Representations, Warranties, Covenants and Acknowledgments. To induce the Agent and Lenders to enter into this Amendment, the Borrower hereby: (a) represents and warrants that (i) as of the Effective Date, all of the representations and warranties made or deemed to be made under the Loan Documents are true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty is true and correct in all respects) on and as of the Effective Date to the same extent as though made on and as of the Effective Date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties were true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty was true and correct in all respects) on and as of such earlier date; (ii) as of the Effective Date, after giving effect to the terms of this Amendment, there exists no Default or Event of Default under the Loan Agreement or any of the other Loan Documents; (iii) the Borrower has the corporate power and is duly authorized to enter into, deliver and perform this Amendment; and (iv) this Amendment is the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability; (b) acknowledges and agrees that (i) this Amendment does not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further consent, waiver or amendment with respect to any Loan Document and, in the event that the Agent or any Lender subsequently agrees to consider any further consent, waiver or amendment with respect to any Loan Document, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or such Lender’s consideration or decision with respect thereto, and neither the Agent nor any Lender shall have any further obligation whatsoever to consider or agree to any further consent, waiver or amendment with respect to any Loan Document; and (ii) except as expressly set forth in this Amendment, the Agent and each Lender reserves all of their respective rights pursuant to the Loan Agreement and all other Loan Documents; (c) further acknowledges and agrees that the Agent’s and Lenders’ agreement to waive and amend the specific matters addressed in this Amendment, do not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further waivers, consents or amendments and, in the event that the Agent or any Lender subsequently agrees to consider any further waivers, consents or amendments, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or any Lender’s consideration or decision with respect to any such requested consent; (d) further acknowledges and agrees that no right of offset, defense, counterclaim, claim, cause of action or objection in favor of the Borrower against any Lender exists arising out of or with respect to (i) this Amendment, the Loan Agreement or any other Loan Document, or (ii) any other documents now or heretofore evidencing, securing or in any way relating to the foregoing; and (e) further acknowledges and agrees that this Amendment shall be deemed a Loan Document for all purposes under the Loan Agreement and the other Loan Documents.
Appears in 6 contracts
Sources: Loan and Security Agreement (Transgenomic Inc), Loan and Security Agreement (Transgenomic Inc), Loan and Security Agreement (Transgenomic Inc)
Representations, Warranties, Covenants and Acknowledgments. To induce (a) Each Credit Party represents and warrants to the Administrative Agent and the Lenders that, upon and after giving effect to enter into this Amendment, the Borrower hereby:
(a) represents and warrants that (i) as of the Effective Date, all each of the representations and warranties made or deemed to be made by such Credit Party under the Loan Documents are true and correct in all material respects (other than but without duplication of any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty is true and correct in all respectsqualifications) on and as of the Effective Date to the same extent as though made on and as of the Effective Datedate hereof, except to the extent that such representations and warranties specifically relate refer to an earlier date, in which case such representations and warranties were they shall be true and correct in all material respects (other than but without duplication of any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty was true and correct in all respectsqualifications) on and as of such earlier date; , (ii) as of the Effective Date, after giving effect to the terms of this Amendment, there exists no Default or Event of Default under the Loan Agreement or any of the other Loan Documents; (iii) the Borrower it has the corporate power and authority and is duly authorized to enter into, into and to deliver this Amendment and to perform all of its obligations under this Amendment; , (iii) this Amendment has been duly executed and delivered by each Credit Party that is party hereto, (iv) this Amendment Amendment, the Credit Agreement and each of the other Loan Documents to which it is a party is the legal, legally valid and binding obligation of the Borrower such Credit Party, enforceable against the Borrower such Credit Party in accordance with its terms, except as enforcement may be limited by equitable principles or by bankruptcy, insolvency, reorganization, moratorium moratorium, or similar laws relating to or limiting creditors’ rights generally and (v) the execution, delivery and performance of this Amendment in accordance with its terms does not and will not (A) violate any provision of federal, state, provincial, foreign or by equitable principles relating local law or regulation applicable to enforceability;any Credit Party or its Subsidiaries or any order, judgment, or decree of any court or other Governmental Authority binding on any Credit Party or its Subsidiaries, (B) violate the Governing Documents of any Credit Party or its Subsidiaries, (C) conflict with, result in a breach of, or constitute (with due notice or lapse of time or both) a default under any Material Agreement of any Credit Party or its Subsidiaries, (D) result in or require the creation or imposition of any Lien of any nature whatsoever upon any assets of any Credit Party, other than Permitted Liens, or (E) require any approval of any board of directors, member, manager, partner (or similar governing body) or any holder of equity interests of a Credit Party or any approval or consent of any Person under any material agreement of any Credit Party, other than consents or approvals that have been obtained and that are still in force and effect, except in each case referred to in clauses (A), (C), (D) and (E), to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.
(b) acknowledges Each Credit Party represents and agrees warrants to the Administrative Agent and the Lenders that (i) this Amendment does not and no Default or Event of Default shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender exist after giving effect to consider or agree to any further consent, waiver or amendment with respect to any Loan Document and, in the event that the Agent or any Lender subsequently agrees to consider any further consent, waiver or amendment with respect to any Loan Document, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or such Lender’s consideration or decision with respect thereto, and neither the Agent nor any Lender shall have any further obligation whatsoever to consider or agree to any further consent, waiver or amendment with respect to any Loan Document; and (ii) except as expressly set forth in this Amendment, the Agent and each Lender reserves all of their respective rights pursuant or would result from giving effect to the Loan Agreement and all other Loan Documents;this Amendment.
(c) further acknowledges Each Credit Party does hereby acknowledge and agrees that the Agent’s and Lenders’ agreement to waive and amend the specific matters addressed in this Amendmentagree that, do not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation as of the Agent or any Lender to consider or agree to any further waiversdate hereof, consents or amendments and, in the event that the Agent or any Lender subsequently agrees to consider any further waivers, consents or amendments, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or any Lender’s consideration or decision with respect to any such requested consent;
(d) further acknowledges and agrees that no known right of offset, defense, counterclaim, claim, cause causes of action or objection exists in favor of any Credit Party against the Borrower against Administrative Agent or any Lender exists arising out of or with respect to (i) the Obligations, this Amendment, the Loan Credit Agreement or any of the other Loan DocumentDocuments, or (ii) any other documents now or heretofore evidencing, securing or in any way relating to the foregoing; and, or (iii) the administration or funding of the Loans or the Obligations.
(ed) further acknowledges All representations and agrees that warranties made in this Amendment shall be deemed a Loan Document for all purposes under survive the Loan Agreement execution and delivery of this Amendment and no investigation by the Administrative Agent or the Lenders shall affect such representations or warranties or the right of the Administrative Agent and the other Loan DocumentsLenders to rely upon them.
Appears in 5 contracts
Sources: Credit Agreement (Fluent, Inc.), Credit Agreement (Fluent, Inc.), Credit Agreement (Fluent, Inc.)
Representations, Warranties, Covenants and Acknowledgments. To induce the Administrative Agent and the Lenders to enter into this AmendmentLimited Waiver, the each Borrower hereby:
(a) represents and warrants that (i) as of the Effective Date, all of after giving effect to this Limited Waiver, the representations and warranties made or deemed to be made under of such Borrower set forth in the Credit Agreement and the other Loan Documents are true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty is true and correct in all respects) on and as of the Effective Date to the same extent as though made on and as of the Effective Date; provided, except that to the extent any such representations and warranties representation or warranty specifically relate refers to an earlier date, in which case such representations representation and warranties were warranty was true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty was true and correct in all respects) on and as of such earlier date; provided, further, that any representation or warranty that is qualified as to “materiality” or “Material Adverse Effect” or similar language was true and correct (after giving effect to any qualification therein) in all respects on such respective dates, (ii) as of the Effective Date, after giving effect to the terms of this AmendmentLimited Waiver, there exists no Default or Event of Default under the Loan Agreement or any of the other Loan Documents; has occurred and is continuing, (iii) the Borrower execution and delivery of this Limited Waiver is within each Borrower’s organizational powers and has the corporate power and is been duly authorized to enter intoby all necessary organizational actions and, deliver and perform this Amendment; if required, actions by equity holders and (iv) this Amendment is the Limited Waiver has been duly executed and delivered by such Borrower and constitutes a legal, valid and binding obligation of the Borrower such Borrower, enforceable against the Borrower in accordance with its terms, except as may be limited by bankruptcysubject to applicable Debtor Relief Laws and subject to general principles of equity, insolvency, reorganization, moratorium regardless of whether considered in a proceeding in equity or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceabilityat law;
(b) acknowledges and agrees that (i) this Amendment does Limited Waiver is not intended, and should not be construed, except as expressly set forth herein, as an amendment of, or any kind of waiver or consent related to, the Credit Agreement or the other Loan Documents, (ii) this Limited Waiver shall not represent an amendment, consent, or waiver related to any future actions of any Borrower or any Subsidiary and (iii) except as expressly set forth in this Limited Waiver, the Administrative Agent and each Lender reserves all of their respective rights pursuant to the Credit Agreement and the other Loan Documents;
(c) further acknowledges and agrees that the Administrative Agent’s and the Lenders’ agreement to waive the specific matters addressed in this Limited Waiver, do not and shall not create (nor shall the any Borrower or any of its Subsidiaries Subsidiary rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further consent, waiver or amendment with respect to any Loan Document and, in the event that the Agent or any Lender subsequently agrees to consider any further consent, waiver or amendment with respect to any Loan Document, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or such Lender’s consideration or decision with respect thereto, and neither the Agent nor any Lender shall have any further obligation whatsoever to consider or agree to any further consent, waiver or amendment with respect to any Loan Document; and (ii) except as expressly set forth in this Amendment, the Agent and each Lender reserves all of their respective rights pursuant to the Loan Agreement and all other Loan Documents;
(c) further acknowledges and agrees that the Agent’s and Lenders’ agreement to waive and amend the specific matters addressed in this Amendment, do not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Administrative Agent or any Lender to consider or agree to any further waivers, consents or amendments and, in the event that the Administrative Agent or any Lender subsequently agrees to consider any further waivers, consents or amendments, neither this Amendment Limited Waiver nor any other conduct of the Administrative Agent or any Lender shall be of any force or effect on the Administrative Agent’s or any Lender’s consideration or decision with respect to any such requested consentwaiver, consent or amendment;
(d) further acknowledges and agrees that this Limited Waiver shall be deemed a Loan Document for all purposes under the Credit Agreement and the other Loan Documents; and
(e) further acknowledges and agrees that, after giving effect to this Limited Waiver, no right of offset, recoupment, defense, counterclaim, claim, cause of action or objection in favor of the any Borrower against the Administrative Agent or any Lender exists as of the Effective Date arising out of or with respect to (i) this AmendmentLimited Waiver, the Loan Credit Agreement or any other Loan Document, or (ii) any other documents now or heretofore evidencing, securing or in any way relating to the foregoing; and
(e) further acknowledges and agrees that this Amendment shall be deemed a Loan Document for all purposes under the Loan Agreement and the other Loan Documents.
Appears in 4 contracts
Sources: Credit Agreement, Credit Agreement (Stonemor Partners Lp), Credit Agreement (Stonemor Partners Lp)
Representations, Warranties, Covenants and Acknowledgments. To induce the Agent and Lenders As a material inducement for Lender to enter into this Amendment, the Borrower hereby:
(a) represents and warrants to Lender (with the knowledge and intent that (iLender is relying upon the same in consenting to this Amendment) that as of the Effective Date, and after giving effect to the transactions contemplated by this Amendment: (a) all of the representations and warranties made or deemed to be made under in the Loan Agreement and in all other Loan Documents are true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effectrespects, in which case such representation or warranty is true and correct in all respects) on and as of the Effective Date to the same extent as though made on and as of the Effective Datedate hereof, except to the extent such representations and warranties specifically relate that (i) any of them speak to an earlier date, in which case such representations and warranties were true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty was true and correct in all respects) on and as of such earlier a different specific date; or (ii) as the facts or circumstances on which any of them were based have been changed by transactions or events not prohibited by the Effective Date, after giving effect to the terms of this Amendment, there exists Loan Documents; (b) no Default or Event of Default exists under the Loan Documents or will exist after giving effect to this Amendment; (c) this Amendment has been duly authorized and approved by all necessary organizational action and requires the consent of no other Person, and is binding and enforceable against Borrower in accordance with its terms; and (d) the execution, delivery and performance of this Amendment in accordance with its terms, does not and will not, by the passage of time, the giving of notice, or otherwise: (i) require any governmental approval, other than such as have been obtained and are in full force and effect, or violate any applicable law relating to Borrower; (ii) conflict with, result in a breach of, or constitute a default under the Constituent Documents of Borrower thereof, or any indenture, agreement, or other instrument to which Borrower is a party or by which it or any of its properties may be bound; or (iii) result in or require the creation or imposition of any Lien upon or with respect to any property now owned or hereafter acquired by Borrower;
(b) acknowledges and agrees that (i) except as expressly set forth herein, this Agreement does not and shall not create (nor shall Borrower rely upon the existence of or claim or assert that there exists) any obligation of Lender to consider or agree to any further consent, waiver or amendment with respect to any Loan Document and, in the event that Lender subsequently agrees to consider any further consent, waiver or amendment with respect to any Loan Document, neither this Agreement nor any other conduct of Lender shall be of any force or effect on Lender’s consideration or decision with respect thereto, and Lender shall not have any further obligation whatsoever to consider or agree to any further consent, waiver or amendment with respect to any Loan Document; (ii) this Agreement shall not represent an amendment, consent or waiver related to any future actions of Borrower and (iii) except as expressly set forth herein, Lender reserves all of its rights pursuant to the Loan Agreement and all other Loan Documents;
(c) acknowledges and agrees that Lender’s agreement to waive and consent to the specific matters addressed in this Agreement, do not and shall not create (nor shall Borrower rely upon the existence of or claim or assert that there exists) any obligation of Lender to consider or agree to any further waivers, consents or amendments and, in the event that Lender subsequently agrees to consider any further waivers, consents or amendments, neither this Agreement nor any other conduct of Lender shall be of any force or effect on Lender’s consideration or decision with respect to any such requested waiver, consent or amendment;
(d) acknowledges and agrees that this Agreement shall be deemed a Loan Document for all purposes under the Loan Agreement and the other Loan Documents;
(e) acknowledges and agrees that Lender has and shall continue to have a valid, enforceable and perfected first-priority lien on and security interest in the Collateral granted to Lender pursuant to the Loan Documents or otherwise granted to or held by Lender;
(f) acknowledges and agrees that, after giving effect to this Agreement, no right of offset, recoupment, defense, counterclaim, claim, cause of action or objection in favor of Borrower against Lender exists as of the Effective Date arising out of or with respect to (i) this Agreement, the Loan Agreement or any of the other Loan DocumentsDocuments or (ii) any other documents now or heretofore evidencing, securing or in any way relating to the foregoing; and
(iiig) acknowledges and agrees that the Borrower has Loan Agreement and the corporate power and is duly authorized to enter into, deliver and perform this Amendment; and (iv) this Amendment is the other Loan Documents are legal, valid valid, binding and binding obligation of the Borrower enforceable against the Borrower in accordance with its terms, their terms (except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability;
(b) acknowledges and agrees that (i) this Amendment does not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further consent, waiver or amendment with respect to any Loan Document and, in the event that the Agent or any Lender subsequently agrees to consider any further consent, waiver or amendment with respect to any Loan Document, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or such Lender’s consideration or decision with respect thereto, and neither the Agent nor any Lender shall have any further obligation whatsoever to consider or agree to any further consent, waiver or amendment with respect to any Loan Document; and (ii) except as expressly set forth in this Amendment, the Agent and each Lender reserves all of their respective rights pursuant to the Loan Agreement and all other Loan Documents;
(c) further acknowledges and agrees that the Agent’s and Lenders’ agreement to waive and amend the specific matters addressed in this Amendment, do not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further waivers, consents or amendments and, in the event that the Agent or any Lender subsequently agrees to consider any further waivers, consents or amendments, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or any Lender’s consideration or decision with respect to any such requested consent;
(d) further acknowledges and agrees that no right of offset, defense, counterclaim, claim, cause of action or objection in favor of the Borrower against any Lender exists arising out of or with respect to (i) this Amendment, the Loan Agreement or any other Loan Document, or (ii) any other documents now or heretofore evidencing, securing or in any way relating to the foregoing; and
(e) further acknowledges and agrees that this Amendment shall be deemed a Loan Document for all purposes under the Loan Agreement and the other Loan Documents).
Appears in 3 contracts
Sources: Credit and Security Agreement (loanDepot, Inc.), Credit and Security Agreement (loanDepot, Inc.), Credit and Security Agreement (loanDepot, Inc.)
Representations, Warranties, Covenants and Acknowledgments. To induce the Administrative Agent and the Lenders to enter into this AmendmentAgreement, the Borrower each Credit Party does hereby:
(a) represents represent and warrants warrant to Administrative Agent and the Lenders that (i) as of the Effective Datedate hereof, after giving effect to this Agreement, all of the representations and warranties made or deemed to be made under the Loan Credit Documents are true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty is true and correct in all respects) on and as of the Effective Date to the same extent as though made on and as of the Effective Date, except to the extent that such representations and warranties specifically relate to an earlier date, date (in which case case, such representations and warranties were shall have been true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty was true and correct in all respects) on and as of such earlier date); (ii) as of the Effective Date, after giving effect to the terms of this Amendmentdate hereof, there exists no Default or Event of Default under the Loan Credit Agreement or any of the other Loan DocumentsCredit Document or would result from this Agreement becoming effective in accordance with its terms; (iii) the Borrower each Credit Party has the corporate power and is duly authorized to enter intoexecute, deliver and perform this AmendmentAgreement and perform under the Credit Agreement as amended by this Agreement; and (iv) each of this Amendment Agreement and the Credit Agreement, as amended by this Agreement, is the legal, valid and binding obligation of the Borrower such Credit Party enforceable against the Borrower such Credit Party in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability;; and
(b) acknowledges and agrees that (i) this Amendment does not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation reaffirm each of the Agent or any Lender to consider or agree to any further consentagreements, waiver or amendment with respect to any Loan Document andcovenants, in the event that the Agent or any Lender subsequently agrees to consider any further consent, waiver or amendment with respect to any Loan Document, neither this Amendment nor any other conduct indemnities and undertakings of the Agent or any Lender shall be of any force or effect on the Agent’s or such Lender’s consideration or decision with respect thereto, and neither the Agent nor any Lender shall have any further obligation whatsoever to consider or agree to any further consent, waiver or amendment with respect to any Loan Document; and (ii) except as expressly Credit Party set forth in this Amendment, the Agent Credit Agreement and each Lender reserves all of their respective rights other Credit Document to which it is a party and executed in connection therewith or pursuant to thereto as if such Credit Party were making such agreements, covenants, indemnities and undertakings on the Loan Agreement and all other Loan Documents;Second Amendment Effective Date; and
(c) further acknowledges acknowledge and agrees that the Agent’s and Lenders’ agreement to waive and amend the specific matters addressed in this Amendment, do not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further waivers, consents or amendments and, in the event that the Agent or any Lender subsequently agrees to consider any further waivers, consents or amendments, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or any Lender’s consideration or decision with respect to any such requested consent;
(d) further acknowledges and agrees that no right of offset, defense, counterclaim, claim, cause of action or objection in favor of the Borrower such Credit Party against any Agent, Issuing Bank or any Lender exists arising out of or with respect to (i) this AmendmentAgreement, the Loan Credit Agreement or any other Loan DocumentCredit Document to which it is a party, or (ii) any other documents to which it is a party now or heretofore evidencing, securing or in any way relating to the foregoing; and
(ed) further acknowledges acknowledge and agrees agree that this Amendment Agreement shall be deemed a Loan Document “Credit Document” for all purposes under the Loan Credit Agreement; and
(e) neither this Agreement nor any document executed in connection hereof shall be deemed to constitute a refinancing, substitution or novation of the Credit Agreement, any Credit Document, the Obligations or any other obligations and the other Loan Documentsliabilities thereunder.
Appears in 3 contracts
Sources: Credit and Guaranty Agreement (Sailpoint Technologies Holdings, Inc.), Credit and Guaranty Agreement (Sailpoint Technologies Holdings, Inc.), Credit and Guaranty Agreement (Sailpoint Technologies Holdings, Inc.)
Representations, Warranties, Covenants and Acknowledgments. To induce the Administrative Agent and the Lenders to enter into this AmendmentAgreement, the Borrower each Loan Party hereby:
(a) represents and warrants to Administrative Agent and the Lenders that (i) as of the Effective Datedate hereof, all each of the representations and warranties made or deemed to be made under set forth in the Financing Agreement and each other Loan Documents are Document is true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty is true and correct in all respects) on and as of the Effective Date date hereof to the same extent as though made on and as of the Effective Datedate hereof (unless such representation or warranty is qualified as to materiality or Material Adverse Effect, in which case, such representation or warranty shall be true and correct in all respects), except to the extent that any such representations representation and warranties specifically relate warranty relates solely to an earlier date, in which case such representations representation and warranties were warranty was true and correct in all material respects on and as of such earlier date (other than any unless such representation or warranty that is qualified by as to materiality or Material Adverse Effect, in which case case, such representation or warranty was shall be true and correct in all respects) on and as of such earlier date); (ii) as of the Effective Datedate hereof, after giving effect to the terms of this Amendment, there exists no Default or Event of Default has occurred and is continuing under the Loan Financing Agreement or any of the other Loan DocumentsDocument (other than the Specified Defaults); (iii) the Borrower such Loan Party has the corporate power and is duly authorized to enter into, deliver and perform its obligations under this AmendmentAgreement; and (iv) each of this Amendment Agreement and the Financing Agreement is the legal, valid and binding obligation of the Borrower such Loan Party enforceable against the Borrower such Loan Party in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability; and (v) the execution, delivery and performance of this Agreement does not conflict with, result in a breach of or constitute (with notice or lapse of time or both) a default under any contractual obligation of such Loan Party;
(b) reaffirms each of the agreements, covenants and undertakings set forth in the Financing Agreement and each other Loan Document to which it is a party executed in connection therewith or pursuant thereto, in each case, as modified by the terms of this Agreement;
(c) acknowledges and agrees that no right of offset, defense, counterclaim, recoupment, claim, cause of action or objection in favor of such Loan Party against any Agent or Lender exists as of the date hereof arising out of or with respect to (i) this Agreement, the Financing Agreement or any other Loan Document or (ii) any other document now or heretofore evidencing, securing or in any way relating to the foregoing;
(d) further acknowledges and agrees that (i) except as expressly set forth herein, this Amendment Agreement is not intended, and should not be construed, as an amendment of, or any kind of waiver, consent or other modification related to, the Financing Agreement or the other Loan Documents; (ii) except as expressly set forth herein, this Agreement shall not represent any agreement, consent or waiver related to any future action of any Loan Party; (iii) except as expressly set forth herein, the Agents and Lenders reserve all of their respective rights under the Financing Agreement and all other Loan Documents; (iv) the forbearance contained herein does not and shall not create (nor shall the Borrower or any of its Subsidiaries Loan Party rely upon the existence of or claim or assert that there exists) any obligation of the any Agent or any Lender to consider or agree to any further consentfuture amendment, consent or waiver or amendment with respect to any Loan Document and, in the event that the any Agent or any Lender subsequently agrees to consider any further consentfuture amendment, waiver consent or amendment with respect to any Loan Documentwaiver, neither this Amendment the waiver contained herein nor any other conduct of the any Agent or any Lender shall be of any force or effect on the any Agent’s or such Lender’s consideration or decision with respect thereto, and neither the Agent nor any Lender shall have any further obligation whatsoever to consider or agree to any further consent, waiver or amendment with respect to any Loan Document; and (ii) except as expressly set forth in this Amendment, the Agent and each Lender reserves all of their respective rights pursuant to the Loan Agreement and all other Loan Documents;
(c) further acknowledges and agrees that the Agent’s and Lenders’ agreement to waive and amend the specific matters addressed in this Amendment, do not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further waivers, consents or amendments and, in the event that the Agent or any Lender subsequently agrees to consider any further waivers, consents or amendments, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or any Lender’s consideration or decision with respect to any such requested consent;
(d) further acknowledges amendment, consent or waiver, and agrees that no right of offset, defense, counterclaim, claim, cause of action or objection in favor of the Borrower against Agent nor any Lender exists arising out of shall have any obligation whatsoever to consider or with respect agree to any future amendment, consent, waiver or other agreement; (iv) this Amendment, the Loan Agreement or any other Loan Document, or (ii) any other documents now or heretofore evidencing, securing or in any way relating to the foregoing; and
(e) further acknowledges and agrees that this Amendment shall be deemed constitute a Loan Document for all purposes under the Loan Financing Agreement and the other Loan Documents; and (vi) to the extent any representation, warranty, certification or other statement made herein shall be false in any material respect as of the date made or deemed made or if the Loan Parties fail to timely satisfy any of the conditions listed in this Agreement to the satisfaction of Administrative Agent, such occurrence shall be deemed an immediate Event of Default pursuant to the terms of the Financing Agreement and other Loan Documents; and
(e) neither this Agreement nor any document executed in connection herewith shall be deemed to constitute a refinancing, substitution or novation of the Financing Agreement, any Loan Document, the Obligations or any other obligations and liabilities thereunder.
Appears in 2 contracts
Sources: Forbearance Agreement (Near Intelligence, Inc.), Forbearance Agreement (Near Intelligence, Inc.)
Representations, Warranties, Covenants and Acknowledgments. To induce the Administrative Agent and the Lenders to enter into this Amendment, the each Borrower hereby:
(a) represents and warrants that (i) as of the Effective Date, all of the representations and warranties made or deemed to be made under of set forth in the Credit Agreement and the other Loan Documents are true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty is true and correct in all respects) on and as of the Effective Date to the same extent except as though made otherwise set forth on and as of the Effective DateExhibit A attached hereto; provided, except that to the extent any such representations and warranties representation or warranty specifically relate refers to an earlier date, in which case such representations representation and warranties were warranty was true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty was true and correct in all respects) on and as of such earlier date; provided, further, that any representation or warranty that is qualified as to “materiality” or “Material Adverse Effect” or similar language was true and correct (after giving effect to any qualification therein) in all respects on such respective dates, (ii) as of the Effective Date, Date and after giving effect to the terms of this Amendment, there exists no Default or Event of Default under the Loan Agreement or any of the other Loan Documents; has occurred and is continuing, (iii) the Borrower execution and delivery of this Amendment is within its limited liability company powers and has the corporate power and is been duly authorized to enter intoby all necessary limited liability company actions and, deliver and perform this Amendment; if required, actions by equity holders and (iv) this Amendment is the has been duly executed and delivered by it and constitutes a legal, valid and binding obligation of the Borrower each Borrower, enforceable against the Borrower in accordance with its terms, except as may be limited by bankruptcysubject to applicable Debtor Relief Laws and subject to general principles of equity, insolvency, reorganization, moratorium regardless of whether considered in a proceeding in equity or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceabilityat law;
(b) acknowledges and agrees that (i) this Amendment does is not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further consent, waiver or amendment with respect to any Loan Document and, in the event that the Agent or any Lender subsequently agrees to consider any further consent, waiver or amendment with respect to any Loan Document, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or such Lender’s consideration or decision with respect theretointended, and neither the Agent nor any Lender shall have any further obligation whatsoever to consider or agree to any further consentshould not be construed, waiver or amendment with respect to any Loan Document; and (ii) except as expressly set forth in this Amendmentherein, as an amendment of, or any kind of waiver or consent related to, the Credit Agreement, the PIA or the other Loan Documents, (ii) this Amendment shall not represent an amendment, consent, or waiver related to any future actions of any Borrower, any other Loan Party or any Subsidiary and (iii) the Administrative Agent and each Lender reserves all of their respective rights pursuant to the Loan Agreement Credit Agreement, the PIA and all the other Loan Documents;
(c) further acknowledges and agrees that the Agent’s and Lenders’ agreement to waive and amend the specific matters addressed in this Amendment, do not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further waivers, consents or amendments and, in the event that the Agent or any Lender subsequently agrees to consider any further waivers, consents or amendments, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or any Lender’s consideration or decision with respect to any such requested consent;
(d) further acknowledges and agrees that no right of offset, defense, counterclaim, claim, cause of action or objection in favor of the Borrower against any Lender exists arising out of or with respect to (i) this Amendment, the Loan Agreement or any other Loan Document, or (ii) any other documents now or heretofore evidencing, securing or in any way relating to the foregoing; and
(e) further acknowledges and agrees that this Amendment shall be deemed a Loan Document for all purposes under the Loan Credit Agreement and the other Loan Documents; and
(d) further acknowledges and agrees that no right of offset, recoupment, defense, counterclaim, claim, cause of action or objection in favor of any Borrower or any other Loan Party against the Administrative Agent or any Lender exists as of the Effective Date arising out of or with respect to this Amendment, the Credit Agreement or any other Loan Document.
Appears in 2 contracts
Sources: Mezzanine Loan Agreement (Sears Holdings Corp), Credit Agreement (Sears Holdings Corp)
Representations, Warranties, Covenants and Acknowledgments. To induce the Agent and Lenders to enter into this Amendment, the Borrower hereby:
(a) represents and warrants that (i) as of the Effective Execution Date, all of the representations and warranties made or deemed to be made under the Loan Documents are true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty is true and correct in all respects) on and as of the Effective Execution Date to the same extent as though made on and as of the Effective Execution Date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties were true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty was true and correct in all respects) on and as of such earlier date; (ii) as of the Effective Date and the Execution Date, after giving effect to the terms of this Amendment, there exists no Default or Event of Default under the Loan Agreement or any of the other Loan Documents; (iii) the Borrower has the corporate power and is duly authorized to enter into, deliver and perform this Amendment; and (iv) this Amendment is the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability;
(b) acknowledges and agrees that (i) this Amendment does not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further consent, waiver or amendment with respect to any Loan Document and, in the event that the Agent or any Lender subsequently agrees to consider any further consent, waiver or amendment with respect to any Loan Document, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or such Lender’s consideration or decision with respect thereto, and neither the Agent nor any Lender shall have any further obligation whatsoever to consider or agree to any further consent, waiver or amendment with respect to any Loan Document; and (ii) except as expressly set forth in this Amendment, the Agent and each Lender reserves all of their respective rights pursuant to the Loan Agreement and all other Loan Documents;
(c) further acknowledges and agrees that the Agent’s and Lenders’ agreement to waive and amend the specific matters addressed in this Amendment, do not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further waivers, consents or amendments and, in the event that the Agent or any Lender subsequently agrees to consider any further waivers, consents or amendments, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or any Lender’s consideration or decision with respect to any such requested consent;
(d) further acknowledges and agrees that no right of offset, defense, counterclaim, claim, cause of action or objection in favor of the Borrower against any Lender exists arising out of or with respect to (i) this Amendment, the Loan Agreement or any other Loan Document, or (ii) any other documents now or heretofore evidencing, securing or in any way relating to the foregoing; and
(e) further acknowledges and agrees that this Amendment shall be deemed a Loan Document for all purposes under the Loan Agreement and the other Loan Documents.
Appears in 2 contracts
Sources: Loan and Security Agreement (Transgenomic Inc), Loan and Security Agreement (Transgenomic Inc)
Representations, Warranties, Covenants and Acknowledgments. To induce the Agent and Lenders to enter into this Amendment, the Agreement: Each Borrower hereby:
(a) represents and warrants Guarantor does hereby represent and warrant that (i) as of the Effective Datedate hereof, all of the representations and warranties made or deemed to be made under the Forbearance Agreement and the other Loan Documents are true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effectcorrect, in which case such representation or warranty is true and correct in all respects) on and as of the Effective Date to the same extent as though made on and as of the Effective Date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties were true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty was true and correct in all respects) on and as of such earlier date; (ii) as of the Effective Datedate hereof, after giving effect to the terms of this Amendmenthereof, there exists no (A) default or breach of the Forbearance Agreement or (B) Default or Event of Default under the Loan Agreement or any of the other Loan Documents; , (iii) the such Borrower and Guarantor has the corporate power and is duly authorized to enter into, deliver and perform this Amendment; Agreement, and (iv) this Amendment Agreement and each of the Forbearance Agreement and the other Loan Documents is the legal, valid and binding obligation of the such Borrower and Guarantor enforceable against the Borrower it in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability;
(b) acknowledges ; and agrees that (i) this Amendment Each Borrower and Guarantor does not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation hereby reaffirm each of the Agent or any Lender to consider or agree to any further consentagreements, waiver or amendment with respect to any Loan Document and, in the event that the Agent or any Lender subsequently agrees to consider any further consent, waiver or amendment with respect to any Loan Document, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or such Lender’s consideration or decision with respect theretocovenants, and neither the Agent nor any Lender shall have any further obligation whatsoever to consider or agree to any further consent, waiver or amendment with respect to any Loan Document; and (ii) except as expressly undertakings set forth in this Amendment, the Agent Forbearance Agreement and each Lender reserves all of their respective rights pursuant to the Loan Agreement and all every other Loan Documents;
(c) further acknowledges and agrees that the Agent’s and Lenders’ agreement to waive and amend the specific matters addressed Document executed in this Amendment, do not and shall not create (nor shall the connection therewith or pursuant thereto as if such Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further waiversGuarantor were making said agreements, consents or amendments and, in the event that the Agent or any Lender subsequently agrees to consider any further waivers, consents or amendments, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect covenants and undertakings on the Agent’s or any Lender’s consideration or decision with respect to any such requested consent;
(d) further acknowledges date hereof; and agrees Each Borrower and Guarantor does hereby acknowledge and agree that no right of offset, defense, counterclaim, claim, cause causes of action or objection in favor of the any Borrower or Guarantor against Agent or any Lender exists arising out of or with respect to (i) the Secured Obligations, this AmendmentAgreement, the Forbearance Agreement, the Loan Agreement or any of the other Loan DocumentDocuments, or (ii) any other documents now or heretofore evidencing, securing or in any way relating to the foregoing; and
foregoing or (eiii) further acknowledges and agrees that this Amendment shall be deemed a Loan Document for all purposes under the Loan Agreement and administration or funding of the other Loan DocumentsRevolving Credit Loans.
Appears in 2 contracts
Sources: Forbearance Agreement (Trism Inc /De/), Forbearance Agreement (Trism Inc /De/)
Representations, Warranties, Covenants and Acknowledgments. To induce the Agent and the Lenders to enter into this Amendment, the Borrower hereby:
(a) A. Each Credit Party hereby represents and warrants that (i) as of the Amendment Effective DateDate (as defined below) and after giving effect to the amendment hereto, all of the representations and warranties made or deemed to be made under the Credit Agreement and the other Loan Documents are true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty is true and correct in all respects) on and as of the Amendment Effective Date to the same extent as though if made on and as of the Amendment Effective Date, Date (except to the extent that such representations and warranties specifically expressly relate to an earlier date, date in which case such representations and warranties were shall have been true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty was true and correct in all respects) on and as of such earlier date; ), and except for changes therein expressly permitted or expressly contemplated by the Credit Agreement, as amended or otherwise modified herein, (ii) as of the Amendment Effective Date, Date and after giving effect to the terms of this Amendmentamendments set forth herein, there exists no Default or Event of Default under the Loan Credit Agreement or any of the other Loan Documents; , (iii) the Borrower it has the corporate power and is duly authorized to enter into, deliver and perform this Amendment; , and (iv) this Amendment is and each of the other Loan Documents are the legal, valid and binding obligation of the Borrower each Credit Party party thereto, enforceable against the Borrower each Credit Party in accordance with its terms, except as to the extent enforcement may be limited by under applicable bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or limiting affecting creditors’ rights generally or by and equitable principles relating to enforceabilitydiscretion of the court;
(b) B. Each Credit Party hereby reaffirms each of the agreements, covenants, and undertakings set forth in the Credit Agreement and each and every other Loan Document executed in connection therewith or pursuant thereto, as amended and modified hereby;
C. Each Credit Party hereby acknowledges that each Loan Document, including that certain Fee Letter, dated as of June 16, 2023, remains in full force and effect and is hereby ratified and reaffirmed;
D. Each Credit Party hereby acknowledges and agrees that (i) this Amendment does not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation as of the Agent or any Lender to consider or agree to any further consent, waiver or amendment with respect to any Loan Document and, in the event that the Agent or any Lender subsequently agrees to consider any further consent, waiver or amendment with respect to any Loan Document, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or such Lender’s consideration or decision with respect thereto, and neither the Agent nor any Lender shall have any further obligation whatsoever to consider or agree to any further consent, waiver or amendment with respect to any Loan Document; and (ii) except as expressly set forth in this Amendment, the Agent and each Lender reserves all of their respective rights pursuant to the Loan Agreement and all other Loan Documents;
(c) further acknowledges and agrees that the Agent’s and Lenders’ agreement to waive and amend the specific matters addressed in this Amendment, do not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further waivers, consents or amendments and, in the event that the Agent or any Lender subsequently agrees to consider any further waivers, consents or amendments, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or any Lender’s consideration or decision with respect to any such requested consent;
(d) further acknowledges and agrees that date hereof no right of offset, recoupment, defense, counterclaim, claim, cause of action or objection in favor of the Borrower any Credit Party against Agent or any Lender exists arising out of or with respect to (i) the Obligations, this Amendment, the Loan Agreement Amendment or any of the other Loan DocumentDocuments, or (ii) any other documents now or heretofore evidencing, securing or in any way relating to the foregoing; and, or (iii) the administration or funding of the Loans;
(e) further E. Each Credit Party acknowledges and agrees that this Amendment shall be deemed a Loan Document for all purposes under the Loan Credit Agreement; and
F. It shall constitute an Event of Default under the Credit Agreement and if any representation or warranty made in this Amendment, or any other document or certificate delivered in connection herewith, made or submitted by any Credit Party, shall prove to have been false, incorrect or misleading in any material respect on the other Loan Documentsdate as of which it is made.
Appears in 2 contracts
Sources: Credit Agreement (Eastern Co), Credit Agreement (Eastern Co)
Representations, Warranties, Covenants and Acknowledgments. To induce the Administrative Agent and the Lenders to enter into this Amendment, the each Borrower hereby:
(a) represents and warrants that (i) as of the Effective Date, all of the representations and warranties made or deemed to be made under of such Borrower set forth in the Credit Agreement and the other Loan Documents are true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty is true and correct in all respects) on and as of the Effective Date to the same extent as though made on and as of the Effective Date; provided, except that to the extent any such representations and warranties representation or warranty specifically relate refers to an earlier date, in which case such representations representation and warranties were warranty was true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty was true and correct in all respects) on and as of such earlier date; provided, further, that any representation or warranty that is qualified as to “materiality” or “Material Adverse Effect” or similar language was true and correct (after giving effect to any qualification therein) in all respects on such respective dates, (ii) as of the Effective Date, after giving effect to the terms of this Amendment, there exists no Default or Event of Default under the Loan Agreement or any of the other Loan Documents; has occurred and is continuing, (iii) the Borrower execution and delivery of this Amendment is within each Borrower’s organizational powers and has the corporate power and is been duly authorized to enter intoby all necessary organizational actions and, deliver and perform this Amendment; if required, actions by equity holders and (iv) this Amendment is the has been duly executed and delivered by such Borrower and constitutes a legal, valid and binding obligation of the Borrower such Borrower, enforceable against the Borrower in accordance with its terms, except as may be limited by bankruptcysubject to applicable Debtor Relief Laws and subject to general principles of equity, insolvency, reorganization, moratorium regardless of whether considered in a proceeding in equity or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceabilityat law;
(b) acknowledges and agrees that (i) this Amendment does is not intended, and should not be construed, except as expressly set forth herein, as an amendment of, or any kind of waiver or consent related to, the Credit Agreement or the other Loan Documents, (ii) this Amendment shall not represent an amendment, consent, or waiver related to any future actions of any Borrower or any Subsidiary and (iii) the Administrative Agent and each Lender reserves all of their respective rights pursuant to the Credit Agreement and the other Loan Documents;
(c) further acknowledges and agrees that the Administrative Agent’s and the Lenders’ agreement to consent to the modifications to the Credit Agreement addressed in this Amendment, do not and shall not create (nor shall the any Borrower or any of its Subsidiaries Subsidiary rely upon the existence of or claim or assert that there exists) any obligation of the Administrative Agent or any Lender to consider or agree to any further consentamendments, waiver waivers or amendment with respect to any Loan Document consents and, in the event that the Administrative Agent or any Lender subsequently agrees to consider any further consentamendments, waiver waivers or amendment with respect to any Loan Documentconsents, neither this Amendment nor any other conduct of the Administrative Agent or any Lender shall be of any force or effect on the Agent’s or such Lender’s consideration or decision with respect thereto, and neither the Agent nor any Lender shall have any further obligation whatsoever to consider or agree to any further consent, waiver or amendment with respect to any Loan Document; and (ii) except as expressly set forth in this Amendment, the Agent and each Lender reserves all of their respective rights pursuant to the Loan Agreement and all other Loan Documents;
(c) further acknowledges and agrees that the Agent’s and Lenders’ agreement to waive and amend the specific matters addressed in this Amendment, do not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further waivers, consents or amendments and, in the event that the Agent or any Lender subsequently agrees to consider any further waivers, consents or amendments, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Administrative Agent’s or any Lender’s consideration or decision with respect to any such requested amendment, waiver or consent;
(d) further acknowledges and agrees that no right of offset, defense, counterclaim, claim, cause of action or objection in favor of the Borrower against any Lender exists arising out of or with respect to (i) this Amendment, the Loan Agreement or any other Loan Document, or (ii) any other documents now or heretofore evidencing, securing or in any way relating to the foregoing; and
(e) further acknowledges and agrees that this Amendment shall be deemed a Loan Document for all purposes under the Loan Credit Agreement and the other Loan Documents; and
(e) further acknowledges and agrees that, after giving effect to this Amendment, no right of offset, recoupment, defense, counterclaim, claim, cause of action or objection in favor of any Borrower against the Administrative Agent or any Lender exists as of the Effective Date arising out of or with respect to this Amendment, the Credit Agreement or any other Loan Document.
Appears in 2 contracts
Sources: Credit Agreement (Stonemor Partners Lp), Credit Agreement (Stonemor Partners Lp)
Representations, Warranties, Covenants and Acknowledgments. To induce the Agent and Lenders to enter into this Amendment, the Agreement: Each Borrower hereby:
(a) represents and warrants Guarantor does hereby represent and warrant that (i) as of the Effective Datedate hereof, all of the representations and warranties made or deemed to be made under the Forbearance Agreement and the other Loan Documents are true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effectcorrect, in which case such representation or warranty is true and correct in all respects) on and as of the Effective Date to the same extent as though made on and as of the Effective Date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties were true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty was true and correct in all respects) on and as of such earlier date; (ii) as of the Effective Datedate hereof, after giving effect to the terms of this Amendmenthereof, there exists no (A) default or breach of the Forbearance Agreement or (B) Default or Event of Default under the Loan Agreement or any of the other Loan Documents; , other than any Default or Event of Default which may arise from the failure of Borrowers to pay, during the Forbearance Period, certain interest payments with respect to the Senior Notes (as defined below), (iii) the such Borrower and Guarantor has the corporate power and is duly authorized to enter into, deliver and perform this Amendment; Agreement, and (iv) this Amendment Agreement and each of the Forbearance Agreement and the other Loan Documents is the legal, valid and binding obligation of the such Borrower and Guarantor enforceable against the Borrower it in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability;
(b) acknowledges ; and agrees that (i) this Amendment Each Borrower and Guarantor does not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation hereby reaffirm each of the Agent or any Lender to consider or agree to any further consentagreements, waiver or amendment with respect to any Loan Document and, in the event that the Agent or any Lender subsequently agrees to consider any further consent, waiver or amendment with respect to any Loan Document, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or such Lender’s consideration or decision with respect theretocovenants, and neither the Agent nor any Lender shall have any further obligation whatsoever to consider or agree to any further consent, waiver or amendment with respect to any Loan Document; and (ii) except as expressly undertakings set forth in this Amendment, the Agent Forbearance Agreement and each Lender reserves all of their respective rights pursuant to the Loan Agreement and all every other Loan Documents;
(c) further acknowledges and agrees that the Agent’s and Lenders’ agreement to waive and amend the specific matters addressed Document executed in this Amendment, do not and shall not create (nor shall the connection therewith or pursuant thereto as if such Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further waiversGuarantor were making said agreements, consents or amendments and, in the event that the Agent or any Lender subsequently agrees to consider any further waivers, consents or amendments, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect covenants and undertakings on the Agent’s or any Lender’s consideration or decision with respect to any such requested consent;
(d) further acknowledges date hereof; and agrees Each Borrower and Guarantor does hereby acknowledge and agree that no right of offset, defense, counterclaim, claim, cause causes of action or objection in favor of the any Borrower or Guarantor against Agent or any Lender exists arising out of or with respect to (i) the Secured Obligations, this AmendmentAgreement, the Forbearance Agreement, the Loan Agreement or any of the other Loan DocumentDocuments, or (ii) any other documents now or heretofore evidencing, securing or in any way relating to the foregoingforegoing or (iii) the administration or funding of the Revolving Credit Loans; and
(e) further acknowledges and agrees Each Borrower and Guarantor does hereby acknowledge and agree that this Amendment shall be deemed a Loan Document for any and all purposes under references to the Loan Agreement herein or in the Forbearance Agreement shall mean and refer to the other Loan DocumentsAgreement, as amended by (i) that certain First Amendment to Post-Confirmation Loan and Security Agreement, dated August 31, 2000, (ii) that certain Second Amendment to Post-Confirmation Loan and Security Agreement, dated January 26, 2001, (iii) that certain Third Amendment to Post-Confirmation Loan and Security Agreement, dated February 28, 2001, (iv) that certain Fourth Amendment to Post-Confirmation Loan and Security Agreement, dated March 30, 2001, (v) that certain Fifth Amendment to Post-Confirmation Loan and Security Agreement, dated April 13, 2001, (vi) that certain Sixth Amendment to Post-Confirmation Loan and Security Agreement, dated April 27, 2001, (vii) that certain Seventh Amendment to Post-Confirmation Loan and Security Agreement, dated May 18, 2001, (viii) that certain Eighth Amendment to Post-Confirmation Loan and Security Agreement, dated June 4, 2001, and (ix) that certain Ninth Amendment to Post-Confirmation Loan and Security Agreement, as contained herein.
Appears in 1 contract
Sources: Forbearance Agreement and Loan and Security Agreement (Trism Inc /De/)
Representations, Warranties, Covenants and Acknowledgments. To induce (a) On and as of the Agent and Lenders to enter into this Amendmentdate hereof, the Borrower hereby:
(a) represents and warrants that hereby (i) as of the Effective Date, all of represents that the representations and warranties made or deemed to be made under set forth in Section 4 of the Loan Documents Credit Agreement are true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty is true and correct in all respects) on and as of the Effective Date to the same extent as though made on and as of the Effective Datedate hereof, except to the extent that such representations and warranties specifically expressly relate to an a specific earlier date, date in which case the Borrower hereby represents that such representations and warranties were are true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty was true and correct in all respects) on and as of such earlier date; date and (ii) represents and warrants that as of the Effective Datedate hereof, (x) after giving effect to the terms of this Amendmenthereof, there exists no Default or Event of Default under the Loan Credit Agreement or any of the other Loan Documents; , (iiiy) the Borrower has the corporate power and is duly authorized to enter into, deliver and perform this Amendment; , and (ivz) this Amendment and each of the Loan Documents is the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability;.
(b) acknowledges and agrees that (i) this Amendment does not and shall not create (nor shall the The Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation hereby reaffirms each of the Agent or any Lender to consider or agree to any further consentagreements, waiver or amendment with respect to any Loan Document and, in the event that the Agent or any Lender subsequently agrees to consider any further consent, waiver or amendment with respect to any Loan Document, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or such Lender’s consideration or decision with respect theretocovenants, and neither the Agent nor any Lender shall have any further obligation whatsoever to consider or agree to any further consent, waiver or amendment with respect to any Loan Document; and (ii) except as expressly undertakings set forth in this Amendmentthe Credit Agreement and each Loan Document executed in connection therewith or pursuant thereto, as amended and modified hereby, as if the Borrower were making said agreements, covenants and undertakings on the date hereof. Specifically and without limitation, the Agent and each Lender reserves all of their respective rights pursuant to the Loan Agreement and all other Loan Documents;
(c) further Borrower hereby acknowledges and agrees that the Agent’s Security Documents are in full force and Lenders’ agreement to waive and amend the specific matters addressed in this Amendment, do not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation effect as of the Agent or any Lender date hereof (and after giving effect to consider or agree all amendments and supplements to any further waivers, consents or amendments and, in the event that Credit Agreement and Loan Documents through and including the Agent or any Lender subsequently agrees to consider any further waivers, consents or amendments, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or any Lender’s consideration or decision with respect to any such requested consent;date hereof).
(dc) further acknowledges and agrees that no right of offset, defense, counterclaim, claim, cause of action or objection in favor of the The Borrower against any Lender exists arising out of or with respect to (i) this Amendment, the Loan Agreement or any other Loan Document, or (ii) any other documents now or heretofore evidencing, securing or in any way relating to the foregoing; and
(e) further acknowledges and agrees that this Amendment shall be deemed a Loan Document for all purposes under the Loan Agreement and the other Loan DocumentsCredit Agreement.
Appears in 1 contract
Representations, Warranties, Covenants and Acknowledgments. To induce the Agent and Lenders to enter into this Amendment, the Agreement: Each Borrower hereby:
(a) represents and warrants Guarantor does hereby represent and warrant that (i) as of the Effective Datedate hereof, all of the representations and warranties made or deemed to be made under the Forbearance Agreement and the other Loan Documents are true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effectcorrect, in which case such representation or warranty is true and correct in all respects) on and as of the Effective Date to the same extent as though made on and as of the Effective Date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties were true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty was true and correct in all respects) on and as of such earlier date; (ii) as of the Effective Datedate hereof, after giving effect to the terms of this Amendmenthereof, there exists no (A) default or breach of the Forbearance Agreement or (B) Default or Event of Default under the Loan Agreement or any of the other Loan Documents; , other than any Default or Event of Default which may arise from the failure of Borrowers to pay, during the Forbearance Period, certain interest payments with respect to the Senior Notes (as defined below), (iii) the such Borrower and Guarantor has the corporate power and is duly authorized to enter into, deliver and perform this Amendment; Agreement, and (iv) this Amendment Agreement and each of the Forbearance Agreement and the other Loan Documents is the legal, valid and binding obligation of the such Borrower and Guarantor enforceable against the Borrower it in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability;
(b) acknowledges ; and agrees that (i) this Amendment Each Borrower and Guarantor does not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation hereby reaffirm each of the Agent or any Lender to consider or agree to any further consentagreements, waiver or amendment with respect to any Loan Document and, in the event that the Agent or any Lender subsequently agrees to consider any further consent, waiver or amendment with respect to any Loan Document, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or such Lender’s consideration or decision with respect theretocovenants, and neither the Agent nor any Lender shall have any further obligation whatsoever to consider or agree to any further consent, waiver or amendment with respect to any Loan Document; and (ii) except as expressly undertakings set forth in this Amendment, the Agent Forbearance Agreement and each Lender reserves all of their respective rights pursuant to the Loan Agreement and all every other Loan Documents;
(c) further acknowledges and agrees that the Agent’s and Lenders’ agreement to waive and amend the specific matters addressed Document executed in this Amendment, do not and shall not create (nor shall the connection therewith or pursuant thereto as if such Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further waiversGuarantor were making said agreements, consents or amendments and, in the event that the Agent or any Lender subsequently agrees to consider any further waivers, consents or amendments, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect covenants and undertakings on the Agent’s or any Lender’s consideration or decision with respect to any such requested consent;
(d) further acknowledges date hereof; and agrees Each Borrower and Guarantor does hereby acknowledge and agree that no right of offset, defense, counterclaim, claim, cause causes of action or objection in favor of the any Borrower or Guarantor against Agent or any Lender exists arising out of or with respect to (i) the Secured Obligations, this AmendmentAgreement, the Forbearance Agreement, the Loan Agreement or any of the other Loan DocumentDocuments, or (ii) any other documents now or heretofore evidencing, securing or in any way relating to the foregoingforegoing or (iii) the administration or funding of the Revolving Credit Loans; and
(e) further acknowledges and agrees Each Borrower and Guarantor does hereby acknowledge and agree that this Amendment shall be deemed a Loan Document for any and all purposes under references to the Loan Agreement herein or in the Forbearance Agreement shall mean and refer to the other Loan DocumentsAgreement, as amended by (i) that certain First Amendment to Post-Confirmation Loan and Security Agreement, dated August 31, 2000, (ii) that certain Second Amendment to Post-Confirmation Loan and Security Agreement, dated January 26, 2001, (iii) that certain Third Amendment to Post-Confirmation Loan and Security Agreement, dated February 28, 2001, (iv) that certain Fourth Amendment to Post-Confirmation Loan and Security Agreement, dated March 30, 2001, (v) that certain Fifth Amendment to Post-Confirmation Loan and Security Agreement, dated April 13, 2001, (vi) that certain Sixth Amendment to Post-Confirmation Loan and Security Agreement, dated April 27, 2001, (vii) that certain Seventh Amendment to Post-Confirmation Loan and Security Agreement, dated May 18, 2001, (viii) that certain Eighth Amendment to Post-Confirmation Loan and Security Agreement, dated June 4, 2001, (ix) that certain Ninth Amendment to Post-Confirmation Loan and Security Agreement, dated June 8, 2001, (x) that certain Tenth Amendment to Post-Confirmation Loan and Security Agreement, dated June 15, 2001, (xi) that certain Eleventh Amendment to Post-Confirmation Loan and Security Agreement, dated June 27, 2001, (xii) that certain Twelfth Amendment to Post-Confirmation Loan and Security Agreement, dated July 6, 2001, (xiii) that certain Thirteenth Amendment to Post-Confirmation Loan and Security Agreement, dated July 13, 2001, and (xiv) that certain Fourteenth Amendment to Post-Confirmation Loan and Security Agreement, as contained herein.
Appears in 1 contract
Sources: Forbearance Agreement and Loan and Security Agreement (Trism Inc /De/)
Representations, Warranties, Covenants and Acknowledgments. To induce the Administrative Agent and Lenders to enter into this Amendment, the Borrower hereby:
(a) represents The Company does hereby represent and warrants warrant that (i) as of the Effective Datedate hereof, all of the representations and warranties made or deemed to be made under the Loan Documents are true and correct in all material respects (other than provided, that any representation or warranty that is qualified by materiality or by reference to Material Adverse Effect, in which case such representation or warranty is Effect shall be true and correct in all respects) on and as of the Effective Date to the same extent as though made on and as of the Effective Date), except to the extent such representations and warranties specifically relate which, by their express terms, are applicable only to an earlier datethe Closing Date, in which case such representations and warranties were true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty was true and correct in all respects) on and as of such earlier date; (ii) as of the Effective Date, after giving effect to the terms of this Amendmentdate hereof, there exists no Default or Event of Default under the Loan Agreement or any of the other Loan Documents; , (iii) the Borrower Company has the corporate power and is duly authorized to enter into, deliver and perform this Amendment; , and (iv) this Amendment and each of the Loan Documents is the legal, valid and binding obligation of the Borrower Company enforceable against the Borrower Company in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability;.
(b) acknowledges and agrees that (i) this Amendment The Company does not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation hereby reaffirm each of the Agent or any Lender to consider or agree to any further consentagreements, waiver or amendment with respect to any Loan Document and, in the event that the Agent or any Lender subsequently agrees to consider any further consent, waiver or amendment with respect to any Loan Document, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or such Lender’s consideration or decision with respect theretocovenants, and neither the Agent nor any Lender shall have any further obligation whatsoever to consider or agree to any further consent, waiver or amendment with respect to any Loan Document; and (ii) except as expressly undertakings set forth in this Amendment, the Agent and each Lender reserves all of their respective rights pursuant to the Loan Agreement and all each and every other Loan Documents;Document executed in connection therewith or pursuant thereto, as amended and modified hereby, as if the Company were making said agreements, covenants and undertakings on the date hereof.
(c) further acknowledges The Company does hereby acknowledge and agrees that the Agent’s and Lenders’ agreement to waive and amend the specific matters addressed in this Amendment, do not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further waivers, consents or amendments and, in the event that the Agent or any Lender subsequently agrees to consider any further waivers, consents or amendments, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or any Lender’s consideration or decision with respect to any such requested consent;
(d) further acknowledges and agrees that no right of offset, defense, counterclaim, claim, cause of action or objection in favor of the Borrower Company against Administrative Agent or any Lender exists arising out of or with respect to (i) the Obligations, this Amendment, the Loan Agreement or any of the other Loan DocumentDocuments, or (ii) any other documents now or heretofore evidencing, securing or in any way relating to the foregoing; and.
(ed) further The Company acknowledges and agrees that this Amendment shall be deemed a Loan Document for all purposes under the Loan Agreement.
(e) The parties hereto acknowledge and agree that, notwithstanding the requirement in Section 2.01(b) of the Loan Agreement that a Funding Notice be delivered no later than 2:00 p.m. at least two (2) Business Days prior to any requested Term Loan, a Funding Notice with respect to any Term Loan requested on the First Amendment Effective Date shall be effective if delivered to Administrative Agent by 2:00 p.m. one (1) Business Day prior to such requested Term Loan (or such later time as Administrative Agent and ORIX Finance, LP shall agree).
(f) The parties hereto acknowledge and agree that, notwithstanding any provision of the other Loan DocumentsAgreement, including the terms of Section 2.01(c) thereof, (i) funding of the Term Loan requested on the First Amendment Effective Date shall not be based on each Lender’s Pro Rata Share and (ii) ORIX Finance, LP shall fund the entire $9,600,000 Term Loan requested on the First Amendment Effective Date.
Appears in 1 contract
Sources: Term Loan and Security Agreement (FS Energy & Power Fund)
Representations, Warranties, Covenants and Acknowledgments. To induce the Agent and the Lenders to enter into this AmendmentAmendment and Joinder, each Borrower, the New Borrower and the Borrower Representative does hereby:
(a) represents represent and warrants that warrant that, after giving effect to this Amendment and Joinder, (i) as of the Effective Datedate hereof, all of the representations and warranties made or deemed to be made under contained in the Loan Documents are true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty is true and correct in all respects) on and as of the Effective Date date hereof to the same extent as though made on and as of the Effective Datedate hereof, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties were shall have been true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty was true and correct in all respects) on and as of such earlier date; (ii) as of the Effective Datedate hereof, after giving effect to the terms of this Amendment, there exists no Default or Event of Default has occurred and is continuing under the Loan Credit Agreement or any of the 53570.000371 EMF_US 48842307v8 other Loan DocumentsDocument; (iii) the Borrower such Person has the corporate power and is duly authorized to enter into, deliver and perform this AmendmentAmendment and Joinder; and (iv) this Amendment and Joinder is the legal, valid and binding obligation of the Borrower such Person enforceable against the Borrower such Person in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability;; and (v) the execution, delivery and performance of this Amendment and Joinder does not conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any material Contractual Obligation of any such Person; and
(b) acknowledges reaffirm each of the agreements, covenants and agrees that undertakings set forth in the Credit Agreement and each and every other Loan Document executed in connection therewith or pursuant thereto, in each case, as amended by the terms of this Amendment and Joinder; and
(c) acknowledge and agree that, after giving effect to this Amendment and Joinder, no right of offset, defense, recoupment, counterclaim, claim, causes of action or objection in favor of such Person against the Agent or any Lender exists as of the date hereof arising out of or with respect to (i) this Amendment does and Joinder, the Credit Agreement or any of the other Loan Documents or (ii) any other documents now or heretofore evidencing, securing or in any way relating to the foregoing; and
(d) further acknowledge and agree that (i) except as expressly set forth herein, this Amendment and Joinder is not intended, and should not be construed, as an amendment of, or any kind of waiver or consent related to, the Credit Agreement or the other Loan Documents; (ii) this Amendment and Joinder shall not represent an amendment, consent or waiver related to any future actions of any Borrower, the Borrower Representative or the Master Property Manager; (iii) except as expressly set forth herein, the Agent and each Lender reserves all of their respective rights pursuant to the Credit Agreement and all other Loan Documents; and (iv) the amendments contained herein do not and shall not create (nor shall any Borrower or the Borrower or any of its Subsidiaries Representative rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender the Lenders to consider or agree to any further consentfuture waiver, waiver consent or amendment with respect to any Loan Document and, in the event that the Agent or any Lender the Lenders subsequently agrees agree to consider any further consent, waiver or amendment with respect to any Loan Document, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or such Lender’s consideration or decision with respect thereto, and neither the Agent nor any Lender shall have any further obligation whatsoever to consider or agree to any further consent, waiver or amendment with respect to any Loan Document; and (ii) except as expressly set forth in this Amendment, the Agent and each Lender reserves all of their respective rights pursuant to the Loan Agreement and all other Loan Documents;
(c) further acknowledges and agrees that the Agent’s and Lenders’ agreement to waive and amend the specific matters addressed in this Amendment, do not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further waivers, consents or amendments and, in the event that the Agent or any Lender subsequently agrees to consider any further future waivers, consents or amendments, neither this Amendment the amendments contained herein nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or any Lender’s consideration or decision with respect to any such requested consent;
(d) further acknowledges waiver, consent or amendment and agrees that no right of offset, defense, counterclaim, claim, cause of action or objection in favor of neither the Borrower against Agent nor any Lender exists arising out of shall have any further obligation whatsoever to consider or with respect agree to (i) this Amendmentfuture amendment, the Loan Agreement waiver, consent or any other Loan Documentagreement, or (ii) any other documents now or heretofore evidencing, securing or in any way relating to the foregoing; and
(e) further acknowledges acknowledge and agrees agree that this Amendment and Joinder shall be deemed a Loan Document for all purposes under the Loan Agreement and the other Loan Documentspurposes.
Appears in 1 contract
Sources: Revolving Credit Agreement (Silver Bay Realty Trust Corp.)
Representations, Warranties, Covenants and Acknowledgments. To induce the Agent and Lenders to enter into this Amendment, the Borrower hereby:
(a) represents and warrants that (i) as of the Effective Date, all of the representations and warranties made or deemed to be made under the Loan Documents are true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty is true and correct in all respects) on and as of the Effective Date to the same extent as though made on and as of the Effective Date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties were true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty was true and correct in all respects) on and as of such earlier date; (ii) as of the Effective Date, after giving effect to the terms of this Amendment, there exists no Default or Event of Default under the Loan Agreement or any of the other Loan Documents; (iii) the Borrower has the corporate power and is duly authorized to enter into, deliver and perform this Amendment; and (iv) this Amendment is the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability;
(b) acknowledges and agrees that (i) this Amendment does not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further consent, waiver or amendment with respect to any Loan Document and, in the event that the Agent or any Lender subsequently agrees to consider any further consent, waiver or amendment with respect to any Loan Document, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or such Lender’s consideration or decision with respect thereto, and neither the Agent nor any Lender shall have any further obligation whatsoever to consider or agree to any further consent, waiver or amendment with respect to any Loan Document; and (ii) except as expressly set forth in this Amendment, the Agent and each Lender reserves all of their respective rights pursuant to the Loan Agreement and all other Loan Documents;
(c) further acknowledges and agrees that the Agent’s and Lenders’ agreement to waive and amend the specific matters addressed in this Amendment, do not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further waivers, consents or amendments and, in the event that the Agent or any Lender subsequently agrees to consider any further waivers, consents or amendments, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or any Lender’s consideration or decision with respect to any such requested consent;
(d) further acknowledges and agrees that no right of offset, defense, counterclaim, claim, cause of action or objection in favor of the Borrower against any Lender exists arising out of or with respect to (i) this Amendment, the Loan Agreement or any other Loan Document, or (ii) any other documents now or heretofore evidencing, securing or in any way relating to the foregoing; and
(e) further acknowledges and agrees that this Amendment shall be deemed a Loan Document for all purposes under the Loan Agreement and the other Loan Documents.
Appears in 1 contract
Representations, Warranties, Covenants and Acknowledgments. To induce the Agent and Lenders to enter into this Amendment, the Agreement: Each Borrower hereby:
(a) represents and warrants Guarantor does hereby represent and warrant that (i) as of the Effective Datedate hereof, all of the representations and warranties made or deemed to be made under the Forbearance Agreement and the other Loan Documents are true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effectcorrect, in which case such representation or warranty is true and correct in all respects) on and as of the Effective Date to the same extent as though made on and as of the Effective Date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties were true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty was true and correct in all respects) on and as of such earlier date; (ii) as of the Effective Datedate hereof, after giving effect to the terms of this Amendmenthereof, there exists no (A) default or breach of the Forbearance Agreement or (B) Default or Event of Default under the Loan Agreement or any of the other Loan Documents; , other than any Default or Event of Default which may arise from the failure of Borrowers to pay, during the Forbearance Period, certain interest payments with respect to the Senior Notes (as defined below), (iii) the such Borrower and Guarantor has the corporate power and is duly authorized to enter into, deliver and perform this Amendment; Agreement, and (iv) this Amendment Agreement and each of the Forbearance Agreement and the other Loan Documents is the legal, valid and binding obligation of the such Borrower and Guarantor enforceable against the Borrower it in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability;
(b) acknowledges ; and agrees that (i) this Amendment Each Borrower and Guarantor does not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation hereby reaffirm each of the Agent or any Lender to consider or agree to any further consentagreements, waiver or amendment with respect to any Loan Document and, in the event that the Agent or any Lender subsequently agrees to consider any further consent, waiver or amendment with respect to any Loan Document, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or such Lender’s consideration or decision with respect theretocovenants, and neither the Agent nor any Lender shall have any further obligation whatsoever to consider or agree to any further consent, waiver or amendment with respect to any Loan Document; and (ii) except as expressly undertakings set forth in this Amendment, the Agent Forbearance Agreement and each Lender reserves all of their respective rights pursuant to the Loan Agreement and all every other Loan Documents;
(c) further acknowledges and agrees that the Agent’s and Lenders’ agreement to waive and amend the specific matters addressed Document executed in this Amendment, do not and shall not create (nor shall the connection therewith or pursuant thereto as if such Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further waiversGuarantor were making said agreements, consents or amendments and, in the event that the Agent or any Lender subsequently agrees to consider any further waivers, consents or amendments, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect covenants and undertakings on the Agent’s or any Lender’s consideration or decision with respect to any such requested consent;
(d) further acknowledges date hereof; and agrees Each Borrower and Guarantor does hereby acknowledge and agree that no right of offset, defense, counterclaim, claim, cause causes of action or objection in favor of the any Borrower or Guarantor against Agent or any Lender exists arising out of or with respect to (i) the Secured Obligations, this AmendmentAgreement, the Forbearance Agreement, the Loan Agreement or any of the other Loan DocumentDocuments, or (ii) any other documents now or heretofore evidencing, securing or in any way relating to the foregoingforegoing or (iii) the administration or funding of the Revolving Credit Loans; and
(e) further acknowledges and agrees Each Borrower and Guarantor does hereby acknowledge and agree that this Amendment shall be deemed a Loan Document for any and all purposes under references to the Loan Agreement herein or in the Forbearance Agreement shall mean and refer to the other Loan DocumentsAgreement, as amended by (i) that certain First Amendment to Post-Confirmation Loan and Security Agreement, dated August 31, 2000, (ii) that certain Second Amendment to Post-Confirmation Loan and Security Agreement, dated January 26, 2001, (iii) that certain Third Amendment to Post-Confirmation Loan and Security Agreement, dated February 28, 2001, (iv) that certain Fourth Amendment to Post-Confirmation Loan and Security Agreement, dated March 30, 2001, (v) that certain Fifth Amendment to Post-Confirmation Loan and Security Agreement, dated April 13, 2001, (vi) that certain Sixth Amendment to Post-Confirmation Loan and Security Agreement, dated April 27, 2001, (vii) that certain Seventh Amendment to Post-Confirmation Loan and Security Agreement, dated May 18, 2001, (viii) that certain Eighth Amendment to Post-Confirmation Loan and Security Agreement, dated June 4, 2001, (ix) that certain Ninth Amendment to Post-Confirmation Loan and Security Agreement, dated June 8, 2001, (x) that certain Tenth Amendment to Post-Confirmation Loan and Security Agreement, dated June 15, 2001, (xi) that certain Eleventh Amendment to Post-Confirmation Loan and Security Agreement, dated June 27, 2001, and (xii) that certain Twelfth Amendment to Post-Confirmation Loan and Security Agreement, as contained herein.
Appears in 1 contract
Sources: Forbearance Agreement and Loan and Security Agreement (Trism Inc /De/)
Representations, Warranties, Covenants and Acknowledgments. To induce the Agent and Lenders to enter into this Amendment, the Agreement: Each Borrower hereby:
(a) represents and warrants Guarantor does hereby represent and warrant that (i) as of the Effective Datedate hereof, all of the representations and warranties made or deemed to be made under the Forbearance Agreement and the other Loan Documents are true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effectcorrect, in which case such representation or warranty is true and correct in all respects) on and as of the Effective Date to the same extent as though made on and as of the Effective Date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties were true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty was true and correct in all respects) on and as of such earlier date; (ii) as of the Effective Datedate hereof, after giving effect to the terms of this Amendmenthereof, there exists no (A) default or breach of the Forbearance Agreement or (B) Default or Event of Default under the Loan Agreement or any of the other Loan Documents; , other than any Default or Event of Default which may arise from the failure of Borrowers to pay, during the Forbearance Period, certain interest payments with respect to the Senior Notes (as defined below), (iii) the such Borrower and Guarantor has the corporate power and is duly authorized to enter into, deliver and perform this Amendment; Agreement, and (iv) this Amendment Agreement and each of the Forbearance Agreement and the other Loan Documents is the legal, valid and binding obligation of the such Borrower and Guarantor enforceable against the Borrower it in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability;
(b) acknowledges ; and agrees that (i) this Amendment Each Borrower and Guarantor does not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation hereby reaffirm each of the Agent or any Lender to consider or agree to any further consentagreements, waiver or amendment with respect to any Loan Document and, in the event that the Agent or any Lender subsequently agrees to consider any further consent, waiver or amendment with respect to any Loan Document, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or such Lender’s consideration or decision with respect theretocovenants, and neither the Agent nor any Lender shall have any further obligation whatsoever to consider or agree to any further consent, waiver or amendment with respect to any Loan Document; and (ii) except as expressly undertakings set forth in this Amendment, the Agent Forbearance Agreement and each Lender reserves all of their respective rights pursuant to the Loan Agreement and all every other Loan Documents;
(c) further acknowledges and agrees that the Agent’s and Lenders’ agreement to waive and amend the specific matters addressed Document executed in this Amendment, do not and shall not create (nor shall the connection therewith or pursuant thereto as if such Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further waiversGuarantor were making said agreements, consents or amendments and, in the event that the Agent or any Lender subsequently agrees to consider any further waivers, consents or amendments, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect covenants and undertakings on the Agent’s or any Lender’s consideration or decision with respect to any such requested consent;
(d) further acknowledges date hereof; and agrees Each Borrower and Guarantor does hereby acknowledge and agree that no right of offset, defense, counterclaim, claim, cause causes of action or objection in favor of the any Borrower or Guarantor against Agent or any Lender exists arising out of or with respect to (i) the Secured Obligations, this AmendmentAgreement, the Forbearance Agreement, the Loan Agreement or any of the other Loan DocumentDocuments, or (ii) any other documents now or heretofore evidencing, securing or in any way relating to the foregoingforegoing or (iii) the administration or funding of the Revolving Credit Loans; and
(e) further acknowledges and agrees Each Borrower and Guarantor does hereby acknowledge and agree that this Amendment shall be deemed a Loan Document for any and all purposes under references to the Loan Agreement herein or in the Forbearance Agreement shall mean and refer to the other Loan DocumentsAgreement, as amended by (i) that certain First Amendment to Post-Confirmation Loan and Security Agreement, dated August 31, 2000, (ii) that certain Second Amendment to Post-Confirmation Loan and Security Agreement, dated January 26, 2001, (iii) that certain Third Amendment to Post-Confirmation Loan and Security Agreement, dated February 28, 2001, (iv) that certain Fourth Amendment to Post-Confirmation Loan and Security Agreement, dated March 30, 2001, (v) that certain Fifth Amendment to Post-Confirmation Loan and Security Agreement, dated April 13, 2001, (vi) that certain Sixth Amendment to Post-Confirmation Loan and Security Agreement, dated April 27, 2001, (vii) that certain Seventh Amendment to Post-Confirmation Loan and Security Agreement, dated May 18, 2001, (viii) that certain Eighth Amendment to Post-Confirmation Loan and Security Agreement, dated June 4, 2001, (ix) that certain Ninth Amendment to Post-Confirmation Loan and Security Agreement, dated June 8, 2001, (x) that certain Tenth Amendment to Post-Confirmation Loan and Security Agreement, dated June 15, 2001, (xi) that certain Eleventh Amendment to Post-Confirmation Loan and Security Agreement, dated June 27, 2001, (xii) that certain Twelfth Amendment to Post-Confirmation Loan and Security Agreement, dated July 6, 2001, (xiii) that certain Thirteenth Amendment to Post-Confirmation Loan and Security Agreement, dated July 13, 2001, (xiv) that certain Fourteenth Amendment to Post-Confirmation Loan and Security Agreement, dated July 20, 2001, (xv) that certain Fifteenth Amendment to Post-Confirmation Loan and Security Agreement, dated July 27, 2001, (xvi) that certain Sixteenth Amendment to Post-Confirmation Loan and Security Agreement, dated August 3, 2001, (xvii) that certain Seventeenth Amendment to Post-Confirmation Loan and Security Agreement, dated August 10, 2001, (xviii) that certain Eighteenth Amendment to Post-Confirmation Loan and Security Agreement, dated August 17, 2001, (xix) that certain Nineteenth Amendment to Post-Confirmation Loan and Security Agreement, dated August 24, 2001, (xx) that certain Twentieth Amendment to Post-Confirmation Loan and Security Agreement, dated August 31, 2001, (xxi) that certain Twenty-first Amendment to Post-Confirmation Loan and Security Agreement, dated September 7, 2001, (xxii) that certain Twenty-second Amendment to Loan and Security Agreement, dated September 14, 2001, (xxiii) that certain Twenty-third Amendment to Loan and Security Agreement, dated September 21, 2001, and (xxiv) that certain Twenty-forth Amendment to Loan and Security Agreement, as contained herein.
Appears in 1 contract
Sources: Forbearance Agreement and Loan and Security Agreement (Trism Inc /De/)
Representations, Warranties, Covenants and Acknowledgments. To induce the Agent and Lenders ▇▇▇▇▇▇▇ to enter into this Amendment, the Borrower hereby:
(a) A. Each Credit Party hereby represents and warrants that (i) as of the Amendment No. 3 Effective DateDate and after giving effect to the amendment hereto, all of the representations and warranties made or deemed to be made under the Credit Agreement and the other Loan Documents are true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty is true and correct in all respects) on and as of the Amendment No. 3 Effective Date to the same extent as though if made on and as of the Amendment No. 3 Effective Date, Date (except to the extent that such representations and warranties specifically expressly relate to an earlier date, date in which case such representations and warranties were shall have been true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty was true and correct in all respects) on and as of such earlier date; ), and except for changes therein expressly permitted or expressly contemplated by the Credit Agreement, as amended or otherwise modified herein, (ii) as of the Amendment No. 3 Effective Date, Date and after giving effect to the terms of this Amendmentamendments set forth herein, there exists no Default or Event of Default under the Loan Credit Agreement or any of the other Loan Documents; , (iii) the Borrower it has the corporate power and is duly authorized to enter into, deliver and perform this Amendment; , and (iv) this Amendment is and each of the other Loan Documents are the legal, valid and binding obligation of the Borrower each Credit Party party thereto, enforceable against the Borrower each Credit Party in accordance with its terms, except as to the extent enforcement may be limited by under applicable bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or limiting affecting creditors’ rights generally or by and equitable principles relating to enforceabilitydiscretion of the court;
(b) B. Each Credit Party hereby reaffirms each of the agreements, covenants, and undertakings set forth in the Credit Agreement and each and every other Loan Document executed in connection therewith or pursuant thereto, as amended and modified hereby;
C. Each Credit Party hereby acknowledges that each Loan Document, including that certain Fee Letter, dated as of June 16, 2023, as superseded by the Amendment No.3 Fee Letter to be executed in connection with this Amendment, remains in full force and effect and is hereby ratified and reaffirmed;
D. Each Credit Party hereby acknowledges and agrees that (i) this Amendment does not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation as of the Agent or any Lender to consider or agree to any further consent, waiver or amendment with respect to any Loan Document and, in the event that the Agent or any Lender subsequently agrees to consider any further consent, waiver or amendment with respect to any Loan Document, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or such Lender’s consideration or decision with respect thereto, and neither the Agent nor any Lender shall have any further obligation whatsoever to consider or agree to any further consent, waiver or amendment with respect to any Loan Document; and (ii) except as expressly set forth in this Amendment, the Agent and each Lender reserves all of their respective rights pursuant to the Loan Agreement and all other Loan Documents;
(c) further acknowledges and agrees that the Agent’s and Lenders’ agreement to waive and amend the specific matters addressed in this Amendment, do not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further waivers, consents or amendments and, in the event that the Agent or any Lender subsequently agrees to consider any further waivers, consents or amendments, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or any Lender’s consideration or decision with respect to any such requested consent;
(d) further acknowledges and agrees that date hereof no right of offset, recoupment, defense, counterclaim, claim, cause of action or objection in favor of the Borrower any Credit Party against Agent or any Lender exists arising out of or with respect to (i) the Obligations, this Amendment, the Loan Agreement Amendment or any of the other Loan DocumentDocuments, or (ii) any other documents now or heretofore evidencing, securing or in any way relating to the foregoing; and, or (iii) the administration or funding of the Loans;
(e) further E. Each Credit Party acknowledges and agrees that this Amendment shall be deemed a Loan Document for all purposes under the Loan Credit Agreement; and
F. It shall constitute an Event of Default under the Credit Agreement and if any representation or warranty made in this Amendment, or any other document or certificate delivered in connection herewith, made or submitted by any Credit Party, shall prove to have been false, incorrect or misleading in any material respect on the other Loan Documentsdate as of which it is made.
Appears in 1 contract
Sources: Credit Agreement (Eastern Co)
Representations, Warranties, Covenants and Acknowledgments. To induce the Administrative Agent and the Lenders to enter into this Amendment, the Borrower hereby:
(a) Each Credit Party hereby represents and warrants that (i) as of the Effective Date, all of after giving effect hereto, the representations and warranties made or deemed to be made under contained in the Loan Credit Documents are true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty is true and correct in all respects) on and as of the Effective Date to the same extent as though made on and as of the Effective Date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties were shall have been true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty was true and correct in all respects) on and as of such earlier date; , (ii) as of the Effective Date, after giving effect to the terms of this Amendment, there exists no Default or Event of Default under the Loan Credit Agreement or any of the other Loan Credit Documents; , (iii) the Borrower it has the corporate power and is duly authorized to enter into, deliver and First Amendment to Credit Agreement perform this Amendment; , and (iv) this Amendment is and the other Credit Documents are the legal, valid and binding obligation obligations of the Borrower such Credit Party enforceable against the Borrower such Credit Party in accordance with its their respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability;; and
(b) acknowledges and agrees that (i) this Amendment does not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation Each Credit Party hereby reaffirms each of the Agent or any Lender to consider or agree to any further consentagreements, waiver or amendment with respect to any Loan Document and, in the event that the Agent or any Lender subsequently agrees to consider any further consent, waiver or amendment with respect to any Loan Document, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or such Lender’s consideration or decision with respect thereto, covenants and neither the Agent nor any Lender shall have any further obligation whatsoever to consider or agree to any further consent, waiver or amendment with respect to any Loan Document; and (ii) except as expressly undertakings set forth in this Amendment, the Agent Credit Agreement (as modified hereby) and each Lender reserves all of their respective rights pursuant to other Credit Document as if such Credit Party were making such agreements, covenants and undertakings on the Loan Agreement and all other Loan Documents;Effective Date; and
(c) further acknowledges and agrees that the Agent’s and Lenders’ agreement to waive and amend the specific matters addressed in this Amendment, do not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further waivers, consents or amendments and, in the event that the Agent or any Lender subsequently agrees to consider any further waivers, consents or amendments, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or any Lender’s consideration or decision with respect to any such requested consent;
(d) further Each Credit Party hereby acknowledges and agrees that no right of offset, recoupment, defense, counterclaim, claim, cause of action or objection in favor of the Borrower such Credit Party against any Agent or any Lender exists arising out of or with respect to (i) the Obligations, this AmendmentAmendment or the other Credit Documents, the Loan Agreement or any other Loan Document, or (ii) any other documents now or heretofore evidencing, securing or in any way relating to the foregoing, or (iii) the administration or funding of the Loans and Letters of Credit; and
(ed) further Each Credit Party acknowledges and agrees that this Amendment shall be deemed a Loan Document “Credit Document” for all purposes under the Loan Agreement Credit Agreement; and
(e) Each Credit Party acknowledges and agrees that (i) the Lenders’ agreement to the amendments contained herein does not and shall not create (nor shall any Credit Party rely upon the existence of or claim or assert that there exists) any obligation of any Lender to consider or agree to any further amendment (or any consent or waiver) with respect to any Credit Document, (ii) in the event that any Lender subsequently agrees to consider any further amendment (or any consent or waiver) with respect to any Credit Document, neither this Amendment nor any other Loan Documentsconduct of any Lender shall be of any force and effect on any Lender’s consideration or decision with respect thereto, and (iii) Lenders shall have no further obligation whatsoever to consider or agree to any further amendment (or any consent or waiver) with respect to any Credit Document.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Del Frisco's Restaurant Group, LLC)
Representations, Warranties, Covenants and Acknowledgments. To induce the Agent and Lenders to enter into this Amendment, the Agreement: Each Borrower hereby:
(a) represents and warrants Guarantor does hereby represent and warrant that (i) as of the Effective Datedate hereof, all of the representations and warranties made or deemed to be made under the Forbearance Agreement and the other Loan Documents are true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effectcorrect, in which case such representation or warranty is true and correct in all respects) on and as of the Effective Date to the same extent as though made on and as of the Effective Date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties were true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty was true and correct in all respects) on and as of such earlier date; (ii) as of the Effective Datedate hereof, after giving effect to the terms of this Amendmenthereof, there exists no (A) default or breach of the Forbearance Agreement or (B) Default or Event of Default under the Loan Agreement or any of the other Loan Documents; , other than any Default or Event of Default which may arise from the failure of Borrowers to pay, during the Forbearance Period, certain interest payments with respect to the Senior Notes (as defined below), (iii) the such Borrower and Guarantor has the corporate power and is duly authorized to enter into, deliver and perform this Amendment; Agreement, and (iv) this Amendment Agreement and each of the Forbearance Agreement and the other Loan Documents is the legal, valid and binding obligation of the such Borrower and Guarantor enforceable against the Borrower it in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability;
(b) acknowledges ; and agrees that (i) this Amendment Each Borrower and Guarantor does not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation hereby reaffirm each of the Agent or any Lender to consider or agree to any further consentagreements, waiver or amendment with respect to any Loan Document and, in the event that the Agent or any Lender subsequently agrees to consider any further consent, waiver or amendment with respect to any Loan Document, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or such Lender’s consideration or decision with respect theretocovenants, and neither the Agent nor any Lender shall have any further obligation whatsoever to consider or agree to any further consent, waiver or amendment with respect to any Loan Document; and (ii) except as expressly undertakings set forth in this Amendment, the Agent Forbearance Agreement and each Lender reserves all of their respective rights pursuant to the Loan Agreement and all every other Loan Documents;
(c) further acknowledges and agrees that the Agent’s and Lenders’ agreement to waive and amend the specific matters addressed Document executed in this Amendment, do not and shall not create (nor shall the connection therewith or pursuant thereto as if such Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further waiversGuarantor were making said agreements, consents or amendments and, in the event that the Agent or any Lender subsequently agrees to consider any further waivers, consents or amendments, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect covenants and undertakings on the Agent’s or any Lender’s consideration or decision with respect to any such requested consent;
(d) further acknowledges date hereof; and agrees Each Borrower and Guarantor does hereby acknowledge and agree that no right of offset, defense, counterclaim, claim, cause causes of action or objection in favor of the any Borrower or Guarantor against Agent or any Lender exists arising out of or with respect to (i) the Secured Obligations, this AmendmentAgreement, the Forbearance Agreement, the Loan Agreement or any of the other Loan DocumentDocuments, or (ii) any other documents now or heretofore evidencing, securing or in any way relating to the foregoingforegoing or (iii) the administration or funding of the Revolving Credit Loans; and
(e) further acknowledges and agrees Each Borrower and Guarantor does hereby acknowledge and agree that this Amendment shall be deemed a Loan Document for any and all purposes under references to the Loan Agreement herein or in the Forbearance Agreement shall mean and refer to the other Loan DocumentsAgreement, as amended by (i) that certain First Amendment to Post-Confirmation Loan and Security Agreement, dated August 31, 2000, (ii) that certain Second Amendment to Post-Confirmation Loan and Security Agreement, dated January 26, 2001, (iii) that certain Third Amendment to Post-Confirmation Loan and Security Agreement, dated February 28, 2001, (iv) that certain Fourth Amendment to Post-Confirmation Loan and Security Agreement, dated March 30, 2001, (v) that certain Fifth Amendment to Post-Confirmation Loan and Security Agreement, dated April 13, 2001, (vi) that certain Sixth Amendment to Post-Confirmation Loan and Security Agreement, dated April 27, 2001, (vii) that certain Seventh Amendment to Post-Confirmation Loan and Security Agreement, dated May 18, 2001, (viii) that certain Eighth Amendment to Post-Confirmation Loan and Security Agreement, dated June 4, 2001, (ix) that certain Ninth Amendment to Post-Confirmation Loan and Security Agreement, dated June 8, 2001, and (x) that certain Tenth Amendment to Post-Confirmation Loan and Security Agreement, as contained herein.
Appears in 1 contract
Sources: Forbearance Agreement and Loan and Security Agreement (Trism Inc /De/)
Representations, Warranties, Covenants and Acknowledgments. To induce the Agent and Lenders to enter into this Amendment, the Agreement: Each Borrower hereby:
(a) represents and warrants Guarantor does hereby represent and warrant that (i) as of the Effective Datedate hereof, all of the representations and warranties made or deemed to be made under the Forbearance Agreement and the other Loan Documents are true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effectcorrect, in which case such representation or warranty is true and correct in all respects) on and as of the Effective Date to the same extent as though made on and as of the Effective Date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties were true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty was true and correct in all respects) on and as of such earlier date; (ii) as of the Effective Datedate hereof, after giving effect to the terms of this Amendmenthereof, there exists no (A) default or breach of the Forbearance Agreement or (B) Default or Event of Default under the Loan Agreement or any of the other Loan Documents; , other than any Default or Event of Default which may arise from the failure of Borrowers to pay, during the Forbearance Period, certain interest payments with respect to the Senior Notes (as defined below), (iii) the such Borrower and Guarantor has the corporate power and is duly authorized to enter into, deliver and perform this Amendment; Agreement, and (iv) this Amendment Agreement and each of the Forbearance Agreement and the other Loan Documents is the legal, valid and binding obligation of the such Borrower and Guarantor enforceable against the Borrower it in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability;
(b) acknowledges ; and agrees that (i) this Amendment Each Borrower and Guarantor does not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation hereby reaffirm each of the Agent or any Lender to consider or agree to any further consentagreements, waiver or amendment with respect to any Loan Document and, in the event that the Agent or any Lender subsequently agrees to consider any further consent, waiver or amendment with respect to any Loan Document, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or such Lender’s consideration or decision with respect theretocovenants, and neither the Agent nor any Lender shall have any further obligation whatsoever to consider or agree to any further consent, waiver or amendment with respect to any Loan Document; and (ii) except as expressly undertakings set forth in this Amendment, the Agent Forbearance Agreement and each Lender reserves all of their respective rights pursuant to the Loan Agreement and all every other Loan Documents;
(c) further acknowledges and agrees that the Agent’s and Lenders’ agreement to waive and amend the specific matters addressed Document executed in this Amendment, do not and shall not create (nor shall the connection therewith or pursuant thereto as if such Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further waiversGuarantor were making said agreements, consents or amendments and, in the event that the Agent or any Lender subsequently agrees to consider any further waivers, consents or amendments, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect covenants and undertakings on the Agent’s or any Lender’s consideration or decision with respect to any such requested consent;
(d) further acknowledges date hereof; and agrees Each Borrower and Guarantor does hereby acknowledge and agree that no right of offset, defense, counterclaim, claim, cause causes of action or objection in favor of the any Borrower or Guarantor against Agent or any Lender exists arising out of or with respect to (i) the Secured Obligations, this AmendmentAgreement, the Forbearance Agreement, the Loan Agreement or any of the other Loan DocumentDocuments, or (ii) any other documents now or heretofore evidencing, securing or in any way relating to the foregoingforegoing or (iii) the administration or funding of the Revolving Credit Loans; and
(e) further acknowledges and agrees Each Borrower and Guarantor does hereby acknowledge and agree that this Amendment shall be deemed a Loan Document for any and all purposes under references to the Loan Agreement herein or in the Forbearance Agreement shall mean and refer to the other Loan DocumentsAgreement, as amended by (i) that certain First Amendment to Post-Confirmation Loan and Security Agreement, dated August 31, 2000, (ii) that certain Second Amendment to Post-Confirmation Loan and Security Agreement, dated January 26, 2001, (iii) that certain Third Amendment to Post-Confirmation Loan and Security Agreement, dated February 28, 2001, (iv) that certain Fourth Amendment to Post-Confirmation Loan and Security Agreement, dated March 30, 2001, (v) that certain Fifth Amendment to Post-Confirmation Loan and Security Agreement, dated April 13, 2001, (vi) that certain Sixth Amendment to Post-Confirmation Loan and Security Agreement, dated April 27, 2001, (vii) that certain Seventh Amendment to Post-Confirmation Loan and Security Agreement, dated May 18, 2001, (viii) that certain Eighth Amendment to Post-Confirmation Loan and Security Agreement, dated June 4, 2001, (ix) that certain Ninth Amendment to Post-Confirmation Loan and Security Agreement, dated June 8, 2001, (x) that certain Tenth Amendment to Post-Confirmation Loan and Security Agreement, dated June 15, 2001, (xi) that certain Eleventh Amendment to Post-Confirmation Loan and Security Agreement, dated June 27, 2001, (xii) that certain Twelfth Amendment to Post-Confirmation Loan and Security Agreement, dated July 6, 2001, (xiii) that certain Thirteenth Amendment to Post-Confirmation Loan and Security Agreement, dated July 13, 2001, (xiv) that certain Fourteenth Amendment to Post-Confirmation Loan and Security Agreement, dated July 20, 2001, (xv) that certain Fifteenth Amendment to Post-Confirmation Loan and Security Agreement, dated July 27, 2001, (xvi) that certain Sixteenth Amendment to Post-Confirmation Loan and Security Agreement, dated August 3, 2001, (xvii) that certain Seventeenth Amendment to Post-Confirmation Loan and Security Agreement, dated August 10, 2001, and (xviii) that certain Eighteenth Amendment to Post-Confirmation Loan and Security Agreement, as contained herein.
Appears in 1 contract
Sources: Forbearance Agreement and Loan and Security Agreement (Trism Inc /De/)
Representations, Warranties, Covenants and Acknowledgments. To induce the Administrative Agent and the Lenders to enter into this AmendmentAmendment and Waiver, the each Borrower hereby:
(a) represents and warrants that (i) as of the Eighth Amendment Effective Date, all after giving effect to this Amendment and Waiver, including the waiver of the Specified Events of Default, the representations and warranties made or deemed to be made under of such Borrower set forth in the Credit Agreement and the other Loan Documents (after giving effect to the waiver of the Specified Events of Default and the amendments set forth in Section 2 above) are true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty is true and correct in all respects) on and as of the Effective Date to the same extent as though made on and as of the Eighth Amendment Effective Date; provided, except that to the extent any such representations and warranties representation or warranty specifically relate refers to an earlier date, in which case such representations representation and warranties were warranty was true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty was true and correct in all respects) on and as of such earlier date; provided, further, that any representation or warranty that is qualified as to “materiality” or “Material Adverse Effect” or similar language was true and correct (after giving effect to any qualification therein) in all respects on such respective dates, (ii) as of the Eighth Amendment Effective Date, after giving effect to the terms of this AmendmentAmendment and Waiver, there exists no Default or Event of Default under the Loan Agreement or any of the other Loan Documents; has occurred and is continuing, (iii) the Borrower execution and delivery of this Amendment and Waiver is within each Borrower’s organizational powers and has the corporate power and is been duly authorized to enter intoby all necessary organizational actions and, deliver and perform this Amendment; if required, actions by equity holders and (iv) this Amendment is the and Waiver has been duly executed and delivered by such Borrower and constitutes a legal, valid and binding obligation of the Borrower such Borrower, enforceable against the Borrower in accordance with its terms, except as may be limited by bankruptcysubject to applicable Debtor Relief Laws and subject to general principles of equity, insolvency, reorganization, moratorium regardless of whether considered in a proceeding in equity or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceabilityat law;
(b) acknowledges and agrees that (i) this Amendment does and Waiver is not intended, and should not be construed, except as expressly set forth herein, as an amendment of, or any kind of waiver or consent related to, the Credit Agreement or the other Loan Documents, (ii) except as expressly set forth in this Amendment and Waiver, this Amendment and Waiver shall not represent a consent or waiver related to any future actions of any Borrower or any Subsidiary and (iii) except as expressly set forth in this Amendment and Waiver, the Administrative Agent and each Lender reserves all of their respective rights pursuant to the Credit Agreement and the other Loan Documents;
(c) further acknowledges and agrees that the Administrative Agent’s and the Lenders’ agreement to waive the specific matters addressed in this Amendment and Waiver, do not and shall not create (nor shall the any Borrower or any of its Subsidiaries Subsidiary rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further consent, waiver or amendment with respect to any Loan Document and, in the event that the Agent or any Lender subsequently agrees to consider any further consent, waiver or amendment with respect to any Loan Document, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or such Lender’s consideration or decision with respect thereto, and neither the Agent nor any Lender shall have any further obligation whatsoever to consider or agree to any further consent, waiver or amendment with respect to any Loan Document; and (ii) except as expressly set forth in this Amendment, the Agent and each Lender reserves all of their respective rights pursuant to the Loan Agreement and all other Loan Documents;
(c) further acknowledges and agrees that the Agent’s and Lenders’ agreement to waive and amend the specific matters addressed in this Amendment, do not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Administrative Agent or any Lender to consider or agree to any further waivers, consents or amendments and, in the event that the Administrative Agent or any Lender subsequently agrees to consider any further waivers, consents or amendments, neither this Amendment and Waiver nor any other conduct of the Administrative Agent or any Lender shall be of any force or effect on the Administrative Agent’s or any Lender’s consideration or decision with respect to any such requested consentwaiver, consent or amendment;
(d) further acknowledges and agrees that this Amendment and Waiver shall be deemed a Loan Document for all purposes under the Credit Agreement and the other Loan Documents;
(i) further acknowledges and agrees that, after giving effect to this Amendment and Waiver, no right of offset, recoupment, defense, counterclaim, claim, cause of action or objection in favor of the any Borrower against the Administrative Agent or any Lender exists as of the Eighth Amendment Effective Date arising out of or with respect to (i) this AmendmentAmendment and Waiver, the Loan Credit Agreement or any other Loan Document, or Document and (ii) expressly waives any setoff, counterclaim, recoupment, defense or other documents now right that such Loan Party has against the Administrative Agent as of the Eighth Amendment Effective Date, any Lender or heretofore evidencingany of their respective affiliates, securing or whether in any way relating to the foregoing; and
(e) further acknowledges and agrees that connection with this Amendment shall be deemed a Loan Document for all purposes under and Waiver, the Loan Credit Agreement and the other Loan Documents, the transactions contemplated by this Amendment and Waiver or the Credit Agreement and the Loan Documents, or any agreement or instrument relating thereto;
(f) each of the Borrower and the other Loan Parties hereby jointly and severally agrees, on demand, to reimburse the Administrative Agent and the Lenders, to the extent required under Section 9.03 of the Credit Agreement, for all reasonable and documented out-of-pocket costs and expenses of the Administrative Agent and the Lenders related to or in connection with this Amendment and Waiver and any documents, agreements or instruments referred to herein, including, without limitation, the reasonable fees and documented out-of-pocket expenses of Hunton ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, FTI Consulting Inc. and Freshfields Bruckhaus ▇▇▇▇▇▇▇▇ US LLP, and any consultants, attorneys or other professionals retained by the Administrative Agent and/or the Lenders in connection with the Loan Documents, including without limitation, in connection with the negotiation and preparation of this Amendment and Waiver, the enforcement of their rights and remedies under this Amendment and Waiver, whether or not incurred prior to the date of this Amendment and Waiver. All such fees, costs and expenses shall constitute Secured Obligations under the Credit Agreement secured by the Collateral under the Collateral Documents. Nothing in this Amendment and Waiver shall be intended or construed to hold the Administrative Agent, the Lenders or any other Secured Party liable or responsible for any expense, liability or obligation of any kind or nature whatsoever (including, without limitation, attorneys’ fees and expenses, other professionals’ fees and expenses, wages, salaries, payroll taxes, withholdings, benefits or other amounts payable by or on behalf of the Loan Parties);
(g) as of the date hereof, all Liens, security interests, assignments and pledges encumbering the Collateral, created pursuant to and/or referred to in the Credit Agreement or the other Loan Documents, are valid, enforceable, duly perfected to the extent required by such documents, non-avoidable, first priority liens, security interests, assignments and pledges (subject to Liens permitted by Section 6.02 of the Credit Agreement), continue unimpaired, are in full force and effect and secure and shall continue to secure all of the obligations purported to be secured in the respective Loan Documents pursuant to which such Liens were granted;
(h) notwithstanding anything to the contrary of the Credit Agreement or this Amendment and Waiver, it shall be an Event of Default under clause (g) of Article VII of the Credit Agreement upon the receipt by the Partnership of any notice issued pursuant to Section 6.01(e) of the High Yield Note Indenture; and
(i) agrees to deliver to the Administrative Agent all the originals of all Instruments constituting Collateral with a value, individually, of $500,000 or more no later than the date that is 30 days after the Eighth Amendment Effective Date, and each of the Borrowers and the other Loan Parties agree that any failure to comply with this clause (i) shall be deemed an Event of Default under Article VII of the Credit Agreement.
Appears in 1 contract
Representations, Warranties, Covenants and Acknowledgments. To induce the Administrative Agent and the Lenders to enter into this Amendment, the each Borrower hereby:
(a) represents and warrants that (i) as of the Effective Date, all of the representations and warranties made or deemed to be made under of set forth in the Credit Agreement and the other Loan Documents are true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty is true and correct in all respects) on and as of the Effective Date to the same extent except as though made otherwise set forth on and as of the Effective DateExhibit A attached hereto; provided, except that to the extent any such representations and warranties representation or warranty specifically relate refers to an earlier date, in which case such representations representation and warranties were warranty was true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty was true and correct in all respects) on and as of such earlier date; provided, further, that any representation or warranty that is qualified as to “materiality” or “Material Adverse Effect” or similar language was true and correct (after giving effect to any qualification therein) in all respects on such respective dates, (ii) as of the Effective Date, after giving effect to the terms of this Amendment, there exists no Default or Event of Default under the Loan Agreement or any of the other Loan Documents; has occurred and is continuing, (iii) the Borrower execution and delivery of this Amendment is within its limited liability company powers and has the corporate power and is been duly authorized to enter intoby all necessary limited liability company actions and, deliver and perform this Amendment; if required, actions by equity holders and (iv) this Amendment is the has been duly executed and delivered by it and constitutes a legal, valid and binding obligation of the Borrower each Borrower, enforceable against the Borrower in accordance with its terms, except as may be limited by bankruptcysubject to applicable Debtor Relief Laws and subject to general principles of equity, insolvency, reorganization, moratorium regardless of whether considered in a proceeding in equity or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceabilityat law;
(b) acknowledges and agrees that (i) this Amendment does is not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further consent, waiver or amendment with respect to any Loan Document and, in the event that the Agent or any Lender subsequently agrees to consider any further consent, waiver or amendment with respect to any Loan Document, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or such Lender’s consideration or decision with respect theretointended, and neither the Agent nor any Lender shall have any further obligation whatsoever to consider or agree to any further consentshould not be construed, waiver or amendment with respect to any Loan Document; and (ii) except as expressly set forth in this Amendmentherein, as an amendment of, or any kind of waiver or consent related to, the Credit Agreement or the other Loan Documents, (ii) this Amendment shall not represent an amendment, consent, or waiver related to any future actions of any Borrower, any other Loan Party or any Subsidiary and (iii) the Administrative Agent and each Lender reserves all of their respective rights pursuant to the Loan Credit Agreement and all the other Loan Documents;
(c) further acknowledges and agrees that the Agent’s and Lenders’ agreement to waive and amend the specific matters addressed in this Amendment, do not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further waivers, consents or amendments and, in the event that the Agent or any Lender subsequently agrees to consider any further waivers, consents or amendments, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or any Lender’s consideration or decision with respect to any such requested consent;
(d) further acknowledges and agrees that no right of offset, defense, counterclaim, claim, cause of action or objection in favor of the Borrower against any Lender exists arising out of or with respect to (i) this Amendment, the Loan Agreement or any other Loan Document, or (ii) any other documents now or heretofore evidencing, securing or in any way relating to the foregoing; and
(e) further acknowledges and agrees that this Amendment shall be deemed a Loan Document for all purposes under the Loan Credit Agreement and the other Loan Documents; and
(d) further acknowledges and agrees that no right of offset, recoupment, defense, counterclaim, claim, cause of action or objection in favor of any Borrower or any other Loan Party against the Administrative Agent or any Lender exists as of the Effective Date arising out of or with respect to this Amendment, the Credit Agreement or any other Loan Document.
Appears in 1 contract
Representations, Warranties, Covenants and Acknowledgments. To induce the Agent and Lenders to enter into this Amendment, the Agreement: Each Borrower hereby:
(a) represents and warrants Guarantor does hereby represent and warrant that (i) as of the Effective Datedate hereof, all of the representations and warranties made or deemed to be made under the Forbearance Agreement and the other Loan Documents are true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effectcorrect, in which case such representation or warranty is true and correct in all respects) on and as of the Effective Date to the same extent as though made on and as of the Effective Date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties were true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty was true and correct in all respects) on and as of such earlier date; (ii) as of the Effective Datedate hereof, after giving effect to the terms of this Amendmenthereof, there exists no (A) default or breach of the Forbearance Agreement or (B) Default or Event of Default under the Loan Agreement or any of the other Loan Documents; , other than any Default or Event of Default which may arise from the failure of Borrowers to pay, during the Forbearance Period, certain interest payments with respect to the Senior Notes (as defined below), (iii) the such Borrower and Guarantor has the corporate power and is duly authorized to enter into, deliver and perform this Amendment; Agreement, and (iv) this Amendment Agreement and each of the Forbearance Agreement and the other Loan Documents is the legal, valid and binding obligation of the such Borrower and Guarantor enforceable against the Borrower it in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability;
(b) acknowledges ; and agrees that (i) this Amendment Each Borrower and Guarantor does not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation hereby reaffirm each of the Agent or any Lender to consider or agree to any further consentagreements, waiver or amendment with respect to any Loan Document and, in the event that the Agent or any Lender subsequently agrees to consider any further consent, waiver or amendment with respect to any Loan Document, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or such Lender’s consideration or decision with respect theretocovenants, and neither the Agent nor any Lender shall have any further obligation whatsoever to consider or agree to any further consent, waiver or amendment with respect to any Loan Document; and (ii) except as expressly undertakings set forth in this Amendment, the Agent Forbearance Agreement and each Lender reserves all of their respective rights pursuant to the Loan Agreement and all every other Loan Documents;
(c) further acknowledges and agrees that the Agent’s and Lenders’ agreement to waive and amend the specific matters addressed Document executed in this Amendment, do not and shall not create (nor shall the connection therewith or pursuant thereto as if such Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further waiversGuarantor were making said agreements, consents or amendments and, in the event that the Agent or any Lender subsequently agrees to consider any further waivers, consents or amendments, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect covenants and undertakings on the Agent’s or any Lender’s consideration or decision with respect to any such requested consent;
(d) further acknowledges date hereof; and agrees Each Borrower and Guarantor does hereby acknowledge and agree that no right of offset, defense, counterclaim, claim, cause causes of action or objection in favor of the any Borrower or Guarantor against Agent or any Lender exists arising out of or with respect to (i) the Secured Obligations, this AmendmentAgreement, the Forbearance Agreement, the Loan Agreement or any of the other Loan DocumentDocuments, or (ii) any other documents now or heretofore evidencing, securing or in any way relating to the foregoingforegoing or (iii) the administration or funding of the Revolving Credit Loans; and
(e) further acknowledges and agrees Each Borrower and Guarantor does hereby acknowledge and agree that this Amendment shall be deemed a Loan Document for any and all purposes under references to the Loan Agreement herein or in the Forbearance Agreement shall mean and refer to the other Loan DocumentsAgreement, as amended by (i) that certain First Amendment to Post-Confirmation Loan and Security Agreement, dated August 31, 2000, (ii) that certain Second Amendment to Post-Confirmation Loan and Security Agreement, dated January 26, 2001, (iii) that certain Third Amendment to Post-Confirmation Loan and Security Agreement, dated February 28, 2001, (iv) that certain Fourth Amendment to Post-Confirmation Loan and Security Agreement, dated March 30, 2001, (v) that certain Fifth Amendment to Post-Confirmation Loan and Security Agreement, dated April 13, 2001, (vi) that certain Sixth Amendment to Post-Confirmation Loan and Security Agreement, dated April 27, 2001, (vii) that certain Seventh Amendment to Post-Confirmation Loan and Security Agreement, dated May 18, 2001 and (viii) that certain Eighth Amendment to Post-Confirmation Loan and Security Agreement, as contained herein.
Appears in 1 contract
Sources: Forbearance Agreement and Loan and Security Agreement (Trism Inc /De/)
Representations, Warranties, Covenants and Acknowledgments. To induce the Agent and Lenders to enter into this Amendment, the Agreement: Each Borrower hereby:
(a) represents and warrants Guarantor does hereby represent and warrant that (i) as of the Effective Datedate hereof, all of the representations and warranties made or deemed to be made under the Forbearance Agreement and the other Loan Documents are true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effectcorrect, in which case such representation or warranty is true and correct in all respects) on and as of the Effective Date to the same extent as though made on and as of the Effective Date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties were true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty was true and correct in all respects) on and as of such earlier date; (ii) as of the Effective Datedate hereof, after giving effect to the terms of this Amendmenthereof, there exists no (A) default or breach of the Forbearance Agreement or (B) Default or Event of Default under the Loan Agreement or any of the other Loan Documents; , other than any Default or Event of Default which may arise from the failure of Borrowers to pay, during the Forbearance Period, certain interest payments with respect to the Senior Notes (as defined below), (iii) the such Borrower and Guarantor has the corporate power and is duly authorized to enter into, deliver and perform this Amendment; Agreement, and (iv) this Amendment Agreement and each of the Forbearance Agreement and the other Loan Documents is the legal, valid and binding obligation of the such Borrower and Guarantor enforceable against the Borrower it in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability;
(b) acknowledges ; and agrees that (i) this Amendment Each Borrower and Guarantor does not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation hereby reaffirm each of the Agent or any Lender to consider or agree to any further consentagreements, waiver or amendment with respect to any Loan Document and, in the event that the Agent or any Lender subsequently agrees to consider any further consent, waiver or amendment with respect to any Loan Document, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or such Lender’s consideration or decision with respect theretocovenants, and neither the Agent nor any Lender shall have any further obligation whatsoever to consider or agree to any further consent, waiver or amendment with respect to any Loan Document; and (ii) except as expressly undertakings set forth in this Amendment, the Agent Forbearance Agreement and each Lender reserves all of their respective rights pursuant to the Loan Agreement and all every other Loan Documents;
(c) further acknowledges and agrees that the Agent’s and Lenders’ agreement to waive and amend the specific matters addressed Document executed in this Amendment, do not and shall not create (nor shall the connection therewith or pursuant thereto as if such Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further waiversGuarantor were making said agreements, consents or amendments and, in the event that the Agent or any Lender subsequently agrees to consider any further waivers, consents or amendments, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect covenants and undertakings on the Agent’s or any Lender’s consideration or decision with respect to any such requested consent;
(d) further acknowledges date hereof; and agrees Each Borrower and Guarantor does hereby acknowledge and agree that no right of offset, defense, counterclaim, claim, cause causes of action or objection in favor of the any Borrower or Guarantor against Agent or any Lender exists arising out of or with respect to (i) the Secured Obligations, this AmendmentAgreement, the Forbearance Agreement, the Loan Agreement or any of the other Loan DocumentDocuments, or (ii) any other documents now or heretofore evidencing, securing or in any way relating to the foregoingforegoing or (iii) the administration or funding of the Revolving Credit Loans; and
(e) further acknowledges and agrees Each Borrower and Guarantor does hereby acknowledge and agree that this Amendment shall be deemed a Loan Document for any and all purposes under references to the Loan Agreement herein or in the Forbearance Agreement shall mean and refer to the other Loan DocumentsAgreement, as amended by (i) that certain First Amendment to Post-Confirmation Loan and Security Agreement, dated August 31, 2000, (ii) that certain Second Amendment to Post-Confirmation Loan and Security Agreement, dated January 26, 2001, (iii) that certain Third Amendment to Post-Confirmation Loan and Security Agreement, dated February 28, 2001, (iv) that certain Fourth Amendment to Post-Confirmation Loan and Security Agreement, dated March 30, 2001, (v) that certain Fifth Amendment to Post-Confirmation Loan and Security Agreement, dated April 13, 2001, (vi) that certain Sixth Amendment to Post-Confirmation Loan and Security Agreement, dated April 27, 2001, (vii) that certain Seventh Amendment to Post-Confirmation Loan and Security Agreement, dated May 18, 2001, (viii) that certain Eighth Amendment to Post-Confirmation Loan and Security Agreement, dated June 4, 2001, (ix) that certain Ninth Amendment to Post-Confirmation Loan and Security Agreement, dated June 8, 2001, (x) that certain Tenth Amendment to Post-Confirmation Loan and Security Agreement, dated June 15, 2001, (xi) that certain Eleventh Amendment to Post-Confirmation Loan and Security Agreement, dated June 27, 2001, (xii) that certain Twelfth Amendment to Post-Confirmation Loan and Security Agreement, dated July 6, 2001, (xiii) that certain Thirteenth Amendment to Post-Confirmation Loan and Security Agreement, dated July 13, 2001, (xiv) that certain Fourteenth Amendment to Post-Confirmation Loan and Security Agreement, dated July 20, 2001, (xv) that certain Fifteenth Amendment to Post-Confirmation Loan and Security Agreement, dated July 27, 2001, (xvi) that certain Sixteenth Amendment to Post-Confirmation Loan and Security Agreement, dated August 3, 2001, (xvii) that certain Seventeenth Amendment to Post-Confirmation Loan and Security Agreement, dated August 10, 2001, (xviii) that certain Eighteenth Amendment to Post-Confirmation Loan and Security Agreement, dated August 17, 2001, (xix) that certain Nineteenth Amendment to Post-Confirmation Loan and Security Agreement, dated August 24, 2001, (xx) that certain Twentieth Amendment to Post-Confirmation Loan and Security Agreement, dated August 31, 2001, (xxi) that certain Twenty-first Amendment to Post-Confirmation Loan and Security Agreement, dated September 7, 2001, (xxii) that certain Twenty-second Amendment to Post-Confirmation Loan and Security Agreement, dated September 14, 2001, (xxiii) that certain Twenty-third Amendment to Post-Confirmation Loan and Security Agreement, dated September 21, 2001, (xxiv) that certain Twenty-fourth Amendment to Post-Confirmation Loan and Security Agreement, dated September 28, 2001, (xxv).that certain Twenty-fifth Amendment to Post-Confirmation Loan and Security Agreement, dated October 5, 2001, and (xxvi) that certain Twenty-sixth Amendment to Post-Confirmation Loan and Security Agreement, as contained herein.
Appears in 1 contract
Sources: Forbearance Agreement and Loan and Security Agreement (Trism Inc /De/)
Representations, Warranties, Covenants and Acknowledgments. To induce the Agent and Lenders to enter into this Amendment, the each Borrower hereby:
(a) represents and warrants that that, after giving effect to this Amendment, (i) as of the Effective Datedate hereof, all of the representations and warranties made or deemed to be made under contained in the Loan Documents are true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty is true and correct in all respects) on and as of the Effective Date date hereof to the same extent as though made on and as of the Effective Datedate hereof, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties were shall have been true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty was true and correct in all respects) on and as of such earlier date; (ii) as of the Effective Datedate hereof, after giving effect to the terms of this Amendment, there exists no Default or Event of Default has occurred and is continuing under the Loan Credit Agreement or any of the other Loan DocumentsDocument; (iii) the Borrower it has the corporate power and is duly authorized to enter into, deliver and perform this Amendment; and (iv) this Amendment is the legal, valid and binding obligation of the such Borrower enforceable against the such Borrower in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability;; and (v) the execution, delivery and performance of this Amendment does not conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any material Contractual Obligation of such Borrower; and
(b) acknowledges and agrees that (i) this Amendment does not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation reaffirms each of the Agent or any Lender to consider or agree to any further consentagreements, waiver or amendment with respect to any Loan Document and, in the event that the Agent or any Lender subsequently agrees to consider any further consent, waiver or amendment with respect to any Loan Document, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or such Lender’s consideration or decision with respect thereto, covenants and neither the Agent nor any Lender shall have any further obligation whatsoever to consider or agree to any further consent, waiver or amendment with respect to any Loan Document; and (ii) except as expressly undertakings set forth in the Credit Agreement and each and every other Loan Document executed in connection therewith or pursuant thereto, in each case, as amended by the terms of this Amendment, the Agent and each Lender reserves all of their respective rights pursuant to the Loan Agreement and all other Loan Documents;; and
(c) further acknowledges and agrees that the Agent’s and Lenders’ agreement that, after giving effect to waive and amend the specific matters addressed in this Amendment, do not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further waivers, consents or amendments and, in the event that the Agent or any Lender subsequently agrees to consider any further waivers, consents or amendments, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or any Lender’s consideration or decision with respect to any such requested consent;
(d) further acknowledges and agrees that no right of offset, defense, counterclaim, recoupment, claim, cause of action or objection in favor of the such Borrower against any Agent or any Lender exists as of the date hereof arising out of or with respect to (i) this Amendment, the Loan Credit Agreement or any of the other Loan Document, Documents or (ii) any other documents now or heretofore evidencing, securing or in any way relating to the foregoing; and
(d) further acknowledges and agrees that (i) except as expressly set forth herein, this Amendment is not intended, and should not be construed, as an amendment of, or any kind of waiver or consent related to, the Credit Agreement or the other Loan Documents; (ii) this Amendment shall not represent an amendment, consent or waiver related to any future actions of any Borrower; (iii) except as expressly set forth herein, Agent and each Lender reserve all of their respective rights pursuant to the Credit Agreement and all other Loan Documents; and (iv) the amendments contained herein do not and shall not create (nor shall any Borrower rely upon the existence of or claim or assert that there exists) any obligation of any Agent or Lender to consider or agree to any further amendment or any waiver or consent and, in the event Agents or Lenders subsequently agree to consider any further amendments or any waiver or consent, neither the amendments contained herein nor any other conduct of any Agent or Lender shall be of any force or effect on any Agent’s or Lenders’ consideration or decision with respect to any such requested waiver, consent or amendment and neither any Agent nor any Lender shall have any further obligation whatsoever to consider or agree to further amendment or any waiver, consent or other agreement; and
(e) further acknowledges and agrees that this Amendment shall be deemed constitute a Loan Document for all purposes under the Loan Credit Agreement and the other Loan Documents.
Appears in 1 contract
Representations, Warranties, Covenants and Acknowledgments. To induce the Agent and Lenders to enter into this Amendment, the Agreement: Each Borrower hereby:
(a) represents and warrants Guarantor does hereby represent and warrant that (i) as of the Effective Datedate hereof, all of the representations and warranties made or deemed to be made under the Forbearance Agreement and the other Loan Documents are true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effectcorrect, in which case such representation or warranty is true and correct in all respects) on and as of the Effective Date to the same extent as though made on and as of the Effective Date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties were true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty was true and correct in all respects) on and as of such earlier date; (ii) as of the Effective Datedate hereof, after giving effect to the terms of this Amendmenthereof, there exists no (A) default or breach of the Forbearance Agreement or (B) Default or Event of Default under the Loan Agreement or any of the other Loan Documents; , other than any Default or Event of Default which may arise from the failure of Borrowers to pay, during the Forbearance Period, certain interest payments with respect to the Senior Notes (as defined below), (iii) the such Borrower and Guarantor has the corporate power and is duly authorized to enter into, deliver and perform this Amendment; Agreement, and (iv) this Amendment Agreement and each of the Forbearance Agreement and the other Loan Documents is the legal, valid and binding obligation of the such Borrower and Guarantor enforceable against the Borrower it in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability;
(b) acknowledges ; and agrees that (i) this Amendment Each Borrower and Guarantor does not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation hereby reaffirm each of the Agent or any Lender to consider or agree to any further consentagreements, waiver or amendment with respect to any Loan Document and, in the event that the Agent or any Lender subsequently agrees to consider any further consent, waiver or amendment with respect to any Loan Document, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or such Lender’s consideration or decision with respect theretocovenants, and neither the Agent nor any Lender shall have any further obligation whatsoever to consider or agree to any further consent, waiver or amendment with respect to any Loan Document; and (ii) except as expressly undertakings set forth in this Amendment, the Agent Forbearance Agreement and each Lender reserves all of their respective rights pursuant to the Loan Agreement and all every other Loan Documents;
(c) further acknowledges and agrees that the Agent’s and Lenders’ agreement to waive and amend the specific matters addressed Document executed in this Amendment, do not and shall not create (nor shall the connection therewith or pursuant thereto as if such Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further waiversGuarantor were making said agreements, consents or amendments and, in the event that the Agent or any Lender subsequently agrees to consider any further waivers, consents or amendments, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect covenants and undertakings on the Agent’s or any Lender’s consideration or decision with respect to any such requested consent;
(d) further acknowledges date hereof; and agrees Each Borrower and Guarantor does hereby acknowledge and agree that no right of offset, defense, counterclaim, claim, cause causes of action or objection in favor of the any Borrower or Guarantor against Agent or any Lender exists arising out of or with respect to (i) the Secured Obligations, this AmendmentAgreement, the Forbearance Agreement, the Loan Agreement or any of the other Loan DocumentDocuments, or (ii) any other documents now or heretofore evidencing, securing or in any way relating to the foregoingforegoing or (iii) the administration or funding of the Revolving Credit Loans; and
(e) further acknowledges and agrees Each Borrower and Guarantor does hereby acknowledge and agree that this Amendment shall be deemed a Loan Document for any and all purposes under references to the Loan Agreement herein or in the Forbearance Agreement shall mean and refer to the other Loan DocumentsAgreement, as amended by (i) that certain First Amendment to Post-Confirmation Loan and Security Agreement, dated August 31, 2000, (ii) that certain Second Amendment to Post-Confirmation Loan and Security Agreement, dated January 26, 2001, (iii) that certain Third Amendment to Post-Confirmation Loan and Security Agreement, dated February 28, 2001, (iv) that certain Fourth Amendment to Post-Confirmation Loan and Security Agreement, dated March 30, 2001, (v) that certain Fifth Amendment to Post-Confirmation Loan and Security Agreement, dated April 13, 2001, (vi) that certain Sixth Amendment to Post-Confirmation Loan and Security Agreement, dated April 27, 2001, (vii) that certain Seventh Amendment to Post-Confirmation Loan and Security Agreement, dated May 18, 2001, (viii) that certain Eighth Amendment to Post-Confirmation Loan and Security Agreement, dated June 4, 2001, (ix) that certain Ninth Amendment to Post-Confirmation Loan and Security Agreement, dated June 8, 2001, (x) that certain Tenth Amendment to Post-Confirmation Loan and Security Agreement, dated June 15, 2001, (xi) that certain Eleventh Amendment to Post-Confirmation Loan and Security Agreement, dated June 27, 2001, (xii) that certain Twelfth Amendment to Post-Confirmation Loan and Security Agreement, dated July 6, 2001, (xiii) that certain Thirteenth Amendment to Post-Confirmation Loan and Security Agreement, dated July 13, 2001, (xiv) that certain Fourteenth Amendment to Post-Confirmation Loan and Security Agreement, dated July 20, 2001, (xv) that certain Fifteenth Amendment to Post-Confirmation Loan and Security Agreement, dated July 27, 2001, (xvi) that certain Sixteenth Amendment to Post-Confirmation Loan and Security Agreement, dated August 3, 2001, (xvii) that certain Seventeenth Amendment to Post-Confirmation Loan and Security Agreement, dated August 10, 2001, (xviii) that certain Eighteenth Amendment to Post-Confirmation Loan and Security Agreement, dated August 17, 2001, (xix) that certain Nineteenth Amendment to Post-Confirmation Loan and Security Agreement, dated August 24, 2001, (xx) that certain Twentieth Amendment to Post-Confirmation Loan and Security Agreement, dated August 31, 2001, and (xxi) that certain Twenty-first Amendment to Post-Confirmation Loan and Security Agreement, as contained herein.
Appears in 1 contract
Sources: Forbearance Agreement and Loan and Security Agreement (Trism Inc /De/)
Representations, Warranties, Covenants and Acknowledgments. To induce the Agent and Lenders to enter into this Amendment, the Agreement: Each Borrower hereby:
(a) represents and warrants Guarantor does hereby represent and warrant that (i) as of the Effective Datedate hereof, all of the representations and warranties made or deemed to be made under the Forbearance Agreement and the other Loan Documents are true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effectcorrect, in which case such representation or warranty is true and correct in all respects) on and as of the Effective Date to the same extent as though made on and as of the Effective Date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties were true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty was true and correct in all respects) on and as of such earlier date; (ii) as of the Effective Datedate hereof, after giving effect to the terms of this Amendmenthereof, there exists no (A) default or breach of the Forbearance Agreement or (B) Default or Event of Default under the Loan Agreement or any of the other Loan Documents; , other than any Default or Event of Default which may arise from the failure of Borrowers to pay, during the Forbearance Period, certain interest payments with respect to the Senior Notes (as defined below), (iii) the such Borrower and Guarantor has the corporate power and is duly authorized to enter into, deliver and perform this Amendment; Agreement, and (iv) this Amendment Agreement and each of the Forbearance Agreement and the other Loan Documents is the legal, valid and binding obligation of the such Borrower and Guarantor enforceable against the Borrower it in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability;
(b) acknowledges ; and agrees that (i) this Amendment Each Borrower and Guarantor does not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation hereby reaffirm each of the Agent or any Lender to consider or agree to any further consentagreements, waiver or amendment with respect to any Loan Document and, in the event that the Agent or any Lender subsequently agrees to consider any further consent, waiver or amendment with respect to any Loan Document, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or such Lender’s consideration or decision with respect theretocovenants, and neither the Agent nor any Lender shall have any further obligation whatsoever to consider or agree to any further consent, waiver or amendment with respect to any Loan Document; and (ii) except as expressly undertakings set forth in this Amendment, the Agent Forbearance Agreement and each Lender reserves all of their respective rights pursuant to the Loan Agreement and all every other Loan Documents;
(c) further acknowledges and agrees that the Agent’s and Lenders’ agreement to waive and amend the specific matters addressed Document executed in this Amendment, do not and shall not create (nor shall the connection therewith or pursuant thereto as if such Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further waiversGuarantor were making said agreements, consents or amendments and, in the event that the Agent or any Lender subsequently agrees to consider any further waivers, consents or amendments, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect covenants and undertakings on the Agent’s or any Lender’s consideration or decision with respect to any such requested consent;
(d) further acknowledges date hereof; and agrees Each Borrower and Guarantor does hereby acknowledge and agree that no right of offset, defense, counterclaim, claim, cause causes of action or objection in favor of the any Borrower or Guarantor against Agent or any Lender exists arising out of or with respect to (i) the Secured Obligations, this AmendmentAgreement, the Forbearance Agreement, the Loan Agreement or any of the other Loan DocumentDocuments, or (ii) any other documents now or heretofore evidencing, securing or in any way relating to the foregoingforegoing or (iii) the administration or funding of the Revolving Credit Loans; and
(e) further acknowledges and agrees Each Borrower and Guarantor does hereby acknowledge and agree that this Amendment shall be deemed a Loan Document for any and all purposes under references to the Loan Agreement herein or in the Forbearance Agreement shall mean and refer to the other Loan DocumentsAgreement, as amended by (i) that certain First Amendment to Post-Confirmation Loan and Security Agreement, dated August 31, 2000, (ii) that certain Second Amendment to Post-Confirmation Loan and Security Agreement, dated January 26, 2001, (iii) that certain Third Amendment to Post-Confirmation Loan and Security Agreement, dated February 28, 2001, (iv) that certain Fourth Amendment to Post-Confirmation Loan and Security Agreement, dated March 30, 2001, (v) that certain Fifth Amendment to Post-Confirmation Loan and Security Agreement, dated April 13, 2001, (vi) that certain Sixth Amendment to Post-Confirmation Loan and Security Agreement, dated April 27, 2001, (vii) that certain Seventh Amendment to Post-Confirmation Loan and Security Agreement, dated May 18, 2001, (viii) that certain Eighth Amendment to Post-Confirmation Loan and Security Agreement, dated June 4, 2001, (ix) that certain Ninth Amendment to Post-Confirmation Loan and Security Agreement, dated June 8, 2001, (x) that certain Tenth Amendment to Post-Confirmation Loan and Security Agreement, dated June 15, 2001, (xi) that certain Eleventh Amendment to Post-Confirmation Loan and Security Agreement, dated June 27, 2001, (xii) that certain Twelfth Amendment to Post-Confirmation Loan and Security Agreement, dated July 6, 2001, (xiii) that certain Thirteenth Amendment to Post-Confirmation Loan and Security Agreement, dated July 13, 2001, (xiv) that certain Fourteenth Amendment to Post-Confirmation Loan and Security Agreement, dated July 20, 2001, (xv) that certain Fifteenth Amendment to Post-Confirmation Loan and Security Agreement, dated July 27, 2001, (xvi) that certain Sixteenth Amendment to Post-Confirmation Loan and Security Agreement, dated August 3, 2001, (xvii) that certain Seventeenth Amendment to Post-Confirmation Loan and Security Agreement, dated August 10, 2001, (xviii) that certain Eighteenth Amendment to Post-Confirmation Loan and Security Agreement, dated August 17, 2001, (xix) that certain Nineteenth Amendment to Post-Confirmation Loan and Security Agreement, dated August 24, 2001, (xx) that certain Twentieth Amendment to Post-Confirmation Loan and Security Agreement, dated August 31, 2001, (xxi) that certain Twenty-first Amendment to Post-Confirmation Loan and Security Agreement, dated September 7, 2001, (xxii) that certain Twenty-second Amendment to Post-Confirmation Loan and Security Agreement, dated September 14, 2001, (xxiii) that certain Twenty-third Amendment to Post-Confirmation Loan and Security Agreement, dated September 21, 2001, (xxiv) that certain Twenty-fourth Amendment to Post-Confirmation Loan and Security Agreement, dated September 28, 2001, (xxv).that certain Twenty-fifth Amendment to Post-Confirmation Loan and Security Agreement, dated October 5, 2001, (xxvi) that certain Twenty-sixth Amendment to Post-Confirmation Loan and Security Agreement, dated October 12, 2001, and (xxvii) that certain Twenty-seventh Amendment to Post-Confirmation Loan and Security Agreement, as contained herein.
Appears in 1 contract
Sources: Forbearance Agreement and Loan and Security Agreement (Trism Inc /De/)
Representations, Warranties, Covenants and Acknowledgments. To induce the Administrative Agent and Lenders to enter into this Amendment, the each Borrower hereby:
(a) represents and warrants that (i) as of the Effective Date, all of the representations and warranties made or deemed to be made under of such Borrower set forth in the Credit Agreement and the other Loan Documents are true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty is true and correct in all respects) on and as of the Effective Date to the same extent as though made on and as of the Effective Date; provided, except that to the extent any such representations and warranties representation or warranty specifically relate refers to an earlier date, in which case such representations representation and warranties were warranty was true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty was true and correct in all respects) on and as of such earlier date; provided, further, that any representation or warranty that is qualified as to “materiality” or “Material Adverse Effect” or similar language was true and correct (after giving effect to any qualification therein) in all respects on such respective dates, (ii) as of the Effective Date, after giving effect to the terms of this Amendment, there exists no Default or Event of Default under the Loan Agreement or any of the other Loan Documents; has occurred and is continuing, (iii) the Borrower execution and delivery of this Amendment is within each Borrower’s organizational powers and has the corporate power and is been duly authorized to enter intoby all necessary organizational actions and, deliver and perform this Amendment; if required, actions by equity holders and (iv) this Amendment is the has been duly executed and delivered by such Borrower and constitutes a legal, valid and binding obligation of the Borrower such Borrower, enforceable against the Borrower in accordance with its terms, except as may be limited by bankruptcysubject to applicable Debtor Relief Laws and subject to general principles of equity, insolvency, reorganization, moratorium regardless of whether considered in a proceeding in equity or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceabilityat law;
(b) acknowledges and agrees that (i) this Amendment does is not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further consent, waiver or amendment with respect to any Loan Document and, in the event that the Agent or any Lender subsequently agrees to consider any further consent, waiver or amendment with respect to any Loan Document, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or such Lender’s consideration or decision with respect theretointended, and neither the Agent nor any Lender shall have any further obligation whatsoever to consider or agree to any further consentshould not be construed, waiver or amendment with respect to any Loan Document; and (ii) except as expressly set forth in this Amendmentherein, as an amendment of, or any kind of waiver or consent related to, the Credit Agreement or the other Loan Documents, (ii) this Amendment shall not represent an amendment, consent, or waiver related to any future actions of any Borrower or any Subsidiary and (iii) the Administrative Agent and each Lender reserves all of their respective rights pursuant to the Loan Credit Agreement and all the other Loan Documents;
(c) further acknowledges and agrees that the Agent’s and Lenders’ agreement to waive and amend the specific matters addressed in this Amendment, do not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further waivers, consents or amendments and, in the event that the Agent or any Lender subsequently agrees to consider any further waivers, consents or amendments, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or any Lender’s consideration or decision with respect to any such requested consent;
(d) further acknowledges and agrees that no right of offset, defense, counterclaim, claim, cause of action or objection in favor of the Borrower against any Lender exists arising out of or with respect to (i) this Amendment, the Loan Agreement or any other Loan Document, or (ii) any other documents now or heretofore evidencing, securing or in any way relating to the foregoing; and
(e) further acknowledges and agrees that this Amendment shall be deemed a Loan Document for all purposes under the Loan Credit Agreement and the other Loan Documents; and
(d) further acknowledges and agrees that, after giving effect to this Amendment, no right of offset, recoupment, defense, counterclaim, claim, cause of action or objection in favor of any Borrower against the Administrative Agent or any Lender exists as of the Effective Date arising out of or with respect to this Amendment, the Credit Agreement or any other Loan Document.
Appears in 1 contract
Representations, Warranties, Covenants and Acknowledgments. To induce the Agent and Lenders to enter into this Amendment, the Agreement: Each Borrower hereby:
(a) represents and warrants Guarantor does hereby represent and warrant that (i) as of the Effective Datedate hereof, all of the representations and warranties made or deemed to be made under the Forbearance Agreement and the other Loan Documents are true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effectcorrect, in which case such representation or warranty is true and correct in all respects) on and as of the Effective Date to the same extent as though made on and as of the Effective Date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties were true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty was true and correct in all respects) on and as of such earlier date; (ii) as of the Effective Datedate hereof, after giving effect to the terms of this Amendmenthereof, there exists no (A) default or breach of the Forbearance Agreement or (B) Default or Event of Default under the Loan Agreement or any of the other Loan Documents; , other than any Default or Event of Default which may arise from the failure of Borrowers to pay, during the Forbearance Period, certain interest payments with respect to the Senior Notes (as defined below), (iii) the such Borrower and Guarantor has the corporate power and is duly authorized to enter into, deliver and perform this Amendment; Agreement, and (iv) this Amendment Agreement and each of the Forbearance Agreement and the other Loan Documents is the legal, valid and binding obligation of the such Borrower and Guarantor enforceable against the Borrower it in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability;
(b) acknowledges ; and agrees that (i) this Amendment Each Borrower and Guarantor does not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation hereby reaffirm each of the Agent or any Lender to consider or agree to any further consentagreements, waiver or amendment with respect to any Loan Document and, in the event that the Agent or any Lender subsequently agrees to consider any further consent, waiver or amendment with respect to any Loan Document, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or such Lender’s consideration or decision with respect theretocovenants, and neither the Agent nor any Lender shall have any further obligation whatsoever to consider or agree to any further consent, waiver or amendment with respect to any Loan Document; and (ii) except as expressly undertakings set forth in this Amendment, the Agent Forbearance Agreement and each Lender reserves all of their respective rights pursuant to the Loan Agreement and all every other Loan Documents;
(c) further acknowledges and agrees that the Agent’s and Lenders’ agreement to waive and amend the specific matters addressed Document executed in this Amendment, do not and shall not create (nor shall the connection therewith or pursuant thereto as if such Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further waiversGuarantor were making said agreements, consents or amendments and, in the event that the Agent or any Lender subsequently agrees to consider any further waivers, consents or amendments, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect covenants and undertakings on the Agent’s or any Lender’s consideration or decision with respect to any such requested consent;
(d) further acknowledges date hereof; and agrees Each Borrower and Guarantor does hereby acknowledge and agree that no right of offset, defense, counterclaim, claim, cause causes of action or objection in favor of the any Borrower or Guarantor against Agent or any Lender exists arising out of or with respect to (i) the Secured Obligations, this AmendmentAgreement, the Forbearance Agreement, the Loan Agreement or any of the other Loan DocumentDocuments, or (ii) any other documents now or heretofore evidencing, securing or in any way relating to the foregoingforegoing or (iii) the administration or funding of the Revolving Credit Loans; and
(e) further acknowledges and agrees Each Borrower and Guarantor does hereby acknowledge and agree that this Amendment shall be deemed a Loan Document for any and all purposes under references to the Loan Agreement herein or in the Forbearance Agreement shall mean and refer to the other Loan DocumentsAgreement, as amended by (i) that certain First Amendment to Post-Confirmation Loan and Security Agreement, dated August 31, 2000, (ii) that certain Second Amendment to Post-Confirmation Loan and Security Agreement, dated January 26, 2001, (iii) that certain Third Amendment to Post-Confirmation Loan and Security Agreement, dated February 28, 2001, (iv) that certain Fourth Amendment to Post-Confirmation Loan and Security Agreement, dated March 30, 2001, (v) that certain Fifth Amendment to Post-Confirmation Loan and Security Agreement, dated April 13, 2001, (vi) that certain Sixth Amendment to Post-Confirmation Loan and Security Agreement, dated April 27, 2001, (vii) that certain Seventh Amendment to Post-Confirmation Loan and Security Agreement, dated May 18, 2001, (viii) that certain Eighth Amendment to Post-Confirmation Loan and Security Agreement, dated June 4, 2001, (ix) that certain Ninth Amendment to Post-Confirmation Loan and Security Agreement, dated June 8, 2001, (x) that certain Tenth Amendment to Post-Confirmation Loan and Security Agreement, dated June 15, 2001, (xi) that certain Eleventh Amendment to Post-Confirmation Loan and Security Agreement, dated June 27, 2001, (xii) that certain Twelfth Amendment to Post-Confirmation Loan and Security Agreement, dated July 6, 2001, (xiii) that certain Thirteenth Amendment to Post-Confirmation Loan and Security Agreement, dated July 13, 2001, (xiv) that certain Fourteenth Amendment to Post-Confirmation Loan and Security Agreement, dated July 20, 2001, (xv) that certain Fifteenth Amendment to Post-Confirmation Loan and Security Agreement, dated July 27, 2001, (xvi) that certain Sixteenth Amendment to Post-Confirmation Loan and Security Agreement, dated August 3, 2001, and (xvii) that certain Seventeenth Amendment to Post-Confirmation Loan and Security Agreement, as contained herein.
Appears in 1 contract
Sources: Forbearance Agreement and Loan and Security Agreement (Trism Inc /De/)
Representations, Warranties, Covenants and Acknowledgments. To induce the Agent and Lenders to enter into this Amendment, the Agreement: Each Borrower hereby:
(a) represents and warrants Guarantor does hereby represent and warrant that (i) as of the Effective Datedate hereof, all of the representations and warranties made or deemed to be made under the Forbearance Agreement and the other Loan Documents are true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effectcorrect, in which case such representation or warranty is true and correct in all respects) on and as of the Effective Date to the same extent as though made on and as of the Effective Date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties were true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty was true and correct in all respects) on and as of such earlier date; (ii) as of the Effective Datedate hereof, after giving effect to the terms of this Amendmenthereof, there exists no (A) default or breach of the Forbearance Agreement or (B) Default or Event of Default under the Loan Agreement or any of the other Loan Documents; , other than any Default or Event of Default which may arise from the failure of Borrowers to pay, during the Forbearance Period, certain interest payments with respect to the Senior Notes (as defined below), (iii) the such Borrower and Guarantor has the corporate power and is duly authorized to enter into, deliver and perform this Amendment; Agreement, and (iv) this Amendment Agreement and each of the Forbearance Agreement and the other Loan Documents is the legal, valid and binding obligation of the such Borrower and Guarantor enforceable against the Borrower it in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability;
(b) acknowledges ; and agrees that (i) this Amendment Each Borrower and Guarantor does not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation hereby reaffirm each of the Agent or any Lender to consider or agree to any further consentagreements, waiver or amendment with respect to any Loan Document and, in the event that the Agent or any Lender subsequently agrees to consider any further consent, waiver or amendment with respect to any Loan Document, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or such Lender’s consideration or decision with respect theretocovenants, and neither the Agent nor any Lender shall have any further obligation whatsoever to consider or agree to any further consent, waiver or amendment with respect to any Loan Document; and (ii) except as expressly undertakings set forth in this Amendment, the Agent Forbearance Agreement and each Lender reserves all of their respective rights pursuant to the Loan Agreement and all every other Loan Documents;
(c) further acknowledges and agrees that the Agent’s and Lenders’ agreement to waive and amend the specific matters addressed Document executed in this Amendment, do not and shall not create (nor shall the connection therewith or pursuant thereto as if such Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further waiversGuarantor were making said agreements, consents or amendments and, in the event that the Agent or any Lender subsequently agrees to consider any further waivers, consents or amendments, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect covenants and undertakings on the Agent’s or any Lender’s consideration or decision with respect to any such requested consent;
(d) further acknowledges date hereof; and agrees Each Borrower and Guarantor does hereby acknowledge and agree that no right of offset, defense, counterclaim, claim, cause causes of action or objection in favor of the any Borrower or Guarantor against Agent or any Lender exists arising out of or with respect to (i) the Secured Obligations, this AmendmentAgreement, the Forbearance Agreement, the Loan Agreement or any of the other Loan DocumentDocuments, or (ii) any other documents now or heretofore evidencing, securing or in any way relating to the foregoingforegoing or (iii) the administration or funding of the Revolving Credit Loans; and
(e) further acknowledges and agrees Each Borrower and Guarantor does hereby acknowledge and agree that this Amendment shall be deemed a Loan Document for any and all purposes under references to the Loan Agreement herein or in the Forbearance Agreement shall mean and refer to the other Loan DocumentsAgreement, as amended by (i) that certain First Amendment to Post-Confirmation Loan and Security Agreement, dated August 31, 2000, (ii) that certain Second Amendment to Post-Confirmation Loan and Security Agreement, dated January 26, 2001, (iii) that certain Third Amendment to Post-Confirmation Loan and Security Agreement, dated February 28, 2001, (iv) that certain Fourth Amendment to Post-Confirmation Loan and Security Agreement, dated March 30, 2001, (v) that certain Fifth Amendment to Post-Confirmation Loan and Security Agreement, dated April 13, 2001, (vi) that certain Sixth Amendment to Post-Confirmation Loan and Security Agreement, dated April 27, 2001, and (vii) that certain Seventh Amendment to Post-Confirmation Loan and Security Agreement, as contained herein.
Appears in 1 contract
Sources: Forbearance Agreement and Loan and Security Agreement (Trism Inc /De/)
Representations, Warranties, Covenants and Acknowledgments. To induce the Agent and the Lenders to enter into this Amendment, each Borrower and the Borrower Representative does hereby:
(a) represents a. represent and warrants that warrant that, after giving effect to this Amendment, (i) as of the Effective Datedate hereof, all of the representations and warranties made or deemed to be made under contained in the Loan Documents are true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty is true and correct in all respects) on and as of the Effective Date date hereof to the same extent as though made on and as of the Effective Datedate hereof, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties were shall have been true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty was true and correct in all respects) on and as of such earlier date; (ii) as of the Effective Datedate hereof, after giving effect to the terms of this Amendment, there exists no Default or Event of Default has occurred and is continuing under the Loan Credit Agreement or any of the other Loan DocumentsDocument; (iii) the Borrower such Person has the corporate power and is duly authorized to enter into, deliver and perform this Amendment; and (iv) this Amendment is the legal, valid and binding obligation of the Borrower such Person enforceable against the Borrower such Person in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability;; and (v) the execution, delivery and performance of this Amendment does not conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any material Contractual Obligation of any such Person; and
b. reaffirm each of the agreements, covenants and undertakings set forth in the Credit Agreement and each and every other Loan Document executed in connection therewith or pursuant thereto, in each case, as amended by the terms of this Amendment; and
c. acknowledge and agree that, after giving effect to this Amendment, no right of offset, defense, recoupment, counterclaim, claim, causes of action or objection in favor of such Person against the Agent or any Lender exists as of the date hereof arising out of or with respect to (bi) acknowledges this Amendment, the Credit Agreement or any of the other Loan Documents or (ii) any other documents now or heretofore evidencing, securing or in any way relating to the foregoing; and
d. further acknowledge and agrees agree that (i) except as expressly set forth herein, this Amendment does is not intended, and should not be construed, as an amendment of, or any kind of waiver or consent related to, the Credit Agreement or the other Loan Documents; (ii) this Amendment shall not represent an amendment, consent or waiver related to any future actions of any Borrower, the Borrower Representative or the Master Property Manager; (iii) except as expressly set forth herein, the Agent and each Lender reserves all of their respective rights pursuant to the Credit Agreement and all other Loan Documents; and (iv) the amendments contained herein do not and shall not create (nor shall any Borrower or the Borrower or any of its Subsidiaries Representative rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender the Lenders to consider or agree to any further consentfuture waiver, waiver consent or amendment with respect to any Loan Document and, in the event that the Agent or any Lender the Lenders subsequently agrees agree to consider any further consent, waiver or amendment with respect to any Loan Document, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or such Lender’s consideration or decision with respect thereto, and neither the Agent nor any Lender shall have any further obligation whatsoever to consider or agree to any further consent, waiver or amendment with respect to any Loan Document; and (ii) except as expressly set forth in this Amendment, the Agent and each Lender reserves all of their respective rights pursuant to the Loan Agreement and all other Loan Documents;
(c) further acknowledges and agrees that the Agent’s and Lenders’ agreement to waive and amend the specific matters addressed in this Amendment, do not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further waivers, consents or amendments and, in the event that the Agent or any Lender subsequently agrees to consider any further future waivers, consents or amendments, neither this Amendment the amendments contained herein nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or any Lender’s consideration or decision with respect to any such requested consent;
(d) further acknowledges waiver, consent or amendment and agrees that no right of offset, defense, counterclaim, claim, cause of action or objection in favor of neither the Borrower against Agent nor any Lender exists arising out of shall have any further obligation whatsoever to consider or with respect agree to (i) this Amendmentfuture amendment, the Loan Agreement waiver, consent or any other Loan Documentagreement, or (ii) any other documents now or heretofore evidencing, securing or in any way relating to the foregoing; and
(e) e. further acknowledges acknowledge and agrees agree that this Amendment shall be deemed a Loan Document for all purposes under the Loan Agreement and the other Loan Documentspurposes.
Appears in 1 contract
Sources: Revolving Credit Agreement (Silver Bay Realty Trust Corp.)
Representations, Warranties, Covenants and Acknowledgments. To induce the Agent and Lenders to enter into this Amendment, the Agreement: Each Borrower hereby:
(a) represents and warrants Guarantor does hereby represent and warrant that (i) as of the Effective Datedate hereof, all of the representations and warranties made or deemed to be made under the Forbearance Agreement and the other Loan Documents are true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effectcorrect, in which case such representation or warranty is true and correct in all respects) on and as of the Effective Date to the same extent as though made on and as of the Effective Date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties were true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty was true and correct in all respects) on and as of such earlier date; (ii) as of the Effective Datedate hereof, after giving effect to the terms of this Amendmenthereof, there exists no (A) default or breach of the Forbearance Agreement or (B) Default or Event of Default under the Loan Agreement or any of the other Loan Documents; , other than any Default or Event of Default which may arise from the failure of Borrowers to pay, during the Forbearance Period, certain interest payments with respect to the Senior Notes (as defined below), (iii) the such Borrower and Guarantor has the corporate power and is duly authorized to enter into, deliver and perform this Amendment; Agreement, and (iv) this Amendment Agreement and each of the Forbearance Agreement and the other Loan Documents is the legal, valid and binding obligation of the such Borrower and Guarantor enforceable against the Borrower it in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability;
(b) acknowledges ; and agrees that (i) this Amendment Each Borrower and Guarantor does not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation hereby reaffirm each of the Agent or any Lender to consider or agree to any further consentagreements, waiver or amendment with respect to any Loan Document and, in the event that the Agent or any Lender subsequently agrees to consider any further consent, waiver or amendment with respect to any Loan Document, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or such Lender’s consideration or decision with respect theretocovenants, and neither the Agent nor any Lender shall have any further obligation whatsoever to consider or agree to any further consent, waiver or amendment with respect to any Loan Document; and (ii) except as expressly undertakings set forth in this Amendment, the Agent Forbearance Agreement and each Lender reserves all of their respective rights pursuant to the Loan Agreement and all every other Loan Documents;
(c) further acknowledges and agrees that the Agent’s and Lenders’ agreement to waive and amend the specific matters addressed Document executed in this Amendment, do not and shall not create (nor shall the connection therewith or pursuant thereto as if such Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further waiversGuarantor were making said agreements, consents or amendments and, in the event that the Agent or any Lender subsequently agrees to consider any further waivers, consents or amendments, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect covenants and undertakings on the Agent’s or any Lender’s consideration or decision with respect to any such requested consent;
(d) further acknowledges date hereof; and agrees Each Borrower and Guarantor does hereby acknowledge and agree that no right of offset, defense, counterclaim, claim, cause causes of action or objection in favor of the any Borrower or Guarantor against Agent or any Lender exists arising out of or with respect to (i) the Secured Obligations, this AmendmentAgreement, the Forbearance Agreement, the Loan Agreement or any of the other Loan DocumentDocuments, or (ii) any other documents now or heretofore evidencing, securing or in any way relating to the foregoingforegoing or (iii) the administration or funding of the Revolving Credit Loans; and
(e) further acknowledges and agrees Each Borrower and Guarantor does hereby acknowledge and agree that this Amendment shall be deemed a Loan Document for any and all purposes under references to the Loan Agreement herein or in the Forbearance Agreement shall mean and refer to the other Loan DocumentsAgreement, as amended by (i) that certain First Amendment to Post-Confirmation Loan and Security Agreement, dated August 31, 2000, (ii) that certain Second Amendment to Post-Confirmation Loan and Security Agreement, dated January 26, 2001, (iii) that certain Third Amendment to Post-Confirmation Loan and Security Agreement, dated February 28, 2001, (iv) that certain Fourth Amendment to Post-Confirmation Loan and Security Agreement, dated March 30, 2001, (v) that certain Fifth Amendment to Post-Confirmation Loan and Security Agreement, dated April 13, 2001, (vi) that certain Sixth Amendment to Post-Confirmation Loan and Security Agreement, dated April 27, 2001, (vii) that certain Seventh Amendment to Post-Confirmation Loan and Security Agreement, dated May 18, 2001, (viii) that certain Eighth Amendment to Post-Confirmation Loan and Security Agreement, dated June 4, 2001, (ix) that certain Ninth Amendment to Post-Confirmation Loan and Security Agreement, dated June 8, 2001, (x) that certain Tenth Amendment to Post-Confirmation Loan and Security Agreement, dated June 15, 2001, (xi) that certain Eleventh Amendment to Post-Confirmation Loan and Security Agreement, dated June 27, 2001, (xii) that certain Twelfth Amendment to Post-Confirmation Loan and Security Agreement, dated July 6, 2001, and (xiii) that certain Thirteenth Amendment to Post-Confirmation Loan and Security Agreement, as contained herein.
Appears in 1 contract
Sources: Forbearance Agreement and Loan and Security Agreement (Trism Inc /De/)
Representations, Warranties, Covenants and Acknowledgments. To induce the Agent and Lenders to enter into this Amendment, the Agreement: Each Borrower hereby:
(a) represents and warrants Guarantor does hereby represent and warrant that (i) as of the Effective Datedate hereof, all of the representations and warranties made or deemed to be made under the Forbearance Agreement and the other Loan Documents are true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effectcorrect, in which case such representation or warranty is true and correct in all respects) on and as of the Effective Date to the same extent as though made on and as of the Effective Date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties were true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty was true and correct in all respects) on and as of such earlier date; (ii) as of the Effective Datedate hereof, after giving effect to the terms of this Amendmenthereof, there exists no (A) default or breach of the Forbearance Agreement or (B) Default or Event of Default under the Loan Agreement or any of the other Loan Documents; , (iii) the such Borrower and Guarantor has the corporate power and is duly authorized to enter into, deliver and perform this Amendment; Agreement, and (iv) this Amendment Agreement and each of the Forbearance Agreement and the other Loan Documents is the legal, valid and binding obligation of the such Borrower and Guarantor enforceable against the Borrower it in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability;
(b) acknowledges ; and agrees that (i) this Amendment Each Borrower and Guarantor does not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation hereby reaffirm each of the Agent or any Lender to consider or agree to any further consentagreements, waiver or amendment with respect to any Loan Document and, in the event that the Agent or any Lender subsequently agrees to consider any further consent, waiver or amendment with respect to any Loan Document, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or such Lender’s consideration or decision with respect theretocovenants, and neither the Agent nor any Lender shall have any further obligation whatsoever to consider or agree to any further consent, waiver or amendment with respect to any Loan Document; and (ii) except as expressly undertakings set forth in this Amendment, the Agent Forbearance Agreement and each Lender reserves all of their respective rights pursuant to the Loan Agreement and all every other Loan Documents;
(c) further acknowledges and agrees that the Agent’s and Lenders’ agreement to waive and amend the specific matters addressed Document executed in this Amendment, do not and shall not create (nor shall the connection therewith or pursuant thereto as if such Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further waiversGuarantor were making said agreements, consents or amendments and, in the event that the Agent or any Lender subsequently agrees to consider any further waivers, consents or amendments, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect covenants and undertakings on the Agent’s or any Lender’s consideration or decision with respect to any such requested consent;
(d) further acknowledges date hereof; and agrees Each Borrower and Guarantor does hereby acknowledge and agree that no right of offset, defense, counterclaim, claim, cause causes of action or objection in favor of the any Borrower or Guarantor against Agent or any Lender exists arising out of or with respect to (i) the Secured Obligations, this AmendmentAgreement, the Forbearance Agreement, the Loan Agreement or any of the other Loan DocumentDocuments, or (ii) any other documents now or heretofore evidencing, securing or in any way relating to the foregoingforegoing or (iii) the administration or funding of the Revolving Credit Loans; and
(e) further acknowledges and agrees Each Borrower and Guarantor does hereby acknowledge and agree that this Amendment shall be deemed a Loan Document for any and all purposes under references to the Loan Agreement herein or in the Forbearance Agreement shall mean and refer to the other Loan DocumentsAgreement, as amended by that certain Second Amendment to Post-Confirmation Loan and Security Agreement, dated January _____, 2001.
Appears in 1 contract
Representations, Warranties, Covenants and Acknowledgments. To induce the Administrative Agent and the Incremental Lenders to enter into this Amendment, the Borrower hereby:
(a) represents and warrants that (i) as of the Effective Date, all of the representations and warranties made or deemed to be made under of the Loan Documents Borrower set forth in the Credit Agreement are true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty is true and correct in all respects) on and as of the Effective Date to the same extent as though made on and as of the Effective Date; provided, except that to the extent any such representations and warranties representation or warranty specifically relate refers to an earlier date, in which case such representations representation and warranties were warranty shall be true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty was true and correct in all respects) on and as of such earlier date; provided, further, that any representation or warranty that is qualified as to “materiality” or “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates, (ii) as of the Effective Date, after giving effect to the terms of this Amendment, there exists no Default or Event of Default under the Loan Agreement or any of the other Loan Documents; has occurred and is continuing, (iii) the Borrower has the corporate power and is duly authorized to enter into, deliver and perform this Amendment; Amendment and to incur the Indebtedness created hereunder and (iv) this Amendment is has been duly executed and delivered by the Borrower and constitutes a legal, valid and binding obligation of the Borrower Borrower, enforceable against the Borrower in accordance with its terms, except as may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or similar other laws relating to or limiting affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or by equitable principles relating to enforceabilityat law;
(b) acknowledges and agrees that (i) this Amendment does is not intended, and should not be construed, except as expressly set forth herein, as an amendment of, or any kind of waiver or consent related to, the Credit Agreement or the other Loan Documents, (ii) this Amendment shall not represent an amendment, consent, or waiver related to any future actions of the Borrower or any of its Subsidiaries and (iii) the Administrative Agent and each Lender reserves all of their respective rights pursuant to the Credit Agreement and the other Loan Documents;
(c) further acknowledges and agrees that the Administrative Agent’s and the Incremental Lenders’ agreement to consent to the specific matters addressed in this Amendment do not and shall not create (nor shall the Borrower or any of its Subsidiaries other Loan Party rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further consent, waiver or amendment with respect to any Loan Document and, in the event that the Agent or any Lender subsequently agrees to consider any further consent, waiver or amendment with respect to any Loan Document, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or such Lender’s consideration or decision with respect thereto, and neither the Agent nor any Lender shall have any further obligation whatsoever to consider or agree to any further consent, waiver or amendment with respect to any Loan Document; and (ii) except as expressly set forth in this Amendment, the Agent and each Lender reserves all of their respective rights pursuant to the Loan Agreement and all other Loan Documents;
(c) further acknowledges and agrees that the Agent’s and Lenders’ agreement to waive and amend the specific matters addressed in this Amendment, do not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Administrative Agent or any Lender to consider or agree to any further waivers, consents or amendments and, in the event that the Administrative Agent or any Lender subsequently agrees to consider any further waivers, consents or amendments, neither this Amendment nor any other conduct of the Administrative Agent or any Lender shall be of any force or effect on the Administrative Agent’s or any Lender’s consideration or decision with respect to any such requested consent;
(d) further acknowledges and agrees that this Amendment shall be deemed a Loan Document for all purposes under the Credit Agreement and the other Loan Documents; and
(e) further acknowledges and agrees that, after giving effect to this Amendment, no right of offset, recoupment, defense, counterclaim, claim, cause of action or objection in favor of the Borrower against the Administrative Agent or any Lender exists as of the Effective Date arising out of or with respect to (i) this Amendment, the Loan Credit Agreement or any other Loan Document, or (ii) any other documents now or heretofore evidencing, securing or in any way relating to the foregoing; and
(e) further acknowledges and agrees that this Amendment shall be deemed a Loan Document for all purposes under the Loan Agreement and the other Loan Documents.
Appears in 1 contract
Representations, Warranties, Covenants and Acknowledgments. To induce the Agent and Lenders to enter into this Amendment, the Agreement: Each Borrower hereby:
(a) represents and warrants Guarantor does hereby represent and warrant that (i) as of the Effective Datedate hereof, all of the representations and warranties made or deemed to be made under the Forbearance Agreement and the other Loan Documents are true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effectcorrect, in which case such representation or warranty is true and correct in all respects) on and as of the Effective Date to the same extent as though made on and as of the Effective Date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties were true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty was true and correct in all respects) on and as of such earlier date; (ii) as of the Effective Datedate hereof, after giving effect to the terms of this Amendmenthereof, there exists no (A) default or breach of the Forbearance Agreement or (B) Default or Event of Default under the Loan Agreement or any of the other Loan Documents; , other than any Default or Event of Default which may arise from the failure of Borrowers to pay, during the Forbearance Period, certain interest payments with respect to the Senior Notes (as defined below), (iii) the such Borrower and Guarantor has the corporate power and is duly authorized to enter into, deliver and perform this Amendment; Agreement, and (iv) this Amendment Agreement and each of the Forbearance Agreement and the other Loan Documents is the legal, valid and binding obligation of the such Borrower and Guarantor enforceable against the Borrower it in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability;
(b) acknowledges ; and agrees that (i) this Amendment Each Borrower and Guarantor does not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation hereby reaffirm each of the Agent or any Lender to consider or agree to any further consentagreements, waiver or amendment with respect to any Loan Document and, in the event that the Agent or any Lender subsequently agrees to consider any further consent, waiver or amendment with respect to any Loan Document, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or such Lender’s consideration or decision with respect theretocovenants, and neither the Agent nor any Lender shall have any further obligation whatsoever to consider or agree to any further consent, waiver or amendment with respect to any Loan Document; and (ii) except as expressly undertakings set forth in this Amendment, the Agent Forbearance Agreement and each Lender reserves all of their respective rights pursuant to the Loan Agreement and all every other Loan Documents;
(c) further acknowledges and agrees that the Agent’s and Lenders’ agreement to waive and amend the specific matters addressed Document executed in this Amendment, do not and shall not create (nor shall the connection therewith or pursuant thereto as if such Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further waiversGuarantor were making said agreements, consents or amendments and, in the event that the Agent or any Lender subsequently agrees to consider any further waivers, consents or amendments, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect covenants and undertakings on the Agent’s or any Lender’s consideration or decision with respect to any such requested consent;
(d) further acknowledges date hereof; and agrees Each Borrower and Guarantor does hereby acknowledge and agree that no right of offset, defense, counterclaim, claim, cause causes of action or objection in favor of the any Borrower or Guarantor against Agent or any Lender exists arising out of or with respect to (i) the Secured Obligations, this AmendmentAgreement, the Forbearance Agreement, the Loan Agreement or any of the other Loan DocumentDocuments, or (ii) any other documents now or heretofore evidencing, securing or in any way relating to the foregoingforegoing or (iii) the administration or funding of the Revolving Credit Loans; and
(e) further acknowledges and agrees Each Borrower and Guarantor does hereby acknowledge and agree that this Amendment shall be deemed a Loan Document for any and all purposes under references to the Loan Agreement herein or in the Forbearance Agreement shall mean and refer to the other Loan DocumentsAgreement, as amended by (i) that certain First Amendment to Post-Confirmation Loan and Security Agreement, dated August 31, 2000, (ii) that certain Second Amendment to Post-Confirmation Loan and Security Agreement, dated January 26, 2001, (iii) that certain Third Amendment to Post-Confirmation Loan and Security Agreement, dated February 28, 2001, (iv) that certain Fourth Amendment to Post-Confirmation Loan and Security Agreement, dated March 30, 2001, (v) that certain Fifth Amendment to Post-Confirmation Loan and Security Agreement, dated April 13, 2001, (vi) that certain Sixth Amendment to Post-Confirmation Loan and Security Agreement, dated April 27, 2001, (vii) that certain Seventh Amendment to Post-Confirmation Loan and Security Agreement, dated May 18, 2001, (viii) that certain Eighth Amendment to Post-Confirmation Loan and Security Agreement, dated June 4, 2001, (ix) that certain Ninth Amendment to Post-Confirmation Loan and Security Agreement, dated June 8, 2001, (x) that certain Tenth Amendment to Post-Confirmation Loan and Security Agreement, dated June 15, 2001, (xi) that certain Eleventh Amendment to Post-Confirmation Loan and Security Agreement, dated June 27, 2001, (xii) that certain Twelfth Amendment to Post-Confirmation Loan and Security Agreement, dated July 6, 2001, (xiii) that certain Thirteenth Amendment to Post-Confirmation Loan and Security Agreement, dated July 13, 2001, (xiv) that certain Fourteenth Amendment to Post-Confirmation Loan and Security Agreement, dated July 20, 2001, (xv) that certain Fifteenth Amendment to Post-Confirmation Loan and Security Agreement, dated July 27, 2001, (xvi) that certain Sixteenth Amendment to Post-Confirmation Loan and Security Agreement, dated August 3, 2001, (xvii) that certain Seventeenth Amendment to Post-Confirmation Loan and Security Agreement, dated August 10, 2001, (xviii) that certain Eighteenth Amendment to Post-Confirmation Loan and Security Agreement, dated August 17, 2001, (xix) that certain Nineteenth Amendment to Post-Confirmation Loan and Security Agreement, dated August 24, 2001, (xx) that certain Twentieth Amendment to Post-Confirmation Loan and Security Agreement, dated August 31, 2001, (xxi) that certain Twenty-first Amendment to Post-Confirmation Loan and Security Agreement, dated September 7, 2001, (xxii) that certain Twenty-second Amendment to Loan and Security Agreement, dated September 14, 2001, (xxiii) that certain Twenty-third Amendment to Loan and Security Agreement, dated September 21, 2001, (xxiv) that certain Twenty-fourth Amendment to Loan and Security Agreement, dated September 28, 2001, and (xxv).that certain Twenty-fifth Amendment to Loan and Security Agreement, as contained herein.
Appears in 1 contract
Sources: Forbearance Agreement and Loan and Security Agreement (Trism Inc /De/)
Representations, Warranties, Covenants and Acknowledgments. To induce the Agent and Lenders to enter into this Amendment, the Agreement: Each Borrower hereby:
(a) represents and warrants Guarantor does hereby represent and warrant that (i) as of the Effective Datedate hereof, all of the representations and warranties made or deemed to be made under the Forbearance Agreement and the other Loan Documents are true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effectcorrect, in which case such representation or warranty is true and correct in all respects) on and as of the Effective Date to the same extent as though made on and as of the Effective Date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties were true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty was true and correct in all respects) on and as of such earlier date; (ii) as of the Effective Datedate hereof, after giving effect to the terms of this Amendmenthereof, there exists no (A) default or breach of the Forbearance Agreement or (B) Default or Event of Default under the Loan Agreement or any of the other Loan Documents; , other than any Default or Event of Default which may arise from the failure of Borrowers to pay, during the Forbearance Period, certain interest payments with respect to the Senior Notes (as defined below), (iii) the such Borrower and Guarantor has the corporate power and is duly authorized to enter into, deliver and perform this Amendment; Agreement, and (iv) this Amendment Agreement and each of the Forbearance Agreement and the other Loan Documents is the legal, valid and binding obligation of the such Borrower and Guarantor enforceable against the Borrower it in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability;
(b) acknowledges ; and agrees that (i) this Amendment Each Borrower and Guarantor does not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation hereby reaffirm each of the Agent or any Lender to consider or agree to any further consentagreements, waiver or amendment with respect to any Loan Document and, in the event that the Agent or any Lender subsequently agrees to consider any further consent, waiver or amendment with respect to any Loan Document, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or such Lender’s consideration or decision with respect theretocovenants, and neither the Agent nor any Lender shall have any further obligation whatsoever to consider or agree to any further consent, waiver or amendment with respect to any Loan Document; and (ii) except as expressly undertakings set forth in this Amendment, the Agent Forbearance Agreement and each Lender reserves all of their respective rights pursuant to the Loan Agreement and all every other Loan Documents;
(c) further acknowledges and agrees that the Agent’s and Lenders’ agreement to waive and amend the specific matters addressed Document executed in this Amendment, do not and shall not create (nor shall the connection therewith or pursuant thereto as if such Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further waiversGuarantor were making said agreements, consents or amendments and, in the event that the Agent or any Lender subsequently agrees to consider any further waivers, consents or amendments, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect covenants and undertakings on the Agent’s or any Lender’s consideration or decision with respect to any such requested consent;
(d) further acknowledges date hereof; and agrees Each Borrower and Guarantor does hereby acknowledge and agree that no right of offset, defense, counterclaim, claim, cause causes of action or objection in favor of the any Borrower or Guarantor against Agent or any Lender exists arising out of or with respect to (i) the Secured Obligations, this AmendmentAgreement, the Forbearance Agreement, the Loan Agreement or any of the other Loan DocumentDocuments, or (ii) any other documents now or heretofore evidencing, securing or in any way relating to the foregoingforegoing or (iii) the administration or funding of the Revolving Credit Loans; and
(e) further acknowledges and agrees Each Borrower and Guarantor does hereby acknowledge and agree that this Amendment shall be deemed a Loan Document for any and all purposes under references to the Loan Agreement herein or in the Forbearance Agreement shall mean and refer to the other Loan DocumentsAgreement, as amended by (i) that certain First Amendment to Post-Confirmation Loan and Security Agreement, dated August 31, 2000, (ii) that certain Second Amendment to Post-Confirmation Loan and Security Agreement, dated January 26, 2001, (iii) that certain Third Amendment to Post-Confirmation Loan and Security Agreement, dated February 28, 2001, (iv) that certain Fourth Amendment to Post-Confirmation Loan and Security Agreement, dated March 30, 2001, (v) that certain Fifth Amendment to Post-Confirmation Loan and Security Agreement, dated April 13, 2001, (vi) that certain Sixth Amendment to Post-Confirmation Loan and Security Agreement, dated April 27, 2001, (vii) that certain Seventh Amendment to Post-Confirmation Loan and Security Agreement, dated May 18, 2001, (viii) that certain Eighth Amendment to Post-Confirmation Loan and Security Agreement, dated June 4, 2001, (ix) that certain Ninth Amendment to Post-Confirmation Loan and Security Agreement, dated June 8, 2001, (x) that certain Tenth Amendment to Post-Confirmation Loan and Security Agreement, dated June 15, 2001, (xi) that certain Eleventh Amendment to Post-Confirmation Loan and Security Agreement, dated June 27, 2001, (xii) that certain Twelfth Amendment to Post-Confirmation Loan and Security Agreement, dated July 6, 2001, (xiii) that certain Thirteenth Amendment to Post-Confirmation Loan and Security Agreement, dated July 13, 2001, (xiv) that certain Fourteenth Amendment to Post-Confirmation Loan and Security Agreement, dated July 20, 2001, (xv) that certain Fifteenth Amendment to Post-Confirmation Loan and Security Agreement, dated July 27, 2001, (xvi) that certain Sixteenth Amendment to Post-Confirmation Loan and Security Agreement, dated August 3, 2001, (xvii) that certain Seventeenth Amendment to Post-Confirmation Loan and Security Agreement, dated August 10, 2001, (xviii) that certain Eighteenth Amendment to Post-Confirmation Loan and Security Agreement, dated August 17, 2001, (xix) that certain Nineteenth Amendment to Post-Confirmation Loan and Security Agreement, dated August 24, 2001, and (xx) that certain Twentieth Amendment to Post-Confirmation Loan and Security Agreement, as contained herein.
Appears in 1 contract
Sources: Forbearance Agreement and Loan and Security Agreement (Trism Inc /De/)
Representations, Warranties, Covenants and Acknowledgments. To induce the Agent and Lenders to enter into this Amendment, the Agreement: Each Borrower hereby:
(a) represents and warrants Guarantor does hereby represent and warrant that (i) as of the Effective Datedate hereof, all of the representations and warranties made or deemed to be made under the Forbearance Agreement and the other Loan Documents are true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effectcorrect, in which case such representation or warranty is true and correct in all respects) on and as of the Effective Date to the same extent as though made on and as of the Effective Date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties were true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty was true and correct in all respects) on and as of such earlier date; (ii) as of the Effective Datedate hereof, after giving effect to the terms of this Amendmenthereof, there exists no (A) default or breach of the Forbearance Agreement or (B) Default or Event of Default under the Loan Agreement or any of the other Loan Documents; , other than any Default or Event of Default which may arise from the failure of Borrowers to pay, during the Forbearance Period, certain interest payments with respect to the Senior Notes (as defined below), (iii) the such Borrower and Guarantor has the corporate power and is duly authorized to enter into, deliver and perform this Amendment; Agreement, and (iv) this Amendment Agreement and each of the Forbearance Agreement and the other Loan Documents is the legal, valid and binding obligation of the such Borrower and Guarantor enforceable against the Borrower it in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability;
(b) acknowledges ; and agrees that (i) this Amendment Each Borrower and Guarantor does not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation hereby reaffirm each of the Agent or any Lender to consider or agree to any further consentagreements, waiver or amendment with respect to any Loan Document and, in the event that the Agent or any Lender subsequently agrees to consider any further consent, waiver or amendment with respect to any Loan Document, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or such Lender’s consideration or decision with respect theretocovenants, and neither the Agent nor any Lender shall have any further obligation whatsoever to consider or agree to any further consent, waiver or amendment with respect to any Loan Document; and (ii) except as expressly undertakings set forth in this Amendment, the Agent Forbearance Agreement and each Lender reserves all of their respective rights pursuant to the Loan Agreement and all every other Loan Documents;
(c) further acknowledges and agrees that the Agent’s and Lenders’ agreement to waive and amend the specific matters addressed Document executed in this Amendment, do not and shall not create (nor shall the connection therewith or pursuant thereto as if such Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further waiversGuarantor were making said agreements, consents or amendments and, in the event that the Agent or any Lender subsequently agrees to consider any further waivers, consents or amendments, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect covenants and undertakings on the Agent’s or any Lender’s consideration or decision with respect to any such requested consent;
(d) further acknowledges date hereof; and agrees Each Borrower and Guarantor does hereby acknowledge and agree that no right of offset, defense, counterclaim, claim, cause causes of action or objection in favor of the any Borrower or Guarantor against Agent or any Lender exists arising out of or with respect to (i) the Secured Obligations, this AmendmentAgreement, the Forbearance Agreement, the Loan Agreement or any of the other Loan DocumentDocuments, or (ii) any other documents now or heretofore evidencing, securing or in any way relating to the foregoingforegoing or (iii) the administration or funding of the Revolving Credit Loans; and
Each Borrower and Guarantor does hereby acknowledge and agree that any and all references to the Loan Agreement herein or in the Forbearance Agreement shall mean and refer to the Loan Agreement, as amended by (ei) further acknowledges that certain First Amendment to Post-Confirmation Loan and agrees Security Agreement, dated August 31, 2000, (ii) that certain Second Amendment to Post-Confirmation Loan and Security Agreement, dated January 26, 2001, (iii) that certain Third Amendment to Post-Confirmation Loan and Security Agreement, dated February 28, 2001, and (iv) that certain Fourth Amendment to Post-Confirmation Loan and Security Agreement, as contained herein; and Each of Borrowers and Guarantors hereby acknowledge and agree that no payment of any type or nature whatsoever will be made with respect to Borrowers' 12% Senior Subordinated Notes, due 2005 (collectively, the "Senior Notes"), during the Forbearance Period; and Each of Borrowers and Guarantors hereby acknowledge and agree that neither Agent nor any Lender shall have any obligation of any nature whatsoever (nor shall any Borrower or Guarantor claim any such obligation exists) to continue to provide financial accommodations to any Borrower or Guarantor other than in strict accordance with this Amendment shall be deemed a Loan Document for all purposes under the Forbearance Agreement, the Loan Agreement and the other Loan DocumentsDocuments (as modified herein) during the Forbearance Period.
Appears in 1 contract
Sources: Forbearance Agreement and Loan and Security Agreement (Trism Inc /De/)
Representations, Warranties, Covenants and Acknowledgments. To induce the Agent and the Lenders to enter into this Amendment, each Borrower and the Borrower Representative does hereby:
(a) represents represent and warrants that warrant that, after giving effect to this Amendment, (i) as of the Effective Datedate hereof, all of the representations and warranties made or deemed to be made under contained in the Loan Documents are true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty is true and correct in all respects) on and as of the Effective Date date hereof to the same extent as though made on and as of the Effective Datedate hereof, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties were shall have been true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty was true and correct in all respects) on and as of such earlier date; (ii) as of the Effective Datedate hereof, after giving effect to the terms of this Amendment, there exists no Default or Event of Default has occurred and is continuing under the Loan Credit Agreement or any of the other Loan DocumentsDocument; (iii) the Borrower such Person has the corporate power and is duly authorized to enter into, deliver and perform this Amendment; and (iv) this Amendment is the legal, valid and binding obligation of the Borrower such Person enforceable against the Borrower such Person in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability;; and (v) the execution, delivery and performance of this Amendment does not conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any material Contractual Obligation of any such Person; and
(b) acknowledges reaffirm each of the agreements, covenants and agrees undertakings set forth in the Credit Agreement and each and every other Loan Document executed in connection therewith or pursuant thereto, in each case, as amended by the terms of this Amendment; and
(c) acknowledge and agree that, after giving effect to this Amendment, no right of offset, defense, recoupment, counterclaim, claim, causes of action or objection in favor of such Person against the Agent or any Lender exists as of the date hereof arising out of or with respect to (i) this Amendment, the Credit Agreement or any of the other Loan Documents or (ii) any other documents now or heretofore evidencing, securing or in any way relating to the foregoing; and
(d) further acknowledge and agree that (i) except as expressly set forth herein, this Amendment does is not intended, and should not be construed, as an amendment of, or any kind of waiver or consent related to, the Credit Agreement or the other Loan Documents; (ii) this Amendment shall not represent an amendment, consent or waiver related to any future actions of any Borrower, the Borrower Representative or the Master Property Manager; (iii) except as expressly set forth herein, the Agent and each Lender reserves all of their respective rights pursuant to the Credit 53570.000371 EMF_US 50222592v6 Agreement and all other Loan Documents; and (iv) the amendments contained herein do not and shall not create (nor shall any Borrower or the Borrower or any of its Subsidiaries Representative rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender the Lenders to consider or agree to any further consentfuture waiver, waiver consent or amendment with respect to any Loan Document and, in the event that the Agent or any Lender the Lenders subsequently agrees agree to consider any further consent, waiver or amendment with respect to any Loan Document, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or such Lender’s consideration or decision with respect thereto, and neither the Agent nor any Lender shall have any further obligation whatsoever to consider or agree to any further consent, waiver or amendment with respect to any Loan Document; and (ii) except as expressly set forth in this Amendment, the Agent and each Lender reserves all of their respective rights pursuant to the Loan Agreement and all other Loan Documents;
(c) further acknowledges and agrees that the Agent’s and Lenders’ agreement to waive and amend the specific matters addressed in this Amendment, do not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further waivers, consents or amendments and, in the event that the Agent or any Lender subsequently agrees to consider any further future waivers, consents or amendments, neither this Amendment the amendments contained herein nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or any Lender’s consideration or decision with respect to any such requested consent;
(d) further acknowledges waiver, consent or amendment and agrees that no right of offset, defense, counterclaim, claim, cause of action or objection in favor of neither the Borrower against Agent nor any Lender exists arising out of shall have any further obligation whatsoever to consider or with respect agree to (i) this Amendmentfuture amendment, the Loan Agreement waiver, consent or any other Loan Documentagreement, or (ii) any other documents now or heretofore evidencing, securing or in any way relating to the foregoing; and
(e) further acknowledges acknowledge and agrees agree that this Amendment shall be deemed a Loan Document for all purposes under the Loan Agreement and the other Loan Documentspurposes.
Appears in 1 contract
Sources: Revolving Credit Agreement (Silver Bay Realty Trust Corp.)
Representations, Warranties, Covenants and Acknowledgments. To induce the Agent and Lenders to enter into this Amendment, the Borrower hereby:
(a) hereby represents and warrants that (i) as to the Administrative Agent, for the benefit of the Effective DateSecured Parties, all and covenants and agrees with the Administrative Agent, for the benefit of the representations and warranties made or deemed to be made Secured Parties, as follows:
a. Except for the rights of the Administrative Agent under the Loan Documents are true Documents, that Borrower is the sole legal and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty is true equitable owner and correct in all respects) on and as holder of the Effective Date Commitments, the Contributions, the Collateral and the right to the same extent as though made on make Demand Notices and as of the Effective Date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties were true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty was true and correct in all respects) on and as of such earlier date; (ii) as of the Effective Date, after giving effect to the terms of this Amendment, there exists no Default or Event of Default under the Loan Agreement or any of the other Loan Documents; (iii) the Borrower has the corporate power authority to execute this Security Agreement, and is duly authorized to enter into, deliver and perform this Amendment; and (iv) this Amendment is Security Agreement constitutes the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its termsthe terms hereof, subject to Debtor Relief Laws and to general principles of equity;
b. [Reserved];
c. That, except as may for Permitted Liens, Borrower has not heretofore transferred, assigned, pledged, hypothecated or granted any security interest in all or any portion of the Collateral to any party other than the Administrative Agent or another party under the Loan Documents; that it has the full right and power to make the transfer, pledge and assignment and grant the security interests granted hereby; that, to the extent required by the Constituent Documents, all of Borrower’s Investors have been or will be limited by bankruptcynotified of, insolvencyand approved and consented to, reorganizationthe transfer, moratorium or similar laws relating pledge and assignment contained herein; and that this Security Agreement is effective to or limiting creditors’ rights generally or by equitable principles relating to enforceabilityaccomplish the transfer, pledge and assignment and grant of the security interests granted hereby;
d. That Borrower has received direct or indirect benefit from the loans evidenced by the Credit Agreement; and that the grant of the security interest in the Collateral hereunder was a condition to the granting of such loans;
e. That Borrower shall, at its sole cost and expense, execute and deliver any financing statements or other documents which the Administrative Agent reasonably requests to protect or perfect the assignment, pledge, transfer and grant of the security interest made herein;
f. Neither the Administrative Agent nor any Secured Party shall be responsible in any way for any depreciation in the value of the Collateral nor have any duty or responsibility whatsoever to take any steps to preserve any rights of Borrower in the Collateral or under the Constituent Documents, in each case except as a result of its own gross negligence or willful misconduct;
g. That except as provided in the Credit Agreement, Borrower shall not sell, mortgage, hypothecate, assign or otherwise transfer its interest in the Collateral, or any portion thereof or interest therein;
h. Upon the occurrence and during the continuance of an Event of Default, but subject to Section 10.2 of the Credit Agreement, that the Administrative Agent, on behalf of the Secured Parties, for purposes of repaying the Secured Obligations then due and owing, is authorized and empowered in the name of Borrower to make one or more Demand Notices (b) acknowledges to the extent of the Unused Commitments of Borrower’s Investors and agrees that the other applicable limitations in the Constituent Documents, and any applicable Side Letters and Subscription Agreements), without the necessity of any further action by Borrower; and
i. That Borrower shall not (directly or indirectly): (i) this Amendment does not and shall not create (nor shall the Borrower or issue any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further consent, waiver or amendment with respect to any Loan Document and, Demand Notices other than as contemplated in the event that the Agent or any Lender subsequently agrees to consider any further consent, waiver or amendment with respect to any Loan Document, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or such Lender’s consideration or decision with respect thereto, and neither the Agent nor any Lender shall have any further obligation whatsoever to consider or agree to any further consent, waiver or amendment with respect to any Loan DocumentCredit Agreement; and (ii) except suspend, reduce, ▇▇▇▇▇, cancel, assume, withdraw, defer or terminate the Commitment of any Investor under the Constituent Documents, and any applicable Side Letters or Subscription Agreements of Borrower other than as expressly set forth provided in this Amendment, the Agent and each Lender reserves all of their respective rights Credit Agreement; or (iii) excuse any Investor from making any Contribution pursuant to the Loan Agreement Constituent Documents, and all any applicable Side Letters or Subscription Agreements of Borrower if the proceeds from the related Demand Notice are to be applied to the Secured Obligations other Loan Documents;
(c) further acknowledges and agrees that the Agent’s and Lenders’ agreement to waive and amend the specific matters addressed in this Amendment, do not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further waivers, consents or amendments and, than as contemplated in the event that the Agent or any Lender subsequently agrees to consider any further waivers, consents or amendments, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or any Lender’s consideration or decision with respect to any such requested consent;
(d) further acknowledges and agrees that no right of offset, defense, counterclaim, claim, cause of action or objection in favor of the Borrower against any Lender exists arising out of or with respect to (i) this Amendment, the Loan Agreement or any other Loan Document, or (ii) any other documents now or heretofore evidencing, securing or in any way relating to the foregoing; and
(e) further acknowledges and agrees that this Amendment shall be deemed a Loan Document for all purposes under the Loan Agreement and the other Loan DocumentsCredit Agreement.
Appears in 1 contract
Sources: Revolving Credit Agreement (Blackstone / GSO Secured Lending Fund)
Representations, Warranties, Covenants and Acknowledgments. To induce the Agent and Lenders to enter into this Amendment, the Agreement: Each Borrower hereby:
(a) represents and warrants Guarantor does hereby represent and warrant that (i) as of the Effective Datedate hereof, all of the representations and warranties made or deemed to be made under the Forbearance Agreement and the other Loan Documents are true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effectcorrect, in which case such representation or warranty is true and correct in all respects) on and as of the Effective Date to the same extent as though made on and as of the Effective Date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties were true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty was true and correct in all respects) on and as of such earlier date; (ii) as of the Effective Datedate hereof, after giving effect to the terms of this Amendmenthereof, there exists no (A) default or breach of the Forbearance Agreement or (B) Default or Event of Default under the Loan Agreement or any of the other Loan Documents; , other than any Default or Event of Default which may arise from the failure of Borrowers to pay, during the Forbearance Period, certain interest payments with respect to the Senior Notes (as defined below), (iii) the such Borrower and Guarantor has the corporate power and is duly authorized to enter into, deliver and perform this Amendment; Agreement, and (iv) this Amendment Agreement and each of the Forbearance Agreement and the other Loan Documents is the legal, valid and binding obligation of the such Borrower and Guarantor enforceable against the Borrower it in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability;
(b) acknowledges ; and agrees that (i) this Amendment Each Borrower and Guarantor does not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation hereby reaffirm each of the Agent or any Lender to consider or agree to any further consentagreements, waiver or amendment with respect to any Loan Document and, in the event that the Agent or any Lender subsequently agrees to consider any further consent, waiver or amendment with respect to any Loan Document, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or such Lender’s consideration or decision with respect theretocovenants, and neither the Agent nor any Lender shall have any further obligation whatsoever to consider or agree to any further consent, waiver or amendment with respect to any Loan Document; and (ii) except as expressly undertakings set forth in this Amendment, the Agent Forbearance Agreement and each Lender reserves all of their respective rights pursuant to the Loan Agreement and all every other Loan Documents;
(c) further acknowledges and agrees that the Agent’s and Lenders’ agreement to waive and amend the specific matters addressed Document executed in this Amendment, do not and shall not create (nor shall the connection therewith or pursuant thereto as if such Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further waiversGuarantor were making said agreements, consents or amendments and, in the event that the Agent or any Lender subsequently agrees to consider any further waivers, consents or amendments, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect covenants and undertakings on the Agent’s or any Lender’s consideration or decision with respect to any such requested consent;
(d) further acknowledges date hereof; and agrees Each Borrower and Guarantor does hereby acknowledge and agree that no right of offset, defense, counterclaim, claim, cause causes of action or objection in favor of the any Borrower or Guarantor against Agent or any Lender exists arising out of or with respect to (i) the Secured Obligations, this AmendmentAgreement, the Forbearance Agreement, the Loan Agreement or any of the other Loan DocumentDocuments, or (ii) any other documents now or heretofore evidencing, securing or in any way relating to the foregoingforegoing or (iii) the administration or funding of the Revolving Credit Loans; and
(e) further acknowledges and agrees Each Borrower and Guarantor does hereby acknowledge and agree that this Amendment shall be deemed a Loan Document for any and all purposes under references to the Loan Agreement herein or in the Forbearance Agreement shall mean and refer to the other Loan DocumentsAgreement, as amended by (i) that certain First Amendment to Post-Confirmation Loan and Security Agreement, dated August 31, 2000, (ii) that certain Second Amendment to Post-Confirmation Loan and Security Agreement, dated January 26, 2001, (iii) that certain Third Amendment to Post-Confirmation Loan and Security Agreement, dated February 28, 2001, (iv) that certain Fourth Amendment to Post-Confirmation Loan and Security Agreement, dated March 30, 2001, (v) that certain Fifth Amendment to Post-Confirmation Loan and Security Agreement, dated April 13, 2001, (vi) that certain Sixth Amendment to Post-Confirmation Loan and Security Agreement, dated April 27, 2001, (vii) that certain Seventh Amendment to Post-Confirmation Loan and Security Agreement, dated May 18, 2001, (viii) that certain Eighth Amendment to Post-Confirmation Loan and Security Agreement, dated June 4, 2001, (ix) that certain Ninth Amendment to Post-Confirmation Loan and Security Agreement, dated June 8, 2001, (x) that certain Tenth Amendment to Post-Confirmation Loan and Security Agreement, dated June 15, 2001, (xi) that certain Eleventh Amendment to Post-Confirmation Loan and Security Agreement, dated June 27, 2001, (xii) that certain Twelfth Amendment to Post-Confirmation Loan and Security Agreement, dated July 6, 2001, (xiii) that certain Thirteenth Amendment to Post-Confirmation Loan and Security Agreement, dated July 13, 2001, (xiv) that certain Fourteenth Amendment to Post-Confirmation Loan and Security Agreement, dated July 20, 2001, and (xv) that certain Fifteenth Amendment to Post-Confirmation Loan and Security Agreement, as contained herein.
Appears in 1 contract
Sources: Forbearance Agreement and Loan and Security Agreement (Trism Inc /De/)
Representations, Warranties, Covenants and Acknowledgments. To induce the Administrative Agent and the Lenders to enter into this Amendment, the each Borrower hereby:
(a) represents and warrants that (i) as the execution and delivery of the Effective Datethis Amendment is within its limited liability company powers and has been duly authorized by all necessary limited liability company actions and, all of the representations if required, actions by equity holders and warranties made or deemed to be made under the Loan Documents are true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty is true and correct in all respects) on and as of the Effective Date to the same extent as though made on and as of the Effective Date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties were true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty was true and correct in all respects) on and as of such earlier date; (ii) as of the Effective Date, after giving effect to the terms of this Amendment, there exists no Default or Event of Default under the Loan Agreement or any of the other Loan Documents; (iii) the Borrower has the corporate power and is duly authorized to enter into, deliver and perform this Amendment; and (iv) this Amendment is the has been duly executed and delivered by it and constitutes a legal, valid and binding obligation of the Borrower each Borrower, enforceable against the Borrower in accordance with its terms, except as may be limited by bankruptcysubject to applicable Debtor Relief Laws and subject to general principles of equity, insolvency, reorganization, moratorium regardless of whether considered in a proceeding in equity or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceabilityat law;
(b) acknowledges and agrees that (i) this Amendment does is not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further consent, waiver or amendment with respect to any Loan Document and, in the event that the Agent or any Lender subsequently agrees to consider any further consent, waiver or amendment with respect to any Loan Document, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or such Lender’s consideration or decision with respect theretointended, and neither the Agent nor any Lender shall have any further obligation whatsoever to consider or agree to any further consentshould not be construed, waiver or amendment with respect to any Loan Document; and (ii) except as expressly set forth in this Amendmentherein, as an amendment of, or any kind of waiver or consent related to, the Credit Agreement, the PIA or the other Loan Documents, (ii) this Amendment shall not represent an amendment, consent, or waiver related to any future actions of any Borrower, any other Loan Party or any Subsidiary and (iii) the Administrative Agent and each Lender reserves all of their respective rights pursuant to the Loan Agreement Credit Agreement, the PIA and all the other Loan Documents;
(c) further acknowledges and agrees that the Agent’s and Lenders’ agreement to waive and amend the specific matters addressed in this Amendment, do not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further waivers, consents or amendments and, in the event that the Agent or any Lender subsequently agrees to consider any further waivers, consents or amendments, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or any Lender’s consideration or decision with respect to any such requested consent;
(d) further acknowledges and agrees that no right of offset, defense, counterclaim, claim, cause of action or objection in favor of the Borrower against any Lender exists arising out of or with respect to (i) this Amendment, the Loan Agreement or any other Loan Document, or (ii) any other documents now or heretofore evidencing, securing or in any way relating to the foregoing; and
(e) further acknowledges and agrees that this Amendment shall be deemed a Loan Document for all purposes under the Loan Credit Agreement and the other Loan Documents; and
(d) further acknowledges and agrees that no right of offset, recoupment, defense, counterclaim, claim, cause of action or objection in favor of any Borrower or any other Loan Party against the Administrative Agent or any Lender exists as of the Effective Date arising out of or with respect to this Amendment, the Credit Agreement or any other Loan Document.
Appears in 1 contract
Representations, Warranties, Covenants and Acknowledgments. To induce the Administrative Agent and the Lenders to enter into this AmendmentAmendment and Waiver, the each Borrower hereby:
(a) represents and warrants that (i) as of the Seventh Amendment Effective Date, all of after giving effect to this Amendment and Waiver, the representations and warranties made or deemed to be made under of such Borrower set forth in the Credit Agreement and the other Loan Documents (after giving effect to the waiver of the Specified Events of Default) are true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty is true and correct in all respects) on and as of the Effective Date to the same extent as though made on and as of the Seventh Amendment Effective Date; provided, except that to the extent any such representations and warranties representation or warranty specifically relate refers to an earlier date, in which case such representations representation and warranties were warranty was true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty was true and correct in all respects) on and as of such earlier date; provided, further, that any representation or warranty that is qualified as to “materiality” or “Material Adverse Effect” or similar language was true and correct (after giving effect to any qualification therein) in all respects on such respective dates, (ii) as of the Seventh Amendment Effective Date, after giving effect to the terms of this AmendmentAmendment and Waiver, there exists no Default or Event of Default under the Loan Agreement or any of the other Loan Documents; has occurred and is continuing, (iii) the Borrower execution and delivery of this Amendment and Waiver is within each Borrower’s organizational powers and has the corporate power and is been duly authorized to enter intoby all necessary organizational actions and, deliver and perform this Amendment; if required, actions by equity holders and (iv) this Amendment is the and Waiver has been duly executed and delivered by such Borrower and constitutes a legal, valid and binding obligation of the Borrower such Borrower, enforceable against the Borrower in accordance with its terms, except as may be limited by bankruptcysubject to applicable Debtor Relief Laws and subject to general principles of equity, insolvency, reorganization, moratorium regardless of whether considered in a proceeding in equity or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceabilityat law;
(b) acknowledges and agrees that (i) this Amendment does and Waiver is not intended, and should not be construed, except as expressly set forth herein, as an amendment of, or any kind of waiver or consent related to, the Credit Agreement or the other Loan Documents, (ii) except as expressly set forth in this Amendment and Waiver, this Amendment and Waiver shall not represent a consent or waiver related to any future actions of any Borrower or any Subsidiary and (iii) except as expressly set forth in this Amendment and Waiver, the Administrative Agent and each Lender reserves all of their respective rights pursuant to the Credit Agreement and the other Loan Documents;
(c) further acknowledges and agrees that the Administrative Agent’s and the Lenders’ agreement to waive the specific matters addressed in this Amendment and Waiver, do not and shall not create (nor shall the any Borrower or any of its Subsidiaries Subsidiary rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further consent, waiver or amendment with respect to any Loan Document and, in the event that the Agent or any Lender subsequently agrees to consider any further consent, waiver or amendment with respect to any Loan Document, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or such Lender’s consideration or decision with respect thereto, and neither the Agent nor any Lender shall have any further obligation whatsoever to consider or agree to any further consent, waiver or amendment with respect to any Loan Document; and (ii) except as expressly set forth in this Amendment, the Agent and each Lender reserves all of their respective rights pursuant to the Loan Agreement and all other Loan Documents;
(c) further acknowledges and agrees that the Agent’s and Lenders’ agreement to waive and amend the specific matters addressed in this Amendment, do not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Administrative Agent or any Lender to consider or agree to any further waivers, consents or amendments and, in the event that the Administrative Agent or any Lender subsequently agrees to consider any further waivers, consents or amendments, neither this Amendment and Waiver nor any other conduct of the Administrative Agent or any Lender shall be of any force or effect on the Administrative Agent’s or any Lender’s consideration or decision with respect to any such requested consentwaiver, consent or amendment;
(d) further acknowledges and agrees that this Amendment and Waiver shall be deemed a Loan Document for all purposes under the Credit Agreement and the other Loan Documents;
(i) further acknowledges and agrees that, after giving effect to this Amendment and Waiver, no right of offset, recoupment, defense, counterclaim, claim, cause of action or objection in favor of the any Borrower against the Administrative Agent or any Lender exists as of the Seventh Amendment Effective Date arising out of or with respect to (i) this AmendmentAmendment and Waiver, the Loan Credit Agreement or any other Loan Document, or Document and (ii) expressly waives any setoff, counterclaim, recoupment, defense or other documents now right that such Loan Party has against the Administrative Agent as of the Seventh Amendment Effective Date, any Lender or heretofore evidencingany of their respective affiliates, securing or whether in any way relating to the foregoing; and
(e) further acknowledges and agrees that connection with this Amendment shall be deemed a Loan Document for all purposes under and Waiver, the Loan Credit Agreement and the other Loan Documents, the transactions contemplated by this Amendment and Waiver or the Credit Agreement and the Loan Documents, or any agreement or instrument relating thereto;
(f) each of the Borrower and the other Loan Parties hereby jointly and severally agrees, on demand, to reimburse the Administrative Agent and the Lenders, to the extent required under Section 9.03 of the Credit Agreement, for all reasonable and documented out-of-pocket costs and expenses of the Administrative Agent and the Lenders related to or in connection with this Amendment and Waiver and any documents, agreements or instruments referred to herein, including, without limitation, the reasonable fees and documented out-of-pocket expenses of FTI Consulting Inc. and Freshfields Bruckhaus ▇▇▇▇▇▇▇▇ US LLP, and any consultants, attorneys or other professionals retained by the Administrative Agent and/or the Lenders in connection with the Loan Documents, including without limitation, in connection with the negotiation and preparation of this Amendment and Waiver, the enforcement of their rights and remedies under this Amendment and Waiver, whether or not incurred prior to the date of this Amendment and Waiver. All such fees, costs and expenses shall constitute Secured Obligations under the Credit Agreement secured by the Collateral under the Collateral Documents. Nothing in this Amendment and Waiver shall be intended or construed to hold the Administrative Agent, the Lenders or any other Secured Party liable or responsible for any expense, liability or obligation of any kind or nature whatsoever (including, without limitation, attorneys’ fees and expenses, other professionals’ fees and expenses, wages, salaries, payroll taxes, withholdings, benefits or other amounts payable by or on behalf of the Loan Parties);
(g) as of the date hereof, all Liens, security interests, assignments and pledges encumbering the Collateral, created pursuant to and/or referred to in the Credit Agreement or the other Loan Documents, are valid, enforceable, duly perfected to the extent required by such documents, non-avoidable, first priority liens, security interests, assignments and pledges (subject to Liens permitted by Section 6.02 of the Credit Agreement), continue unimpaired, are in full force and effect and secure and shall continue to secure all of the obligations purported to be secured in the respective Loan Documents pursuant to which such Liens were granted; and
(h) Notwithstanding anything to the contrary of the Credit Agreement or this Amendment and Waiver, it shall be an Event of Default under clause (g) of Article VII of the Credit Agreement upon the receipt by the Partnership of any notice issued pursuant to Section 6.01(e) of the High Yield Note Indenture.
Appears in 1 contract
Representations, Warranties, Covenants and Acknowledgments. To induce the Agent and Lenders to enter into this Amendment, the Agreement: Each Borrower hereby:
(a) represents and warrants Guarantor does hereby represent and warrant that (i) as of the Effective Datedate hereof, all of the representations and warranties made or deemed to be made under the Forbearance Agreement and the other Loan Documents are true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effectcorrect, in which case such representation or warranty is true and correct in all respects) on and as of the Effective Date to the same extent as though made on and as of the Effective Date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties were true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty was true and correct in all respects) on and as of such earlier date; (ii) as of the Effective Datedate hereof, after giving effect to the terms of this Amendmenthereof, there exists no (A) default or breach of the Forbearance Agreement or (B) Default or Event of Default under the Loan Agreement or any of the other Loan Documents; , other than any Default or Event of Default which may arise from the failure of Borrowers to pay, during the Forbearance Period, certain interest payments with respect to the Senior Notes (as defined below), (iii) the such Borrower and Guarantor has the corporate power and is duly authorized to enter into, deliver and perform this Amendment; Agreement, and (iv) this Amendment Agreement and each of the Forbearance Agreement and the other Loan Documents is the legal, valid and binding obligation of the such Borrower and Guarantor enforceable against the Borrower it in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability;
(b) acknowledges ; and agrees that (i) this Amendment Each Borrower and Guarantor does not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation hereby reaffirm each of the Agent or any Lender to consider or agree to any further consentagreements, waiver or amendment with respect to any Loan Document and, in the event that the Agent or any Lender subsequently agrees to consider any further consent, waiver or amendment with respect to any Loan Document, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or such Lender’s consideration or decision with respect theretocovenants, and neither the Agent nor any Lender shall have any further obligation whatsoever to consider or agree to any further consent, waiver or amendment with respect to any Loan Document; and (ii) except as expressly undertakings set forth in this Amendment, the Agent Forbearance Agreement and each Lender reserves all of their respective rights pursuant to the Loan Agreement and all every other Loan Documents;
(c) further acknowledges and agrees that the Agent’s and Lenders’ agreement to waive and amend the specific matters addressed Document executed in this Amendment, do not and shall not create (nor shall the connection therewith or pursuant thereto as if such Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further waiversGuarantor were making said agreements, consents or amendments and, in the event that the Agent or any Lender subsequently agrees to consider any further waivers, consents or amendments, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect covenants and undertakings on the Agent’s or any Lender’s consideration or decision with respect to any such requested consent;
(d) further acknowledges date hereof; and agrees Each Borrower and Guarantor does hereby acknowledge and agree that no right of offset, defense, counterclaim, claim, cause causes of action or objection in favor of the any Borrower or Guarantor against Agent or any Lender exists arising out of or with respect to (i) the Secured Obligations, this AmendmentAgreement, the Forbearance Agreement, the Loan Agreement or any of the other Loan DocumentDocuments, or (ii) any other documents now or heretofore evidencing, securing or in any way relating to the foregoingforegoing or (iii) the administration or funding of the Revolving Credit Loans; and
(e) further acknowledges and agrees Each Borrower and Guarantor does hereby acknowledge and agree that this Amendment shall be deemed a Loan Document for any and all purposes under references to the Loan Agreement herein or in the Forbearance Agreement shall mean and refer to the other Loan DocumentsAgreement, as amended by (i) that certain First Amendment to Post-Confirmation Loan and Security Agreement, dated August 31, 2000, (ii) that certain Second Amendment to Post-Confirmation Loan and Security Agreement, dated January 26, 2001, (iii) that certain Third Amendment to Post-Confirmation Loan and Security Agreement, dated February 28, 2001, (iv) that certain Fourth Amendment to Post-Confirmation Loan and Security Agreement, dated March 30, 2001, (v) that certain Fifth Amendment to Post-Confirmation Loan and Security Agreement, dated April 13, 2001, (vi) that certain Sixth Amendment to Post-Confirmation Loan and Security Agreement, dated April 27, 2001, (vii) that certain Seventh Amendment to Post-Confirmation Loan and Security Agreement, dated May 18, 2001, (viii) that certain Eighth Amendment to Post-Confirmation Loan and Security Agreement, dated June 4, 2001, (ix) that certain Ninth Amendment to Post-Confirmation Loan and Security Agreement, dated June 8, 2001, (x) that certain Tenth Amendment to Post-Confirmation Loan and Security Agreement, dated June 15, 2001, (xi) that certain Eleventh Amendment to Post-Confirmation Loan and Security Agreement, dated June 27, 2001, (xii) that certain Twelfth Amendment to Post-Confirmation Loan and Security Agreement, dated July 6, 2001, (xiii) that certain Thirteenth Amendment to Post-Confirmation Loan and Security Agreement, dated July 13, 2001, (xiv) that certain Fourteenth Amendment to Post-Confirmation Loan and Security Agreement, dated July 20, 2001, (xv) that certain Fifteenth Amendment to Post-Confirmation Loan and Security Agreement, dated July 27, 2001, (xvi) that certain Sixteenth Amendment to Post-Confirmation Loan and Security Agreement, dated August 3, 2001, (xvii) that certain Seventeenth Amendment to Post-Confirmation Loan and Security Agreement, dated August 10, 2001, (xviii) that certain Eighteenth Amendment to Post-Confirmation Loan and Security Agreement, dated August 17, 2001, (xix) that certain Nineteenth Amendment to Post-Confirmation Loan and Security Agreement, dated August 24, 2001, (xx) that certain Twentieth Amendment to Post-Confirmation Loan and Security Agreement, dated August 31, 2001, (xxi) that certain Twenty-first Amendment to Post-Confirmation Loan and Security Agreement, dated September 7, 2001, and (xxii) that certain Twenty-second Amendment to Loan and Security Agreement, as contained herein.
Appears in 1 contract
Sources: Forbearance Agreement and Loan and Security Agreement (Trism Inc /De/)
Representations, Warranties, Covenants and Acknowledgments. Release. To induce the Agent and Lenders Lender to enter into this Amendment, the Borrower hereby:
(a) represents Borrower does hereby represent and warrants warrant that (i) as of the Effective Datedate hereof, all of the representations and warranties made or deemed to be made under the Loan Documents are true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty is true and correct in all respects) on and as of the Effective Date to the same extent as though made on and as of the Effective Datecorrect, except to the extent such representations and warranties specifically relate which, by their express terms, are applicable only to an earlier datethe Closing Date, in which case such representations and warranties were true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty was true and correct in all respects) on and as of such earlier date; (ii) as of the Effective Datedate hereof, after giving effect to the terms of this Amendmenthereof, there exists no Default or Event of Default under the Loan Agreement or any of the other Loan Documents; , (iii) the Borrower has the corporate power and is duly authorized to enter into, deliver and perform this Amendment; , and (iv) this Amendment and each of the Loan Documents is the legal, valid and binding obligation of the Borrower enforceable against the Borrower it in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability;; and
(b) acknowledges and agrees that (i) this Amendment Borrower does not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation hereby reaffirm each of the Agent or any Lender to consider or agree to any further consentagreements, waiver or amendment with respect to any Loan Document and, in the event that the Agent or any Lender subsequently agrees to consider any further consent, waiver or amendment with respect to any Loan Document, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or such Lender’s consideration or decision with respect theretocovenants, and neither the Agent nor any Lender shall have any further obligation whatsoever to consider or agree to any further consent, waiver or amendment with respect to any Loan Document; and (ii) except as expressly undertakings set forth in this Amendment, the Agent and each Lender reserves all of their respective rights pursuant to the Loan Agreement and all each and every other Loan Documents;Document executed in connection therewith or pursuant thereto as if Borrower were making said agreements, covenants and undertakings on the date hereof; and
(c) further acknowledges Borrower does hereby acknowledge and agrees that the Agent’s and Lenders’ agreement to waive and amend the specific matters addressed in this Amendment, do not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further waivers, consents or amendments and, in the event that the Agent or any Lender subsequently agrees to consider any further waivers, consents or amendments, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or any Lender’s consideration or decision with respect to any such requested consent;
(d) further acknowledges and agrees that no right of offset, defense, counterclaim, claim, cause causes of action or objection in favor of the Borrower against any Lender exists arising out of or with respect to to: (i) the Obligations, this Amendment, the Loan Agreement or any of the other Loan DocumentDocuments, or (ii) any other documents now or heretofore evidencing, securing or in any way relating to the foregoingforegoing or (iii) the administration or funding of the Credit Loans; and
(ed) further acknowledges Borrower does hereby expressly waive, release and agrees that this Amendment shall be deemed a Loan Document for relinquish any and all purposes under the Loan Agreement and the other Loan Documentsdefenses, setoffs, claims, counterclaims, causes of action or objections, if any, against Lender.
Appears in 1 contract
Sources: Loan Agreement (Bti Telecom Corp)
Representations, Warranties, Covenants and Acknowledgments. To induce the Agent and Lenders to enter into this Amendment, the Agreement: Each Borrower hereby:
(a) represents and warrants Guarantor does hereby represent and warrant that (i) as of the Effective Datedate hereof, all of the representations and warranties made or deemed to be made under the Forbearance Agreement and the other Loan Documents are true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effectcorrect, in which case such representation or warranty is true and correct in all respects) on and as of the Effective Date to the same extent as though made on and as of the Effective Date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties were true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty was true and correct in all respects) on and as of such earlier date; (ii) as of the Effective Datedate hereof, after giving effect to the terms of this Amendmenthereof, there exists no (A) default or breach of the Forbearance Agreement or (B) Default or Event of Default under the Loan Agreement or any of the other Loan Documents; , (iii) the such Borrower and Guarantor has the corporate power and is duly authorized to enter into, deliver and perform this Amendment; Agreement, and (iv) this Amendment Agreement and each of the Forbearance Agreement and the other Loan Documents is the legal, valid and binding obligation of the such Borrower and Guarantor enforceable against the Borrower it in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability;
(b) acknowledges ; and agrees that (i) this Amendment Each Borrower and Guarantor does not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation hereby reaffirm each of the Agent or any Lender to consider or agree to any further consentagreements, waiver or amendment with respect to any Loan Document and, in the event that the Agent or any Lender subsequently agrees to consider any further consent, waiver or amendment with respect to any Loan Document, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or such Lender’s consideration or decision with respect theretocovenants, and neither the Agent nor any Lender shall have any further obligation whatsoever to consider or agree to any further consent, waiver or amendment with respect to any Loan Document; and (ii) except as expressly undertakings set forth in this Amendment, the Agent Forbearance Agreement and each Lender reserves all of their respective rights pursuant to the Loan Agreement and all every other Loan Documents;
(c) further acknowledges and agrees that the Agent’s and Lenders’ agreement to waive and amend the specific matters addressed Document executed in this Amendment, do not and shall not create (nor shall the connection therewith or pursuant thereto as if such Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further waiversGuarantor were making said agreements, consents or amendments and, in the event that the Agent or any Lender subsequently agrees to consider any further waivers, consents or amendments, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect covenants and undertakings on the Agent’s or any Lender’s consideration or decision with respect to any such requested consent;
(d) further acknowledges date hereof; and agrees Each Borrower and Guarantor does hereby acknowledge and agree that no right of offset, defense, counterclaim, claim, cause causes of action or objection in favor of the any Borrower or Guarantor against Agent or any Lender exists arising out of or with respect to (i) the Secured Obligations, this AmendmentAgreement, the Forbearance Agreement, the Loan Agreement or any of the other Loan DocumentDocuments, or (ii) any other documents now or heretofore evidencing, securing or in any way relating to the foregoingforegoing or (iii) the administration or funding of the Revolving Credit Loans; and
(e) further acknowledges and agrees Each Borrower and Guarantor does hereby acknowledge and agree that this Amendment shall be deemed a Loan Document for any and all purposes under references to the Loan Agreement herein or in the Forbearance Agreement shall mean and refer to the other Loan DocumentsAgreement, as amended by (i) that certain First Amendment to Post-Confirmation Loan and Security Agreement, dated August 31, 2000, (ii) that certain Second Amendment to Post-Confirmation Loan and Security Agreement, dated January 26, 2001, (iii) that certain Third Amendment to Post-Confirmation Loan and Security Agreement, dated February 28, 2001, and (iv) that certain Fourth Amendment to Post-Confirmation Loan and Security Agreement, as contained herein.
Appears in 1 contract
Sources: Forbearance Agreement and Loan and Security Agreement (Trism Inc /De/)
Representations, Warranties, Covenants and Acknowledgments. To induce the Agent and Lenders to enter into this Amendment, the Agreement: Each Borrower hereby:
(a) represents and warrants Guarantor does hereby represent and warrant that (i) as of the Effective Datedate hereof, all of the representations and warranties made or deemed to be made under the Forbearance Agreement and the other Loan Documents are true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effectcorrect, in which case such representation or warranty is true and correct in all respects) on and as of the Effective Date to the same extent as though made on and as of the Effective Date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties were true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty was true and correct in all respects) on and as of such earlier date; (ii) as of the Effective Datedate hereof, after giving effect to the terms of this Amendmenthereof, there exists no (A) default or breach of the Forbearance Agreement or (B) Default or Event of Default under the Loan Agreement or any of the other Loan Documents; , other than any Default or Event of Default which may arise from the failure of Borrowers to pay, during the Forbearance Period, certain interest payments with respect to the Senior Notes (as defined below), (iii) the such Borrower and Guarantor has the corporate power and is duly authorized to enter into, deliver and perform this Amendment; Agreement, and (iv) this Amendment Agreement and each of the Forbearance Agreement and the other Loan Documents is the legal, valid and binding obligation of the such Borrower and Guarantor enforceable against the Borrower it in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability;
(b) acknowledges ; and agrees that (i) this Amendment Each Borrower and Guarantor does not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation hereby reaffirm each of the Agent or any Lender to consider or agree to any further consentagreements, waiver or amendment with respect to any Loan Document and, in the event that the Agent or any Lender subsequently agrees to consider any further consent, waiver or amendment with respect to any Loan Document, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or such Lender’s consideration or decision with respect theretocovenants, and neither the Agent nor any Lender shall have any further obligation whatsoever to consider or agree to any further consent, waiver or amendment with respect to any Loan Document; and (ii) except as expressly undertakings set forth in this Amendment, the Agent Forbearance Agreement and each Lender reserves all of their respective rights pursuant to the Loan Agreement and all every other Loan Documents;
(c) further acknowledges and agrees that the Agent’s and Lenders’ agreement to waive and amend the specific matters addressed Document executed in this Amendment, do not and shall not create (nor shall the connection therewith or pursuant thereto as if such Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further waiversGuarantor were making said agreements, consents or amendments and, in the event that the Agent or any Lender subsequently agrees to consider any further waivers, consents or amendments, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect covenants and undertakings on the Agent’s or any Lender’s consideration or decision with respect to any such requested consent;
(d) further acknowledges date hereof; and agrees Each Borrower and Guarantor does hereby acknowledge and agree that no right of offset, defense, counterclaim, claim, cause causes of action or objection in favor of the any Borrower or Guarantor against Agent or any Lender exists arising out of or with respect to (i) the Secured Obligations, this AmendmentAgreement, the Forbearance Agreement, the Loan Agreement or any of the other Loan DocumentDocuments, or (ii) any other documents now or heretofore evidencing, securing or in any way relating to the foregoingforegoing or (iii) the administration or funding of the Revolving Credit Loans; and
(e) further acknowledges and agrees Each Borrower and Guarantor does hereby acknowledge and agree that this Amendment shall be deemed a Loan Document for any and all purposes under references to the Loan Agreement herein or in the Forbearance Agreement shall mean and refer to the other Loan DocumentsAgreement, as amended by (i) that certain First Amendment to Post-Confirmation Loan and Security Agreement, dated August 31, 2000, (ii) that certain Second Amendment to Post-Confirmation Loan and Security Agreement, dated January 26, 2001, (iii) that certain Third Amendment to Post-Confirmation Loan and Security Agreement, dated February 28, 2001, (iv) that certain Fourth Amendment to Post-Confirmation Loan and Security Agreement, dated March 30, 2001, (v) that certain Fifth Amendment to Post-Confirmation Loan and Security Agreement, dated April 13, 2001, (vi) that certain Sixth Amendment to Post-Confirmation Loan and Security Agreement, dated April 27, 2001, (vii) that certain Seventh Amendment to Post-Confirmation Loan and Security Agreement, dated May 18, 2001, (viii) that certain Eighth Amendment to Post-Confirmation Loan and Security Agreement, dated June 4, 2001, (ix) that certain Ninth Amendment to Post-Confirmation Loan and Security Agreement, dated June 8, 2001, (x) that certain Tenth Amendment to Post-Confirmation Loan and Security Agreement, dated June 15, 2001, and (xi) that certain Eleventh Amendment to Post-Confirmation Loan and Security Agreement, as contained herein.
Appears in 1 contract
Sources: Forbearance Agreement and Loan and Security Agreement (Trism Inc /De/)
Representations, Warranties, Covenants and Acknowledgments. To induce of the Agent ----------------------------------------------------------------- Subscribers ----------- Each Subscriber represents and Lenders to enter into this Amendmentwarrants to, acknowledges and agrees with, the Borrower herebyCompany that:
(a) represents It is an entity duly organized, validly existing and warrants that (i) as in good standing under the laws of the Effective Datejurisdiction of its organization. Each Subscriber has full power and authority to enter into this Agreement and the irrevocable commitment represented thereby, to perform its obligations under this Agreement and to consummate its purchase of Shares as provided in this Agreement. This Agreement and the purchases contemplated under this Agreement have been duly authorized by all of necessary action on the representations and warranties made or deemed to be made under the Loan Documents are true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty is true and correct in all respects) on and as of the Effective Date to the same extent as though made on and as of the Effective Date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties were true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty was true and correct in all respects) on and as part of such earlier date; (ii) as of the Effective DateSubscriber, after giving effect to the terms of and this Amendment, there exists no Default or Event of Default under the Loan Agreement or any of the other Loan Documents; (iii) the Borrower has the corporate power been duly executed and delivered by such Subscriber and is duly authorized to enter into, deliver and perform this Amendment; and (iv) this Amendment is the legal, a valid and binding obligation of the Borrower such Subscriber, enforceable against the Borrower such Subscriber in accordance with its terms, except as may be limited by subject to bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ ' rights generally or by equitable and general principles relating to enforceabilityof equity;
(b) acknowledges and agrees that (i) The execution, delivery or performance by such Subscriber of the obligations of, or enforcement against such Subscriber of the provisions of this Amendment does Agreement do not and shall will not create conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which such Subscriber is a party or by which such Subscriber is bound or to which any of the property or assets of such Subscriber is subject, nor will such actions result in any violation of the provisions of the certificate of incorporation or by-laws (nor shall the Borrower or analogous constitutional documents) of such Subscriber or any statute or any order, rule or regulation of any court or other governmental agency or body having jurisdiction over such Subscriber or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender properties, except as would not reasonably be expected to consider or agree to any further consent, waiver or amendment with respect to any Loan Document and, in the event that the Agent or any Lender subsequently agrees to consider any further consent, waiver or amendment with respect to any Loan Document, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or have a material adverse effect on the Agent’s Subscriber or such Lender’s consideration its ability to perform its commitment and obligations under this Agreement;
(c) The Subscriber is not required to obtain any approval, consent, exemption, authorization, or decision with other action by, or notice to, or filing with, any governmental entity or authority or any other person or entity in respect theretoof any law not previously obtained, given or made, and neither no lapse of a waiting period under any law applicable to such Subscriber is necessary or required, in connection with the Agent nor execution, delivery or performance by such Subscriber or enforcement against such Subscriber of this Agreement;
(d) Such Subscriber represents and warrants to, and covenants and agrees with, the Company that the Shares to be purchased by it pursuant to this Agreement are being acquired for its own account for investment and not with a view to the distribution thereof or with any Lender shall have intention of distributing or reselling such Shares or any further obligation whatsoever part thereof within the meaning of the Securities Act or any applicable state securities laws;
(e) Such Subscriber's financial condition is such that such Subscriber is able to consider or agree to any further consentbear all economic risks of investing in the Shares, waiver or amendment with respect to any Loan Document; and including a complete loss of such Subscriber's investment in the Shares. Such Subscriber:
(i) is a "qualified institutional buyer" as defined in Rule 144A under the Securities Act;
(ii) except has such knowledge and experience in financial and business matters that such Subscriber is capable of evaluating the merits and risks of the investment in the Shares contemplated by this Agreement; and
(iii) maintains its principal place of business at the address set forth on Schedule I hereto (it being agreed that each Subscriber shall have the unilateral right by notice to the Company to amend such address after the Execution Date);
(f) The Company has provided such Subscriber with adequate access to financial and other information concerning the Company, the Demutualization, the Closed Block, the Closed Block Business (as defined in the Annexed Certificate hereto) and the Class B Stock as requested and such Subscriber has had the opportunity to ask questions of and receive answers from the Company concerning such matters and the purchase of the Shares contemplated by this Agreement and to obtain from the Company any additional information necessary to make an informed decision regarding an investment in the Company and the Class B Stock. Such Subscriber has entered into this Agreement without relying on any representation or warranty of the Company or any other person other than those expressly set forth in this Amendment, the Agent and each Lender reserves all of their respective rights pursuant to the Loan Agreement and all other Loan DocumentsAgreement;
(cg) further acknowledges and agrees Such Subscriber understands that the Agent’s and Lenders’ agreement to waive and amend Shares will not be registered under the specific matters addressed Securities Act, on the ground that the sale provided for in this AmendmentAgreement is exempt from registration under the Securities Act pursuant to Section 4(2) thereunder, do not and shall not create (nor shall that the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation reliance of the Agent or any Lender to consider or agree to any further waivers, consents or amendments and, Company on such exemption is predicated in the event part on such Subscriber's representations set forth in this Agreement. Such Subscriber understands that the Agent or any Lender subsequently agrees to consider any further waivers, consents or amendments, neither Shares being purchased under this Amendment nor any other conduct Agreement are restricted securities within the meaning of Rule 144 of the Agent Securities Act and that the Shares are not registered and must be held indefinitely unless they are subsequently registered or any Lender shall be of any force or effect on the Agent’s or any Lender’s consideration or decision with respect to any an exemption from such requested consent;
(d) further acknowledges and agrees that no right of offset, defense, counterclaim, claim, cause of action or objection in favor of the Borrower against any Lender exists arising out of or with respect to (i) this Amendment, the Loan Agreement or any other Loan Document, or (ii) any other documents now or heretofore evidencing, securing or in any way relating to the foregoingregistration is available; and
(eh) further Such Subscriber acknowledges and agrees that this Amendment agrees, without limitation, that:
(i) in the event Closed Block Assets are insufficient to fund Closed Block Liabilities, Prudential will satisfy its obligation to pay guaranteed amounts, expenses, taxes and dividends declared and unpaid on Closed Block Policies by utilizing Surplus and Related Assets, thereby reducing the CB Distributable Cash Flow (as defined in the Annexed Certificate). In addition, subject to its fiduciary duties to the Class B Stockholders, the Board of Directors of the Company otherwise retains discretion to cause the transfer of Surplus and Related Assets to the Closed Block;
(ii) the Class B Stock will not have (a) any claim on Closed Block assets or (b) any equity interest in Prudential, Prudential Holdings or any other subsidiary of the Company; as a class of common stock of the Company, the Class B Stock will stand behind all of Prudential's policyholders, and other Prudential creditors, any holders of preferred stock of the Company and all creditors of the Company as to any claims to assets of the Company and all creditors of each of the Company subsidiaries as to any claims to the assets of each such subsidiary;
(iii) the entire net proceeds from the issuance and sale of the Class B Stock and the IHC Debt will be allocated to the Financial Services Businesses of the Company and not to the Closed Block Business;
(iv) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, Inc., actuaries and consultants, shall be deemed the appraiser initially selected for purposes of the appraisal of the Fair Market Value of Class B Stock (as defined in the Annexed Certificate); provided, however, that, the acknowledgement in this clause (iv) shall in no way limit or restrict a Loan Document for all purposes under Subscriber from exercising its rights, as a holder of Class B Stock, from disapproving such firm as an appraiser (as contemplated by the Loan Annexed Certificate) at such time as it becomes necessary to determine the Fair Market Value of the Class B Stock;
(v) the Company has been formed prior to the Execution Date and that subsection (1) of Section 14A:7-3 of the New Jersey Business Corporation Act shall not apply to the offer and sale of the Shares pursuant to this Agreement and the other Loan Documentscommitment of such Subscriber to purchase Shares pursuant to this Agreement shall be irrevocable through April 30, 2002;
(vi) it will treat the Class B Stock as common stock of the Company for federal, state and local income tax purposes and will file its tax returns consistent with such treatment to the extent permitted by law or regulation; and
(vii) the Company initially intends that any dividends paid with respect to the Class B Stock shall be paid annually.
Appears in 1 contract
Representations, Warranties, Covenants and Acknowledgments. To induce the Agent and Lenders to enter into this Amendment, the Agreement: Each Borrower hereby:
(a) represents and warrants Guarantor does hereby represent and warrant that (i) as of the Effective Datedate hereof, all of the representations and warranties made or deemed to be made under the Forbearance Agreement and the other Loan Documents are true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effectcorrect, in which case such representation or warranty is true and correct in all respects) on and as of the Effective Date to the same extent as though made on and as of the Effective Date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties were true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty was true and correct in all respects) on and as of such earlier date; (ii) as of the Effective Datedate hereof, after giving effect to the terms of this Amendmenthereof, there exists no (A) default or breach of the Forbearance Agreement or (B) Default or Event of Default under the Loan Agreement or any of the other Loan Documents; , other than any Default or Event of Default which may arise from the failure of Borrowers to pay, during the Forbearance Period, certain interest payments with respect to the Senior Notes (as defined below), (iii) the such Borrower and Guarantor has the corporate power and is duly authorized to enter into, deliver and perform this Amendment; Agreement, and (iv) this Amendment Agreement and each of the Forbearance Agreement and the other Loan Documents is the legal, valid and binding obligation of the such Borrower and Guarantor enforceable against the Borrower it in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability;
(b) acknowledges ; and agrees that (i) this Amendment Each Borrower and Guarantor does not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation hereby reaffirm each of the Agent or any Lender to consider or agree to any further consentagreements, waiver or amendment with respect to any Loan Document and, in the event that the Agent or any Lender subsequently agrees to consider any further consent, waiver or amendment with respect to any Loan Document, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or such Lender’s consideration or decision with respect theretocovenants, and neither the Agent nor any Lender shall have any further obligation whatsoever to consider or agree to any further consent, waiver or amendment with respect to any Loan Document; and (ii) except as expressly undertakings set forth in this Amendment, the Agent Forbearance Agreement and each Lender reserves all of their respective rights pursuant to the Loan Agreement and all every other Loan Documents;
(c) further acknowledges and agrees that the Agent’s and Lenders’ agreement to waive and amend the specific matters addressed Document executed in this Amendment, do not and shall not create (nor shall the connection therewith or pursuant thereto as if such Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further waiversGuarantor were making said agreements, consents or amendments and, in the event that the Agent or any Lender subsequently agrees to consider any further waivers, consents or amendments, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect covenants and undertakings on the Agent’s or any Lender’s consideration or decision with respect to any such requested consent;
(d) further acknowledges date hereof; and agrees Each Borrower and Guarantor does hereby acknowledge and agree that no right of offset, defense, counterclaim, claim, cause causes of action or objection in favor of the any Borrower or Guarantor against Agent or any Lender exists arising out of or with respect to (i) the Secured Obligations, this AmendmentAgreement, the Forbearance Agreement, the Loan Agreement or any of the other Loan DocumentDocuments, or (ii) any other documents now or heretofore evidencing, securing or in any way relating to the foregoingforegoing or (iii) the administration or funding of the Revolving Credit Loans; and
(e) further acknowledges and agrees Each Borrower and Guarantor does hereby acknowledge and agree that this Amendment shall be deemed a Loan Document for any and all purposes under references to the Loan Agreement herein or in the Forbearance Agreement shall mean and refer to the other Loan DocumentsAgreement, as amended by (i) that certain First Amendment to Post-Confirmation Loan and Security Agreement, dated August 31, 2000, (ii) that certain Second Amendment to Post-Confirmation Loan and Security Agreement, dated January 26, 2001, (iii) that certain Third Amendment to Post-Confirmation Loan and Security Agreement, dated February 28, 2001, (iv) that certain Fourth Amendment to Post-Confirmation Loan and Security Agreement, dated March 30, 2001, (v) that certain Fifth Amendment to Post-Confirmation Loan and Security Agreement, dated April 13, 2001, (vi) that certain Sixth Amendment to Post-Confirmation Loan and Security Agreement, dated April 27, 2001, (vii) that certain Seventh Amendment to Post-Confirmation Loan and Security Agreement, dated May 18, 2001, (viii) that certain Eighth Amendment to Post-Confirmation Loan and Security Agreement, dated June 4, 2001, (ix) that certain Ninth Amendment to Post-Confirmation Loan and Security Agreement, dated June 8, 2001, (x) that certain Tenth Amendment to Post-Confirmation Loan and Security Agreement, dated June 15, 2001, (xi) that certain Eleventh Amendment to Post-Confirmation Loan and Security Agreement, dated June 27, 2001, (xii) that certain Twelfth Amendment to Post-Confirmation Loan and Security Agreement, dated July 6, 2001, (xiii) that certain Thirteenth Amendment to Post-Confirmation Loan and Security Agreement, dated July 13, 2001, (xiv) that certain Fourteenth Amendment to Post-Confirmation Loan and Security Agreement, dated July 20, 2001, (xv) that certain Fifteenth Amendment to Post-Confirmation Loan and Security Agreement, dated July 27, 2001, (xvi) that certain Sixteenth Amendment to Post-Confirmation Loan and Security Agreement, dated August 3, 2001, (xvii) that certain Seventeenth Amendment to Post-Confirmation Loan and Security Agreement, dated August 10, 2001, (xviii) that certain Eighteenth Amendment to Post-Confirmation Loan and Security Agreement, dated August 17, 2001, (xix) that certain Nineteenth Amendment to Post-Confirmation Loan and Security Agreement, dated August 24, 2001, (xx) that certain Twentieth Amendment to Post-Confirmation Loan and Security Agreement, dated August 31, 2001, (xxi) that certain Twenty-first Amendment to Post-Confirmation Loan and Security Agreement, dated September 7, 2001, (xxii) that certain Twenty-second Amendment to Loan and Security Agreement, dated September 14, 2001, and (xxiii) that certain Twenty-third Amendment to Loan and Security Agreement,as contained herein.
Appears in 1 contract
Sources: Forbearance Agreement and Loan and Security Agreement (Trism Inc /De/)
Representations, Warranties, Covenants and Acknowledgments. To induce the Agent and the Lenders to enter into this Amendment, each Borrower, the Borrower Representative and the Master Property Manager does hereby:
(a) represents represent and warrants that warrant that, after giving effect to this Amendment, (i) as of the Effective Datedate hereof, all of the representations and warranties made or deemed to be made under contained in the Loan Documents are true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty is true and correct in all respects) on and as of the Effective Date date hereof to the same extent as though made on and as of the Effective Datedate hereof, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties were shall have been true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty was true and correct in all respects) on and as of such earlier date; (ii) as of the Effective Datedate hereof, after giving effect to the terms of this Amendment, there exists no Default or Event of Default has occurred and is continuing under the Loan Credit Agreement or any of the other Loan DocumentsDocument; (iii) the Borrower such Person has the corporate power and is duly authorized to enter into, deliver and perform this Amendment; and (iv) this Amendment is the legal, valid and binding obligation of the Borrower such Person enforceable against the Borrower such Person in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability;; and (v) the execution, delivery and performance of this Amendment does not conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any material Contractual Obligation of any such Person; and
(b) acknowledges reaffirm each of the agreements, covenants and agrees undertakings set forth in the Credit Agreement and each and every other Loan Document executed in connection therewith or pursuant thereto, in each case, as amended by the terms of this Amendment; and
(c) acknowledge and agree that, after giving effect to this Amendment, no right of offset, defense, recoupment, counterclaim, claim, causes of action or objection in favor of such Person against the Agent or any Lender exists as of the date hereof arising out of or with respect to (i) this Amendment, the Credit Agreement or any of the other Loan Documents or (ii) any other documents now or heretofore evidencing, securing or in any way relating to the foregoing; and
(d) further acknowledge and agree that (i) except as expressly set forth herein, this Amendment does is not intended, and should not be construed, as an amendment of, or any kind of waiver or consent related to, the Credit Agreement or the other Loan Documents; (ii) this Amendment shall not represent an amendment, consent or waiver related to any future actions of any Borrower, the Borrower Representative or the Master Property Manager; (iii) except as expressly set forth herein, the Agent and each Lender reserves all of their respective rights pursuant to the Credit Agreement and all other Loan Documents; and (iv) the amendments contained herein do not and shall not create (nor shall any Borrower, the Borrower Representative or any of its Subsidiaries the Master Property Manager rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender the Lenders to consider or agree to any further consentfuture waiver, waiver consent or amendment with respect to any Loan Document and, in the event that the Agent or any Lender the Lenders subsequently agrees agree to consider any further consent, waiver or amendment with respect to any Loan Document, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or such Lender’s consideration or decision with respect thereto, and neither the Agent nor any Lender shall have any further obligation whatsoever to consider or agree to any further consent, waiver or amendment with respect to any Loan Document; and (ii) except as expressly set forth in this Amendment, the Agent and each Lender reserves all of their respective rights pursuant to the Loan Agreement and all other Loan Documents;
(c) further acknowledges and agrees that the Agent’s and Lenders’ agreement to waive and amend the specific matters addressed in this Amendment, do not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further waivers, consents or amendments and, in the event that the Agent or any Lender subsequently agrees to consider any further future waivers, consents or amendments, neither this Amendment the amendments contained herein nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or any Lender’s consideration or decision with respect to any such requested consent;
(d) further acknowledges waiver, consent or amendment and agrees that no right of offset, defense, counterclaim, claim, cause of action or objection in favor of neither the Borrower against Agent nor any Lender exists arising out of shall have any further obligation whatsoever to consider or with respect agree to (i) this Amendmentfuture amendment, the Loan Agreement waiver, consent or any other Loan Documentagreement, or (ii) any other documents now or heretofore evidencing, securing or in any way relating to the foregoing; and
(e) further acknowledges acknowledge and agrees agree that this Amendment shall be deemed a Loan Document for all purposes under the Loan Agreement and the other Loan Documentspurposes.
Appears in 1 contract
Sources: Revolving Credit Agreement (Silver Bay Realty Trust Corp.)
Representations, Warranties, Covenants and Acknowledgments. To induce the Agent and Lenders to enter into this Amendment, the Agreement: Each Borrower hereby:
(a) represents and warrants Guarantor does hereby represent and warrant that (i) as of the Effective Datedate hereof, all of the representations and warranties made or deemed to be made under the Forbearance Agreement and the other Loan Documents are true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effectcorrect, in which case such representation or warranty is true and correct in all respects) on and as of the Effective Date to the same extent as though made on and as of the Effective Date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties were true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty was true and correct in all respects) on and as of such earlier date; (ii) as of the Effective Datedate hereof, after giving effect to the terms of this Amendmenthereof, there exists no (A) default or breach of the Forbearance Agreement or (B) Default or Event of Default under the Loan Agreement or any of the other Loan Documents; , (iii) the such Borrower and Guarantor has the corporate power and is duly authorized to enter into, deliver and perform this Amendment; Agreement, and (iv) this Amendment Agreement and each of the Forbearance Agreement and the other Loan Documents is the legal, valid and binding obligation of the such Borrower and Guarantor enforceable against the Borrower it in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability;
(b) acknowledges ; and agrees that (i) this Amendment Each Borrower and Guarantor does not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation hereby reaffirm each of the Agent or any Lender to consider or agree to any further consentagreements, waiver or amendment with respect to any Loan Document and, in the event that the Agent or any Lender subsequently agrees to consider any further consent, waiver or amendment with respect to any Loan Document, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or such Lender’s consideration or decision with respect theretocovenants, and neither the Agent nor any Lender shall have any further obligation whatsoever to consider or agree to any further consent, waiver or amendment with respect to any Loan Document; and (ii) except as expressly undertakings set forth in this Amendment, the Agent Forbearance Agreement and each Lender reserves all of their respective rights pursuant to the Loan Agreement and all every other Loan Documents;
(c) further acknowledges and agrees that the Agent’s and Lenders’ agreement to waive and amend the specific matters addressed Document executed in this Amendment, do not and shall not create (nor shall the connection therewith or pursuant thereto as if such Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further waiversGuarantor were making said agreements, consents or amendments and, in the event that the Agent or any Lender subsequently agrees to consider any further waivers, consents or amendments, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect covenants and undertakings on the Agent’s or any Lender’s consideration or decision with respect to any such requested consent;
(d) further acknowledges date hereof; and agrees Each Borrower and Guarantor does hereby acknowledge and agree that no right of offset, defense, counterclaim, claim, cause causes of action or objection in favor of the any Borrower or Guarantor against Agent or any Lender exists arising out of or with respect to (i) the Secured Obligations, this AmendmentAgreement, the Forbearance Agreement, the Loan Agreement or any of the other Loan DocumentDocuments, or (ii) any other documents now or heretofore evidencing, securing or in any way relating to the foregoingforegoing or (iii) the administration or funding of the Revolving Credit Loans; and
(e) further acknowledges and agrees Each Borrower and Guarantor does hereby acknowledge and agree that this Amendment shall be deemed a Loan Document for any and all purposes under references to the Loan Agreement herein or in the Forbearance Agreement shall mean and refer to the other Loan DocumentsAgreement, as amended by (i) that certain First Amendment to Post-Confirmation Loan and Security Agreement, dated August 31, 2000, (ii) that certain Second Amendment to Post-Confirmation Loan and Security Agreement, dated January 26, 2001, (iii) that certain Third Amendment to Post-Confirmation Loan and Security Agreement, dated February 28, 2001, (iv) that certain Fourth Amendment to Post-Confirmation Loan and Security Agreement, dated March 30, 2001 and (v) that certain Fifth Amendment to Post-Confirmation Loan and Security Agreement, as contained herein.
Appears in 1 contract
Sources: Forbearance Agreement and Loan and Security Agreement (Trism Inc /De/)
Representations, Warranties, Covenants and Acknowledgments. To induce the Administrative Agent and Lenders to enter into this Amendment, the Borrower hereby:
(a) represents The Company does hereby represent and warrants that warrant that, as of the date hereof and after giving effect hereto, (i) as of the Effective Date, all of the representations and warranties made or deemed to be made under the Loan Documents are true and correct in all material respects (other than provided, that any representation or warranty that is qualified by materiality or by reference to Material Adverse Effect, in which case such representation or warranty is Effect shall be true and correct in all respects) on and as of the Effective Date to the same extent as though made on and as of the Effective Date), except to the extent such representations and warranties specifically relate which, by their express terms, are applicable only to an earlier datethe Closing Date, in which case such representations and warranties were true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty was true and correct in all respects) on and as of such earlier date; (ii) as of the Effective Date, after giving effect to the terms of this Amendment, there exists no Default or Event of Default under the Loan Agreement or any of the other Loan Documents; , (iii) the Borrower Company has the corporate power and is duly authorized to enter into, deliver and perform this Amendment; , and (iv) this Amendment and each of the Loan Documents is the legal, valid and binding obligation of the Borrower Company enforceable against the Borrower Company in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability;.
(b) acknowledges and agrees that (i) this Amendment The Company does not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation hereby reaffirm each of the Agent or any Lender to consider or agree to any further consentagreements, waiver or amendment with respect to any Loan Document and, in the event that the Agent or any Lender subsequently agrees to consider any further consent, waiver or amendment with respect to any Loan Document, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or such Lender’s consideration or decision with respect theretocovenants, and neither the Agent nor any Lender shall have any further obligation whatsoever to consider or agree to any further consent, waiver or amendment with respect to any Loan Document; and (ii) except as expressly undertakings set forth in this Amendment, the Agent and each Lender reserves all of their respective rights pursuant to the Loan Agreement and all each and every other Loan Documents;Document executed in connection therewith or pursuant thereto, as amended and modified hereby, as if the Company were making said agreements, covenants and undertakings on the date hereof.
(c) further acknowledges The Company does hereby acknowledge and agrees that the Agent’s and Lenders’ agreement to waive and amend the specific matters addressed in this Amendment, do not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further waivers, consents or amendments and, in the event that the Agent or any Lender subsequently agrees to consider any further waivers, consents or amendments, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or any Lender’s consideration or decision with respect to any such requested consent;
(d) further acknowledges and agrees that no right of offset, defense, counterclaim, claim, cause of action or objection in favor of the Borrower Company against Administrative Agent or any Lender exists arising out of or with respect to (i) the Obligations, this Amendment, the Loan Agreement or any of the other Loan DocumentDocuments, or (ii) any other documents now or heretofore evidencing, securing or in any way relating to the foregoing; and.
(ed) further The Company acknowledges and agrees that this Amendment shall be deemed a Loan Document for all purposes under the Loan Agreement and the other Loan DocumentsAgreement.
Appears in 1 contract
Sources: Term Loan and Security Agreement (FS Energy & Power Fund)
Representations, Warranties, Covenants and Acknowledgments. To induce the Agent and Lenders to enter into this Amendment, the Borrower herebyAgreement:
(a) represents Each Borrower does hereby represent and warrants warrant that (i) as of the Effective Datedate hereof, all of the representations and warranties made or deemed to be made under the Loan Documents are true and correct in all material respects (other than any representation or warranty that is qualified correct, except such representations and warranties which, by materiality or Material Adverse Effecttheir express terms, in which case such representation or warranty is true and correct in all respects) on and as of the Effective Date are applicable only to the same extent as though made on and as of the Effective Date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties were true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty was true and correct in all respects) on and as of such earlier date; (ii) as of the Effective Datedate hereof, after giving effect to the terms of this Amendmenthereof, there exists no Default or Event of Default under the Loan Agreement or any of the other Loan Documents; , (iii) the such Borrower has the corporate power and is duly authorized to enter into, deliver and perform this Amendment; Agreement, and (iv) this Amendment Agreement and each of the Loan Documents is the legal, valid and binding obligation of the such Borrower enforceable against the Borrower it in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability;; and
(b) acknowledges and agrees that (i) this Amendment Each Borrower does not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation hereby reaffirm each of the Agent or any Lender to consider or agree to any further consentagreements, waiver or amendment with respect to any Loan Document and, in the event that the Agent or any Lender subsequently agrees to consider any further consent, waiver or amendment with respect to any Loan Document, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or such Lender’s consideration or decision with respect theretocovenants, and neither the Agent nor any Lender shall have any further obligation whatsoever to consider or agree to any further consent, waiver or amendment with respect to any Loan Document; and (ii) except as expressly undertakings set forth in this Amendment, the Agent and each Lender reserves all of their respective rights pursuant to the Loan Agreement and all each and every other Loan Documents;Document executed in connection therewith or pursuant thereto as if such Borrower were making said agreements, covenants and undertakings on the date hereof; and
(c) further acknowledges Each Borrower does hereby acknowledge and agrees that the Agent’s and Lenders’ agreement to waive and amend the specific matters addressed in this Amendment, do not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further waivers, consents or amendments and, in the event that the Agent or any Lender subsequently agrees to consider any further waivers, consents or amendments, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or any Lender’s consideration or decision with respect to any such requested consent;
(d) further acknowledges and agrees that no right of offset, defense, counterclaim, claim, cause causes of action or objection in favor of the any Borrower against Agent or any Lender exists arising out of or with respect to (i) the Secured Obligations, this AmendmentAgreement, the Loan Agreement or any of the other Loan DocumentDocuments, or (ii) any other documents now or heretofore evidencing, securing or in any way relating to the foregoing; and
foregoing or (eiii) further acknowledges and agrees that this Amendment shall be deemed a Loan Document for all purposes under the Loan Agreement and administration or funding of the other Loan DocumentsRevolving Credit Loans.
Appears in 1 contract
Sources: Post Confirmation Loan and Security Agreement (Trism Inc /De/)
Representations, Warranties, Covenants and Acknowledgments. To induce the Agent and Lenders to enter into this Amendment, the Agreement: Each Borrower hereby:
(a) represents and warrants Guarantor does hereby represent and warrant that (i) as of the Effective Datedate hereof, all of the representations and warranties made or deemed to be made under the Forbearance Agreement and the other Loan Documents are true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effectcorrect, in which case such representation or warranty is true and correct in all respects) on and as of the Effective Date to the same extent as though made on and as of the Effective Date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties were true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty was true and correct in all respects) on and as of such earlier date; (ii) as of the Effective Datedate hereof, after giving effect to the terms of this Amendmenthereof, there exists no (A) default or breach of the Forbearance Agreement or (B) Default or Event of Default under the Loan Agreement or any of the other Loan Documents; , other than any Default or Event of Default which may arise from the failure of Borrowers to pay, during the Forbearance Period, certain interest payments with respect to the Senior Notes (as defined below), (iii) the such Borrower and Guarantor has the corporate power and is duly authorized to enter into, deliver and perform this Amendment; Agreement, and (iv) this Amendment Agreement and each of the Forbearance Agreement and the other Loan Documents is the legal, valid and binding obligation of the such Borrower and Guarantor enforceable against the Borrower it in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability;
(b) acknowledges ; and agrees that (i) this Amendment Each Borrower and Guarantor does not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation hereby reaffirm each of the Agent or any Lender to consider or agree to any further consentagreements, waiver or amendment with respect to any Loan Document and, in the event that the Agent or any Lender subsequently agrees to consider any further consent, waiver or amendment with respect to any Loan Document, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or such Lender’s consideration or decision with respect theretocovenants, and neither the Agent nor any Lender shall have any further obligation whatsoever to consider or agree to any further consent, waiver or amendment with respect to any Loan Document; and (ii) except as expressly undertakings set forth in this Amendment, the Agent Forbearance Agreement and each Lender reserves all of their respective rights pursuant to the Loan Agreement and all every other Loan Documents;
(c) further acknowledges and agrees that the Agent’s and Lenders’ agreement to waive and amend the specific matters addressed Document executed in this Amendment, do not and shall not create (nor shall the connection therewith or pursuant thereto as if such Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further waiversGuarantor were making said agreements, consents or amendments and, in the event that the Agent or any Lender subsequently agrees to consider any further waivers, consents or amendments, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect covenants and undertakings on the Agent’s or any Lender’s consideration or decision with respect to any such requested consent;
(d) further acknowledges date hereof; and agrees Each Borrower and Guarantor does hereby acknowledge and agree that no right of offset, defense, counterclaim, claim, cause causes of action or objection in favor of the any Borrower or Guarantor against Agent or any Lender exists arising out of or with respect to (i) the Secured Obligations, this AmendmentAgreement, the Forbearance Agreement, the Loan Agreement or any of the other Loan DocumentDocuments, or (ii) any other documents now or heretofore evidencing, securing or in any way relating to the foregoingforegoing or (iii) the administration or funding of the Revolving Credit Loans; and
(e) further acknowledges and agrees Each Borrower and Guarantor does hereby acknowledge and agree that this Amendment shall be deemed a Loan Document for any and all purposes under references to the Loan Agreement herein or in the Forbearance Agreement shall mean and refer to the other Loan DocumentsAgreement, as amended by (i) that certain First Amendment to Post-Confirmation Loan and Security Agreement, dated August 31, 2000, (ii) that certain Second Amendment to Post-Confirmation Loan and Security Agreement, dated January 26, 2001, (iii) that certain Third Amendment to Post-Confirmation Loan and Security Agreement, dated February 28, 2001, (iv) that certain Fourth Amendment to Post-Confirmation Loan and Security Agreement, dated March 30, 2001, (v) that certain Fifth Amendment to Post-Confirmation Loan and Security Agreement, dated April 13, 2001, (vi) that certain Sixth Amendment to Post-Confirmation Loan and Security Agreement, dated April 27, 2001, (vii) that certain Seventh Amendment to Post-Confirmation Loan and Security Agreement, dated May 18, 2001, (viii) that certain Eighth Amendment to Post-Confirmation Loan and Security Agreement, dated June 4, 2001, (ix) that certain Ninth Amendment to Post-Confirmation Loan and Security Agreement, dated June 8, 2001, (x) that certain Tenth Amendment to Post-Confirmation Loan and Security Agreement, dated June 15, 2001, (xi) that certain Eleventh Amendment to Post-Confirmation Loan and Security Agreement, dated June 27, 2001, (xii) that certain Twelfth Amendment to Post-Confirmation Loan and Security Agreement, dated July 6, 2001, (xiii) that certain Thirteenth Amendment to Post-Confirmation Loan and Security Agreement, dated July 13, 2001, (xiv) that certain Fourteenth Amendment to Post-Confirmation Loan and Security Agreement, dated July 20, 2001, (xv) that certain Fifteenth Amendment to Post-Confirmation Loan and Security Agreement, dated July 27, 2001, (xvi) that certain Sixteenth Amendment to Post-Confirmation Loan and Security Agreement, dated August 3, 2001, (xvii) that certain Seventeenth Amendment to Post-Confirmation Loan and Security Agreement, dated August 10, 2001, (xviii) that certain Eighteenth Amendment to Post-Confirmation Loan and Security Agreement, dated August 17, 2001, and (xix) that certain Nineteenth Amendment to Post-Confirmation Loan and Security Agreement, as contained herein.
Appears in 1 contract
Sources: Forbearance Agreement and Loan and Security Agreement (Trism Inc /De/)
Representations, Warranties, Covenants and Acknowledgments. To induce the Agent and Lenders to enter into this Amendment, the Borrower hereby:
(a) Each Borrower hereby represents and warrants that (i) as of the Effective Datedate hereof and after giving effect hereto, all of the representations and warranties made or deemed to be made under the Credit Agreement and the other Loan Documents are true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty is true and correct in all respects) on and as of the Effective Date to the same extent as though made on and as of the Effective Datecorrect, except to the extent that such representations and warranties specifically expressly relate to an earlier date, in which case such representations and warranties were true except for changes therein expressly permitted or expressly contemplated by the Credit Consent, Limited Wavier and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse EffectFirst Amendment Agreement, in which case such representation or warranty was true and correct in all respects) on and as of such earlier date; amended herein, (ii) as of the Effective Date, date hereof and after giving effect to the terms of this Amendmenthereof, there exists no Potential Event of Default or Event of Default under the Loan Credit Agreement or any of the other Loan Documents; , (iii) the Borrower it has the corporate power and is duly authorized to enter into, deliver and perform this Amendment; , and (iv) this Amendment and each of the other Loan Documents is the legal, valid and binding obligation of the each Borrower enforceable against the each Borrower in accordance with its terms, except as to the extent enforcement may be limited by under applicable bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or limiting creditors’ affecting creditor’s rights generally or by and the equitable principles relating to enforceability;discretion of the court; and
(b) acknowledges and agrees that (i) this Amendment does not and shall not create (nor shall the Each Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation hereby reaffirms each of the Agent or any Lender to consider or agree to any further consentagreements, waiver or amendment with respect to any Loan Document and, in the event that the Agent or any Lender subsequently agrees to consider any further consent, waiver or amendment with respect to any Loan Document, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or such Lender’s consideration or decision with respect theretocovenants, and neither the Agent nor any Lender shall have any further obligation whatsoever to consider or agree to any further consent, waiver or amendment with respect to any Loan Document; and (ii) except as expressly undertakings set forth in this Amendment, the Agent Credit Agreement and each Lender reserves all of their respective rights pursuant to the Loan Agreement and all every other Loan Documents;Document executed in connection therewith or pursuant thereto, as amended and modified hereby, as if such Borrower were making said agreements, covenants and undertakings on the date hereof; and
(c) further acknowledges and agrees that the Agent’s and Lenders’ agreement to waive and amend the specific matters addressed in this Amendment, do not and shall not create (nor shall the Each Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further waivers, consents or amendments and, in the event that the Agent or any Lender subsequently agrees to consider any further waivers, consents or amendments, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or any Lender’s consideration or decision with respect to any such requested consent;
(d) further hereby acknowledges and agrees that no right of offset, recoupment, defense, counterclaim, claim, cause of action or objection in favor of the any Borrower against Agent or any Lender exists arising out of or with respect to (i) the Obligations, this Amendment, the Loan Agreement Amendment or any of the other Loan DocumentDocuments, or (ii) any other documents now or heretofore evidencing, securing or in any way relating to the foregoing, or (iii) the administration or funding of the Loans; and
(ed) further Each Borrower acknowledges and agrees that this Amendment shall be deemed a Loan Document for all purposes under the Loan Credit Agreement; and
(e) The parties hereto acknowledge and agree that, on and as of the New Bank Credit Facility Date, each of Sands Pennsylvania, Inc., Lido Casino Resort Holding Company, LLC, Phase II Mall Holding, LLC, Phase II Mall Subsidiary, LLC, Palazzo Condo Tower, LLC and Interface (notwithstanding that Interface is not a “Subsidiary” of the Borrowers) shall become a Subsidiary Guarantor under the Credit Agreement and other Loan Documents in accordance with the terms of Section 6.11 of the Credit Agreement; and
(f) The parties hereto hereby acknowledge and agree that (i) on and as of the New Bank Credit Facility Date and in connection with the consummation and funding of the Contemplated Transactions, the Disbursement Agreement shall, in accordance with Section 7.13E and Section 10.25 of the Credit Agreement, be terminated, and (ii) from and after the termination of the Disbursement Agreement as set forth above, (A) unless such defined terms expressly relate to an earlier date, all defined terms in the Credit Agreement and other Loan Documents defined by reference to the Disbursement Agreement shall have the meanings ascribed to such terms in the Disbursement Agreement immediately prior to such termination, and (B) unless such terms and provisions expressly relate to an earlier date, all terms and provisions of the Disbursement Agreement expressly referred to in the Credit Agreement and other Loan Documents shall be deemed to refer to such terms and provisions as in effect immediately prior to such termination; and
(g) The parties hereto hereby acknowledge and agree that, notwithstanding the terms of the Credit Agreement or any other Loan Document to the contrary, on and as of the Consent, Limited Wavier and First Amendment New Bank Credit Facility Date, in accordance with the terms hereof and Section 6.11 of the Credit Agreement, as the case may be, the Phase II Mall Borrowers shall be Subsidiary Guarantors and Restricted Subsidiaries under the terms of the Credit Agreement and other Loan Documents; and
(h) Agent and Lenders hereby acknowledge and agree that, notwithstanding anything to the contrary in the Credit Agreement, the Contemplated Transactions do not and will not violate Section 7.10 of the Credit Agreement.
Appears in 1 contract
Sources: Ff&e Facility Credit Agreement (Las Vegas Sands Corp)
Representations, Warranties, Covenants and Acknowledgments. To induce the Administrative Agent and the Lenders to enter into this AmendmentAmendment and Waiver, the each Borrower hereby:
(a) represents and warrants that (i) as of the Sixth Amendment Effective Date, all of after giving effect to this Amendment and Waiver, the representations and warranties made or deemed to be made under of such Borrower set forth in the Credit Agreement and the other Loan Documents (after giving effect to the waiver of the Specified Events of Default) are true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty is true and correct in all respects) on and as of the Effective Date to the same extent as though made on and as of the Sixth Amendment Effective Date; provided, except that to the extent any such representations and warranties representation or warranty specifically relate refers to an earlier date, in which case such representations representation and warranties were warranty was true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty was true and correct in all respects) on and as of such earlier date; provided, further, that any representation or warranty that is qualified as to “materiality” or “Material Adverse Effect” or similar language was true and correct (after giving effect to any qualification therein) in all respects on such respective dates, (ii) as of the Sixth Amendment Effective Date, after giving effect to the terms of this AmendmentAmendment and Waiver, there exists no Default or Event of Default under the Loan Agreement or any of the other Loan Documents; has occurred and is continuing, (iii) the Borrower execution and delivery of this Amendment and Waiver is within each Borrower’s organizational powers and has the corporate power and is been duly authorized to enter intoby all necessary organizational actions and, deliver and perform this Amendment; if required, actions by equity holders and (iv) this Amendment is the and Waiver has been duly executed and delivered by such Borrower and constitutes a legal, valid and binding obligation of the Borrower such Borrower, enforceable against the Borrower in accordance with its terms, except as may be limited by bankruptcysubject to applicable Debtor Relief Laws and subject to general principles of equity, insolvency, reorganization, moratorium regardless of whether considered in a proceeding in equity or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceabilityat law;
(b) acknowledges and agrees that (i) this Amendment does and Waiver is not intended, and should not be construed, except as expressly set forth herein, as an amendment of, or any kind of waiver or consent related to, the Credit Agreement or the other Loan Documents, (ii) this Amendment and Waiver shall not represent a consent or waiver related to any future actions of any Borrower or any Subsidiary and (iii) except as expressly set forth in this Amendment and Waiver, the Administrative Agent and each Lender reserves all of their respective rights pursuant to the Credit Agreement and the other Loan Documents;
(c) further acknowledges and agrees that the Administrative Agent’s and the Lenders’ agreement to waive the specific matters addressed in this Amendment and Waiver, do not and shall not create (nor shall the any Borrower or any of its Subsidiaries Subsidiary rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further consent, waiver or amendment with respect to any Loan Document and, in the event that the Agent or any Lender subsequently agrees to consider any further consent, waiver or amendment with respect to any Loan Document, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or such Lender’s consideration or decision with respect thereto, and neither the Agent nor any Lender shall have any further obligation whatsoever to consider or agree to any further consent, waiver or amendment with respect to any Loan Document; and (ii) except as expressly set forth in this Amendment, the Agent and each Lender reserves all of their respective rights pursuant to the Loan Agreement and all other Loan Documents;
(c) further acknowledges and agrees that the Agent’s and Lenders’ agreement to waive and amend the specific matters addressed in this Amendment, do not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Administrative Agent or any Lender to consider or agree to any further waivers, consents or amendments and, in the event that the Administrative Agent or any Lender subsequently agrees to consider any further waivers, consents or amendments, neither this Amendment and Waiver nor any other conduct of the Administrative Agent or any Lender shall be of any force or effect on the Administrative Agent’s or any Lender’s consideration or decision with respect to any such requested consentwaiver, consent or amendment;
(d) further acknowledges and agrees that this Amendment and Waiver shall be deemed a Loan Document for all purposes under the Credit Agreement and the other Loan Documents;
(i) further acknowledges and agrees that, after giving effect to this Amendment and Waiver, no right of offset, recoupment, defense, counterclaim, claim, cause of action or objection in favor of the any Borrower against the Administrative Agent or any Lender exists as of the Sixth Amendment Effective Date arising out of or with respect to (i) this AmendmentAmendment and Waiver, the Loan Credit Agreement or any other Loan Document, or Document and (ii) expressly waives any setoff, counterclaim, recoupment, defense or other documents now right that such Loan Party has against the Administrative Agent as of the Sixth Amendment Effective Date, any Lender or heretofore evidencingany of their respective affiliates, securing or whether in any way relating to the foregoing; and
(e) further acknowledges and agrees that connection with this Amendment shall be deemed a Loan Document for all purposes under and Waiver, the Loan Credit Agreement and the other Loan Documents, the transactions contemplated by this Amendment and Waiver or the Credit Agreement and the Loan Documents, or any agreement or instrument relating thereto;
(f) each of the Borrower and the other Loan Parties hereby jointly and severally agrees, on demand, to reimburse the Administrative Agent and the Lenders, to the extent required under Section 9.03 of the Credit Agreement, for all reasonable and documented out-of-pocket costs and expenses of the Administrative Agent and the Lenders related to or in connection with this Amendment and Waiver and any documents, agreements or instruments referred to herein, including, without limitation, the reasonable fees and documented out-of-pocket expenses of Hunton ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, FTI Consulting Inc. and Freshfields Bruckhaus ▇▇▇▇▇▇▇▇ US LLP, and any consultants, attorneys or other professionals retained by the Administrative Agent and/or the Lenders in connection with the Loan Documents, including without limitation, in connection with the negotiation and preparation of this Amendment and Waiver, the enforcement of their rights and remedies under this Amendment and Waiver, whether or not incurred prior to the date of this Amendment and Waiver. All such fees, costs and expenses shall constitute Secured Obligations under the Credit Agreement secured by the Collateral under the Collateral Documents. Nothing in this Amendment and Waiver shall be intended or construed to hold the Administrative Agent, the Lenders or any other Secured Party liable or responsible for any expense, liability or obligation of any kind or nature whatsoever (including, without limitation, attorneys’ fees and expenses, other professionals’ fees and expenses, wages, salaries, payroll taxes, withholdings, benefits or other amounts payable by or on behalf of the Loan Parties); and
(g) as of the date hereof, all Liens, security interests, assignments and pledges encumbering the Collateral, created pursuant to and/or referred to in the Credit Agreement or the other Loan Documents, are valid, enforceable, duly perfected to the extent required by such documents, non-avoidable, first priority liens, security interests, assignments and pledges (subject to Liens permitted by Section 6.02 of the Credit Agreement), continue unimpaired, are in full force and effect and secure and shall continue to secure all of the obligations purported to be secured in the respective Loan Documents pursuant to which such Liens were granted.
Appears in 1 contract
Representations, Warranties, Covenants and Acknowledgments. To induce the Agent The Participant hereby represents, warrants, covenants, acknowledges and Lenders to enter into this Amendment, the Borrower herebyagrees that:
(a) represents The Participant is holding the Shares for his or her own account, and warrants that (i) as not for the account of any other person. The Participant is holding the Effective Date, all of the representations Shares for investment and warranties made not with a view to distribution or deemed to be made under the Loan Documents are true and correct resale thereof except in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty is true and correct in all respects) on and as of the Effective Date to the same extent as though made on and as of the Effective Date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties were true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty was true and correct in all respects) on and as of such earlier date; (ii) as of the Effective Date, after giving effect to the terms of this Amendment, there exists no Default or Event of Default under the Loan Agreement or any of the other Loan Documents; (iii) the Borrower has the corporate power and is duly authorized to enter into, deliver and perform this Amendment; and (iv) this Amendment is the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance compliance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar applicable laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability;regulating securities.
(b) acknowledges The Participant is presently an employee of, or consultant to, the Company and/or a Subsidiary and agrees that (i) this Amendment does not and shall not create (nor shall in such capacity has become personally familiar with the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation business of the Agent or any Lender to consider or agree to any further consent, waiver or amendment with respect to any Loan Document and, in the event that the Agent or any Lender subsequently agrees to consider any further consent, waiver or amendment with respect to any Loan Document, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or such Lender’s consideration or decision with respect thereto, Company and neither the Agent nor any Lender shall have any further obligation whatsoever to consider or agree to any further consent, waiver or amendment with respect to any Loan Document; and (ii) except as expressly set forth in this Amendment, the Agent and each Lender reserves all of their respective rights pursuant to the Loan Agreement and all other Loan Documents;its Subsidiaries.
(c) further acknowledges The Participant has had the opportunity to ask questions of, and agrees that to receive answers from, the Agent’s and Lenders’ agreement to waive and amend the specific matters addressed in this Amendment, do not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further waivers, consents or amendments and, in the event that the Agent or any Lender subsequently agrees to consider any further waivers, consents or amendments, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or any Lender’s consideration or decision Company with respect to any such requested consent;the terms and conditions of the transactions contemplated hereby and with respect to the business, affairs, financial conditions, and results of operations of the Company and its Subsidiaries.
(d) further acknowledges The Participant understands that the Shares have not been registered under the Securities Act and agrees that the Shares cannot be transferred by the Participant unless such transfer is registered under the Securities Act or an exemption from such registration is available. The Company has made no right of offsetagreements, defense, counterclaim, claim, cause of action covenants or objection in favor undertakings whatsoever to register the transfer of the Borrower against any Lender exists arising out of or with respect to (i) this AmendmentShares under the Securities Act. The Company has made no representations, the Loan Agreement or any other Loan Documentwarranties, or (ii) covenants whatsoever as to whether any other documents now or heretofore evidencingexemption from the Securities Act, securing or including, without limitation, any exemption for limited sales in any way relating routine brokers’ transactions pursuant to Rule 144 of the foregoing; andSecurities Act, will be available.
(e) further acknowledges and agrees that this Amendment shall be deemed a Loan Document for all purposes under None of the Loan Agreement Company’s securities is presently publicly traded, and the other Loan DocumentsCompany has made no representations, covenants or agreements as to whether there will be a public market for any of its securities.
(f) The Company has made no warranties or representations to the Participant with respect to the income tax consequences of the transactions contemplated by this Agreement, and the Participant is in no manner relying on the Company or its representatives for an assessment of such tax consequences.
(g) The representations, warranties and covenants contained in this Section 9 shall survive the later of the date of execution and delivery of this Agreement or the issuance of the Shares.
Appears in 1 contract
Representations, Warranties, Covenants and Acknowledgments. To induce the Agent and Lenders to enter into this Amendment, the Agreement: Each Borrower hereby:
(a) represents and warrants Guarantor does hereby represent and warrant that (i) as of the Effective Datedate hereof, all of the representations and warranties made or deemed to be made under the Forbearance Agreement and the other Loan Documents are true and correct in all material respects (other than any correct, including without limitation each of those representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty is true and correct in all respects) on warranties as they relate to the Tractors and as the grant of the Effective Date to the same extent as though made on and as of the Effective Datesecurity interest herein, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties were true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty was true and correct in all respects) on and as of such earlier date; (ii) as of the Effective Datedate hereof, after giving effect to the terms of this Amendmenthereof, there exists no (A) default or breach of the Forbearance Agreement or (B) Default or Event of Default under the Loan Agreement or any of the other Loan Documents; , other than any Default or Event of Default which may arise from the failure of Borrowers to pay, during the Forbearance Period, certain interest payments with respect to the Senior Notes (as defined below), (iii) the such Borrower and Guarantor has the corporate power and is duly authorized to enter into, deliver and perform this Amendment; Agreement, and (iv) this Amendment Agreement and each of the Forbearance Agreement and the other Loan Documents is the legal, valid and binding obligation of the such Borrower and Guarantor enforceable against the Borrower it in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability;
(b) acknowledges ; and agrees that (i) this Amendment Each Borrower and Guarantor does not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation hereby reaffirm each of the Agent or any Lender to consider or agree to any further consentagreements, waiver or amendment with respect to any Loan Document and, in the event that the Agent or any Lender subsequently agrees to consider any further consent, waiver or amendment with respect to any Loan Document, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or such Lender’s consideration or decision with respect theretocovenants, and neither the Agent nor any Lender shall have any further obligation whatsoever to consider or agree to any further consent, waiver or amendment with respect to any Loan Document; and (ii) except as expressly undertakings set forth in this Amendment, the Agent Forbearance Agreement and each Lender reserves all of their respective rights pursuant to the Loan Agreement and all every other Loan Documents;
(c) further acknowledges and agrees that the Agent’s and Lenders’ agreement to waive and amend the specific matters addressed Document executed in this Amendment, do not and shall not create (nor shall the connection therewith or pursuant thereto as if such Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further waiversGuarantor were making said agreements, consents or amendments and, in the event that the Agent or any Lender subsequently agrees to consider any further waivers, consents or amendments, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect covenants and undertakings on the Agent’s or any Lender’s consideration or decision with respect to any such requested consent;
(d) further acknowledges date hereof; and agrees Each Borrower and Guarantor does hereby acknowledge and agree that no right of offset, defense, counterclaim, claim, cause causes of action or objection in favor of the any Borrower or Guarantor against Agent or any Lender exists arising out of or with respect to (i) the Secured Obligations, this AmendmentAgreement, the Forbearance Agreement, the Loan Agreement or any of the other Loan DocumentDocuments, or (ii) any other documents now or heretofore evidencing, securing or in any way relating to the foregoingforegoing or (iii) the administration or funding of the Revolving Credit Loans; and
(e) further acknowledges and agrees Each Borrower and Guarantor does hereby acknowledge and agree that this Amendment shall be deemed a Loan Document for any and all purposes under references to the Loan Agreement herein or in the Forbearance Agreement shall mean and refer to the other Loan DocumentsAgreement, as amended by (i) that certain First Amendment to Post-Confirmation Loan and Security Agreement, dated August 31, 2000, (ii) that certain Second Amendment to Post-Confirmation Loan and Security Agreement, dated January 26, 2001, (iii) that certain Third Amendment to Post-Confirmation Loan and Security Agreement, dated February 28, 2001, (iv) that certain Fourth Amendment to Post-Confirmation Loan and Security Agreement, dated March 30, 2001, (v) that certain Fifth Amendment to Post-Confirmation Loan and Security Agreement, dated April 13, 2001, (vi) that certain Sixth Amendment to Post-Confirmation Loan and Security Agreement, dated April 27, 2001, (vii) that certain Seventh Amendment to Post-Confirmation Loan and Security Agreement, dated May 18, 2001, (viii) that certain Eighth Amendment to Post-Confirmation Loan and Security Agreement, dated June 4, 2001, (ix) that certain Ninth Amendment to Post-Confirmation Loan and Security Agreement, dated June 8, 2001, (x) that certain Tenth Amendment to Post-Confirmation Loan and Security Agreement, dated June 15, 2001, (xi) that certain Eleventh Amendment to Post-Confirmation Loan and Security Agreement, dated June 27, 2001, (xii) that certain Twelfth Amendment to Post-Confirmation Loan and Security Agreement, dated July 6, 2001, (xiii) that certain Thirteenth Amendment to Post-Confirmation Loan and Security Agreement, dated July 13, 2001, (xiv) that certain Fourteenth Amendment to Post-Confirmation Loan and Security Agreement, dated July 20, 2001, (xv) that certain Fifteenth Amendment to Post-Confirmation Loan and Security Agreement, dated July 27, 2001, (xvi) that certain Sixteenth Amendment to Post-Confirmation Loan and Security Agreement, dated August 3, 2001, (xvii) that certain Seventeenth Amendment to Post-Confirmation Loan and Security Agreement, dated August 10, 2001, (xviii) that certain Eighteenth Amendment to Post-Confirmation Loan and Security Agreement, dated August 17, 2001, (xix) that certain Nineteenth Amendment to Post-Confirmation Loan and Security Agreement, dated August 24, 2001, (xx) that certain Twentieth Amendment to Post-Confirmation Loan and Security Agreement, dated August 31, 2001, (xxi) that certain Twenty-First Amendment to Post-Confirmation Loan and Security Agreement, dated September 7, 2001, (xxii) that certain Twenty-Second Amendment to Post-Confirmation Loan and Security Agreement, dated September 14, 2001, (xxiii) that certain Twenty-Third Amendment to Post-Confirmation Loan and Security Agreement, dated September 21, 2001, (xxiv) that certain Twenty-Fourth Amendment to Post-Confirmation Loan and Security Agreement, dated September 28, 2001, (xxv) that certain Twenty-Fifth Amendment to Post-Confirmation Loan and Security Agreement, dated October 5, 2001, (xxvi) that certain Twenty-Sixth Amendment to Post-Confirmation Loan and Security Agreement, dated October 12, 2001, (xxvii) that certain Twenty-Seventh Amendment to Post-Confirmation Loan and Security Agreement, dated October 19, 2001, and (xxviii) that certain Twenty-Eighth Amendment to Post-Confirmation Loan and Security Agreement, as contained herein.
Appears in 1 contract
Sources: Forbearance Agreement and Loan and Security Agreement (Trism Inc /De/)
Representations, Warranties, Covenants and Acknowledgments. To induce the Agent and Lenders to enter into this Amendment, the Agreement: Each Borrower hereby:
(a) represents and warrants Guarantor does hereby represent and warrant that (i) as of the Effective Datedate hereof, all of the representations and warranties made or deemed to be made under the Forbearance Agreement and the other Loan Documents are true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effectcorrect, in which case such representation or warranty is true and correct in all respects) on and as of the Effective Date to the same extent as though made on and as of the Effective Date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties were true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty was true and correct in all respects) on and as of such earlier date; (ii) as of the Effective Datedate hereof, after giving effect to the terms of this Amendmenthereof, there exists no (A) default or breach of the Forbearance Agreement or (B) Default or Event of Default under the Loan Agreement or any of the other Loan Documents; , other than any Default or Event of Default which may arise from the failure of Borrowers to pay, during the Forbearance Period, certain interest payments with respect to the Senior Notes (as defined below), (iii) the such Borrower and Guarantor has the corporate power and is duly authorized to enter into, deliver and perform this Amendment; Agreement, and (iv) this Amendment Agreement and each of the Forbearance Agreement and the other Loan Documents is the legal, valid and binding obligation of the such Borrower and Guarantor enforceable against the Borrower it in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability;
(b) acknowledges ; and agrees that (i) this Amendment Each Borrower and Guarantor does not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation hereby reaffirm each of the Agent or any Lender to consider or agree to any further consentagreements, waiver or amendment with respect to any Loan Document and, in the event that the Agent or any Lender subsequently agrees to consider any further consent, waiver or amendment with respect to any Loan Document, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or such Lender’s consideration or decision with respect theretocovenants, and neither the Agent nor any Lender shall have any further obligation whatsoever to consider or agree to any further consent, waiver or amendment with respect to any Loan Document; and (ii) except as expressly undertakings set forth in this Amendment, the Agent Forbearance Agreement and each Lender reserves all of their respective rights pursuant to the Loan Agreement and all every other Loan Documents;
(c) further acknowledges and agrees that the Agent’s and Lenders’ agreement to waive and amend the specific matters addressed Document executed in this Amendment, do not and shall not create (nor shall the connection therewith or pursuant thereto as if such Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further waiversGuarantor were making said agreements, consents or amendments and, in the event that the Agent or any Lender subsequently agrees to consider any further waivers, consents or amendments, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect covenants and undertakings on the Agent’s or any Lender’s consideration or decision with respect to any such requested consent;
(d) further acknowledges date hereof; and agrees Each Borrower and Guarantor does hereby acknowledge and agree that no right of offset, defense, counterclaim, claim, cause causes of action or objection in favor of the any Borrower or Guarantor against Agent or any Lender exists arising out of or with respect to (i) the Secured Obligations, this AmendmentAgreement, the Forbearance Agreement, the Loan Agreement or any of the other Loan DocumentDocuments, or (ii) any other documents now or heretofore evidencing, securing or in any way relating to the foregoingforegoing or (iii) the administration or funding of the Revolving Credit Loans; and
(e) further acknowledges and agrees Each Borrower and Guarantor does hereby acknowledge and agree that this Amendment shall be deemed a Loan Document for any and all purposes under references to the Loan Agreement herein or in the Forbearance Agreement shall mean and refer to the other Loan DocumentsAgreement, as amended by (i) that certain First Amendment to Post-Confirmation Loan and Security Agreement, dated August 31, 2000, (ii) that certain Second Amendment to Post-Confirmation Loan and Security Agreement, dated January 26, 2001, (iii) that certain Third Amendment to Post-Confirmation Loan and Security Agreement, dated February 28, 2001, (iv) that certain Fourth Amendment to Post-Confirmation Loan and Security Agreement, dated March 30, 2001, (v) that certain Fifth Amendment to Post-Confirmation Loan and Security Agreement, dated April 13, 2001, (vi) that certain Sixth Amendment to Post-Confirmation Loan and Security Agreement, dated April 27, 2001, (vii) that certain Seventh Amendment to Post-Confirmation Loan and Security Agreement, dated May 18, 2001, (viii) that certain Eighth Amendment to Post-Confirmation Loan and Security Agreement, dated June 4, 2001, (ix) that certain Ninth Amendment to Post-Confirmation Loan and Security Agreement, dated June 8, 2001, (x) that certain Tenth Amendment to Post-Confirmation Loan and Security Agreement, dated June 15, 2001, (xi) that certain Eleventh Amendment to Post-Confirmation Loan and Security Agreement, dated June 27, 2001, (xii) that certain Twelfth Amendment to Post-Confirmation Loan and Security Agreement, dated July 6, 2001, (xiii) that certain Thirteenth Amendment to Post-Confirmation Loan and Security Agreement, dated July 13, 2001, (xiv) that certain Fourteenth Amendment to Post-Confirmation Loan and Security Agreement, dated July 20, 2001, (xv) that certain Fifteenth Amendment to Post-Confirmation Loan and Security Agreement, dated July 27, 2001, and (xvi) that certain Sixteenth Amendment to Post-Confirmation Loan and Security Agreement, as contained herein.
Appears in 1 contract
Sources: Forbearance Agreement and Loan and Security Agreement (Trism Inc /De/)
Representations, Warranties, Covenants and Acknowledgments. To induce the Agent and Lenders to enter into this Amendment, the Agreement: Each Borrower hereby:
(a) represents and warrants Guarantor does hereby represent and warrant that (i) as of the Effective Datedate hereof, all of the representations and warranties made or deemed to be made under the Forbearance Agreement and the other Loan Documents are true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effectcorrect, in which case such representation or warranty is true and correct in all respects) on and as of the Effective Date to the same extent as though made on and as of the Effective Date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties were true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty was true and correct in all respects) on and as of such earlier date; (ii) as of the Effective Datedate hereof, after giving effect to the terms of this Amendmenthereof, there exists no (A) default or breach of the Forbearance Agreement or (B) Default or Event of Default under the Loan Agreement or any of the other Loan Documents; , (iii) the such Borrower and Guarantor has the corporate power and is duly authorized to enter into, deliver and perform this Amendment; Agreement, and (iv) this Amendment Agreement and each of the Forbearance Agreement and the other Loan Documents is the legal, valid and binding obligation of the such Borrower and Guarantor enforceable against the Borrower it in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability;
(b) acknowledges ; and agrees that (i) this Amendment Each Borrower and Guarantor does not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation hereby reaffirm each of the Agent or any Lender to consider or agree to any further consentagreements, waiver or amendment with respect to any Loan Document and, in the event that the Agent or any Lender subsequently agrees to consider any further consent, waiver or amendment with respect to any Loan Document, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or such Lender’s consideration or decision with respect theretocovenants, and neither the Agent nor any Lender shall have any further obligation whatsoever to consider or agree to any further consent, waiver or amendment with respect to any Loan Document; and (ii) except as expressly undertakings set forth in this Amendment, the Agent Forbearance Agreement and each Lender reserves all of their respective rights pursuant to the Loan Agreement and all every other Loan Documents;
(c) further acknowledges and agrees that the Agent’s and Lenders’ agreement to waive and amend the specific matters addressed Document executed in this Amendment, do not and shall not create (nor shall the connection therewith or pursuant thereto as if such Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further waiversGuarantor were making said agreements, consents or amendments and, in the event that the Agent or any Lender subsequently agrees to consider any further waivers, consents or amendments, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect covenants and undertakings on the Agent’s or any Lender’s consideration or decision with respect to any such requested consent;
(d) further acknowledges date hereof; and agrees Each Borrower and Guarantor does hereby acknowledge and agree that no right of offset, defense, counterclaim, claim, cause causes of action or objection in favor of the any Borrower or Guarantor against Agent or any Lender exists arising out of or with respect to (i) the Secured Obligations, this AmendmentAgreement, the Forbearance Agreement, the Loan Agreement or any of the other Loan DocumentDocuments, or (ii) any other documents now or heretofore evidencing, securing or in any way relating to the foregoingforegoing or (iii) the administration or funding of the Revolving Credit Loans; and
(e) further acknowledges and agrees Each Borrower and Guarantor does hereby acknowledge and agree that this Amendment shall be deemed a Loan Document for any and all purposes under references to the Loan Agreement herein or in the Forbearance Agreement shall mean and refer to the other Loan DocumentsAgreement, as amended by (i) that certain First Amendment to Post-Confirmation Loan and Security Agreement, dated August 31, 2000, (ii) that certain Second Amendment to Post-Confirmation Loan and Security Agreement, dated January 26, 2001, (iii) that certain Third Amendment to Post-Confirmation Loan and Security Agreement, dated February 28, 2001, (iv) that certain Fourth Amendment to Post-Confirmation Loan and Security Agreement, dated March 30, 2001, (v) that certain Fifth Amendment to Post-Confirmation Loan and Security Agreement, dated April 13, 2001, and (vi) that certain Sixth Amendment to Post-Confirmation Loan and Security Agreement, as contained herein.
Appears in 1 contract
Sources: Forbearance Agreement and Loan and Security Agreement (Trism Inc /De/)
Representations, Warranties, Covenants and Acknowledgments. To induce the Agent and Lenders Lender to enter into this Second Amendment, the Borrower each Credit Party does hereby:
(a) represents represent and warrants warrant that (i) as of the Effective Datedate hereof, all of the representations and warranties made or deemed to be made under the Loan Documents are true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty is true and correct in all respects) on and as of the Effective Date to the same extent as though made on and as of the Effective Datecorrect, except to the extent for such representations and warranties specifically relate which, by their express terms, are applicable only to an earlier date, in which case such representations and warranties were true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty was true and correct in all respects) on and as of such earlier datethe Closing Date; (ii) as of the Effective Datedate hereof, after giving effect to the terms of this Amendmenthereof, there exists no Default or Event of Default under the Loan Agreement or any of the other Loan Documents; (iii) the Borrower such Credit Party has the corporate power and is duly authorized to enter into, deliver and perform this Second Amendment; and (iv) this Second Amendment is the legal, valid and binding obligation of the Borrower such Credit Party enforceable against the Borrower such Credit Party in accordance with its terms, except as may ; and (iv) that all Retained Amounts will be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws used for Borrower solely for purposes of funding certain Capital Expenditures relating to or limiting creditors’ rights generally or the Systems owned by equitable principles relating to enforceability;Borrower as of the date of this Second Amendment and otherwise in accordance with the Loan Agreement; and
(b) acknowledges and agrees that (i) this Amendment does not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation reaffirm each of the Agent or any Lender to consider or agree to any further consentagreements, waiver or amendment with respect to any Loan Document and, in the event that the Agent or any Lender subsequently agrees to consider any further consent, waiver or amendment with respect to any Loan Document, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or such Lender’s consideration or decision with respect theretocovenants, and neither the Agent nor any Lender shall have any further obligation whatsoever to consider or agree to any further consent, waiver or amendment with respect to any Loan Document; and (ii) except as expressly undertakings set forth in this Amendment, the Agent and each Lender reserves all of their respective rights pursuant to the Loan Agreement and all each and every other Loan Documents;Document executed in connection therewith or pursuant thereto as if such Credit Party were making said agreements, covenants and undertakings on the date hereof; and
(c) further acknowledges acknowledge and agrees that the Agent’s and Lenders’ agreement to waive and amend the specific matters addressed in this Amendment, do not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further waivers, consents or amendments and, in the event that the Agent or any Lender subsequently agrees to consider any further waivers, consents or amendments, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or any Lender’s consideration or decision with respect to any such requested consent;
(d) further acknowledges and agrees that no right of offset, defense, counterclaim, claim, cause causes of action or objection in favor of such Credit Party against the Borrower against any Agent or Lender exists arising out of or with respect to (i) this Second Amendment, the Loan Agreement or any of the other Loan Document, Documents or (ii) any other documents now or heretofore evidencing, securing or in any way relating to the foregoing; and
(e) further acknowledges and agrees that this Amendment shall be deemed a Loan Document for all purposes under the Loan Agreement and the other Loan Documents.
Appears in 1 contract
Sources: Term Loan Agreement (Northland Cable Properties Seven Limited Partnership)
Representations, Warranties, Covenants and Acknowledgments. To induce the Administrative Agent and the Required Lenders to enter into this AmendmentAgreement, the Borrower each Loan Party hereby:
(a) represents and warrants that to Administrative Agent and the Lenders that
(i) as of the Effective Datedate hereof, all each of the representations and warranties made or deemed to be made under set forth in the Financing Agreement and each other Loan Documents are Document is true and correct in all material respects (other than any representation or warranty that is qualified by materiality or Material Adverse Effect, in which case such representation or warranty is true and correct in all respects) on and as of the Effective Date date hereof to the same extent as though made on and as of the Effective Datedate hereof (unless such representation or warranty is qualified as to materiality or Material Adverse Effect, in which case, such representation or warranty shall be true and correct in all respects), except to the extent that any such representations representation and warranties specifically relate warranty relates solely to an earlier date, in which case such representations representation and warranties were warranty was true and correct in all material respects on and as of such earlier date (other than any unless such representation or warranty that is qualified by as to materiality or Material Adverse Effect, in which case case, such representation or warranty was shall be true and correct in all respects) on and as of such earlier date; );
(ii) as of the Effective Datedate hereof, after giving effect to the terms of this Amendment, there exists no Default or Event of Default has occurred and is continuing under the Loan Financing Agreement or any of the other Loan Documents; Document;
(iii) the Borrower such Loan Party has the corporate power and is duly authorized to enter into, deliver and perform its obligations under this Amendment; and Agreement;
(iv) each of this Amendment Agreement and the Financing Agreement is the legal, valid and binding obligation of the Borrower such Loan Party enforceable against the Borrower such Loan Party in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability; and
(v) the execution, delivery and performance of this Agreement does not conflict with, result in a breach of or constitute (with notice or lapse of time or both) a default under any material Contractual Obligation of such Loan Party;
(b) reaffirms each of the agreements, covenants and undertakings set forth in the Financing Agreement and each other Loan Document to which it is a party executed in connection therewith or pursuant thereto, in each case, as modified by the terms of this Agreement;
(c) acknowledges and agrees that no right of offset, defense, counterclaim, recoupment, claim, cause of action or objection in favor of such Loan Party against any Agent or Lender exists as of the date hereof arising out of or with respect to (i) this Amendment Agreement, the Financing Agreement or any other Loan Document or (ii) any other document now or heretofore evidencing, securing or in any way relating to the foregoing;
(d) further acknowledges and agrees that
(i) except as expressly set forth herein, this Agreement is not intended, and should not be construed, as an amendment of, or any kind of waiver, consent or other modification related to, the Financing Agreement or the other Loan Documents;
(ii) except as expressly set forth herein, this Agreement shall not represent any agreement, consent or waiver related to any future action of any Loan Party;
(iii) except as expressly set forth herein, the Agents and Lenders reserve all of their respective rights under the Financing Agreement and all other Loan Documents;
(iv) this Agreement shall constitute a Loan Document for all purposes under the Financing Agreement and the other Loan Documents;
(v) to the extent any representation, warranty, certification or other statement made herein shall be false in any material respect as of the date made or deemed made or if the Loan Parties fail to timely satisfy any of the conditions listed in this Agreement to the satisfaction of Administrative Agent, such occurrence shall be deemed an immediate Event of Default pursuant to the terms of the Financing Agreement and other Loan Documents; and
(vi) the Limited Waiver does not and shall not create (nor shall the Borrower or any of its Subsidiaries Loan Party rely upon the existence of or claim or assert that there exists) any obligation of the any Agent or any Lender to consider or agree to any further consentfuture amendment, consent or waiver or amendment with respect to any Loan Document and, in the event that the any Agent or any Lender ▇▇▇▇▇▇ subsequently agrees to consider any further consentfuture amendment, waiver consent or amendment with respect to any Loan Documentwaiver, neither this Amendment the Limited Waiver nor any other conduct of the any Agent or any Lender shall be of any force or effect on the any Agent’s or such Lender’s consideration or decision with respect thereto, and neither the Agent nor any Lender shall have any further obligation whatsoever to consider or agree to any further consent, waiver or amendment with respect to any Loan Document; and (ii) except as expressly set forth in this Amendment, the Agent and each Lender reserves all of their respective rights pursuant to the Loan Agreement and all other Loan Documents;
(c) further acknowledges and agrees that the Agent’s and Lenders’ agreement to waive and amend the specific matters addressed in this Amendment, do not and shall not create (nor shall the Borrower or any of its Subsidiaries rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any further waivers, consents or amendments and, in the event that the Agent or any Lender subsequently agrees to consider any further waivers, consents or amendments, neither this Amendment nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or any Lender’s consideration or decision with respect to any such requested consent;
(d) further acknowledges amendment, consent or waiver, and agrees that no right of offset, defense, counterclaim, claim, cause of action or objection in favor of the Borrower against Agent nor any Lender exists arising out of shall have any obligation whatsoever to consider or with respect agree to (i) this Amendmentany future amendment, the Loan Agreement consent, waiver or any other Loan Document, or (ii) any other documents now or heretofore evidencing, securing or in any way relating to the foregoing; andagreement.
(e) further acknowledges and agrees that neither this Amendment Agreement nor any document executed in connection herewith shall be deemed to constitute a refinancing, substitution or novation of the Financing Agreement, any Loan Document for all purposes under Document, the Loan Agreement Obligations or any other obligations and the other Loan Documentsliabilities thereunder.
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