not violate or contravene in any way the organizational documents this Second Amendment has been duly authorized by all necessary action of any Borrower or any indenture, agreement or instrument to which any Borrower is a party or by which it or its property may be bound, or be in conflict with, result in a breach of or constitute a default under any such indenture, agreement or other instrument, or result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any Borrowers and this Second Amendment and each of the property or assets of any Borrowerrelated documents constitute valid, except as contemplated by the provisions of such instrument, and no action or approval with respect thereto by any third person is required.
(G) The proceeds of the Loan will be used by Borrowers to make a distribution to partners of the Borrowers, and not for any other purpose.
(H) There is no litigation, legal or administrative proceeding, investigation or other action of any nature commenced, pending, or, to Borrowers' actual knowledge, threatened against or affecting any Borrower, its Property or any interest or right therein which has not been disclosed in writing to Lender and Collateral Agent and which may involve the possibility of any judgment or liability not fully covered by insurance, or materially or adversely affecting any of the assets of any Borrower or any Borrower's right to carry on business as now conducted, or affecting the continued employment of any officer or director of any Borrower.
(I) Each Borrower has good title to its Property and has the right to mortgage, grant, bargain, sell, pledge, assign, warrant, transfer and convey the same and each Borrower possesses a fee simple absolute estate in the Land (as defined in the Security Instruments) and the Improvements (as defined in the Security Instruments), and each Borrower owns its Property free and clear of all liens, encumbrances and charges whatsoever except for those exceptions which are shown in the title insurance policy insuring the lien of the Security Instruments, or which are Permitted Encumbrances. Each respective Borrower shall forever warrant, defend and preserve the title and the validity and priority of the lien of its Security Instrument and shall forever warrant and defend the same to Lender against the claims of all persons whomsoever.
(J) No portion of the improvements on the Properties is located in an area identified by the Secretary of Housing and Urban Development or any successor thereto as an area having special flood hazards pursuant to the Flood Insurance Acts, or if any portion of the improvements is located within such area; the applicable Borrower has obtained, or has caused the Tenant to obtain, and will maintain the insurance prescribed in the applicable Lease.
(K) To each Borrower's actual knowledge, its Property is in good repair and free of any material damage, waste or defective condition that would materially and adversely affect the value of such Property in use under the applicable Lease, and there is no proceeding pending for the total or partial condemnation of its Property.
(L) Each Borrower has paid in full for, and is the owner of, all furnishings, fixtures and equipment (other than Tenant's property) used in connection with the operation of its Property, free and clear of any and all security interests, liens or encumbrances, except for the lien and security interest which are created by its Security Instrument, or are Permitted Encumbrances.
(M) Each Borrower is not a "foreign person" within the meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended and the related Treasury Department regulations, including temporary regulations.
(i) Each Borrower is the sole owner of the entire lessor's interest in its Lease; (ii) its Lease is valid binding and enforceable and in full force and effect; (iii) to each Borrower's actual knowledge, no party under its Lease is in default; (iv) all Rents (as defined in the applicable Security Instrument) due have been paid in full; (v) there are no modifications or amendments to any Lease; (vi) none obligation of the Rents reserved in any Lease have been assigned or otherwise pledged or hypothecated except in connection with the applicable Security Instrument; (vii) none of the Rents have been collected for more than one (1) month in advance (except a security deposit shall not be deemed rent collected in advance); (viii) there exist no offsets or defenses to the payment of any portion of the Rents;Borrowers.
Appears in 1 contract
Representations of Borrowers. The Borrowers hereby represent to the Banks, which representations shall survive the First Amendment Effective Date and warrant to Lender and Collateral Agent be deemed incorporated into Article IV of the followingCredit Agreement, that:
(A) Each Borrower (i) is a limited partnership duly organized, validly existing a. The representations and warranties contained in good standing under the laws Article IV of the State of Delaware Existing Credit Agreement and contained in all jurisdictions in which qualification or licensing is required; and (ii) has the power and authority to own, and lease its Property and conduct its business as it is now conducted. There are no proceedings or actions pending, threatened or contemplated for the liquidation, reorganization, termination or dissolution of any Borrower.
(B) There have been no material adverse changes, financial or otherwise, in the condition of any Borrower from that previously disclosed to Lender and Collateral Agent by each Borrower, or in any supporting data submitted in connection with the Loan, and all of the information contained therein was other Loan Documents (other than representations and warranties which expressly speak only as of a different date, which shall be true and correct in all material respects when submitted and is now substantially materially as of such date) are true and correct on and as of the First Amendment Effective Date in all material respects as though such representations and warranties had been made on and as of the First Amendment Effective Date, except to the extent that such representations and warranties are not true and correct as a result of a change which is permitted by the Credit Agreement or by any other Loan Document or which has been otherwise consented to by Agent Bank or, where applicable, the Requisite Lenders;
b. Since the date hereof.
(C) No proceedings of the most recent financial statements referred to in bankruptcy or insolvency have ever been instituted by or against any Borrower or any affiliate thereofSection 5.08 of the Existing Credit Agreement, no Material Adverse Change has occurred and no such proceeding event or circumstance which could reasonably be expected to result in a Material Adverse Change has occurred;
c. No event has occurred and is now pending continuing which constitutes a Default or contemplated.
(D) Each Borrower, and Event of Default under the partners of each Borrower are solvent pursuant to the laws terms of the United States and the state in which the Borrower is organized, as reflected by the entries in such Borrower's books and records and as reflected by the actual facts.Credit Agreement; and
(E) The Note, the Security Instruments and the other Loan Documents, and all other notes and loan documents evidencing all other obligations of Borrowers to Lender, if any, have been duly authorized, executed and delivered by Borrowers and constitute valid and binding obligations of Borrowers, enforceable against Borrowers in accordance with their respective terms, except as the enforcement of them may be limited by bankruptcy, insolvency, moratorium and other applicable debtor relief laws, and by equitable principles. No approval, consent, order or authorization of any governmental authority and no designation, registration, declaration or filing with any governmental authority is required in connection with the execution and delivery of the Note, the Security Instruments or any of the Loan Documents, except as may have already been obtained.
(F) d. The execution, delivery, delivery and performance of this First Amendment, the Loan Documents will not violate or contravene in any way the organizational documents of any Borrower or any indenture, agreement or instrument to which any Borrower is a party or by which it or its property may be bound, or be in conflict with, result in a breach of or constitute a default under any such indenture, agreement or other instrument, or result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any Revolving Credit Note and each of the property or assets related documents has been duly authorized by all necessary action of any BorrowerBorrowers and this First Amendment, except as contemplated by the provisions of such instrument, Revolving Credit Note and no action or approval with respect thereto by any third person is required.
(G) The proceeds each of the Loan will be used by Borrowers to make a distribution to partners of the Borrowersrelated documents constitute valid, and not for any other purpose.
(H) There is no litigation, legal or administrative proceeding, investigation or other action of any nature commenced, pending, or, to Borrowers' actual knowledge, threatened against or affecting any Borrower, its Property or any interest or right therein which has not been disclosed in writing to Lender and Collateral Agent and which may involve the possibility of any judgment or liability not fully covered by insurance, or materially or adversely affecting any of the assets of any Borrower or any Borrower's right to carry on business as now conducted, or affecting the continued employment of any officer or director of any Borrower.
(I) Each Borrower has good title to its Property and has the right to mortgage, grant, bargain, sell, pledge, assign, warrant, transfer and convey the same and each Borrower possesses a fee simple absolute estate in the Land (as defined in the Security Instruments) and the Improvements (as defined in the Security Instruments), and each Borrower owns its Property free and clear of all liens, encumbrances and charges whatsoever except for those exceptions which are shown in the title insurance policy insuring the lien of the Security Instruments, or which are Permitted Encumbrances. Each respective Borrower shall forever warrant, defend and preserve the title and the validity and priority of the lien of its Security Instrument and shall forever warrant and defend the same to Lender against the claims of all persons whomsoever.
(J) No portion of the improvements on the Properties is located in an area identified by the Secretary of Housing and Urban Development or any successor thereto as an area having special flood hazards pursuant to the Flood Insurance Acts, or if any portion of the improvements is located within such area; the applicable Borrower has obtained, or has caused the Tenant to obtain, and will maintain the insurance prescribed in the applicable Lease.
(K) To each Borrower's actual knowledge, its Property is in good repair and free of any material damage, waste or defective condition that would materially and adversely affect the value of such Property in use under the applicable Lease, and there is no proceeding pending for the total or partial condemnation of its Property.
(L) Each Borrower has paid in full for, and is the owner of, all furnishings, fixtures and equipment (other than Tenant's property) used in connection with the operation of its Property, free and clear of any and all security interests, liens or encumbrances, except for the lien and security interest which are created by its Security Instrument, or are Permitted Encumbrances.
(M) Each Borrower is not a "foreign person" within the meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended and the related Treasury Department regulations, including temporary regulations.
(i) Each Borrower is the sole owner of the entire lessor's interest in its Lease; (ii) its Lease is valid binding and enforceable and in full force and effect; (iii) to each Borrower's actual knowledge, no party under its Lease is in default; (iv) all Rents (as defined in the applicable Security Instrument) due have been paid in full; (v) there are no modifications or amendments to any Lease; (vi) none obligation of the Rents reserved in any Lease have been assigned or otherwise pledged or hypothecated except in connection with the applicable Security Instrument; (vii) none of the Rents have been collected for more than one (1) month in advance (except a security deposit shall not be deemed rent collected in advance); (viii) there exist no offsets or defenses to the payment of any portion of the Rents;Borrowers.
Appears in 1 contract
Representations of Borrowers. The Borrowers hereby represent to the Banks, which representations shall survive the Fifth Amendment Effective Date and warrant to Lender and Collateral Agent be deemed incorporated into Article IV of the followingCredit Agreement, that:
(A) Each Borrower (i) is a limited partnership duly organized, validly existing a. the representations and warranties contained in good standing under the laws Article IV of the State of Delaware Existing Credit Agreement and contained in all jurisdictions in which qualification or licensing is required; and (ii) has the power and authority to own, and lease its Property and conduct its business as it is now conducted. There are no proceedings or actions pending, threatened or contemplated for the liquidation, reorganization, termination or dissolution of any Borrower.
(B) There have been no material adverse changes, financial or otherwise, in the condition of any Borrower from that previously disclosed to Lender and Collateral Agent by each Borrower, or in any supporting data submitted in connection with the Loan, and all of the information contained therein was other Loan Documents (other than representations and warranties which expressly speak only as of a different date, which shall be true and correct in all material respects when submitted and is now substantially materially as of such date) are true and correct on and as of the Fifth Amendment Effective Date in all material respects as though such representations and warranties had been made on and as of the Fifth Amendment Effective Date, except to the extent that such representations and warranties are not true and correct as a result of a change which is permitted by the Credit Agreement or by any other Loan Document or which has been otherwise consented to by Agent Bank or, where applicable, the Requisite Lenders;
b. since the date hereof.
(C) No proceedings of the most recent financial statements referred to in bankruptcy or insolvency have ever been instituted by or against any Borrower or any affiliate thereofSection 5.08 of the Existing Credit Agreement, no Material Adverse Change has occurred and no such proceeding event or circumstance which could reasonably be expected to result in a Material Adverse Change has occurred;
c. no event has occurred and is now pending continuing which constitutes a Default or contemplated.
(D) Each Borrower, and Event of Default under the partners of each Borrower are solvent pursuant to the laws terms of the United States and Credit Agreement; and
d. the state in which the Borrower is organized, as reflected by the entries in such Borrower's books and records and as reflected by the actual facts.
(E) The Note, the Security Instruments and the other Loan Documents, and all other notes and loan documents evidencing all other obligations of Borrowers to Lender, if any, have been duly authorized, executed and delivered by Borrowers and constitute valid and binding obligations of Borrowers, enforceable against Borrowers in accordance with their respective terms, except as the enforcement of them may be limited by bankruptcy, insolvency, moratorium and other applicable debtor relief laws, and by equitable principles. No approval, consent, order or authorization of any governmental authority and no designation, registration, declaration or filing with any governmental authority is required in connection with the execution and delivery of the Note, the Security Instruments or any of the Loan Documents, except as may have already been obtained.
(F) The execution, delivery, delivery and performance of the Loan Documents will not violate or contravene in any way the organizational documents of any Borrower or any indenture, agreement or instrument to which any Borrower is a party or this Fifth Amendment has been duly authorized by which it or its property may be bound, or be in conflict with, result in a breach of or constitute a default under any such indenture, agreement or other instrument, or result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the property or assets of any Borrower, except as contemplated by the provisions of such instrument, and no action or approval with respect thereto by any third person is required.
(G) The proceeds of the Loan will be used by Borrowers to make a distribution to partners of the Borrowers, and not for any other purpose.
(H) There is no litigation, legal or administrative proceeding, investigation or other all necessary action of any nature commencedBorrowers and this Fifth Amendment constitutes the valid, pending, or, to Borrowers' actual knowledge, threatened against or affecting any Borrower, its Property or any interest or right therein which has not been disclosed in writing to Lender and Collateral Agent and which may involve the possibility of any judgment or liability not fully covered by insurance, or materially or adversely affecting any of the assets of any Borrower or any Borrower's right to carry on business as now conducted, or affecting the continued employment of any officer or director of any Borrower.
(I) Each Borrower has good title to its Property and has the right to mortgage, grant, bargain, sell, pledge, assign, warrant, transfer and convey the same and each Borrower possesses a fee simple absolute estate in the Land (as defined in the Security Instruments) and the Improvements (as defined in the Security Instruments), and each Borrower owns its Property free and clear of all liens, encumbrances and charges whatsoever except for those exceptions which are shown in the title insurance policy insuring the lien of the Security Instruments, or which are Permitted Encumbrances. Each respective Borrower shall forever warrant, defend and preserve the title and the validity and priority of the lien of its Security Instrument and shall forever warrant and defend the same to Lender against the claims of all persons whomsoever.
(J) No portion of the improvements on the Properties is located in an area identified by the Secretary of Housing and Urban Development or any successor thereto as an area having special flood hazards pursuant to the Flood Insurance Acts, or if any portion of the improvements is located within such area; the applicable Borrower has obtained, or has caused the Tenant to obtain, and will maintain the insurance prescribed in the applicable Lease.
(K) To each Borrower's actual knowledge, its Property is in good repair and free of any material damage, waste or defective condition that would materially and adversely affect the value of such Property in use under the applicable Lease, and there is no proceeding pending for the total or partial condemnation of its Property.
(L) Each Borrower has paid in full for, and is the owner of, all furnishings, fixtures and equipment (other than Tenant's property) used in connection with the operation of its Property, free and clear of any and all security interests, liens or encumbrances, except for the lien and security interest which are created by its Security Instrument, or are Permitted Encumbrances.
(M) Each Borrower is not a "foreign person" within the meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended and the related Treasury Department regulations, including temporary regulations.
(i) Each Borrower is the sole owner of the entire lessor's interest in its Lease; (ii) its Lease is valid binding and enforceable and in full force and effect; (iii) to each Borrower's actual knowledge, no party under its Lease is in default; (iv) all Rents (as defined in the applicable Security Instrument) due have been paid in full; (v) there are no modifications or amendments to any Lease; (vi) none obligation of the Rents reserved in any Lease have been assigned or otherwise pledged or hypothecated except in connection with the applicable Security Instrument; (vii) none of the Rents have been collected for more than one (1) month in advance (except a security deposit shall not be deemed rent collected in advance); (viii) there exist no offsets or defenses to the payment of any portion of the Rents;Borrowers.
Appears in 1 contract