BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants that: (a) it is registered as a company under the Act, and has the power to carry on its business and own its property in the manner and in the locations in which such business is presently being carried on or property owned; (b) it has full power and authority under its constitution: (i) to enter into this Agreement and the Security; (ii) to do all things required by this Agreement and the Security; (iii) all necessary meetings have been held; (iv) all required resolutions have been passed; and (v) any other action necessary to authorise the execution and performance of this Agreement and the Security has been taken; this Agreement and the Security will each constitute the legal, valid, binding and enforceable obligation of the Borrower in accordance with their respective terms; (c) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, neither the execution nor the performance of this Agreement or the Security will: (i) violate in any respect any statute, decree, rule or regulation or any determination, order or award of any court or any governmental, judicial or public body or authority applicable to the Borrower; (ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers of the Borrower or on the Borrower’s right or ability to exercise such powers to be exceeded; (iii) conflict with, or result in any breach of, or require any consent or approval under, any mortgage, agreement or other undertaking or instrument to which the Borrower is a party or which is binding on the Borrower or any of the Borrower’s assets; (iv) result in a mortgage, charge, lien or other encumbrance over any of the Borrower’s assets; or (v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded; (vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower is not in default or difficulty under any deed, agreement or other document or obligation to which it is a party or by which it is bound, or in respect of any financial commitment or obligation, including obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect the ability of the Borrower to comply with its obligations under this Agreement or the Security; (d) the Borrower is in full and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all other legislation and regulations to which the Borrower may any time and from time to time be subject; (e) no event of default or event which, with the giving of notice or the lapse of time or both, would be an event of default and, having occurred, is continuing to subsist; (f) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, no litigation or administrative or other proceedings before, or of, any court or governmental authority, agency or other tribunal have, to the knowledge of the Borrower, been initiated or threatened against the Borrower or any of the Borrower’s assets which would or might have a material adverse effect on the business, assets or financial condition of the Borrower; (g) the Borrower does not have, and will not during the currency of this Agreement have, any right of set-off, counterclaim, any right to rescind or any other claim with respect to this Agreement by way of cross-action against the Lender; (h) all of the most recent annual or half-yearly or both, as the case requires, accounts of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrower; and (i) the Borrower is not the trustee of any trust and accordingly enters into this Agreement on its own behalf.
Appears in 6 contracts
Samples: Loan Agreement (Australian Oilseeds Holdings LTD), Loan Agreement (Australian Oilseeds Holdings LTD), Loan Agreement (Australian Oilseeds Holdings LTD)
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Each Borrower hereby reaffirms all of the representations and warranties set forth in the Loan Documents to be true, accurate and correct in all material respects as of the date of this Agreement to the extent such representations and warranties are not matters which, by their nature, can no longer be true and correct as a result of the passage of time, and except for changes in circumstances arising from actions or events occurring after the date of the Loan Agreement that do not otherwise constitute a Default thereunder, including, without limitation, the execution of new Leases or new contracts that are not prohibited by the terms of the Loan Agreement or any other Loan Document. Each Borrower further represents and warrants that:
that as of the Effective Date (a) it is registered as a company under the Act, and has the power to carry on its business and own its property information included in the manner Beneficial Ownership Certification, if applicable, is true and correct in the locations in which such business is presently being carried on or property owned;
all respects; (b) it to each Borrower’s knowledge, no Default or Potential Default has full power occurred and authority is continuing; (c) each Borrower is a limited liability company which is duly organized and validly existing under its constitution:
the laws of the State of Delaware; (id) to enter into this Agreement and the Security;
(ii) to do all things required by this Agreement and the Security;
(iii) all necessary meetings there have been held;
no material changes in formation documents of any Borrower since the inception of the Loan; (ive) all required resolutions have been passed; and
(v) any other action necessary to authorise the execution and performance delivery of this Agreement and the Security has been taken; this Agreement and the Security will each constitute the legaldo not contravene, valid, binding and enforceable obligation of the Borrower in accordance with their respective terms;
(c) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, neither the execution nor the performance of this Agreement or the Security will:
(i) violate in any respect any statute, decree, rule or regulation or any determination, order or award of any court or any governmental, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers of the Borrower or on the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict with, or result in any a breach of, or require any consent or approval constitute a default under, any mortgage, agreement loan agreement, indenture or other undertaking contract or instrument agreement to which the any Borrower is a party or by which is binding on the any Borrower or any of its properties may be bound (nor would such execution and delivery constitute such a default with the passage of time or the giving of notice or both), and do not violate or contravene any law, order, decree, rule, regulation or restriction to which any Borrower or any Property is subject; (f) this Agreement constitutes the legal, valid and binding obligations of each Borrower enforceable in accordance with its terms; (g) the execution and delivery of, and performance under, this Agreement are within each Borrower’s assets;
(iv) result power and authority without the joinder or consent of any other party and have been duly authorized by all requisite action, and are not in a mortgagecontravention of any law, charge, lien or other encumbrance over of any of the Borrower’s assets; or
(v) cause articles of organization or operating agreement or of any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower is not in default or difficulty under any deedindenture, agreement or other document or obligation undertaking to which it any Borrower is a party or by which it is bound, or in respect of any financial commitment or obligation, including obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect the ability of the Borrower to comply with its obligations under this Agreement or the Security;
(d) the Borrower is in full and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all other legislation and regulations to which the Borrower may any time and from time to time be subject;
(e) no event of default or event which, with the giving of notice or the lapse of time or both, would be an event of default and, having occurred, is continuing to subsist;
(f) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, no litigation or administrative or other proceedings before, or of, any court or governmental authority, agency or other tribunal have, to the knowledge of the Borrower, been initiated or threatened against the Borrower or any of the Borrower’s assets which would or might have a material adverse effect on the business, assets or financial condition of the Borrower;
(g) the Borrower does not have, and will not during the currency of this Agreement have, any right of set-off, counterclaim, any right to rescind or any other claim with respect to this Agreement by way of cross-action against the Lender;
(h) all of the most recent annual or half-yearly or both, as the case requires, accounts of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrower; and
(i) the Borrower is not the trustee of any trust and accordingly enters into this Agreement on its own behalf.
Appears in 3 contracts
Samples: Loan Modification Agreement (KBS Real Estate Investment Trust III, Inc.), Loan Modification and Extension Agreement (KBS Real Estate Investment Trust III, Inc.), Loan Modification and Extension Agreement (KBS Real Estate Investment Trust III, Inc.)
BORROWER'S REPRESENTATIONS AND WARRANTIES. The To induce the Lender to make the Loan provided hereunder, the Borrower represents and warrants that:to the Lender that the following representations and warranties are accurate as of the date of this Loan Agreement.
(a) it The Borrower is registered as a company duly organized and existing in good standing under the Actlaws of the state of its incorporation, is duly qualified to transact business and is in good standing in all states and other jurisdictions in which failure to qualify would have a Material Adverse Effect upon such Borrower, and has the corporate power and authority to carry on its business and own its property properties and assets and to transact the business in which it is engaged, and is or will be qualified in those states and other jurisdictions wherein it proposes to transact material business operations in the manner and in the locations in which such business is presently being carried on or property owned;future.
(b) it The Borrower has full the corporate power and requisite authority under its constitution:
(i) to enter into this Agreement execute, deliver and perform the Security;
(ii) Loan Documents to do be executed by the Borrower. The Borrower is duly authorized to, and has taken all things required by this Agreement and the Security;
(iii) all necessary meetings have been held;
(iv) all required resolutions have been passed; and
(v) any other corporate action necessary to authorise authorize such to, execute, deliver and perform the Loan Documents executed by Borrower. The Borrower is and will continue to be duly authorized to perform the Loan Documents executed by it.
(c) Neither the execution and performance of this Agreement and the Security has been taken; this Agreement and the Security will each constitute the legal, valid, binding and enforceable obligation delivery of the Loan Documents, nor the consummation of any of the transactions therein contemplated, nor compliance with the terms and provisions thereof, will contravene or materially conflict with any provision of law, statute or regulation to which Borrower is subject, or any judgment, license, order or permit applicable to Borrower, or any indenture, loan agreement, mortgage, deed of trust, or other agreement or instrument to which Borrower is a party or by which Borrower may be bound, or to which Borrower may be subject, or violate any provision of the charter or bylaws of Borrower. No consent, approval, authorization or order of any court or governmental authority or third party is required in connection with the execution and delivery of the Loan Documents by Borrower, or to consummate the transactions contemplated hereby or thereby.
(d) The Loan Documents have been duly executed and delivered by the Borrower and are the legal and binding obligations of the Borrower, enforceable in accordance with their respective terms;
(c) , except as disclosed limited by any applicable bankruptcy, insolvency or similar laws now or hereafter in writing to the Lender and dispensed with in writing by the Lender, neither the execution nor the performance of this Agreement or the Security will:
(i) violate in any respect any statute, decree, rule or regulation or any determination, order or award of any court or any governmental, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers of the Borrower or on the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict with, or result in any breach of, or require any consent or approval under, any mortgage, agreement or other undertaking or instrument to which the Borrower is a party or which is binding on the Borrower or any of the Borrower’s assets;
(iv) result in a mortgage, charge, lien or other encumbrance over any of the Borrower’s assets; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower is not in default or difficulty under any deed, agreement or other document or obligation to which it is a party or by which it is bound, or in respect of any financial commitment or obligation, including obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect the ability of the Borrower to comply with its obligations under this Agreement or the Security;
(d) the Borrower is in full and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all other legislation and regulations to which the Borrower may any time and from time to time be subject;effect affecting creditors' rights generally.
(e) To the best of our knowledge and belief after current investigation, there is no material fact that Borrower has not disclosed to Lender which could have a material adverse effect on the properties, business, prospects or condition (financial or otherwise) of Borrower. Neither the financial statements, nor any business plan, offering memorandum or prospectus, certificate or statement delivered herewith or heretofore by Borrower to Lender in connection with negotiations of this Loan Agreement, contains any untrue statement of a material fact or omits to state any material fact necessary to keep the statements contained herein or therein from being misleading.
(f) No event of default or event which, has occurred and is continuing with the giving of notice or the lapse of time or both, would be constitutes an event of default and, having occurred, is continuing to subsist;under the Note or this Agreement.
(fg) except as disclosed in writing There are no actions, suits, investigations, arbitrations or administrative proceedings pending, or to the Lender knowledge of Borrower threatened, against Borrower, and dispensed with there has been no change in writing by the Lenderstatus of any of the actions, no suits, investigations, litigation or administrative proceedings disclosed to Lender which could have a materially adverse affect on Borrower or other proceedings before, or of, on any court or governmental authority, agency or other tribunal have, to transactions contemplated by any Loan Document.
(h) To the best knowledge of the Borrower, been initiated it is not a party to, or threatened against bound by, any contract or agreement, the Borrower faithful performance of which is so onerous so as to create or any of the Borrower’s assets which would or might have to likely create a material adverse effect on the business, assets operations or financial condition of the Borrower;
(g) the Borrower does not have, and will not during the currency of this Agreement have, any right of set-off, counterclaim, any right to rescind or any other claim with respect to this Agreement by way of cross-action against the Lender;
(h) all of the most recent annual or half-yearly or both, as the case requires, accounts of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrower; and.
(i) All tax returns to be filed by the Borrower in any jurisdiction have been filed (or are subject to valid extensions of time to file as approved by the relevant taxing authority or authorities) and all taxes (including mortgage recording taxes), assessments, fees and other governmental charges upon Borrower or upon any of its properties, income or franchises have been paid.
(j) To the best knowledge of the Borrower is not the trustee in compliance with all laws, rules, regulations, orders and decrees which are applicable to it, or its properties by reason of any trust governmental authority which are material to the conduct of the business of Borrower, or any of their properties.
(k) To the best knowledge of the Borrower, all properties of Borrower are in compliance with all federal state or local environmental protection laws, statutes and accordingly enters into regulations which are material to the conduct of the business of Borrower, or its properties, and Borrower is currently in compliance with all material reporting requirements, rules, and regulations which are applicable to Borrower or its properties, by reason of such governmental environmental protective agencies.
(l) Neither the business nor the properties of Borrower is currently affected by any environmental hazard, fire, explosion, accident, strike, lockout or other labor dispute, drought, storm, hail, earthquake, embargo, act of God or other casualty (whether or not covered by insurance), which could have a material adverse effect.
(m) Borrower is not an "investment company" as defined in Section 3 of the 1940 Act or a company that would be an investment company except for the exclusions from the definition of an investment company in Section 3(c) of the 1940 Act, and Borrower is not controlled by such a company.
(n) Borrower is, and after consummation of this Loan Agreement and giving effect to all Indebtedness incurred and transactions contemplated in connection herewith will be, solvent.
(o) All representations and warranties by the Borrower and all of its subsidiaries, if any, shall survive the loan closing, any investigation at any time made by or on its own behalfbehalf of the Lender shall not diminish Lender's right to rely on the Borrower's representations and warranties as herein set forth.
Appears in 3 contracts
Samples: Loan Agreement (Tor Minerals International Inc), Loan Agreement (Tor Minerals International Inc), Loan Agreement (Tor Minerals International Inc)
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants that:
a. Borrower will comply with all laws, statutes, regulations and ordinances pertaining to the conduct of Borrower’s business and promises to hold Lender harmless from any damages, liabilities, costs, expenses (aincluding attorneys’ fees) it or other harm arising out of any violation thereof;
b. Borrower is registered as a company duly organized, licensed, validly existing and in good standing under the Actlaws of its state of formation and shall hereafter remain in good standing in that state, and has the power to carry on its business and own its property in the manner is duly qualified, licensed and in the locations good standing in which such business is presently being carried on or property owned;
(b) it has full power and authority under its constitution:
(i) to enter into this Agreement and the Security;
(ii) to do all things required by this Agreement and the Security;
(iii) all necessary meetings have been held;
(iv) all required resolutions have been passed; and
(v) any every other action necessary to authorise the execution and performance of this Agreement and the Security has been taken; this Agreement and the Security will each constitute the legal, valid, binding and enforceable obligation of the Borrower state in accordance with their respective terms;
(c) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, neither the execution nor the performance of this Agreement or the Security will:
(i) violate in any respect any statute, decree, rule or regulation or any determination, order or award of any court or any governmental, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers of the Borrower or on the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict with, or result in any breach of, or require any consent or approval under, any mortgage, agreement or other undertaking or instrument to which the Borrower is a party or which is binding on the Borrower or any of the Borrower’s assets;
(iv) result in a mortgage, charge, lien or other encumbrance over any of the Borrower’s assets; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower is not in default or difficulty under any deed, agreement or other document or obligation to which it is a party or by doing business, and shall hereafter remain duly qualified, licensed and in good standing in every other state in which it is bound, or in respect of any financial commitment or obligation, including obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect the ability of the Borrower to comply with its obligations under this Agreement or the Security;
(d) the Borrower is in full and ongoing compliance with its constitution and all companies and securities legislation and regulationsdoing business, and all shall hereafter remain duly qualified, licensed and in good standing in every other legislation and regulations to state in which the Borrower may any time and from time failure to time be subject;
(e) no event of default qualify or event which, with the giving of notice or the lapse of time or both, would be an event of default and, having occurred, is continuing to subsist;
(f) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, no litigation or administrative or other proceedings before, or of, any court or governmental authority, agency or other tribunal have, to the knowledge of the Borrower, been initiated or threatened against the Borrower or any of the Borrower’s assets which would or might become licensed could have a material adverse effect on the businessfinancial condition, assets business or financial condition operations of Borrower. Notwithstanding the Borrowerforegoing, at the time of this Note, Borrower has a provisional registration for the operation of a RMD and is seeking a Final Certificate of Registration;
(g) c. the Borrower does not haveexecution, delivery and will not during the currency performance of this Agreement have, any right of set-off, counterclaim, any right to rescind or and any other claim with respect document executed in connection herewith, are within Borrower’s powers, have been duly authorized, are not in contravention of law or the terms of Borrower’s charter, by-laws or other organization papers, or of any indenture, agreement or undertaking to this Agreement by way of cross-action against the Lenderwhich Borrower is a party;
(h) d. Borrower is in compliance with its organization documents and by-laws, all contractual requirements by which it may be bound and all applicable laws, rules and regulations other than laws, rules or regulations the validity or applicability of which it is contesting in good faith or provisions of any of the most recent annual foregoing the failure to comply with which cannot reasonably be expected to materially adversely affect its financial condition, business or half-yearly prospects or both, as the case requires, accounts value of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the BorrowerCollateral; and
(i) the Borrower e. There is not the trustee no action, suit, proceeding or investigation pending or, to Borrower’s knowledge, threatened against or affecting it or any of its assets before or by any trust and accordingly enters into this Agreement court or other governmental authority which, if determined adversely to it, would have a material adverse effect on its own behalffinancial condition, business or prospects.
Appears in 3 contracts
Samples: Consulting Agreement (AmeriCann, Inc.), Consulting Agreement (AmeriCann, Inc.), Consulting Agreement (AmeriCann, Inc.)
BORROWER'S REPRESENTATIONS AND WARRANTIES. The In order to induce the Agent and the Banks to enter into this Amendment, the Borrower hereby represents and warrants to the Agent and the Banks that:
(a) it is registered as a company under the Act, and has the power to carry on its business and own its property in the manner and in the locations in which such business is presently being carried on or property owned;
(b) it has full power and authority under its constitution:
(i) the Borrower has the right, power and capacity and has been duly authorized and empowered by all requisite corporate and shareholder action to enter into into, execute, deliver and perform this Agreement Amendment and the Securityall agreements, documents and instruments executed and delivered pursuant to this Amendment;
(ii) this Amendment constitutes the Borrower's legal, valid and binding obligation, enforceable against it, except as enforcement thereof may be subject to do all things required by this Agreement the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally and the Securitygeneral principles of equity (regardless of whether such enforcement is sought in a proceeding in equity or at law or otherwise);
(iii) all necessary meetings have been held;
(iv) all required resolutions have been passed; and
(v) any other action necessary to authorise the execution Borrower's execution, delivery and performance of this Agreement Amendment do not and the Security has been taken; this Agreement and the Security will each constitute the legalnot violate its Certificate of Incorporation or By-laws, validany law, binding and enforceable obligation of the Borrower in accordance with their respective terms;
(c) except as disclosed in writing rule, regulation, order, writ, judgment, decree or award applicable to the Lender and dispensed with in writing by the Lender, neither the execution nor the performance of this Agreement or the Security will:
(i) violate in any respect any statute, decree, rule or regulation it or any determination, order or award of any court or any governmental, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers of the Borrower or on the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict with, or result in any breach of, or require any consent or approval under, any mortgage, agreement or other undertaking or instrument to which the Borrower is a party or which is binding on the Borrower or any of the Borrower’s assets;
(iv) result in a mortgage, charge, lien or other encumbrance over any of the Borrower’s assets; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower is not in default or difficulty under any deed, agreement or other document or obligation contractual provision to which it is a party or by to which it or any of its property is bound, or in respect of any financial commitment or obligation, including obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect the ability of the Borrower to comply with its obligations under this Agreement or the Security;
(d) the Borrower is in full and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all other legislation and regulations to which the Borrower may any time and from time to time be subject;
(eiv) no event of default authorization or event which, with the giving of notice or the lapse of time or both, would be an event of default and, having occurred, is continuing to subsist;
(f) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, no litigation or administrative approval or other proceedings beforeaction by, and no notice to or offiling or registration with, any court governmental authority or governmental authorityregulatory body (other than those which have been obtained and are in force and effect) is required in connection with its execution, agency or other tribunal have, to the knowledge of the Borrower, been initiated or threatened against the Borrower or any of the Borrower’s assets which would or might have a material adverse effect on the business, assets or financial condition of the Borrower;
(g) the Borrower does not have, delivery and will not during the currency performance of this Agreement haveAmendment and all agreements, any right of set-off, counterclaim, any right to rescind or any other claim with respect documents and instruments executed and delivered pursuant to this Agreement by way of cross-action against the Lender;
(h) all of the most recent annual or half-yearly or both, as the case requires, accounts of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the BorrowerAmendment; and
(iv) no Event of Default or Unmatured Event of Default exists under the Borrower is not Credit Agreement or would exist after giving effect to the trustee of any trust and accordingly enters into transactions contemplated by this Agreement on its own behalfAmendment.
Appears in 3 contracts
Samples: Credit Agreement (Gaylord Container Corp /De/), Credit Agreement (Gaylord Container Corp /De/), Credit Agreement (Gaylord Container Corp /De/)
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants that:to Investor that as of the Effective Date: 1.
(a) it 2.1.1 Borrower is registered as a company corporation duly organized, validly existing and in good standing under the Act, laws of its state of incorporation and has the requisite corporate power to own its properties and to carry on its business as now being conducted; 1.
2.1.2 Borrower is duly qualified as a foreign corporation to do business and own its property is in good standing in each jurisdiction where the manner and in nature of the locations in which such business is presently being carried on conducted or property owned;owned by it makes such qualification necessary; 1.
2.1.3 Borrower has registered its Common Stock under Section 12(g) of the Securities Exchange Act of 1934, as amended (bthe “1934 Act”), and is obligated to file reports pursuant to Section 13 or Section 15(d) it has full power and authority under its constitution:of the 1934 Act; 1.
(i) to enter into this Agreement 2.1.4 each of the Transaction Documents and the Security;
(ii) to do all things required transactions contemplated hereby and thereby, have been duly and validly authorized by this Agreement Borrower and the Security;
(iii) all necessary meetings actions have been held;
(iv) all required resolutions have been passed; and
(v) any other action necessary to authorise the execution and performance of this Agreement and the Security has been taken; 1.
2.1.5 this Agreement Agreement, the Securities, and the Security will each other applicable Transaction Documents have been duly executed and delivered by Borrower and constitute the legal, valid, valid and binding and obligations of Borrower enforceable obligation of the Borrower in accordance with their respective terms;; 1.
(c) except as disclosed 2.1.6 the execution and delivery of the Transaction Documents by Borrower, the issuance of Securities in writing to accordance with the Lender terms hereof, and dispensed with in writing the consummation by Borrower of the other transactions contemplated by the Lender, neither the execution nor the performance Transaction Documents do not and will not conflict with or result in a breach by Borrower of this Agreement or the Security will:
(i) violate in any respect any statute, decree, rule or regulation or any determination, order or award of any court or any governmental, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers of the Borrower terms or on the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict with, or result in any breach provisions of, or require constitute a default under (a) Borrower’s formation documents or bylaws, each as currently in effect, (b) any consent or approval underindenture, any mortgage, agreement deed of trust, or other undertaking material agreement or instrument to which the Borrower is a party or which is binding on the Borrower or any of the Borrower’s assets;
(iv) result in a mortgage, charge, lien or other encumbrance over any of the Borrower’s assets; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower is not in default or difficulty under any deed, agreement or other document or obligation to which it is a party or by which it is or any of its properties or assets are bound, including, without limitation, any listing agreement for the Common Stock, or in respect (c) any existing applicable law, rule, or regulation or any applicable decree, judgment, or order of any financial commitment court, United States federal, state or obligationforeign regulatory body, including obligations under guarantees administrative agency, or other contingent liabilitiesgovernmental body having jurisdiction over Borrower or any of Borrower’s properties or assets; 1.
2.1.7 no further authorization, which default approval or difficulty consent of any court, governmental body, regulatory agency, self-regulatory organization, or stock exchange or market or the stockholders or any lender of Borrower is reasonably likely required to adversely affect be obtained by Borrower for the ability issuance of the Borrower Securities to comply with its obligations under this Agreement Investor or the Security;entering into of the Transaction Documents; 1.
(d) the Borrower is in full and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all other legislation and regulations to which the Borrower may any time and from time to time be subject;
(e) no event 2.1.8 none of default or event which, Borrower’s filings with the giving SEC contained, at the time they were filed, any untrue statement of notice a material fact or omitted to state any material fact required to be stated therein or necessary to make the lapse statements made therein, in light of the circumstances under which they were made, not misleading; 1.
2.1.9 Borrower has filed all reports, schedules, forms, statements and other documents required to be filed by Borrower with the SEC under the 1934 Act on a timely basis or has received a valid extension of such time of filing and has filed any such report, schedule, form, statement or both, would be an event of default and, having occurred, is continuing to subsist;
(f) except as disclosed in writing other document prior to the Lender and dispensed with in writing expiration of any such extension; 1.
2.1.10 there is no action, suit, proceeding, inquiry or investigation before or by the Lenderany court, no litigation public board or administrative or other proceedings before, or of, any court or governmental authority, agency or other tribunal havebody pending or, to the knowledge of the Borrower, been initiated or threatened against the or affecting Borrower before or by any governmental authority or non-governmental department, commission, board, bureau, agency or instrumentality or any of the Borrower’s assets which other person, wherein an unfavorable decision, ruling or finding would or might have a material adverse effect on Borrower or which would adversely affect the businessvalidity or enforceability of, assets or financial condition the authority or ability of Borrower to perform its obligations under, any of the Transaction Documents; 1.
2.1.11 Borrower has not consummated any financing transaction that has not been disclosed in a periodic filing or current report with the SEC under the 1934 Act; 1.
2.1.12 Borrower is not, nor has it been at any time in the previous twelve (12) months, a “Shell Borrower;,” as such type of “issuer” is described in Rule 144(i)(1); 1.
(g) the 2.1.13 with respect to any commissions, placement agent or finder’s fees or similar payments that will or would become due and owing by Borrower does not have, and will not during the currency to any person or entity as a result of this Agreement haveor the transactions contemplated hereby (“Broker Fees”), any right of setsuch Broker Fees will be made in full compliance with all applicable laws and regulations and only to a person or entity that is a registered investment adviser or registered broker-off, counterclaim, any right to rescind or any other claim with respect to this Agreement by way of cross-action against the Lender;
(h) all of the most recent annual or half-yearly or both, as the case requires, accounts of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrowerdealer; and
(i) the Borrower is not the trustee of any trust and accordingly enters into this Agreement on its own behalf1.2.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Bruush Oral Care Inc.), Securities Purchase Agreement (ETAO International Co., Ltd.)
BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower hereby represents and warrants, as of the Effective Date and as of the date of the Initial Closing and the Second Closing, to the Lender(s) that (any reference in this Section 10 to the Borrower shall be deemed to apply to the Borrower and all Group Companies):
10.1. The Borrower represents is a corporation duly organized and warrants that:
(a) it is registered as a company validly existing under the Act, laws of the state of its incorporation and has the power to own and lease its properties and to carry on its business as now being conducted and own as proposed to be conducted.
10.2. Assuming provision of the Initial Tranche and the Second Tranche pursuant to this agreement, the Borrower is not "insolvent", within the meaning prescribed by applicable law, or unable to pay its property debts and liabilities (including contingent, future or subordinated) when due, nor could it be deemed by a court to be insolvent or unable to pay such debts when due, nor, in any such case, will it become so as a result of entering into this Agreement, or performing any transaction contemplated by the manner and in the locations in which such business is presently being carried on or property owned;Transaction Documents.
(b) it 10.3. The Borrower has full power and authority under its constitution:
(i) to enter into consummate the transactions contemplated hereunder. Unless otherwise provided in this Agreement and Agreement, no consents, authorizations or approvals of any kind of any governmental authority or other third party are required in connection with the Security;
(ii) to do all things required execution or performance of the Transaction Documents by this Agreement and the Security;
(iii) all necessary meetings Borrower, or such consents have been held;obtained.
(iv) all required resolutions have been passed; and
(v) any other action necessary to authorise the execution and performance of this Agreement and the Security has been taken; this Agreement and the Security will each constitute the legal, valid, binding and enforceable obligation 10.4. The consummation of the Borrower in accordance with their respective terms;
(c) except as disclosed in writing to the Lender transactions contemplated hereunder and dispensed with in writing by the Lender, neither the execution nor the performance of this Agreement or the Security will:
(i) Transaction Documents by the Borrower do not violate in any respect any statutethe provisions of the Articles of Association of the Borrower, decree, rule or regulation or any determinationapplicable law, order or award of any court or any governmental, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers of the Borrower or on the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict with, or and will not result in any breach of, or require any consent or approval constitute a default under, any mortgage, agreement or other undertaking or instrument to which the Borrower is a party or which is binding on the Borrower or any of the Borrower’s assets;
(iv) result in a mortgage, charge, lien or other encumbrance over any of the Borrower’s assets; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower is not in default or difficulty under any deed, agreement or other document or obligation to which it is a party or by which it is bound. The execution and performance of the Transaction Documents by the Borrower have been duly authorized by all necessary actions, and the Transaction Documents have been duly executed and delivered by the Borrower. The Transaction Documents are valid and binding upon the Borrower and enforceable in accordance with their terms.
10.5. The execution and performance of the Transaction Documents by the Borrower will not (a) give to others any rights, including rights of termination, cancellation or acceleration, in or with respect to any agreement, contract or commitment referred to in this paragraph, or in respect of to any financial commitment or obligation, including obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect the ability of the Borrower to comply with its obligations under this Agreement or the Security;
(d) the Borrower is in full and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all other legislation and regulations to which the Borrower may any time and from time to time be subject;
(e) no event of default or event which, with the giving of notice or the lapse of time or both, would be an event of default and, having occurred, is continuing to subsist;
(f) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, no litigation or administrative or other proceedings before, or of, any court or governmental authority, agency or other tribunal have, to the knowledge properties of the Borrower, been initiated or threatened against (b) unless otherwise provided in this Agreement, require the consent or approval of any person or entity.
10.6. In this Agreement, all patents, trademarks, service marks, trade names, copyrights and all trade secrets, including know-how, invention, designs, processes, computer programs, algorithms, drawings, photographs, models, and any other form of intellectual property, shall collectively referred to herein as “Intellectual Property”. The Borrower's registered or registrable Intellectual Property is listed on Appendix E hereof (“Registered IP”). Intellectual Property which is not listed in Appendix E shall be referred to as “Un-Registered IP”. The Borrower possesses all right, title, and interest in and to the Registered IP (it being understood that with respect to patents, the foregoing representations shall apply only to the ownership of a patent application and the inventions covered thereunder and not as a representation regarding the patentability of any invention or the scope of any patent that may be granted pursuant to such application). All Un-Registered IP which the Borrower currently uses or intends to use is either owned by the Borrower or any of the Borrower’s assets which would or might have a material adverse effect on the business, assets or financial condition of the Borrower;
(g) the Borrower does not have, and will not during has the currency of this Agreement have, any right of set-off, counterclaim, any right to rescind use such Un-Registered IP pursuant to written license, sublicense, agreement, or permission, free and clear of any security interest, third party rights and royalties or other claim with respect fees. Each item of Intellectual Property owned or used by the Borrower immediately prior to this Agreement by way of cross-action against either the Lender;
(h) all of Initial Closing or the most recent annual or half-yearly or bothSecond Closing hereunder, as the case requiresmay be, accounts of will be owned or available for use by the Borrower provided on substantially the same terms and conditions immediately subsequent to the Lender provide a true and fair view of Initial Closing or the financial position of the Borrower andSecond Closing hereunder, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the applicable. The Borrower; and
(i) the Borrower 's Funded-IP is not the trustee of any trust and accordingly enters into this Agreement also listed on its own behalfAppendix E hereof.
Appears in 2 contracts
Samples: Loan Financing Agreement (Ivy Jerry Lafe JR), Loan Financing Agreement (On Track Innovations LTD)
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants that:
that (a) it is registered as a company in good standing under the Actlaws of the state of its formation, duly qualified to do business and has will remain duly qualified during the power term of each Loan in each state where necessary to carry on its present business and own its property in operations, including the manner and in jurisdiction(s) where the locations in which such business is presently being carried Collateral will be located as specified on or property owned;
each Exhibit A to each Note, except where failure to be so qualified would not have a Material Adverse Effect; (b) it has full power authority to execute and authority under its constitution:
(i) to enter into deliver this Security Agreement and the Security;
(ii) to do all things required by Notes and perform the terms hereof and thereof, and this Security Agreement and the Security;
(iii) all necessary meetings Notes have been held;
(iv) all required resolutions have been passed; and
(v) any other action necessary to authorise the execution duly authorized, executed and performance delivered and constitute valid and binding obligations of this Agreement and the Security has been taken; this Agreement and the Security will each constitute the legal, valid, binding and Borrower enforceable obligation of the Borrower in accordance with their respective terms;
terms except as the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, reorganization or other similar laws affecting the enforcement of creditors' rights generally, and except for judicial limitations on the enforcement of the remedy of specific enforcement and other equitable remedies; (c) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, neither the execution nor the performance and delivery of this Security Agreement or and the Security will:
(i) violate in Notes will not contravene any respect any statutelaw, decree, rule or regulation or any determination, order or award of any court or any governmental, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers of the judgment affecting Borrower or on the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict with, or result in any breach of, or require of any consent or approval under, any mortgage, material agreement or other undertaking instrument binding on Borrower, which breach would have a Material Adverse Effect; (d) no consent of Borrower's shareholders or instrument to holder of any indebtedness, or filing with, or approval of, any governmental agency or commission, which the Borrower has not already been obtained or performed, as appropriate, is a party or which is binding on condition to the Borrower or any performance of the Borrower’s assets;
(iv) result in a mortgage, charge, lien or other encumbrance over any terms of the Borrower’s assets; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower is not in default or difficulty under any deed, agreement or other document or obligation to which it is a party or by which it is bound, or in respect of any financial commitment or obligation, including obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect the ability of the Borrower to comply with its obligations under this Security Agreement or the Security;
(d) the Borrower is in full and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all other legislation and regulations to which the Borrower may any time and from time to time be subject;
Notes; (e) there is no event of default action or event which, with the giving of notice proceeding pending or the lapse of time or both, would be an event of default and, having occurred, is continuing to subsist;
(f) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, no litigation or administrative or other proceedings before, or of, threatened against Borrower before any court or governmental authority, administrative agency or other tribunal have, to the knowledge of the Borrower, been initiated or threatened against the Borrower or any of the Borrower’s assets which would or might have a material adverse effect Material Adverse Effect on the business, assets or financial condition or operations of Borrower; (f) at the time any Loan is made hereunder, Borrower owns and will keep all of the Borrower;
Collateral free and clear of all liens, claims and encumbrances, and, except for this Security Agreement, there is no deed of trust, mortgage, security agreement or other third party interest against any of the Collateral other than such interest as may be contemplated in an intercreditor agreement to which the Lender is a party; (g) at the time any Loan is made hereunder, Borrower does not have, has good and will not during marketable title to the currency of this Agreement have, any right of set-off, counterclaim, any right to rescind or any other claim with respect to this Agreement by way of cross-action against the Lender;
Collateral; (h) at the time any Loan is made hereunder, all Collateral has been received, installed and is ready for use and is satisfactory in all respects for the purposes of the most recent annual or half-yearly or both, as the case requires, accounts of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrowerthis Security Agreement; and
(i) the Borrower Collateral is, and will remain at all times under applicable law, removable personal property, which is not the trustee free and clear of any trust lien or encumbrance except in favor of Lender, notwithstanding the manner in which the Collateral may be attached to any real property other than such lien or encumbrance as may be contemplated in an intercreditor agreement to which the Lender is a party; (j) all credit and accordingly enters into this Agreement on its own behalffinancial information submitted to Lender herewith or at any other time is and will at the time given be true and correct in all material respects; and (k) the security interest granted to Lender hereunder is a first priority security interest.
Appears in 2 contracts
Samples: Senior Loan and Security Agreement (Allaire Corp), Senior Loan and Security Agreement (Allaire Corp)
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants that:
(a) it is registered as a company under that on the Act, date hereof and has on the power to carry on its business and own its property in the manner and in the locations in which such business is presently being carried on or property owned;
(b) it has full power and authority under its constitutionDelivery Date:
(i) the Borrower is a corporation duly organized and validly existing in good standing pursuant to the laws of the State of Colorado; is duly qualified to do business as a foreign corporation in each jurisdiction in which its operations or the nature of its business requires, except where the failure to be so qualified would not have a material adverse effect on the Borrower or its business; is a U.S. Air Carrier; maintains its location (as such term is defined in Article 9 of the Uniform Commercial Code) in Colorado; and has the corporate power and authority to engage in air transport and to carry on scheduled passenger service as presently conducted, to own the Aircraft and to enter into this Agreement and perform its obligations under the SecurityOperative Documents;
(ii) to do all things required the execution, delivery and performance by this Agreement and the Security;
(iii) Borrower of the Operative Documents will, on the Delivery Date, have been duly authorized by all necessary meetings have been held;
(iv) all required resolutions have been passed; and
(v) corporate action on the part of the Borrower, do not require any other action necessary to authorise the execution and performance stockholder approval, or approval or consent of this Agreement and the Security has been taken; this Agreement and the Security will each constitute the legal, valid, binding and enforceable obligation any trustee or holders of any indebtedness or obligations of the Borrower in accordance with their respective terms;
(c) except such as disclosed in writing to the Lender and dispensed with in writing have been duly obtained or by the LenderDelivery Date will have been duly obtained and will on the Delivery Date be in full force and effect, neither and none of such Operative Documents contravenes any law, judgment, government rule, regulation or order binding on the execution nor the performance of this Agreement Borrower or the Security will:
(i) violate in any respect any statute, decree, rule articles of incorporation or regulation or any determination, order or award of any court or any governmental, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers bylaws of the Borrower or on contravenes the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict with, or result in any breach provisions of, or require constitutes a default under, or results in the creation of any consent or approval Lien (other than Permitted Liens) upon the property of the Borrower under, any indenture, mortgage, agreement contract or other undertaking or instrument agreement to which the Borrower is a party or by which is binding it or its properties may be bound or affected;
(iii) neither the execution and delivery by the Borrower of the Operative Documents nor the performance by the Borrower of its obligations thereunder requires the consent or approval of, the giving of notice to, or the registration with, or the taking of any other action in respect of any Federal, state or foreign government authority or agency, except for (A) the orders, permits, waivers, exemptions, authorizations and approvals of the regulatory authorities having jurisdiction over the operation of the Aircraft by the Borrower, which orders, permits, waivers, exemptions, authorizations and approvals have been duly obtained or will on or prior to the Delivery Date be duly obtained, and will on the Borrower or Delivery Date be in full force and effect, (B) any normal periodic and other reporting requirements under the Federal Aviation Act and the regulations promulgated thereunder and the applicable rules, and regulations of the FAA, in each case to the extent required to be given or obtained only after the Delivery Date, (C) any filings, registrations or applications specifically described in this Agreement, and (D) an air operator's certificate with respect to Airbus Model A319 aircraft, which certificate has been obtained by the Borrower’s assets;
(iv) result the Operative Documents to which the Borrower is a party delivered on or prior to the date hereof or the Delivery Date, as the case may be, each constitute legal, valid and binding obligations of the Borrower enforceable against the Borrower in a mortgageaccordance with the terms thereof except as such may be limited by equitable principles or applicable bankruptcy, chargeinsolvency, lien reorganization, moratorium or other encumbrance over any of the Borrower’s assets; orsimilar laws affecting creditors' rights generally;
(v) cause there are no pending or, to the best of Borrower's knowledge, threatened actions or proceedings before any limit court, arbitrator or administrative agency which individually (or in the aggregate in the case of any group of related lawsuits) is expected to have a material and adverse effect on the powers financial condition of the Borrower in respect or the ability of borrowing, guaranteeing, raising financial accommodation or otherwise the Borrower to be exceededperform its obligations under the Operative Documents;
(vi) except as disclosed in writing for (A) the filing for recording pursuant to the Lender Federal Aviation Act of the FAA Bill of Sale for the Aircraft (and dispensed the application for registratixx xf the Aircraft in the name of the Borrower) and the Mortgage with the Mortgage Supplement for the Aircraft, (B) the filing of financing statements (and continuation statements at periodic intervals) with respect to the interests created by such documents under the Uniform Commercial Code of Colorado and such other states as may be specified in writing the opinion furnished pursuant to Section 4(b)(ix) hereof and (C) the affixation of the nameplates referenced in Section 3.04 of the Mortgage, no further action, including any filing or recording of any document (including any financing statement in respect thereof under Article 9 of the Uniform Commercial Code of any applicable jurisdiction), is necessary or advisable in order to establish and perfect the first mortgage Lien on the Aircraft in favor of the Administrative Agent pursuant to the Mortgage in any applicable jurisdiction in the United States;
(vii) there has not occurred any event which constitutes a Default or an Event of Default hereunder which is presently continuing;
(viii) the statements of financial position of the Borrower as of March 31, 2002 and the date of the most recently concluded fiscal quarter of the Borrower for which a statement of financial position has been provided and the related statements of earnings and cash flow of the Borrower in all material respects for the year and fiscal quarter, respectively, then ended, copies of which have been furnished to the Lenders, fairly present the financial condition of the Borrower at such date and the results of operations and cash flow of the Borrower for the period ended on such dates, in accordance with generally accepted accounting principles consistently applied, and subject, in the case of the statements pertaining to the Borrower's most recently concluded fiscal quarter, to normal year-end adjustments, and since March 31, 2002, there has been no material and adverse change in the business or financial condition of the Borrower;
(ix) on the Delivery Date the Borrower will have good title to the Mortgage Estate delivered on the Delivery Date free and clear of all Liens, except the Lien of the Mortgage, and Inchoate Liens;
(x) neither the Borrower nor anyone acting on behalf of the Borrower has directly or indirectly offered any interest in the Notes for sale to, or solicited any offer to acquire any of the same from, anyone other than the Lenders and not more than 35 other institutions believed capable of evaluating and bearing the risks of investment in the transactions contemplated hereby;
(xi) the Borrower has filed or caused to be filed all Federal, state, local and (to the best of Borrower's knowledge) foreign tax returns which are required to be filed and has paid or caused to be paid or provided adequate reserves for the payment of all taxes shown to be due and payable on such returns or (except to the extent being contested in good faith and by appropriate proceedings and for the payment of which adequate reserves have been provided in accordance with generally accepted accounting principles) on any assessment received by the LenderBorrower, to the extent that such taxes have become due and payable, except such returns or taxes as do not materially and adversely affect the business, property or assets, operations or financial condition, of the Borrower and do not involve a material risk of the sale, forfeiture or loss of, or the creation of any Lien (other than a Permitted Lien) on the Aircraft;
(xii) the Borrower is not (x) in default or difficulty under any deedindenture, mortgage, lease or Credit Agreement or under any other agreement or other document or obligation instrument of a material nature to which it the Borrower is now a party or by which it is bound, or in respect and no event has occurred and is continuing which, under the provisions of any financial commitment or obligationsuch indenture, including obligations under guarantees mortgage, Credit Agreement or other contingent liabilities, which default material agreement or difficulty is reasonably likely to adversely affect the ability of the Borrower to comply with its obligations under this Agreement or the Security;
(d) the Borrower is in full and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all other legislation and regulations to which the Borrower may any time and from time to time be subject;
(e) no event of default or event whichinstrument, with the giving of notice or the lapse of time or the giving of notice, or both, would be an event constitute a default thereunder or (y) in violation of default andany law, having occurredorder, is continuing to subsist;
(f) except as disclosed in writing injunction, decree, rule or regulation applicable to the Lender and dispensed with in writing by the Lender, no litigation or administrative or other proceedings before, or of, Borrower of any court or governmental authorityadministrative body, agency or other tribunal have, which violation (a) would reasonably be expected to the knowledge of the Borrower, been initiated or threatened against the Borrower or any of the Borrower’s assets which would or might have a material adverse effect on materially and adversely affect the business, assets operations or financial condition of the Borrower or the Borrower's ability to execute, deliver and perform its obligations under the Operative Documents or (b) would involve a material risk of the sale, forfeiture or loss of, or the creation of any Lien (other than a Permitted Lien) on, any of the Mortgage Estate;
(gxiii) the Borrower does has not haveengaged in any transaction in connection with which the Borrower could be subjected to either a material civil penalty assessed pursuant to Section 502(i) of ERISA, and will not during or a material tax imposed by Section 4975 of the currency of this Agreement have, any right of set-off, counterclaim, any right Code; (w) no material liability to rescind or any the Pension Benefit Guaranty Corporation (other claim than liability for premiums) has been incurred by the Borrower with respect to any Plan; (x) there has been no event or condition which presents a material risk of termination of any Plan by the Pension Benefit Guaranty Corporation; (y) no accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Code), whether or not waived, exists with respect to any Plan; and (z) no material amount of "withdrawal liability," as that term is used in Section 4201 of ERISA, has been or is expected to be incurred by the Borrower nor has the Borrower or any affiliate of the Borrower been notified by any multi-employer plan (within the meaning of Section 3(37)(A) of ERISA) that such multi-employer plan is in reorganization or insolvency within the meaning of Section 4241 or Section 4245 of ERISA or that such multi-employer plan intends to terminate or has been terminated under Section 4041A of ERISA (for purposes of this Agreement by way subclause (z), the term "affiliate" shall mean any corporation or person which is a member of cross-action against the Lendersame controlled group of corporations (within the meaning of Section 414(b) of the Code) as the Borrower or is under common control (within the meaning of Section 414(c) of the Code) with the Borrower);
(hxiv) all neither the Borrower nor any Plan nor any trust created thereunder has engaged in a "prohibited transaction," within the meaning of Section 406 of ERISA or Section 4975 of the most recent annual Code with respect to the transactions contemplated hereby which could subject the Borrower to any tax or half-yearly or both, as the case requires, accounts penalty pursuant to Section 4975 of the Borrower provided to the Lender provide a true and fair view Code or Section 502(i) of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrower; andERISA;
(ixv) the Borrower is not an "investment company" as defined in, or subject to regulation under, the trustee Investment Company Act of 1940 and the Borrower is not a "holding company" as defined in, or subject to regulation under, the Public Utility Holding Company Act of 1935;
(xvi) none of the reports, financial statements, certificates or other information furnished by or on behalf of the Borrower to the Administrative Agent or the Lenders in connection with the negotiation of this Agreement or delivered hereunder (as modified or supplemented by other information so furnished) contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(xvii) no part of the proceeds of any trust Loan hereunder will be used, whether directly or indirectly, for any purpose that entails a violation of any of the Regulations of the Board of Governors of the Federal Reserve, including Regulations U and accordingly enters into X;
(xviii) assuming the Lenders are acquiring their Notes in the ordinary course of their commercial banking business, none of the transactions contemplated by this Agreement on will violate or result in a violation of the Securities Act of 1933, as amended, the securities Exchange Act of 1934, as amended, or any regulations issued pursuant thereto; and
(xix) no United States Federal or state non-banking governmental approval of any kind is required of any Lender for its own behalfexecution of or performance under this Agreement or any agreement contemplated hereby solely by reason of any fact or circumstance peculiar to: (a) the Borrower, (b) the nature of the Aircraft, or (c) the Borrower's proposed operation or use of the Aircraft.
Appears in 2 contracts
Samples: Credit Agreement (Frontier Airlines Inc /Co/), Credit Agreement (Frontier Airlines Inc /Co/)
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants thatthat on the date hereof and on each Borrowing Date:
(a) it the Borrower is registered a corporation duly organized and validly existing in good standing pursuant to the laws of the State of Alaska; is duly qualified to do business as a company under foreign corporation in each jurisdiction in which its operations or the Actnature of its business requires, except where the failure to be so qualified would not have a Material Adverse Effect; is a U.S. Air Carrier; has its “location” (as such term is defined in Article 9 of the Uniform Commercial Code) in the State of Alaska; and has the corporate power and authority to engage in air transport and to carry on scheduled passenger service as presently conducted, to purchase the Aircraft under the Boeing Purchase Agreement and to enter into and perform its business and own its property in obligations under the manner and in the locations in which such business is presently being carried on or property ownedOperative Documents;
(b) the execution, delivery and performance by the Borrower of the Operative Documents to which it has full power and authority under its constitution:
(i) to enter into this Agreement and the Security;
(ii) to do all things required is a party have been duly authorized by this Agreement and the Security;
(iii) all necessary meetings have been held;
(iv) all required resolutions have been passed; and
(v) corporate action on the part of the Borrower, do not require any other action necessary to authorise the execution and performance stockholder approval, or approval or consent of this Agreement and the Security has been taken; this Agreement and the Security will each constitute the legal, valid, binding and enforceable obligation any trustee or holders of any indebtedness or obligations of the Borrower except such as have been duly obtained and are in accordance with their respective terms;
(c) except as disclosed in writing to full force and effect, and none of the Lender and dispensed with in writing execution, delivery or performance by Borrower of such Operative Documents contravenes any law, judgment, government rule, regulation or order binding on the Lender, neither the execution nor the performance of this Agreement Borrower or the Security will:
(i) violate in any respect any statute, decree, rule Articles of Incorporation or regulation or any determination, order or award of any court or any governmental, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers By-laws of the Borrower or on contravenes the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict with, or result in any breach provisions of, or require constitutes a default under, or results in the creation of any consent or approval Lien (other than Permitted Liens) upon the property of the Borrower under, any indenture, mortgage, agreement contract or other undertaking or instrument agreement to which the Borrower is a party or by which is binding on the Borrower it or any of the Borrower’s assetsits properties may be bound or affected;
(ivc) result neither the execution and delivery by the Borrower of the Operative Documents nor the performance by the Borrower of its obligations thereunder requires the consent or approval of, the giving of notice to, or the registration with, or the taking of any other action in respect of any Federal, state or foreign government authority or agency, except for (A) the orders, permits, waivers, exemptions, authorizations and approvals of the regulatory authorities having jurisdiction over the operation of the Aircraft by the Borrower, which orders, permits, waivers, exemptions, authorizations and approvals, if any, concurrently required to be obtained and in full force and effect have been duly obtained and are in full force and effect except for those orders, permits, waivers, exemptions, authorizations and approvals the failure to obtain which would not have a mortgageMaterial Adverse Effect, chargeand (B) any filings, lien registrations or applications specifically described in this Agreement (the items referred to in (A) and (B) collectively referred to as “Permits”);
(d) the Operative Documents to which the Borrower is a party each constitute legal, valid and binding obligations of the Borrower enforceable against the Borrower in accordance with the terms thereof except as such enforceability may be limited by equitable principles or applicable bankruptcy, insolvency, reorganization, moratorium or other encumbrance over similar laws affecting creditors’ rights generally;
(e) there is no pending or (to the best of Borrower’s knowledge) threatened action or proceeding before any court, arbitrator or administrative agency that individually (or in the aggregate in the case of any group of related lawsuits) is expected by the Borrower to have a Material Adverse Effect;
(f) except for the filing of financing statements (and continuation statements at periodic intervals) with respect to the interests created by such documents under the Uniform Commercial Code of Alaska and such other states as may be specified in the opinion furnished pursuant to Section 4.1(i) hereof, no further action, including any filing or recording of any document (including any financing statement in respect thereof under Article 9 of the Borrower’s assets; orUniform Commercial Code of any applicable jurisdiction), is necessary or advisable in order to establish and perfect the first mortgage Lien on the Boeing Purchase Agreement (and, from the date of any Engine Warranty Substitution, the CFM Purchase Agreement) and the rest of the Mortgage Estate in favor of the Security Agent pursuant to the Mortgage in any applicable jurisdiction in the United States;
(vg) cause there has not occurred any limit on event which constitutes a Default or an Event of Default under the powers Mortgage which is presently continuing;
(h) the statements of financial position of the Borrower as of December 31 of the year prior to the Borrowing Date, and the related statements of earnings and cash flow of the Borrower in respect all material respects for the year and fiscal quarter, as the case may be, then ended, copies of borrowingwhich have been furnished to each Loan Participant, guaranteeingfairly present the financial condition of the Borrower at such date and the results of operations and cash flow of the Borrower for the period ended on such dates, raising financial accommodation in accordance with generally accepted accounting principles consistently applied, and subject, to normal year-end adjustments, and since December 31 of the year prior to the Borrowing Date, there has been no material and adverse change in such condition or otherwise to be exceededoperations;
(vii) except as disclosed the Boeing Purchase Agreement (and, from the date of any Engine Warranty Substitution, the CFM Purchase Agreement) is in writing full force and effect and neither the Borrower nor, to the Lender and dispensed with knowledge of the Borrower, the Manufacturer (or, from the date of any Engine Warranty Substitution, the Engine Manufacturer) is in writing default of any of its material obligations thereunder. Except as contemplated by the LenderMortgage and Liens granted to third-party financiers and released and terminated prior to the Effective Date, the Borrower has neither assigned nor granted any Lien in its rights under either Purchase Agreement in respect of any of the Aircraft or the Engines;
(j) assuming the Loan Participants are acquiring their Loan Certificates in the ordinary course of their normal business operations for their own accounts, the issuance of the Loan Certificates to the initial Loan Participants will not require registration of the Loan Certificates pursuant to the Securities Act;
(k) the Borrower has filed or caused to be filed all Federal, state, local and (in the Borrower’s opinion) foreign tax returns which are required to be filed and has paid or caused to be paid or provided adequate reserves for the payment of all taxes shown to be due and payable on such returns or (except to the extent being contested in good faith and by appropriate proceedings and for the payment of which adequate reserves have been provided in accordance with generally accepted accounting principles) on any assessment received by the Borrower, to the extent that such taxes have become due and payable, except such returns or taxes as to which the failure to file or pay, as the case may be, could not be reasonably expected to materially and adversely affect the assets, operations or financial condition, of the Borrower;
(l) the Borrower is not not:
(i) to the best of its knowledge, in default or difficulty under any deedindenture, mortgage, lease or credit agreement or under any other document agreement or obligation instrument of a material nature to which it the Borrower is now a party or by which it is bound, or in respect and no event has occurred and is continuing which, under the provisions of any financial commitment or obligationsuch indenture, including obligations under guarantees mortgage, credit agreement or other contingent liabilities, which default material agreement or difficulty is reasonably likely to adversely affect the ability of the Borrower to comply with its obligations under this Agreement or the Security;
(d) the Borrower is in full and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all other legislation and regulations to which the Borrower may any time and from time to time be subject;
(e) no event of default or event whichinstrument, with the giving of notice or the lapse of time or the giving of notice, or both, would be an event constitute a default thereunder (it being understood that maintenance issues concerning leased or mortgaged aircraft that create technical defaults in relation to which no action has been taken by the relevant lessor or mortgagor are not, for the purposes of default andthis representation, having occurred, is continuing to subsist;“defaults”); or
(fii) except as disclosed in writing violation of any law, order, injunction, decree, rule or regulation applicable to the Lender and dispensed with in writing by the Lender, no litigation or administrative or other proceedings before, or of, Borrower of any court or governmental authorityadministrative body, agency which default or other tribunal have, violation would reasonably be expected to materially and adversely affect the knowledge of the Borrower, been initiated or threatened against the Borrower or any of the Borrower’s assets which would or might have a material adverse effect on the business, assets operations or financial condition of the Borrower or the Borrower’s ability to execute, deliver and perform its obligations under the Operative Documents;
(gi) no material liability to the Pension Benefit Guaranty Corporation (other than liability for premiums) which would reasonably be expected to have a Material Adverse Effect has been incurred by the Borrower does not have, and will not during the currency of this Agreement have, any right of set-off, counterclaim, any right to rescind or any other claim with respect to this Agreement by way of cross-action against the Lenderany Plan;
(hii) all there has been no event or condition which presents a material risk of termination of any Plan by the Pension Benefit Guaranty Corporation which would reasonably be expected to have a Material Adverse Effect;
(iii) no accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the most recent annual Code), whether or half-yearly or bothnot waived, as the case requires, accounts of the Borrower provided exists with respect to the Lender provide any Plan which would reasonably be expected to have a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the BorrowerMaterial Adverse Effect; and
(iiv) no amount of “withdrawal liability,” as that term is used in Section 4201 of ERISA, which would reasonably be expected to have a Material Adverse Effect has been or is expected to be incurred by the Borrower nor has the Borrower or any affiliate of the Borrower been notified by any multi-employer plan (within the meaning of Section 3(37)(A) of ERISA) that such multi-employer plan is in reorganization or insolvency within the meaning of Section 4241 or Section 4245 of ERISA or that such multi-employer plan intends to terminate or has been terminated under Section 4041A of ERISA where such reorganization, insolvency or termination which would reasonably be expected to have a Material Adverse Effect (for purposes of this subclause (m), the term “affiliate” shall mean any corporation or person which is a member of the same controlled group of corporations (within the meaning of Section 414(b) of the Code) as the Borrower or is under common control (within the meaning of Section 414(c) of the Code) with the Borrower);
(n) the Borrower is not an “investment company” as defined in, or subject to regulation under, the trustee Investment Company Act of 1940 and the Borrower is not a “holding company” as defined in, or subject to regulation under, the Public Utility Holding Company Act of 1935;
(o) none of the information relating to any Aircraft, its price and/or any Delivery Date furnished by or on behalf of the Borrower to the Security Agent or any Loan Participant in connection with the negotiation of this Agreement or delivered hereunder (as modified or supplemented by other information so furnished) contains any material misstatement of fact or omits any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(p) no part of the proceeds of any trust Drawing hereunder will be used, whether directly or indirectly, for any purpose that entails a violation of any of the Regulations of the Board of Governors of the Federal Reserve, including Regulations U and accordingly enters into this X;
(q) the Security Agent has, or will have upon the filing of a UCC-1 in Alaska, a duly perfected first priority security interest in the Boeing Purchase Agreement and, from the date of any Engine Warranty Substitution, the CFM Purchase Agreement (subject to Permitted Liens);
(r) the Mortgage Estate is free and clear of all Liens (except Liens contemplated by the Mortgage and Permitted Liens);
(s) (i) there are no pre-delivery deposit payments or other advances with respect to any Aircraft other than the Advances listed on Schedule III (including, for the avoidance of doubt, the Engine Substitution Contribution);
(ii) the Borrower has paid in full all Advances which have become due and owing with respect to any Aircraft (including, without limitation, the Advances due and payable upon the execution of the Boeing Purchase Agreement) and has not received, directly or indirectly, any refund or credit from the Manufacturer with respect to any portion thereof;
(iii) Schedule III sets forth in full and accurate detail, with respect to each Aircraft:
(1) the aggregate amount of Advances made by the Borrower prior to the date hereof (net of any and all refunds and credits received from the Manufacturer prior to the date hereof) with respect to such Aircraft;
(2) the scheduled dates and amounts of each Advance due with respect to such Aircraft after the date hereof; and
(3) the scheduled delivery date for such Aircraft;
(iv) assuming that each Aircraft is delivered on its own behalf.Delivery Date in the condition required by the terms of the Boeing Purchase Agreement, each of the Aircraft shall be in such condition as is necessary to be certified by the Federal Aviation Administration as to type and airworthiness and to meet the requirements necessary to obtain an airworthiness certificate under the Federal Aviation Act; and
(v) [***]*
(t) the Borrower has no financings with either the Manufacturer or the Engine Manufacturer which contain an event of default triggered by the failure of the Borrower to meet financial performance standards; and
Appears in 2 contracts
Samples: Credit Agreement (Alaska Airlines Inc), Credit Agreement (Alaska Air Group Inc)
BORROWER'S REPRESENTATIONS AND WARRANTIES. The 3.1 Borrower represents and warrants to Lender that:
(a) it Borrower is registered as a company corporation duly organized and in good standing under the Actlaws of Delaware, is duly authorized and in good standing under the laws of those states or nations in which it does business and has the corporate power and authority to carry on its business and own its property in properties and assets, including the manner and in the locations in which such business is presently being carried on or property ownedVessel;
(b) it has full power Execution and authority under its constitution:
(i) to enter into delivery of this Loan Agreement, Borrower's consummation of any of the transactions contemplated hereby, and Borrower's compliance with the terms of this Loan Agreement and the Security;
(ii) those transactions, do not contravene or materially conflict with any provision of law, statute or regulation to do all things which Borrower is subject, any decree, license, order, or permit applicable to Borrower, or any indenture, loan agreement, mortgage, deed of trust, or other contract to which Borrower is a party or by which it may be bound. No consent, approval, authorization, or order of any court or governmental authority or third party is required by this Agreement and the Security;
(iii) all necessary meetings have been held;
(iv) all required resolutions have been passed; and
(v) any other action necessary to authorise the in connection with execution and performance delivery by Borrower of this Loan Agreement and or to consummate the Security has been taken; this Agreement and the Security will each constitute the legal, valid, binding and enforceable obligation of the Borrower in accordance with their respective termstransactions it contemplates;
(c) except No Event of Default as disclosed defined in writing to the Lender and dispensed with in writing by the Lender, neither the execution nor the performance Section 6 of this Loan Agreement or the Security will:
(i) violate in any respect any statute, decree, rule or regulation or any determination, order or award of any court or any governmental, judicial or public body or authority applicable to the Borrowercurrently exists;
(iid) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers of the Borrower or on the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict with, or result in any breach of, or require any consent or approval under, any mortgage, agreement or other undertaking or instrument to which the Borrower is a party or which is binding on the Borrower or any of the Borrower’s assets;
(iv) result in a mortgage, charge, lien or other encumbrance over any of the Borrower’s assets; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower is not in default or difficulty in any material respect under any deedcontract, lease, loan agreement, indenture, mortgage, security agreement, or any other material agreement or other document or obligation to which it is a party or by which it is any of its properties are bound, or in respect of any financial commitment or obligation, including obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect the ability of the Borrower to comply with its obligations under this Agreement or the Security;
(d) the Borrower is in full and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all other legislation and regulations to which the Borrower may any time and from time to time be subject;
(e) There is no event litigation, arbitration, or administrative proceedings pending or (to Borrower's knowledge) threatened against Borrower that could have a materially adverse effect on (i) the validity, performance, or enforceability of default this Loan Agreement, (ii) the financial condition or event whichbusiness operations of Borrower, with or (iii) the giving ability of notice or the lapse of time or both, would be an event of default and, having occurred, is continuing Borrower to subsistfulfill its obligations under this Loan Agreement;
(f) except as disclosed All tax returns required to be filed by Borrower in writing to the Lender any country or jurisdiction have been filed, and dispensed with in writing by the Lenderall taxes (including mortgage recording taxes), no litigation or administrative or assessments, fees, and other proceedings before, or of, any court or governmental authority, agency or other tribunal have, to the knowledge of the Borrower, been initiated or threatened against the charges due from Borrower or charged on any of its assets have been paid. Borrower is unaware of any assessments pending or proposed against it or its assets.
3.2 Each Advance made pursuant to this Loan Agreement shall constitute, without the Borrower’s assets which would or might have need for a material adverse effect on the businessspecific written statement, assets or financial condition a representation and warranty by Borrower that no Event of the Borrower;
(g) the Borrower does not haveDefault exists hereunder, and will not during the currency of that all representations and warranties contained in this Agreement have, any right of set-off, counterclaim, any right to rescind or any other claim with respect to this Agreement by way of cross-action against the Lender;
(h) all of the most recent annual or half-yearly or both, as the case requires, accounts of the Borrower provided to the Lender provide a Section 3 are true and fair view correct as of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrower; and
(i) the Borrower is not the trustee of any trust and accordingly enters into this Agreement on its own behalfsuch Advance.
Appears in 2 contracts
Samples: Loan and Security Agreement (Trump Hotels & Casino Resorts Inc), Loan and Security Agreement (Trump Hotels & Casino Resorts Inc)
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants that:
(a) it is registered as a company under that on the Act, date hereof and has on the power to carry on its business and own its property in the manner and in the locations in which such business is presently being carried on or property owned;
(b) it has full power and authority under its constitutionDelivery Date:
(i) the Borrower is a corporation duly organized and validly existing in good standing pursuant to the laws of the State of Colorado; is duly qualified to do business as a foreign corporation in each jurisdiction in which its operations or the nature of its business requires, except where the failure to be so qualified would not have a material adverse effect on the Borrower or its business; is a U.S. Air Carrier; maintains its location (as such term is defined in Article 9 of the Uniform Commercial Code) in Colorado; and has the corporate power and authority to engage in air transport and to carry on scheduled passenger service as presently conducted, to own the Aircraft and to enter into this Agreement and perform its obligations under the SecurityOperative Documents;
(ii) to do all things required the execution, delivery and performance by this Agreement and the Security;
(iii) Borrower of the Operative Documents will, on the Delivery Date, have been duly authorized by all necessary meetings have been held;
(iv) all required resolutions have been passed; and
(v) corporate action on the part of the Borrower, do not require any other action necessary to authorise the execution and performance stockholder approval, or approval or consent of this Agreement and the Security has been taken; this Agreement and the Security will each constitute the legal, valid, binding and enforceable obligation any trustee or holders of any indebtedness or obligations of the Borrower in accordance with their respective terms;
(c) except such as disclosed in writing to the Lender and dispensed with in writing have been duly obtained or by the LenderDelivery Date will have been duly obtained and will on the Delivery Date be in full force and effect, neither and none of such Operative Documents contravenes any law, judgment, government rule, regulation or order binding on the execution nor the performance of this Agreement Borrower or the Security will:
(i) violate in any respect any statute, decree, rule articles of incorporation or regulation or any determination, order or award of any court or any governmental, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers bylaws of the Borrower or on contravenes the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict with, or result in any breach provisions of, or require constitutes a default under, or results in the creation of any consent or approval Lien (other than Permitted Liens) upon the property of the Borrower under, any indenture, mortgage, agreement contract or other undertaking or instrument agreement to which the Borrower is a party or by which is binding it or its properties may be bound or affected;
(iii) neither the execution and delivery by the Borrower of the Operative Documents nor the performance by the Borrower of its obligations thereunder requires the consent or approval of, the giving of notice to, or the registration with, or the taking of any other action in respect of any Federal, state or foreign government authority or agency, except for (A) the orders, permits, waivers, exemptions, authorizations and approvals of the regulatory authorities having jurisdiction over the operation of the Aircraft by the Borrower, which orders, permits, waivers, exemptions, authorizations and approvals have been duly obtained or will on or prior to the Delivery Date be duly obtained, and will on the Borrower or Delivery Date be in full force and effect, (B) any normal periodic and other reporting requirements under the Federal Aviation Act and the regulations promulgated thereunder and the applicable rules, and regulations of the FAA, in each case to the extent required to be given or obtained only after the Delivery Date, (C) any filings, registrations or applications specifically described in this Agreement, and (D) an air operator's certificate with respect to Airbus Model A319 aircraft, which certificate has been obtained by the Borrower’s assets;
(iv) result the Operative Documents to which the Borrower is a party delivered on or prior to the date hereof or the Delivery Date, as the case may be, each constitute legal, valid and binding obligations of the Borrower enforceable against the Borrower in a mortgageaccordance with the terms thereof except as such may be limited by equitable principles or applicable bankruptcy, chargeinsolvency, lien reorganization, moratorium or other encumbrance over any of the Borrower’s assets; orsimilar laws affecting creditors' rights generally;
(v) cause there are no pending or, to the best of Borrower's knowledge, threatened actions or proceedings before any limit court, arbitrator or administrative agency which individually (or in the aggregate in the case of any group of related lawsuits) is expected to have a material and adverse effect on the powers financial condition of the Borrower in respect or the ability of borrowing, guaranteeing, raising financial accommodation or otherwise the Borrower to be exceededperform its obligations under the Operative Documents;
(vi) except as disclosed in writing for (A) the filing for recording pursuant to the Lender Federal Aviation Act of the FAA Bill of Sale for the Aircraft (and dispensed the application for registration of the Aircraft in xxx name of the Borrower) and the Mortgage with the Mortgage Supplement for the Aircraft, (B) the filing of financing statements (and continuation statements at periodic intervals) with respect to the interests created by such documents under the Uniform Commercial Code of Colorado and such other states as may be specified in writing the opinion furnished pursuant to Section 4(b)(ix) hereof and (C) the affixation of the nameplates referenced in Section 3.04 of the Mortgage, no further action, including any filing or recording of any document (including any financing statement in respect thereof under Article 9 of the Uniform Commercial Code of any applicable jurisdiction), is necessary or advisable in order to establish and perfect the first mortgage Lien on the Aircraft in favor of the Administrative Agent pursuant to the Mortgage in any applicable jurisdiction in the United States;
(vii) there has not occurred any event which constitutes a Default or an Event of Default hereunder which is presently continuing;
(viii) the statements of financial position of the Borrower as of March 31, 2002 and the date of the most recently concluded fiscal quarter of the Borrower for which a statement of financial position has been provided and the related statements of earnings and cash flow of the Borrower in all material respects for the year and fiscal quarter, respectively, then ended, copies of which have been furnished to the Lenders, fairly present the financial condition of the Borrower at such date and the results of operations and cash flow of the Borrower for the period ended on such dates, in accordance with generally accepted accounting principles consistently applied, and subject, in the case of the statements pertaining to the Borrower's most recently concluded fiscal quarter, to normal year-end adjustments, and since March 31, 2002, there has been no material and adverse change in the business or financial condition of the Borrower;
(ix) on the Delivery Date the Borrower will have good title to the Mortgage Estate delivered on the Delivery Date free and clear of all Liens, except the Lien of the Mortgage, and Inchoate Liens;
(x) neither the Borrower nor anyone acting on behalf of the Borrower has directly or indirectly offered any interest in the Notes for sale to, or solicited any offer to acquire any of the same from, anyone other than the Lenders and not more than 35 other institutions believed capable of evaluating and bearing the risks of investment in the transactions contemplated hereby;
(xi) the Borrower has filed or caused to be filed all Federal, state, local and (to the best of Borrower's knowledge) foreign tax returns which are required to be filed and has paid or caused to be paid or provided adequate reserves for the payment of all taxes shown to be due and payable on such returns or (except to the extent being contested in good faith and by appropriate proceedings and for the payment of which adequate reserves have been provided in accordance with generally accepted accounting principles) on any assessment received by the LenderBorrower, to the extent that such taxes have become due and payable, except such returns or taxes as do not materially and adversely affect the business, property or assets, operations or financial condition, of the Borrower and do not involve a material risk of the sale, forfeiture or loss of, or the creation of any Lien (other than a Permitted Lien) on the Aircraft;
(xii) the Borrower is not (x) in default or difficulty under any deedindenture, mortgage, lease or Credit Agreement or under any other agreement or other document or obligation instrument of a material nature to which it the Borrower is now a party or by which it is bound, or in respect and no event has occurred and is continuing which, under the provisions of any financial commitment or obligationsuch indenture, including obligations under guarantees mortgage, Credit Agreement or other contingent liabilities, which default material agreement or difficulty is reasonably likely to adversely affect the ability of the Borrower to comply with its obligations under this Agreement or the Security;
(d) the Borrower is in full and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all other legislation and regulations to which the Borrower may any time and from time to time be subject;
(e) no event of default or event whichinstrument, with the giving of notice or the lapse of time or the giving of notice, or both, would be an event constitute a default thereunder or (y) in violation of default andany law, having occurredorder, is continuing to subsist;
(f) except as disclosed in writing injunction, decree, rule or regulation applicable to the Lender and dispensed with in writing by the Lender, no litigation or administrative or other proceedings before, or of, Borrower of any court or governmental authorityadministrative body, agency or other tribunal have, which violation (a) would reasonably be expected to the knowledge of the Borrower, been initiated or threatened against the Borrower or any of the Borrower’s assets which would or might have a material adverse effect on materially and adversely affect the business, assets operations or financial condition of the Borrower or the Borrower's ability to execute, deliver and perform its obligations under the Operative Documents or (b) would involve a material risk of the sale, forfeiture or loss of, or the creation of any Lien (other than a Permitted Lien) on, any of the Mortgage Estate;
(gxiii) the Borrower does has not haveengaged in any transaction in connection with which the Borrower could be subjected to either a material civil penalty assessed pursuant to Section 502(i) of ERISA, and will not during or a material tax imposed by Section 4975 of the currency of this Agreement have, any right of set-off, counterclaim, any right Code; (w) no material liability to rescind or any the Pension Benefit Guaranty Corporation (other claim than liability for premiums) has been incurred by the Borrower with respect to any Plan; (x) there has been no event or condition which presents a material risk of termination of any Plan by the Pension Benefit Guaranty Corporation; (y) no accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Code), whether or not waived, exists with respect to any Plan; and (z) no material amount of "withdrawal liability," as that term is used in Section 4201 of ERISA, has been or is expected to be incurred by the Borrower nor has the Borrower or any affiliate of the Borrower been notified by any multi-employer plan (within the meaning of Section 3(37)(A) of ERISA) that such multi-employer plan is in reorganization or insolvency within the meaning of Section 4241 or Section 4245 of ERISA or that such multi-employer plan intends to terminate or has been terminated under Section 4041A of ERISA (for purposes of this Agreement by way subclause (z), the term "affiliate" shall mean any corporation or person which is a member of cross-action against the Lendersame controlled group of corporations (within the meaning of Section 414(b) of the Code) as the Borrower or is under common control (within the meaning of Section 414(c) of the Code) with the Borrower);
(hxiv) all neither the Borrower nor any Plan nor any trust created thereunder has engaged in a "prohibited transaction," within the meaning of Section 406 of ERISA or Section 4975 of the most recent annual Code with respect to the transactions contemplated hereby which could subject the Borrower to any tax or half-yearly or both, as the case requires, accounts penalty pursuant to Section 4975 of the Borrower provided to the Lender provide a true and fair view Code or Section 502(i) of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrower; andERISA;
(ixv) the Borrower is not an "investment company" as defined in, or subject to regulation under, the trustee Investment Company Act of 1940 and the Borrower is not a "holding company" as defined in, or subject to regulation under, the Public Utility Holding Company Act of 1935;
(xvi) none of the reports, financial statements, certificates or other information furnished by or on behalf of the Borrower to the Administrative Agent or the Lenders in connection with the negotiation of this Agreement or delivered hereunder (as modified or supplemented by other information so furnished) contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(xvii) no part of the proceeds of any trust Loan hereunder will be used, whether directly or indirectly, for any purpose that entails a violation of any of the Regulations of the Board of Governors of the Federal Reserve, including Regulations U and accordingly enters into X;
(xviii) assuming the Lenders are acquiring their Notes in the ordinary course of their commercial banking business, none of the transactions contemplated by this Agreement on will violate or result in a violation of the Securities Act of 1933, as amended, the securities Exchange Act of 1934, as amended, or any regulations issued pursuant thereto; and
(xix) no United States Federal or state non-banking governmental approval of any kind is required of any Lender for its own behalfexecution of or performance under this Agreement or any agreement contemplated hereby solely by reason of any fact or circumstance peculiar to: (a) the Borrower, (b) the nature of the Aircraft, or (c) the Borrower's proposed operation or use of the Aircraft.
Appears in 2 contracts
Samples: Credit Agreement (Frontier Airlines Inc /Co/), Credit Agreement (Frontier Airlines Inc /Co/)
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower hereby represents and warrants that:
that (a) it Borrower is registered as a company under the Act, sole legal and has beneficial owner of the power to carry on its business and own its property in the manner and in the locations in which such business is presently being carried on or property owned;
Property; (b) it has full power and authority under its constitution:
(i) to enter into this Agreement and the Security;
(ii) to do all things required by this Agreement and the Security;
(iii) all necessary meetings have been held;
(iv) all required resolutions have been passed; and
(v) any other action necessary to authorise the execution and performance delivery of this Agreement and the Security has been taken; this Agreement and the Security will each constitute the legaldo not contravene, valid, binding and enforceable obligation of the Borrower in accordance with their respective terms;
(c) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, neither the execution nor the performance of this Agreement or the Security will:
(i) violate in any respect any statute, decree, rule or regulation or any determination, order or award of any court or any governmental, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers of the Borrower or on the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict with, or result in any win a breach of, or require any consent or approval constitute a default under, any mortgagedeed of trust, agreement loan agreement, indenture or other undertaking contract or instrument agreement to which the Borrower is a party or which is binding on the Borrower or any of the Borrower’s assets;
(iv) result in a mortgage, charge, lien or other encumbrance over any of the Borrower’s assets; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower is not in default or difficulty under any deed, agreement or other document or obligation to which it is a party or by which it is bound, Borrower or in respect any of any financial commitment its properties may be bound (nor would such execution and delivery constitute such a default with the passage of time or obligation, including obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect the ability of the Borrower to comply with its obligations under this Agreement or the Security;
(d) the Borrower is in full and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all other legislation and regulations to which the Borrower may any time and from time to time be subject;
(e) no event of default or event which, with the giving of notice or both) and do not violate or contravene any law, order, decree, rule, regulation or restriction to which Borrower or the lapse Property is subject; (c) Borrower has full power and authority to execute this Agreement; (d) this Agreement constitutes the legal, valid and binding obligations of time Borrower enforceable in accordance with its terms; (e) the execution and delivery of, and performance under, this Agreement are within Borrower's power and authority without the joinder or bothconsent of any other party, would be an event of default andand do not violate any indenture, having occurred, agreement or undertaking to which Borrower is continuing to subsist;
a party or by which he is bound; (f) except as disclosed in writing to the Lender and dispensed with in writing by best of Borrower's knowledge, there exists no default under the Lender, no litigation or administrative or other proceedings before, or of, any court or governmental authority, agency or other tribunal have, to the knowledge of the Borrower, been initiated or threatened against the Borrower or any of the Borrower’s assets which would or might have a material adverse effect on the business, assets or financial condition of the Borrower;
(g) the Borrower does not have, and will not during the currency of this Agreement have, any right of set-off, counterclaim, any right to rescind Note or any other claim with respect to this Agreement by way of cross-action against the Lender;
Loan Document, and (hg) all of the most recent annual or half-yearly or both, as the case requires, accounts of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing debt evidenced by the LenderNote is and shall be for business, no material adverse change has occurred since the date of those accounts commercial, investment or other similar purpose and not primarily for personal, family, household or agricultural use. Borrower agrees to the financial condition of the Borrower; and
indemnify and hold Lender harmless against any loss, (iclaim, damage, liability or expense (including, without limitation, attorneys' fees) the Borrower is not the trustee incurred as a result of any trust and accordingly enters into this Agreement on its own behalfrepresentation or warranty made by Borrower herein which proves to be untrue or inaccurate in any respect.
Appears in 2 contracts
Samples: Forbearance Agreement (Seawright Holdings Inc), Forbearance Agreement (Seawright Holdings Inc)
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants that:
that (a) it is registered as a company in good standing under the Actlaws of the state of its formation, duly qualified to do business and has will remain duly qualified during the power term of each Loan in each state where necessary to carry on its present business and own its property in operations, including the manner and in jurisdiction(s) where the locations in which such business is presently being carried Collateral will be located as specified on or property owned;
each Exhibit A to each Note, except where failure to be so qualified would not have a Material Adverse Effect; (b) it has full power authority to execute and authority under its constitution:
(i) to enter into deliver this Security Agreement and the Security;
(ii) to do all things required by Notes and perform the terms hereof and thereof, and this Security Agreement and the Security;
(iii) all necessary meetings Notes have been held;
(iv) all required resolutions have been passed; and
(v) any other action necessary to authorise the execution duly authorized, executed and performance delivered and constitute valid and binding obligations of this Agreement and the Security has been taken; this Agreement and the Security will each constitute the legal, valid, binding and Borrower enforceable obligation of the Borrower in accordance with their respective terms;
; (c) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, neither the execution nor the performance and delivery of this Security Agreement or and the Security will:
(i) violate in Notes will not contravene any respect any statutelaw, decree, rule or regulation or any determination, order or award of any court or any governmental, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers of the judgment affecting Borrower or on the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict with, or result in any breach of, or require of any consent or approval under, any mortgage, material agreement or other undertaking instrument binding on Borrower; (d) no consent of Borrower's shareholders or instrument to holder of any indebtedness, or filing with, or approval of, any governmental agency or commission, which the Borrower has not already been obtained or performed, as appropriate, is a party or which is binding on condition to the Borrower or any performance of the Borrower’s assets;
(iv) result in a mortgage, charge, lien or other encumbrance over any terms of the Borrower’s assets; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower is not in default or difficulty under any deed, agreement or other document or obligation to which it is a party or by which it is bound, or in respect of any financial commitment or obligation, including obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect the ability of the Borrower to comply with its obligations under this Security Agreement or the Security;
(d) the Borrower is in full and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all other legislation and regulations to which the Borrower may any time and from time to time be subject;
Notes; (e) there is no event of default action or event which, with the giving of notice proceeding pending or the lapse of time or both, would be an event of default and, having occurred, is continuing to subsist;
(f) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, no litigation or administrative or other proceedings before, or of, threatened against Borrower before any court or governmental authority, administrative agency or other tribunal have, to the knowledge of the Borrower, been initiated or threatened against the Borrower or any of the Borrower’s assets which would or might have a material adverse effect Material Adverse Effect on the business, assets or financial condition or operations of Borrower; (f) at the time any Loan is made hereunder, Borrower owns and will keep all of the Borrower;
Collateral free and clear of all liens, claims and encumbrances, and, except for this Security Agreement, there is no deed of trust, mortgage, security agreement or other third party interest against any of the Collateral; (g) at the time any Loan is made hereunder, Borrower does not have, has good and will not during marketable title to the currency of this Agreement have, any right of set-off, counterclaim, any right to rescind or any other claim with respect to this Agreement by way of cross-action against the Lender;
Collateral; (h) at the time any Loan is made hereunder, all Collateral has been received, installed and is ready for use and is satisfactory in all respects for the purposes of the most recent annual or half-yearly or both, as the case requires, accounts of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrowerthis Security Agreement; and
(i) the Borrower Collateral is, and will remain at all times under applicable law, removable personal property, which is not the trustee free and clear of any trust lien or encumbrance except in favor of Lender, notwithstanding the manner in which the Collateral may be attached to any real property; (j) all credit and accordingly enters financial information submitted to Lender herewith or at any other time is and will at the time given be true and correct in all material respects; and (k) the security interest granted to Lender hereunder is a first priority security interest, and (l) on or before January 1, 2000, Borrower's computer system shall be Year 2000 performance compliant and will thus be able to accurately process date data from, into this Agreement on its own behalfand between the twentieth and twenty-first centuries including leap year calculations.
Appears in 2 contracts
Samples: Senior Loan and Security Agreement (Cybergold Inc), Senior Loan and Security Agreement (Play Co Toys & Entertainment Corp)
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower hereby reaffirms all of the representations and warranties set forth in the Loan Documents, and further represents and warrants that:
that (a) it the Borrower is registered as a company under the Act, sole legal and has beneficial owner of the power to carry on its business and own its property in the manner and in the locations in which such business is presently being carried on or property owned;
Property; (b) it has full power and authority under its constitution:
(i) to enter into this Agreement and the Security;
(ii) to do all things required by this Agreement and the Security;
(iii) all necessary meetings have been held;
(iv) all required resolutions have been passed; and
(v) any other action necessary to authorise the execution and performance delivery of this Modification Agreement and the Security has been taken; this Agreement and the Security will each constitute the legaldo not contravene, valid, binding and enforceable obligation of the Borrower in accordance with their respective terms;
(c) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, neither the execution nor the performance of this Agreement or the Security will:
(i) violate in any respect any statute, decree, rule or regulation or any determination, order or award of any court or any governmental, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers of the Borrower or on the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict with, or result in any a breach of, or require any consent or approval constitute a default under, any mortgage, agreement loan agreement, indenture or other undertaking contract or instrument agreement to which the Borrower is a party or by which is binding on the Borrower or any of its properties may be bound (nor would such execution and delivery constitute such a default with the passage of time or the giving of notice or both), and do not violate or contravene any law, order, decree, rule, regulation or restriction to which the Borrower or the Property is subject; (c) this Modification Agreement constitutes the legal, valid and binding obligations of the Borrower enforceable in accordance with its terms; (d) the execution and delivery of, and performance under, this Agreement are within the Borrower’s assets;
(iv) result power and authority without the joinder or consent of any other party and have been duly authorized by all requisite action, and are not in a mortgagecontravention of any law, charge, lien or other encumbrance over any of the Borrower’s assets; or
(v) cause articles of organization or operating agreement, or of any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower is not in default or difficulty under any deedindenture, agreement or other document or obligation undertaking to which it Borrower is a party or by which it is bound, or in respect of any financial commitment or obligation, including obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect the ability of the Borrower to comply with its obligations under this Agreement or the Security;
(d) the Borrower is in full and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all other legislation and regulations to which the Borrower may any time and from time to time be subject;
; (e) there exists no event of uncured default by Borrower or event which, with Guarantors under the giving of notice or the lapse of time or both, would be an event of default and, having occurred, is continuing to subsist;
(f) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, no litigation or administrative or other proceedings before, or of, any court or governmental authority, agency or other tribunal have, to the knowledge of the Borrower, been initiated or threatened against the Borrower Notes or any of the Borrower’s assets which would other Loan Documents; (f) there are no offsets, claims, counterclaims, cross-claims or might have a material adverse effect on defenses with respect to the business, assets or financial condition of the Borrower;
Obligations; and (g) Borrower is duly organized and legally existing under the Borrower does not have, and will not during the currency of this Agreement have, any right of set-off, counterclaim, any right to rescind or any other claim with respect to this Agreement by way of cross-action against the Lender;
(h) all laws of the most recent annual or half-yearly or both, as State of Delaware and qualified to do business in the case requires, accounts State of the California. The Borrower provided to the Lender provide a true further represents and fair view of the financial position of the Borrower andwarrants that, except as otherwise disclosed to Administrative Agent in writing writing, there is no suit, judicial or administrative action, claim, investigation, inquiry, proceeding or demand pending (or, to the Lender and dispensed with in writing by the LenderBorrower’s knowledge, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrower; and
threatened) against (i) the Borrower is not Borrower, or against any other person liable directly or indirectly for the trustee Obligations, or (ii) which affects the Property or the Borrower’s title to the Property, or (iii) which affects the validity, enforceability or priority of any trust of the Loan Documents. The Borrower agrees to indemnify and accordingly enters into this Agreement on its own behalfhold the Administrative Agent and all Lenders harmless against any loss, claim, damage, liability or expense (including, without limitation, attorneys’ fees) incurred as a result of any representation or warranty made by the Borrower herein which proves to be untrue or inaccurate in any respect, and any such occurrence shall constitute a default under the Loan Documents.
Appears in 2 contracts
Samples: Construction Loan Modification Agreement, Construction Loan Agreement (Skechers Usa Inc)
BORROWER'S REPRESENTATIONS AND WARRANTIES. The 6.1 Save and except to the extent already disclosed under this Agreement, the Borrower represents hereby represents, warrants and warrants thatundertakes as follows:
(a) it All information furnished by the Borrower to the Lender from time to time, is registered as a company under true and correct and shall be deemed to form part of the Act, representations and warranties on the basis of which the Lender has agreed to provide the power said Loan. There is no litigation/ proceedings pending against the Borrower and the Borrower is not at present aware of any facts likely to carry on its business and own its property in the manner and in the locations in which give rise to such business is presently being carried on litigation/ proceedings or property owned;to material claims.
(b) it has full power and authority under its constitution:
(i) to enter into this Agreement and the Security;
(ii) to do all things required by this Agreement and the Security;
(iii) all necessary meetings have been held;
(iv) all required resolutions have been passed; and
(v) any other action necessary to authorise the The execution and performance of this Agreement has been and the Security has been taken; this Agreement execution of the Transaction Documents will be validly authorized and the Security obligations expressed as being assumed by the Borrower hereunder and under the Transaction Documents by the Borrower constitute and will each constitute valid legal and binding obligations of the legal, valid, binding and Borrower enforceable obligation of against the Borrower in accordance with their respective terms;.
(c) except as disclosed in writing to Neither the Lender execution and dispensed with in writing delivery hereof and of the Transaction Documents by the Lender, neither the execution Borrower nor the performance or observance of this Agreement or any of obligations of the Security will:
Borrower thereunder shall: (i) violate conflict with or result in any respect any breach of law, statute, decreerule, rule order, trust, agreement or regulation other instrument, arrangement, obligation or any determination, order duty by which the Borrower is bound; or award of any court or any governmental, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation limitation on any of the powers whatsoever of the Borrower or on however imposed.
d) The Borrower has all the Borrower’s right or ability requisite legal power and authority to exercise such powers execute this Agreement and to be exceeded;
(iii) conflict withcarry out the terms, or result in conditions and provisions, hereof and will not contravene any breach provision of, or require any consent or approval constitute a default under, any mortgage, agreement or other undertaking arrangement or instrument to which the Borrower it is a party part or by which is binding on the Borrower it or any of the Borrower’s assets;its property may be bound.
(ive) result in a mortgage, charge, lien or other encumbrance over any of the Borrower’s assets; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the The Borrower is not in default or difficulty under any deedlaw, rule, regulation, order, mortgage, trust, instrument, agreement or other document instrument, arrangement, obligation or obligation to which it is a party or duty by which it the Borrower is bound.
f) The Borrower and its related party is of good financial standing and in a position to meet its ongoing obligations and has not been served with (or threatened with) a notice of insolvency or bankruptcy.
g) The Borrower(s) has/ have been included in any list of defaulters by any regulatory/ statutory authority and/ or banks and/ or financial institutions and/ or non-banking financial companies etc.
h) No Event of Default (as defined hereinafter) or potential Event of Default has occurred and/ or is in existence or continuing.
6.2 The Borrower undertakes to the Lender that the Borrower shall make arrangements satisfactory to the Lender for meeting shortfall, or if any, in respect of any financial commitment or obligation, including obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect the ability resources of the Borrower for repayment of the said Loan.
6.3 The Borrower shall be deemed to repeat the representations and warranties contained in this clause on each day until the date of repayment of the entire amount due hereunder.
6.4 The Borrower does hereby agree, undertake, record, declare, admit, assure, promise, acknowledge and confirm to abide by, accept, satisfy, fulfill, carry out, perform and comply fully with its obligations under this Agreement all the terms, conditions, requirements, sanctions, provisions and stipulations or any amendments or modifications therein made or to be made by the Security;
(d) the Borrower is in full and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all other legislation and regulations to which the Borrower may Bank at any time or from time to time in its discretion concerning any of the Loan limits or accounts without any reference, notice or intimation by the Bank in that behalf.
6.5 It is agreed by the Borrower, that without prejudice to any rights of the Bank, all acts/ steps as are necessary for the Bank to take in order to monitor the Loan and utilization thereof and/ or to recover amounts due to the Bank or any part or portion thereof, shall and/ or may be carried out by and/ or through such other person (including a company, a firm or body corporate) as may from time to time be subject;
(e) no event appointed by the Bank in respect thereof. The Bank will at all times be entitled to share with any such other person that may thus be appointed by the Bank, all documents, statements of default or event which, with accounts and other information of whatsoever nature pertaining to the giving of notice Borrower and/ or the lapse of time said Loan. Further, the Borrower expressly recognizes and accepts that the Bank shall have full power and authority to appoint one or both, would be an event of default and, having occurred, is continuing to subsist;
(f) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, no litigation or administrative or other proceedings before, or of, any court or governmental authority, agency or other tribunal have, to the knowledge more third parties of the BorrowerBank’s choice and to transfer or delegate to such third parties, been initiated or threatened against the Borrower or any right and authority to collect on behalf of the Borrower’s assets which would Bank, all unpaid amounts and to perform and execute all acts, deeds, matters and things connected therewith or might have a material adverse effect on the business, assets or financial condition of the Borrower;
(g) the Borrower does not have, and will not during the currency of this Agreement have, any right of set-off, counterclaim, any right to rescind or any other claim with respect to this Agreement by way of cross-action against the Lender;
(h) all of the most recent annual or half-yearly or both, as the case requires, accounts of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrower; and
(i) the Borrower is not the trustee of any trust and accordingly enters into this Agreement on its own behalfincidental thereto.
Appears in 2 contracts
Samples: Personal Loan Agreement, Loan Agreement
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants that:
(a) it is registered as a company under that on the Act, date hereof and has the power to carry on its business and own its property in the manner and in the locations in which such business is presently being carried on or property owned;
(b) it has full power and authority under its constitutioneach Delivery Date:
(i) the Borrower is a corporation duly organized and validly existing in good standing pursuant to the laws of the State of Colorado; is duly qualified to do business as a foreign corporation in each jurisdiction in which its operations or the nature of its business requires, except where the failure to be so qualified would not have a material adverse effect on the Borrower or its business; is a U.S. Air Carrier; maintains its location (as such term is defined in Article 9 of the Uniform Commercial Code) in Colorado; and has the corporate power and authority to engage in air transport and to carry on scheduled passenger service as presently conducted, to own the Aircraft and to enter into this Agreement and perform its obligations under the SecurityOperative Documents;
(ii) to do all things required the execution, delivery and performance by this Agreement and the Security;
(iii) Borrower of the Operative Documents will, on such Delivery Date, have been duly authorized by all necessary meetings have been held;
(iv) all required resolutions have been passed; and
(v) corporate action on the part of the Borrower, do not require any other action necessary to authorise the execution and performance stockholder approval, or approval or consent of this Agreement and the Security has been taken; this Agreement and the Security will each constitute the legal, valid, binding and enforceable obligation any trustee or holders of any indebtedness or obligations of the Borrower except such as have been duly obtained or by such Delivery Date will have been duly obtained and will on such Delivery Date be in accordance with their respective terms;
(c) except as disclosed in writing to full force and effect, and none of such Operative Documents contravenes any law, judgment, government rule, regulation or order binding on the Lender and dispensed with in writing by the Lender, neither the execution nor the performance of this Agreement Borrower or the Security will:
(i) violate in any respect any statute, decree, rule articles of incorporation or regulation or any determination, order or award of any court or any governmental, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers bylaws of the Borrower or on contravenes the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict with, or result in any breach provisions of, or require constitutes a default under, or results in the creation of any consent or approval Lien (other than Permitted Liens) upon the property of the Borrower under, any indenture, mortgage, agreement contract or other undertaking or instrument agreement to which the Borrower is a party or by which is binding on it or its properties may be bound or affected;
(iii) neither the execution and delivery by the Borrower or any of the Operative Documents nor the performance by the Borrower of its obligations thereunder requires the consent or approval of, the giving of notice to, or the registration with, or the taking of any other action in respect of any Federal, state or foreign government authority or agency, except for (A) the orders, permits, waivers, exemptions, authorizations and approvals of the regulatory authorities having jurisdiction over the operation of the Aircraft by the Borrower’s assets, which orders, permits, waivers, exemptions, authorizations and approvals have been duly obtained or will on or prior to such Delivery Date be duly obtained, and will on such Delivery Date be in full force and effect, (B) any normal periodic and other reporting requirements under the Federal Aviation Act and the regulations promulgated thereunder and the applicable rules, and regulations of the FAA, in each case to the extent required to be given or obtained only after such Delivery Date, (C) any filings, registrations or applications specifically described in this Agreement, and (D) an air operator's certificate with respect to Airbus Model A319 aircraft, which certificate has been obtained by the Borrower;
(iv) result the Operative Documents to which the Borrower is a party delivered on or prior to the date hereof or such Delivery Date, as the case may be, each constitute legal, valid and binding obligations of the Borrower enforceable against the Borrower in a mortgageaccordance with the terms thereof except as such may be limited by equitable principles or applicable bankruptcy, chargeinsolvency, lien reorganization, moratorium or other encumbrance over any of the Borrower’s assets; orsimilar laws affecting creditors' rights generally;
(v) cause there are no pending or, to the best of Borrower's knowledge, threatened actions or proceedings before any limit court, arbitrator or administrative agency which individually (or in the aggregate in the case of any group of related lawsuits) is expected to have a material and adverse effect on the powers financial condition of the Borrower in respect or the ability of borrowing, guaranteeing, raising financial accommodation or otherwise the Borrower to be exceededperform its obligations under the Operative Documents;
(vi) except as disclosed in writing for (A) the filing for recording pursuant to the Lender Federal Aviation Act of the FAA Bill of Sale for each Aircraft (and dispensed the application for registraxxxx of such Aircraft in the name of the Borrower) and the Mortgage with the Mortgage Supplement for each Aircraft, (B) the filing of financing statements (and continuation statements at periodic intervals) with respect to the interests created by such documents under the Uniform Commercial Code of Colorado and such other states as may be specified in writing the opinion furnished pursuant to Section 4(b)(ix) hereof and (C) the affixation of the nameplates referenced in Section 3.04 of the Mortgage, no further action, including any filing or recording of any document (including any financing statement in respect thereof under Article 9 of the Uniform Commercial Code of any applicable jurisdiction), is necessary or advisable in order to establish and perfect the first mortgage Lien on each Aircraft in favor of the Administrative Agent pursuant to the Mortgage in any applicable jurisdiction in the United States;
(vii) there has not occurred any event which constitutes a Default or an Event of Default hereunder which is presently continuing;
(viii) the statements of financial position of the Borrower as of December 31, 2001 and the date of the most recently concluded fiscal quarter of the Borrower for which a statement of financial position has been provided and the related statements of earnings and cash flow of the Borrower in all material respects for the year and fiscal quarter, respectively, then ended, copies of which have been furnished to the Lenders, fairly present the financial condition of the Borrower at such date and the results of operations and cash flow of the Borrower for the period ended on such dates, in accordance with generally accepted accounting principles consistently applied, and subject, in the case of the statements pertaining to the Borrower's most recently concluded fiscal quarter, to normal year-end adjustments, and since December 31, 2001, there has been no material and adverse change in the business or financial condition of the Borrower;
(ix) on such Delivery Date the Borrower will have good title to the Mortgage Estate delivered on such Delivery Date free and clear of all Liens, except the Lien of the Mortgage, and Inchoate Liens;
(x) neither the Borrower nor anyone acting on behalf of the Borrower has directly or indirectly offered any interest in the Notes for sale to, or solicited any offer to acquire any of the same from, anyone other than the Lenders and not more than 35 other institutions believed capable of evaluating and bearing the risks of investment in the transactions contemplated hereby;
(xi) the Borrower has filed or caused to be filed all Federal, state, local and (to the best of Borrower's knowledge) foreign tax returns which are required to be filed and has paid or caused to be paid or provided adequate reserves for the payment of all taxes shown to be due and payable on such returns or (except to the extent being contested in good faith and by appropriate proceedings and for the payment of which adequate reserves have been provided in accordance with generally accepted accounting principles) on any assessment received by the LenderBorrower, to the extent that such taxes have become due and payable, except such returns or taxes as do not materially and adversely affect the business, property or assets, operations or financial condition, of the Borrower and do not involve a material risk of the sale, forfeiture or loss of, or the creation of any Lien (other than a Permitted Lien) on the Aircraft;
(xii) the Borrower is not (x) in default or difficulty under any deedindenture, mortgage, lease or Credit Agreement or under any other agreement or other document or obligation instrument of a material nature to which it the Borrower is now a party or by which it is bound, or in respect and no event has occurred and is continuing which, under the provisions of any financial commitment or obligationsuch indenture, including obligations under guarantees mortgage, Credit Agreement or other contingent liabilities, which default material agreement or difficulty is reasonably likely to adversely affect the ability of the Borrower to comply with its obligations under this Agreement or the Security;
(d) the Borrower is in full and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all other legislation and regulations to which the Borrower may any time and from time to time be subject;
(e) no event of default or event whichinstrument, with the giving of notice or the lapse of time or the giving of notice, or both, would be an event constitute a default thereunder or (y) in violation of default andany law, having occurredorder, is continuing to subsist;
(f) except as disclosed in writing injunction, decree, rule or regulation applicable to the Lender and dispensed with in writing by the Lender, no litigation or administrative or other proceedings before, or of, Borrower of any court or governmental authorityadministrative body, agency or other tribunal have, which violation (a) would reasonably be expected to the knowledge of the Borrower, been initiated or threatened against the Borrower or any of the Borrower’s assets which would or might have a material adverse effect on materially and adversely affect the business, assets operations or financial condition of the Borrower or the Borrower's ability to execute, deliver and perform its obligations under the Operative Documents or (b) would involve a material risk of the sale, forfeiture or loss of, or the creation of any Lien (other than a Permitted Lien) on, any of the Mortgage Estate;
(gxiii) the Borrower does has not haveengaged in any transaction in connection with which the Borrower could be subjected to either a material civil penalty assessed pursuant to Section 502(i) of ERISA, and will not during or a material tax imposed by Section 4975 of the currency of this Agreement have, any right of set-off, counterclaim, any right Code; (w) no material liability to rescind or any the Pension Benefit Guaranty Corporation (other claim than liability for premiums) has been incurred by the Borrower with respect to any Plan; (x) there has been no event or condition which presents a material risk of termination of any Plan by the Pension Benefit Guaranty Corporation; (y) no accumulated funding deficiency (as defined in Section 302 of ERISA and Section 412 of the Code), whether or not waived, exists with respect to any Plan; and (z) no material amount of "withdrawal liability," as that term is used in Section 4201 of ERISA, has been or is expected to be incurred by the Borrower nor has the Borrower or any affiliate of the Borrower been notified by any multi-employer plan (within the meaning of Section 3(37)(A) of ERISA) that such multi-employer plan is in reorganization or insolvency within the meaning of Section 4241 or Section 4245 of ERISA or that such multi-employer plan intends to terminate or has been terminated under Section 4041A of ERISA (for purposes of this Agreement by way subclause (z), the term "affiliate" shall mean any corporation or person which is a member of cross-action against the Lendersame controlled group of corporations (within the meaning of Section 414(b) of the Code) as the Borrower or is under common control (within the meaning of Section 414(c) of the Code) with the Borrower);
(hxiv) all neither the Borrower nor any Plan nor any trust created thereunder has engaged in a "prohibited transaction," within the meaning of Section 406 of ERISA or Section 4975 of the most recent annual Code with respect to the transactions contemplated hereby which could subject the Borrower to any tax or half-yearly or both, as the case requires, accounts penalty pursuant to Section 4975 of the Borrower provided to the Lender provide a true and fair view Code or Section 502(i) of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrower; andERISA;
(ixv) the Borrower is not an "investment company" as defined in, or subject to regulation under, the trustee Investment Company Act of 1940 and the Borrower is not a "holding company" as defined in, or subject to regulation under, the Public Utility Holding Company Act of 1935;
(xvi) none of the reports, financial statements, certificates or other information furnished by or on behalf of the Borrower to the Administrative Agent or the Lenders in connection with the negotiation of this Agreement or delivered hereunder (as modified or supplemented by other information so furnished) contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
(xvii) no part of the proceeds of any trust Loan hereunder will be used, whether directly or indirectly, for any purpose that entails a violation of any of the Regulations of the Board of Governors of the Federal Reserve, including Regulations U and accordingly enters into this Agreement on its own behalf.X.
Appears in 2 contracts
Samples: Credit Agreement (Frontier Airlines Inc /Co/), Credit Agreement (Frontier Airlines Inc /Co/)
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower hereby represents and warrants that:
: (a) it is registered as a company under the Act, and has the power to carry on its business and own its property in the manner and in the locations in which such business is presently being carried on or property owned;
(b) it has full power and authority under its constitution:
(i) to enter into this Agreement and the Security;
(ii) to do all things required by this Agreement and the Security;
(iii) all necessary meetings have been held;
(iv) all required resolutions have been passed; and
(v) any other action necessary to authorise the execution and performance delivery of this Agreement and the Security has been taken; this Agreement and the Security will each constitute the legaldoes not contravene, valid, binding and enforceable obligation of the Borrower in accordance with their respective terms;
(c) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, neither the execution nor the performance of this Agreement or the Security will:
(i) violate in any respect any statute, decree, rule or regulation or any determination, order or award of any court or any governmental, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers of the Borrower or on the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict with, or result in any a breach of, or require any consent or approval constitute a default under, any mortgagedeed of trust, agreement loan agreement, indenture or other undertaking contract or instrument agreement to which the Borrower is a party or by which is binding on the Borrower or any of its properties may be bound (nor would such execution and delivery constitute such a default with the passage of time or the giving of notice or both), and does not violate or contravene any law, order, decree, rule, regulation or restriction to which Borrower or any of Borrower’s assets;
property is subject; (ivb) result this Agreement constitutes the legal, valid and binding obligations of Borrower enforceable in a mortgageaccordance with its terms; (c) the execution and delivery of, chargeand performance under, lien or other encumbrance over any of the this Agreement are within Borrower’s assets; or
(v) cause power and authority without the joinder or consent of any limit on the powers of the Borrower in respect of borrowingother party and have been duly authorized by all requisite action, guaranteeing, raising financial accommodation or otherwise to be exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower is are not in default contravention of any law, or difficulty under of any deedindenture, agreement or other document or obligation undertaking to which it Borrower is a party or by which it is bound, or in respect of any financial commitment or obligation, including obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect the ability of the Borrower to comply with its obligations under this Agreement or the Security;
; (d) there are no offsets, claims or defenses with respect to the Obligations; and (e) Borrower is duly organized and legally existing under the laws of the state of its organization and is duly qualified to do business in full and ongoing compliance with the Commonwealth of Virginia. Except as set forth on Exhibit A hereto or otherwise disclosed in its constitution and all companies and securities legislation and regulations, and all other legislation and regulations to which the Borrower may any time and public filings from time to time be subject;
time, the Borrower further represents and warrants that there is no material suit, judicial or administrative action, claim, investigation, inquiry, proceeding or demand pending (eor, to Borrower’s knowledge, threatened) no event against (i) Borrower, or (ii) which affects title to any of default or event which, with the giving of notice Borrower’s property or the lapse Borrower’s title to any of time or both, would be an event of default and, having occurred, is continuing to subsist;
(f) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, no litigation or administrative or other proceedings beforeBorrower’s property, or of, any court (iii) which affects the validity enforceability or governmental authority, agency or other tribunal have, to the knowledge priority of the Borrower, been initiated or threatened against the Borrower or any of the Borrower’s assets Loan Documents. Borrower agrees to indemnify and hold the Lender harmless against any loss, claim damage, liability or expense (including, without limitation, attorneys’ fees) incurred as a result of any representation or warranty made by Borrower herein which would proves to be untrue or might have a material adverse effect on the business, assets or financial condition of the Borrower;
(g) the Borrower does not haveinaccurate in any respect, and will not during any such occurrence shall constitute a default under the currency of this Agreement have, any right of set-off, counterclaim, any right to rescind or any other claim with respect to this Agreement by way of cross-action against the Lender;
(h) all of the most recent annual or half-yearly or both, as the case requires, accounts of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrower; and
(i) the Borrower is not the trustee of any trust and accordingly enters into this Agreement on its own behalfLoan Documents.
Appears in 2 contracts
Samples: Seventh Loan Modification Agreement (Comstock Homebuilding Companies, Inc.), Loan Modification Agreement (Comstock Homebuilding Companies, Inc.)
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants thatthat on the date hereof and on each Borrowing Date:
(a) it the Borrower is registered a Cayman Islands exempted company, duly organized and validly existing pursuant to the laws of the Cayman Islands; is duly qualified to do business as a company under foreign corporation in each jurisdiction in which its operations or the Actnature of its business requires, except where the failure to be so qualified would not have a Material Adverse Effect; and has the corporate power and authority to carry on purchase the Aircraft under the Assigned Purchase Agreement and to enter into and perform its business and own its property in obligations under the manner and in the locations in Operative Documents to which such business it is presently being carried on or property ownedshall be a party;
(b) the execution, delivery and performance by the Borrower of the Operative Documents to which it has full power and authority under its constitution:
(i) to enter into this Agreement and the Security;
(ii) to do all things required is a party have been duly authorized by this Agreement and the Security;
(iii) all necessary meetings have been held;
(iv) all required resolutions have been passed; and
(v) corporate action on the part of the Borrower, do not require any other action necessary to authorise the execution and performance shareholder approval, or approval or consent of this Agreement and the Security has been taken; this Agreement and the Security will each constitute the legal, valid, binding and enforceable obligation any trustee or holders of any indebtedness or obligations of the Borrower except such as have been duly obtained and are in accordance with their respective terms;
(c) except as disclosed in writing to full force and effect, and none of the Lender and dispensed with in writing execution, delivery or performance by the LenderBorrower of such Operative Documents contravenes any law, neither judgment, government rule, regulation or order binding on the execution nor the performance of this Agreement Borrower or the Security will:
(i) violate in any respect any statute, decree, rule or regulation or any determination, order or award memorandum and articles of any court or any governmental, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers association of the Borrower or on contravenes the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict with, or result in any breach provisions of, or require constitutes a default under, or results in the creation of any consent or approval Lien (other than Permitted Liens) upon the property of the Borrower under, any indenture, mortgage, agreement contract or other undertaking or instrument agreement to which the Borrower is a party or by which is binding on the Borrower it or any of the Borrower’s assetsits properties may be bound or affected;
(ivc) result in a mortgage, charge, lien or other encumbrance over any neither the execution and delivery by the Borrower of the Borrower’s assets; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower is not in default or difficulty under any deed, agreement or other document or obligation Operative Documents to which it is a party nor the performance by the Borrower of its obligations thereunder requires the consent or by which it is boundapproval of, the giving of notice to, or the registration with, or the taking of any other action in respect of any financial commitment Federal, state or obligationforeign government authority or agency, including obligations under guarantees except for those specified in the opinions referred to in Section 4.1(h) or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect the ability of the Borrower to comply with its obligations under this Agreement or the Securitythose that would not have a Material Adverse Effect;
(d) the Borrower is in full and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all other legislation and regulations Operative Documents to which the Borrower is a party each constitute legal, valid and binding obligations of the Borrower enforceable against the Borrower in accordance with the terms thereof except as such enforceability may any time and from time to time be subjectlimited by equitable principles or applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally;
(e) there is no event pending action or proceeding or (to the best of default Borrower’s knowledge) threatened action or event whichproceeding before any court, with arbitrator or administrative agency against the giving of notice Borrower and nor is there subsisting any unsatisfied judgment or the lapse of time award given against it by any court, arbitrator or both, would be an event of default and, having occurred, is continuing to subsistadministrative agency;
(f) except as disclosed specified in writing the opinions referred to in Section 4.1(h), no further action, including any filing or recording of any document, is necessary or advisable in order to establish and perfect the first ranking Lien on the Collateral in favour of the Security Agent pursuant to the Lender Security Documents;
(g) there has not occurred any event which constitutes a Default or an Event of Default which is presently continuing;
(h) a Material Adverse Effect has not occurred with respect to the Borrower or any other Obligor as certified by a director of each of the Guarantor and dispensed with the Borrower;
(i) (A) (i) the Assigned Purchase Agreement and the Engine Financier Agreement are in writing by full force and effect and none of the Lender, no litigation or administrative or other proceedings before, or of, any court or governmental authority, agency or other tribunal haveBorrower or, to the knowledge of the Borrower, been initiated Airbus or threatened against the Engine Manufacturer is in default of any of its material obligations thereunder, (ii) neither the Borrower or Intrepid has assigned or granted any Lien in its rights under the Assigned Purchase Agreement in respect of any of the Aircraft, the Engine Financier Agreement or the Engines, as applicable and (iii) all amounts of Advances then due and payable under the Assigned Purchase Agreement have been paid in full and there are no outstanding non-deferrable Advances under the Assigned Purchase Agreement that are past due and which remain outstanding, and (B) the Final Price does not exceed the sum of (i) the amount specified in Schedule III, plus (ii) amounts held in escrow by the Agent pursuant to Section 9(k) of this Agreement, plus (iii) amounts prepaid to Airbus;
(j) as of the Effective Date, the information set out in Schedule III correctly and accurately sets forth (x) the current schedule of non-deferrable Advances due and payable for each Aircraft under the Assigned Purchase Agreement, (y) the related payment date and Cash Contribution for each Advance, and (z) the Scheduled Delivery Month for each Aircraft;
(k) the Collateral is free and clear of all Liens (except Permitted Liens) and no Obligor nor any Person authorized to act on such Obligor’s behalf has directly or indirectly offered any beneficial interest or security relating to the ownership of any interest in the Collateral, or any of the Loan Certificates or any other interest in or security under the Security Documents or any other interest in or security under such Collateral, for sale to, or solicited any offer to acquire any such interest or security from, or has sold any such interest or security to, any Person in violation of the Securities Act or any applicable state, federal or foreign securities law;
(l) the Borrower has filed or caused to be filed all state, local and foreign tax returns which are required to be filed and has paid or caused to be paid or provided adequate reserves for the payment of all Taxes shown to be due and payable on such returns or (except to the extent being contested in good faith and by appropriate proceedings and for the payment of which adequate reserves have been provided in accordance with generally accepted accounting principles) on any assessment received by the Borrower’s assets , to the extent that such Taxes have become due and payable, except such returns or Taxes as to which would the failure to file or might have a material adverse effect on pay, as the businesscase may be, assets could not be reasonably expected to materially and adversely affect the assets, operations or financial condition condition, of the Borrower;
(gm) the Borrower is not in violation of any law, order, injunction, decree, rule or regulation applicable to the Borrower of any court or administrative body, which default or violation would reasonably be expected to materially and adversely affect the operations or financial condition of the Borrower or the Borrower’s ability to execute, deliver and perform its obligations under the Operative Documents;
(n) the Borrower is not an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940;
(o) none of the information furnished by or on behalf of the Borrower to the Facility Agent or any Lender in connection with the negotiation of this Agreement or delivered hereunder (as modified or supplemented by other information so furnished) contains any material misstatement of fact or omits any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(p) the Borrower does not havehave any Financial Indebtedness, any liabilities or any other obligations other than indebtedness, liabilities or obligations incurred pursuant to the Operative Documents or documents executed or to be executed by the Borrower in connection with the transactions contemplated by the Operative Documents, and other than such liabilities or obligations with respect to Taxes, ordinary costs and overhead expenses;
(q) the proceeds of the Loans will be used only for the purpose of paying the amounts contemplated in the Operative Documents.
(r) the Borrower does not during have any subsidiaries;
(s) the currency Borrower does not have any assets other than assets acquired (i) pursuant to the Operative Documents or any documents executed or to be executed by the Borrower in connection with the transactions contemplated by the Operative Documents and (ii) in connection with activities incidental to the foregoing;
(t) each Obligor is fully solvent (on a cash flow and balance sheet basis) and will be fully solvent immediately following the execution of this Agreement have, any right of set-off, counterclaim, any right to rescind or any other claim with respect to this Agreement by way of cross-action against and the Lender;
(h) all of the most recent annual or half-yearly or both, as the case requires, accounts of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the BorrowerOperative Documents; and
(iu) the Borrower is not Borrower’s obligations hereunder and under any other Operative Document rank at least pari passu with the trustee claims of any trust all its other unsecured and accordingly enters into this Agreement on its own behalfunsubordinated creditors, except for obligations mandatorily preferred by law applying to companies generally.
Appears in 1 contract
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants that:to the Lender that each of the following matters is true and correct as of the execution date of this Agreement and the Drawdown Date (when any specified date is described therein, as of such date). If it is found untrue at a later date, the Borrower shall immediately notify the Lender thereof in writing, and shall compensate the Lender for any and all reasonable Loss incurred thereby.
(1) The Borrower is a joint-stock company duly incorporated and validly existing under the laws of Japan.
(2) The Borrower does not fall under any of the items (a) it is registered as a company under to (i) specified in Clause (1) of the Act, Exhibit 2 and does not engage in any of the relationships (a) to (e) specified in Clause (2) of the Exhibit 2.
(3) The Borrower has the power to carry on its business and own its property in the manner and in the locations in which such business is presently being carried on or property owned;
(b) it has full power and authority under its constitution:
(i) necessary to enter into and perform this Agreement Agreement, and the Security;
(ii) to do all things required by this Agreement and the Security;
(iii) all necessary meetings have been held;
(iv) all required resolutions have been passed; and
(v) any other action necessary to authorise the execution and performance of this Agreement by the Borrower and any transactions hereunder are within the Security has been taken; this Agreement and the Security will each constitute the legal, valid, binding and enforceable obligation corporate purposes of the Borrower in accordance with their respective terms;and the Borrower has duly completed all procedures necessary therefor under the Laws and Ordinances, the articles of incorporation and other internal company rules of the Borrower.
(c4) except as disclosed in writing to the Lender The execution and dispensed with in writing by the Lender, neither the execution nor the performance of this Agreement or by the Security will:
Borrower and any transactions hereunder does not result in (ia) violate in any respect any statute, decree, rule or regulation or any determination, order or award violation of any court or any governmental, judicial or public body or authority applicable to Laws and Ordinances which bind the Borrower;
, (iib) cause any limitation, whether imposed by state, decree, rule or regulation on any breach of its articles of incorporation and other internal company rules of the powers of the Borrower or on the Borrower’s right or ability to exercise such powers to be exceeded;
, and (iiic) conflict with, or result in any breach of, or require any consent or approval under, any mortgage, agreement or other undertaking or instrument of an important third-party contract to which the Borrower is a party or which is binding on binds the Borrower or any the assets of the Borrower’s assets;.
(iv5) result in a mortgageThe person who signed or attached his/her name and seal to this Agreement is authorized to sign or affix his/her name and seal on this Agreement as the representative of the Borrower by all procedures necessary pursuant to the Laws and Ordinances, charge, lien the articles of incorporation or other encumbrance over any internal company rules of the Borrower’s assets; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower is not in default or difficulty under any deed, agreement or other document or obligation to which it is a party or by which it is bound, or in respect of any financial commitment or obligation, including obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect the ability of the Borrower to comply with its obligations under this Agreement or the Security;
(d) the Borrower is in full and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all other legislation and regulations to which the Borrower may any time and from time to time be subject;
(e) no event of default or event which, with the giving of notice or the lapse of time or both, would be an event of default and, having occurred, is continuing to subsist;
(f) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, no litigation or administrative or other proceedings before, or of, any court or governmental authority, agency or other tribunal have, to the knowledge of the Borrower, been initiated or threatened against the Borrower or any of the Borrower’s assets which would or might have a material adverse effect on the business, assets or financial condition of the Borrower;
(g) the Borrower does not have, and will not during the currency of this Agreement have, any right of set-off, counterclaim, any right to rescind or any other claim with respect to this Agreement by way of cross-action against the Lender;
(h) all of the most recent annual or half-yearly or both, as the case requires, accounts of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrower; and
(i) the Borrower is not the trustee of any trust and accordingly enters into this Agreement on its own behalf.
Appears in 1 contract
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants thatthat on the date hereof and on each Borrowing Date:
(a) it the Borrower is registered a Cayman Islands exempted company, duly organized and validly existing pursuant to the laws of the Cayman Islands; is duly qualified to do business as a company under foreign corporation in each jurisdiction in which its operations or the Actnature of its business requires, except where the failure to be so qualified would not have a Material Adverse Effect; and has the corporate power and authority to carry on purchase the Aircraft under the Assigned Purchase Agreement and to enter into and perform its business and own its property in obligations under the manner and in the locations in Operative Documents to which such business it is presently being carried on or property ownedshall be a party;
(b) the execution, delivery and performance by the Borrower of the Operative Documents to which it has full power and authority under its constitution:
(i) to enter into this Agreement and the Security;
(ii) to do all things required is a party have been duly authorized by this Agreement and the Security;
(iii) all necessary meetings have been held;
(iv) all required resolutions have been passed; and
(v) corporate action on the part of the Borrower, do not require any other action necessary to authorise the execution and performance shareholder approval, or approval or consent of this Agreement and the Security has been taken; this Agreement and the Security will each constitute the legal, valid, binding and enforceable obligation any trustee or holders of any indebtedness or obligations of the Borrower except such as have been duly obtained and are in accordance with their respective terms;
(c) except as disclosed in writing to full force and effect, and none of the Lender and dispensed with in writing execution, delivery or performance by the LenderBorrower of such Operative Documents contravenes any law, neither judgment, government rule, regulation or order binding on the execution nor the performance of this Agreement Borrower or the Security will:
(i) violate in any respect any statute, decree, rule or regulation or any determination, order or award memorandum and articles of any court or any governmental, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers association of the Borrower or on contravenes the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict with, or result in any breach provisions of, or require constitutes a default under, or results in the creation of any consent or approval Lien (other than Permitted Liens) upon the property of the Borrower under, any indenture, mortgage, agreement contract or other undertaking or instrument agreement to which the Borrower is a party or by which is binding on the Borrower it or any of the Borrower’s assetsits properties may be bound or affected;
(ivc) result in a mortgage, charge, lien or other encumbrance over any neither the execution and delivery by the Borrower of the Borrower’s assets; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower is not in default or difficulty under any deed, agreement or other document or obligation Operative Documents to which it is a party nor the performance by the Borrower of its obligations thereunder requires the consent or by which it is boundapproval of, the giving of notice to, or the registration with, or the taking of any other action in respect of any financial commitment Federal, state or obligationforeign government authority or agency, including obligations under guarantees except for those specified in the opinions referred to in Clause 4.1(h) or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect those that would not have a Material Adverse Effect (the ability of the Borrower to comply with its obligations under this Agreement or the Security“Permits”);
(d) the Borrower is in full and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all other legislation and regulations Operative Documents to which the Borrower is a party each constitute legal, valid and binding obligations of the Borrower enforceable against the Borrower in accordance with the terms thereof except as such enforceability may any time and from time to time be subjectlimited by equitable principles or applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally;
(e) there is no event pending or (to the best of default Borrower’s knowledge) threatened action or event whichproceeding before any court, with arbitrator or administrative agency that individually (or in the giving aggregate in the case of notice or any group of related lawsuits) is expected by the lapse of time or both, would be an event of default and, having occurred, is continuing Borrower to subsisthave a Material Adverse Effect;
(f) except as disclosed specified in writing the opinions referred to the Lender and dispensed with in writing by the LenderClause 4.1(h), no litigation further action, including any filing or administrative recording of any document, is necessary or other proceedings before, advisable in order to establish and perfect the first ranking Lien on the Collateral in favour of the Security Trustee pursuant to either (i) the Mortgage or of, (ii) the Lease Security Assignments;
(g) there has not occurred any court event which constitutes a Default or governmental authority, agency or other tribunal havean Event of Default which is presently continuing;
(h) the Assigned Purchase Agreement and the Engine Financier Agreement is in full force and effect and none of the Borrower or, to the knowledge of the Borrower, been initiated Airbus or threatened against the Borrower Engine Manufacturer is in default of any of its material obligations thereunder. Neither the Borrower, Intrepid, the Guarantor or the Irish Company has assigned or granted any Lien in its rights under the Assigned Purchase Agreement in respect of any of the Aircraft or the Engine Financier Agreement or the Engines;
(i) the Borrower has filed or caused to be filed all state, local and foreign tax returns which are required to be filed and has paid or caused to be paid or provided adequate reserves for the payment of all taxes shown to be due and payable on such returns or (except to the extent being contested in good faith and by appropriate proceedings and for the payment of which adequate reserves have been provided in accordance with generally accepted accounting principles) on any assessment received by the Borrower’s assets , to the extent that such taxes have become due and payable, except such returns or taxes as to which would the failure to file or might have a material adverse effect on pay, as the businesscase may be, assets could not be reasonably expected to materially and adversely affect the assets, operations or financial condition condition, of the Borrower;
(g) the Borrower does not have, and will not during the currency of this Agreement have, any right of set-off, counterclaim, any right to rescind or any other claim with respect to this Agreement by way of cross-action against the Lender;
(h) all of the most recent annual or half-yearly or both, as the case requires, accounts of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrower; and
(ij) the Borrower is not the trustee in violation of any trust law, order, injunction, decree, rule or regulation applicable to the Borrower of any court or administrative body, which default or violation would reasonably be expected to materially and accordingly enters into adversely affect the operations or financial condition of the borrower or the borrower’s ability to execute, deliver and perform its obligations under the Operative Documents;
(k) the Borrower is not an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940;
(l) none of the information furnished by or on behalf of the Borrower to the Facility Agent or any Lender in connection with the negotiation of this Agreement or delivered hereunder (as modified or supplemented by other information so furnished) contains any material misstatement of fact or omits any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
(m) the Borrower, the Guarantor and the Irish Company are fully solvent (on its own behalfa cash flow and balance sheet basis) and will be fully solvent immediately following the execution of this Agreement and the Operative Documents.
Appears in 1 contract
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower As a material inducement to Administrative Agent and the Lenders to execute and deliver this Amendment, each Obligated Party represents and warrants to Administrative Agent and the Lenders (with the knowledge and intent that Administrative Agent and the Lenders are relying upon the same in entering into this Amendment) that, as of the Sixth Amendment Execution Date:
(a) it is registered as a company under the ActThe execution, delivery, and has performance by such Person of this Amendment and compliance with the power to carry on its business terms and own its property in the manner and in the locations in which such business is presently being carried on or property owned;
(b) it has full power and authority under its constitution:
(i) to enter into this Agreement and the Security;
(ii) to do all things required by this Agreement and the Security;
(iii) all necessary meetings provisions hereof have been held;
(iv) duly authorized by all required resolutions have been passed; and
(v) any other requisite action necessary to authorise on the execution part of such Person and performance of this Agreement do not and the Security has been taken; this Agreement and the Security will each constitute the legal, valid, binding and enforceable obligation of the Borrower in accordance with their respective terms;
(c) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, neither the execution nor the performance of this Agreement or the Security will:
not (i) violate in any respect any statute, decree, rule or regulation or any determination, order or award of any court or any governmental, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers of the Borrower or on the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict with, or result in any a breach of, or require any consent under (A) the Constituent Documents of such Person, (B) any applicable law, rule, or approval underregulation or any order, writ, injunction, or decree of any mortgageGovernmental Sixth Amendment to Credit Agreement Authority or arbitrator which could result in a Material Adverse Event, or (C) any agreement or other undertaking or instrument to which the Borrower is a party or which is binding on the Borrower or any of the Borrower’s assets;
(iv) result in a mortgage, charge, lien or other encumbrance over any of the Borrower’s assets; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower is not in default or difficulty under any deed, agreement or other document or obligation to which it such Person is a party or by which it or any of its Properties is boundbound or subject which could result in a Material Adverse Event, or (i) constitute a default under any such agreement or instrument which could result in respect a Material Adverse Event, or result in the creation or imposition of any financial commitment or obligation, including obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect the ability Lien upon any of the Borrower to comply revenues or assets of such Person.
(b) This Amendment constitutes legal, valid, and binding obligation of such Person, enforceable against such Person in accordance with its obligations under terms, except as limited by Debtor Relief Laws.
(c) No authorization, approval, or consent of, and no filing or registration with, any Governmental Authority or third party is or will be necessary for the execution, delivery, or performance by such Person of this Agreement Amendment or the Security;validity or enforceability hereof.
(d) All of the Borrower is representations and warranties contained in full Article 6 of the Credit Agreement are true and ongoing compliance correct on and as of the Sixth Amendment Execution Date with its constitution the same force and all companies effect as if such representations and securities legislation warranties had been made on and regulationsas of the Sixth Amendment Execution Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date, and all other legislation except that for purposes of this Section 7(d), the representations and regulations warranties contained in Section 6.2 of the Credit Agreement shall be deemed to which refer to the Borrower may any time most recent statements furnished pursuant to Section 7.l(a) and from time to time be subject;(b) of the Credit Agreement, respectively.
(e) no event At the time of default or event which, with the and after giving of notice or the lapse of time or both, would be an event of default and, having occurred, is continuing effect to subsist;
(f) except as disclosed in writing to the Lender and dispensed with in writing by the Lenderthis Amendment, no litigation or administrative or other proceedings before, or of, any court or governmental authority, agency or other tribunal have, to the knowledge of the Borrower, been initiated or threatened against the Borrower or any of the Borrower’s assets which would or might have a material adverse effect on the business, assets or financial condition of the Borrower;
(g) the Borrower does not have, and will not during the currency of this Agreement have, any right of set-off, counterclaim, any right to rescind or any other claim with respect to this Agreement by way of cross-action against the Lender;
(h) all of the most recent annual or half-yearly or both, as the case requires, accounts of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrower; and
(i) the Borrower is not the trustee of any trust and accordingly enters into this Agreement on its own behalfDefault exists.
Appears in 1 contract
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower hereby represents and warrants thatto Lender as follows:
(a) it 1.1 Borrower is registered as a company corporation, duly formed, validly existing and in good standing under the Actlaws of the Commonwealth of Virginia and is in good standing and qualified to do business in all other jurisdictions in which the conduct of its business requires it to be qualified.
1.2 All actions on the part of Borrower which are necessary or appropriate to permit consummation of the Loan, granting the security therefore contemplated hereby, and has all other transactions and undertakings relating to the power to carry on its business and own its property in the manner and in the locations in which such business is presently being carried on or property owned;
(b) it has full power and authority under its constitution:
(i) to enter into this Agreement and the Security;
(ii) to do all things required Loan have been duly authorized by this Agreement and the Security;
(iii) all necessary meetings have been held;and appropriate action.
(iv) all required resolutions have been passed; and
(v) any other action necessary to authorise 1.3 The consummation of the Loan, execution and performance of this Agreement and the Security has been taken; this Agreement and the Security will each constitute the legal, valid, binding and enforceable obligation of the all other agreements or undertakings entered into by Borrower in accordance connection with their respective terms;
the Loan (ccollectively the "Loan Documents") except as disclosed in writing to the Lender do not contravene, violate or cause a default under, and dispensed with in writing by the Lenderwill not contravene, neither the execution nor the performance of this Agreement violate or the Security will:
(i) violate in cause a default under any respect any statuteother covenant, decreeagreements, rule arrangement, venture, undertaking, law, order, ordinance or regulation entered into by or any determination, order binding upon Borrower. No consent or award approval of any court or any governmental, judicial governmental or public body or authority applicable to any other party is required in connection with the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any consummation of the powers Loan, delivery of the Borrower security for the Loan or on the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict with, or result in any breach of, or require any consent or approval under, any mortgage, agreement or other undertaking or instrument to which the Borrower is a party or which is binding on the Borrower or any execution and delivery of the Borrower’s assets;documents evidencing and securing the Loan.
(iv) result in a mortgage, charge, lien or other encumbrance over any of the Borrower’s assets; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the 1.4 Borrower is not in default or difficulty under any deedloan, agreement covenant, agreement, undertaking, order, regulation or other document the like which may affect the validity or obligation to which it enforceability of the Loan, nor is a party or by which it is bound, or in respect Borrower the subject of any financial commitment or obligation, including obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect the ability of the Borrower to comply with its obligations under this Agreement or the Security;
(d) the Borrower is in full and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all other legislation and regulations to which the Borrower may any time and from time to time be subject;
(e) no event of default or event which, with the giving of notice or the lapse of time or both, would be an event of default and, having occurred, is continuing to subsist;
(f) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, no litigation or administrative or other proceedings before, or of, any court or governmental authority, agency or other tribunal havepending or, to Borrower's knowledge, threatened litigation, the knowledge violation or adverse determination of the Borrower, been initiated or threatened against the Borrower or any of the Borrower’s assets which would or might have a material adverse effect affect on the business, assets or financial condition of the Borrower;
(g) the Borrower does not have, and will not during the currency of this Agreement have, any right of set-off, counterclaim, any right to rescind or any other claim with respect to this Agreement by way of cross-action against the Lender;
(h) all of the most recent annual or half-yearly or both, as the case requires, accounts of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrower; and.
1.5 This Agreement, has been properly executed and constitutes valid and legally binding obligations of Borrower, and is fully enforceable against Borrower in accordance with its terms.
1.6 Except as otherwise disclosed in the Borrower's filings with the Securities and Exchange Commission (the "SEC"), there are no claims, losses, contingencies, litigation or other proceedings pending or, to the best of Borrower's knowledge, threatened against Borrower before any court or administrative agency which would adversely affect the ability of Borrower to enter into and perfoiin under this Agreement.
1.7 All balance sheets, profit and loss statements, projections and other financial information submitted by Borrower to the Lender (including without limitation (i) all financial information concerning the Borrower as set forth in the Form S-1 Registration Statement of the Borrower filed with the SEC on April 22, 2009, and as thereafter amended, (ii) quarterly operating expense and cash flow statements for the third and fourth quarters of 2009 which represent estimates that the Borrower has prepared based on the available information as of the date thereof, and (iii) financial projection for the period commencing as of the fourth quarter of 2009 through the fourth quarter of 2011 which represent estimates that the Borrower has prepared based on the available information as of the date thereof) are true, correct and complete as of the date thereof and present fairly the Borrower's financial condition as of the date thereof, and since the date of such financial statements there has been no material adverse change in the condition of Borrower, financial or otherwise.
1.8 Borrower is the sole legal and beneficial owner of the Collateral (defined below) all of which is free and clear of all liens or encumbrances of any form or nature.
1.9 Borrower has filed all U.S., state and local tax returns required to be filed or has obtained extensions and has paid or made provision for payment of all taxes due pursuant thereto.
1.10 Borrower is not a party to any agreement or other instrument or subject to any other restriction which materially adversely affects its business, properties, assets, operations or conditions, financial or otherwise, except as disclosed to the trustee Lender regarding the potential transition of its Integration and Services businesses.
1.11 This Agreement does not contain any trust untrue statement of a material fact or omit a material fact necessary to make the statements contained therein or herein not misleading; and accordingly enters into this Agreement on its own behalfthere is no other fact not disclosed in writing to Lender which, to the knowledge of Borrower, materially and adversely affects the business, properties or condition (financial or otherwise) of Borrower.
1.12 Borrower's SEC filings adequately represent the state of the Borrower's business and financial condition, which the Borrower has represented to the Lender to be dire.
1.13 All e-mail correspondence provided by Borrower to Lender regarding (i) a proposed host licensing program between Borrower and Research in Motion, and (ii) proposed agreement between the Borrower and Dell Computers regarding production and distribution of the SteelWorks® Mobile appliance, is true, correct and complete.
1.14 All representations and warranties made by Borrower herein shall survive the making and delivery of the Note contemplated hereby.
Appears in 1 contract
Samples: Business Loan and Security Agreement (Steelcloud Inc)
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower hereby reaffirms all of the representations and warranties set forth in the Loan Documents (as defined in the Loan Agreement, as amended hereby), and further represents and warrants that:
that (a) it is registered as a company under the Act, and has the power to carry on its business and own its property in the manner and in the locations in which such business is presently being carried on or property owned;
(b) it has full power and authority under its constitution:
(i) to enter into this Agreement and the Security;
(ii) to do all things required by this Agreement and the Security;
(iii) all necessary meetings have been held;
(iv) all required resolutions have been passed; and
(v) any other action necessary to authorise the execution and performance delivery of this Agreement and the Security has been taken; this Agreement and the Security will each constitute the legaldo not contravene, valid, binding and enforceable obligation of the Borrower resulting in accordance with their respective terms;
(c) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, neither the execution nor the performance of this Agreement or the Security will:
(i) violate in any respect any statute, decree, rule or regulation or any determination, order or award of any court or any governmental, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers of the Borrower or on the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict with, or result in any an breach of, or require any consent or approval constitute a default under, any mortgagedeed of trust, agreement loan agreement, indenture or other undertaking contract or instrument agreement to which the Borrower is a party or by which is binding on the Borrower or any of its properties may be bound (nor would such execution and delivery constitute such a default with the passage of time or the giving of notice or both), and do not violate or contravene any law, order, decree, rule, regulation or restriction to which the Borrower or the Property is subject; (b) this Agreement constitutes the legal, valid and binding obligations of the Borrower enforceable in accordance with its terms; (c) the execution and delivery of, and performance under, this Agreement are within the Borrower’s assets;
(iv) result power and authority without the joinder or consent of any other party and have been duly authorized by all requisite action, and are not in a mortgagecontravention of any law, charge, lien or other encumbrance over any of the Borrower’s assets; or
(v) cause charter, bylaws or other corporate organizational documents or of any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower is not in default or difficulty under any deedindenture, agreement or other document or obligation undertaking to which it the Borrower is a party or by which it is bound; (d) there exists no default under the Note or any other Loan Document; (e) there are no offsets, claims or in defenses with respect of any financial commitment to the Borrower’s or obligation, including Guarantor’s obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect the ability any of the Borrower to comply with its obligations under this Agreement or Loan Documents (the Security;
“Obligations”); and (df) the Borrower is duly organized and legally existing under the laws of the Commonwealth of Virginia and is duly qualified to do business in full the Commonwealth of Virginia. The Borrower further represents and ongoing compliance with its constitution and all companies and securities legislation and regulationswarrants that, and all other legislation and regulations to which the Borrower may any time and from time to time be subject;
(e) no event of default or event which, with the giving of notice or the lapse of time or both, would be an event of default and, having occurred, is continuing to subsist;
(f) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, there is no litigation suit, judicial or administrative action, claims, investigation, inquiry, proceeding or other proceedings before, or of, any court or governmental authority, agency or other tribunal havedemand pending (or, to the knowledge of the Borrower, been initiated or threatened against the Borrower or any of the Borrower’s assets which would or might have a material adverse effect on the business, assets or financial condition of the Borrower;
(gknowledge threatened) the Borrower does not have, and will not during the currency of this Agreement have, any right of set-off, counterclaim, any right to rescind or any other claim with respect to this Agreement by way of cross-action against the Lender;
(h) all of the most recent annual or half-yearly or both, as the case requires, accounts of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrower; and
(i) the Borrower is not Borrower, or against any other person liable directly or indirectly for the trustee Obligations, or (ii) which affects the Property or the Borrower’s title to the Property, or (iii) which affects the validity, enforceability or priority of any trust of the Loan Documents. The Borrower agrees to indemnify and accordingly enters into this Agreement on its own behalfhold the Lender harmless against any loss, claim, damage, liability or expense (including, without limitation, attorneys’ fees) incurred as a result of any representation or warranty made by the Borrower herein which proves to be untrue or inaccurate in any respect, and any such occurrence shall constitute a default under the Loan Documents.
Appears in 1 contract
Samples: Loan Agreement (Comstock Homebuilding Companies, Inc.)
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants that:to the Lender that each of the following matters is true and correct as of the execution date of this Agreement and the Drawdown Date (when any specified date is described therein, as of such date). If it is found untrue at a later date, the Borrower shall immediately notify the Lender thereof in writing, and shall compensate the Lender for any and all reasonable Loss incurred thereby.
(1) The Borrower is a joint-stock company duly incorporated and validly existing under the laws of Japan.
(2) The Borrower does not fall under any of the items (a) it is registered as a company under to (i) specified in Clause (1) of the Act, Exhibit 2 and does not engage in any of the relationships (a) to (e) specified in Clause (2) of the Exhibit 2.
(3) The Borrower has the power to carry on its business and own its property in the manner and in the locations in which such business is presently being carried on or property owned;
(b) it has full power and authority under its constitution:
(i) necessary to enter into and perform this Agreement Agreement, and the Security;
(ii) to do all things required by this Agreement and the Security;
(iii) all necessary meetings have been held;
(iv) all required resolutions have been passed; and
(v) any other action necessary to authorise the execution and performance of this Agreement by the Borrower and any transactions hereunder are within the Security has been taken; this Agreement and the Security will each constitute the legal, valid, binding and enforceable obligation corporate purposes of the Borrower in accordance with their respective terms;and the Borrower has duly completed all procedures necessary therefor under the Laws and Ordinances, the articles of incorporation and other internal company rules of the Borrower.
(c4) except as disclosed in writing to the Lender The execution and dispensed with in writing by the Lender, neither the execution nor the performance of this Agreement or by the Security will:
Borrower and any transactions hereunder does not result in (ia) violate in any respect any statute, decree, rule or regulation or any determination, order or award violation of any court or any governmental, judicial or public body or authority applicable to Laws and Ordinances which bind the Borrower;
, (iib) cause any limitation, whether imposed by state, decree, rule or regulation on any breach of its articles of incorporation and other internal company rules of the powers of the Borrower or on the Borrower’s right or ability to exercise such powers to be exceeded;
, and (iiic) conflict with, or result in any breach of, or require (excluding any consent or approval under, any mortgage, agreement or other undertaking or instrument minor breach) of a third-party contract to which the Borrower is a party or which is binding on binds the Borrower or any the assets of the Borrower’s assets;.
(iv5) result in a mortgageThe person who signed or attached his/her name and seal to this Agreement is authorized to sign or affix his/her name and seal on this Agreement as the representative of the Borrower by all procedures necessary pursuant to the Laws and Ordinances, charge, lien the articles of incorporation or other encumbrance over any internal company rules of the Borrower’s assets; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower is not in default or difficulty under any deed, agreement or other document or obligation to which it is a party or by which it is bound, or in respect of any financial commitment or obligation, including obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect the ability of the Borrower to comply with its obligations under this Agreement or the Security;
(d) the Borrower is in full and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all other legislation and regulations to which the Borrower may any time and from time to time be subject;
(e) no event of default or event which, with the giving of notice or the lapse of time or both, would be an event of default and, having occurred, is continuing to subsist;
(f) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, no litigation or administrative or other proceedings before, or of, any court or governmental authority, agency or other tribunal have, to the knowledge of the Borrower, been initiated or threatened against the Borrower or any of the Borrower’s assets which would or might have a material adverse effect on the business, assets or financial condition of the Borrower;
(g) the Borrower does not have, and will not during the currency of this Agreement have, any right of set-off, counterclaim, any right to rescind or any other claim with respect to this Agreement by way of cross-action against the Lender;
(h) all of the most recent annual or half-yearly or both, as the case requires, accounts of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrower; and
(i) the Borrower is not the trustee of any trust and accordingly enters into this Agreement on its own behalf.
Appears in 1 contract
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants that:
that (a) it is registered as a company in good standing under the Actlaws of the state of its formation, duly qualified to do business and has will remain duly qualified during the power term of each Loan in each state where necessary to carry on its present business and own its property in operations, including the manner and in jurisdiction(s) where the locations in which such business is presently being carried Collateral will be located as specified on or property owned;
each Exhibit A to each Note, except where failure to be so qualified would not have a Material Adverse Effect; (b) it has full power authority to execute and authority under its constitution:
(i) to enter into deliver this Security Agreement and the Security;
(ii) to do all things required by Notes and perform the terms hereof and thereof, and this Security Agreement and the Security;
(iii) all necessary meetings Notes have been held;
(iv) all required resolutions have been passed; and
(v) any other action necessary to authorise the execution duly authorized, executed and performance delivered and constitute valid and binding obligations of this Agreement and the Security has been taken; this Agreement and the Security will each constitute the legal, valid, binding and Borrower enforceable obligation of the Borrower in accordance with their respective terms;
; (c) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, neither the execution nor the performance and delivery of this Security Agreement or and the Security will:
(i) violate in Notes will not contravene any respect any statutelaw, decree, rule or regulation or any determination, order or award of any court or any governmental, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers of the judgment affecting Borrower or on the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict with, or result in any breach of, or require of any consent or approval under, any mortgage, material agreement or other undertaking instrument binding on Borrower; (d) no consent of Borrower’s shareholders or instrument to holder of any indebtedness, or filing with, or approval of, any governmental agency or commission, which the Borrower has not already been obtained or performed, as appropriate, is a party or which is binding on condition to the Borrower or any performance of the Borrower’s assets;
(iv) result in a mortgage, charge, lien or other encumbrance over any terms of the Borrower’s assets; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower is not in default or difficulty under any deed, agreement or other document or obligation to which it is a party or by which it is bound, or in respect of any financial commitment or obligation, including obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect the ability of the Borrower to comply with its obligations under this Security Agreement or the Security;
(d) the Borrower is in full and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all other legislation and regulations to which the Borrower may any time and from time to time be subject;
Notes; (e) there is no event of default action or event which, with the giving of notice proceeding pending or the lapse of time or both, would be an event of default and, having occurred, is continuing to subsist;
(f) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, no litigation or administrative or other proceedings before, or of, threatened against Borrower before any court or governmental authority, administrative agency or other tribunal have, to the knowledge of the Borrower, been initiated or threatened against the Borrower or any of the Borrower’s assets which would or might have a material adverse effect Material Adverse Effect on the business, assets or financial condition or operations of Borrower; (f) at the time any Loan is made hereunder, Borrower owns and will keep all of the Borrower;
Collateral free and clear of all liens, claims and encumbrances, and, except for this Security Agreement, there is no deed of trust, mortgage, security agreement or other third party interest against any of the Collateral other than Permitted Liens (as defined below); (g) at the time any Loan is made hereunder, Borrower does not have, has good and will not during marketable title to the currency of this Agreement have, any right of set-off, counterclaim, any right to rescind or any other claim with respect to this Agreement by way of cross-action against the Lender;
Collateral; (h) at the time any Loan is made hereunder, all Collateral has been received, installed and is ready for use and is satisfactory in all respects for the purposes of the most recent annual or half-yearly or both, as the case requires, accounts of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrowerthis Security Agreement; and
(i) the Borrower Collateral is, and will remain at all times under applicable law, removable personal property, which is not the trustee free and clear of any trust lien or encumbrance except in favor of Lender other than Permitted Liens (as defined below), notwithstanding the manner in which the Collateral may be attached to any real property; (j) all credit and accordingly enters into this Agreement financial information submitted to Lender herewith or at any other time is and will at the time given be true and correct in all material respects; and (k) the security interest granted to Lender hereunder is a first priority security interest, and (I) on its own behalf.or before January 1, 2000, Borrower’s computer system shall be Year
Appears in 1 contract
Samples: Senior Loan and Security Agreement (Xcyte Therapies Inc)
BORROWER'S REPRESENTATIONS AND WARRANTIES. The In order to induce Lenders to enter into this Amendment, Borrower represents and warrants thatto each Lender:
(a) it is registered as a company under the Act, and A. Borrower has the power to carry on its business and own its property in the manner and in the locations in which such business is presently being carried on or property owned;
(b) it has full all requisite corporate power and authority under its constitution:
(i) to enter into this Agreement Amendment and to carry out the transactions contemplated by the Amended Credit Agreement;
B. the execution and delivery of this Amendment and the Securityperformance of the Amended Agreement have been duly authorized by all necessary corporate action on the part of Borrower;
C. the execution and delivery by Borrower of this Amendment and the performance by Borrower of the Amended Credit Agreement do not and will not (i) violate any provision of any law or any governmental rule or regulation applicable to Parent or any of its Subsidiaries, the Organizational Documents of Parent or any of its Subsidiaries or any order, judgment or decree of any court or other Government Authority binding on Parent or any of its Subsidiaries, (ii) to do all things required by this Agreement and the Security;
conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any Contractual Obligation of Parent or any of its Subsidiaries, (iii) all necessary meetings have been held;
result in or require the creation or imposition of any Lien upon any of the properties or assets of Parent or any of its Subsidiaries (other than Liens created under any of the Loan Documents in favor of Administrative Agent on behalf of Lenders or as otherwise permitted under the Amended Agreement), or (iv) all required resolutions have been passed; andrequire any approval of stockholders or any approval or consent of any Person under any Contractual Obligation of Parent or any of its Subsidiaries, except for such approvals or consents which will be obtained on or before the First Amendment Effective Date and except, in each case, to the extent such violation, conflict, breach, Lien or failure to obtain such approval or consent could not reasonably be expected to result in a Material Adverse Effect;
(v) any other action necessary to authorise D. the execution and performance delivery by Borrower of this Agreement Amendment and the Security performance by Borrower of the Amended Credit Agreement do not and will not require any Governmental Authorization, except as has been taken; duly obtained and is in full force and effect unless the failure to obtain such Governmental Authorization could not reasonably be expected to have a Material Adverse Effect;
E. this Agreement Amendment and the Security will each constitute Amended Credit Agreement have been duly executed and delivered by Borrower and are the legallegally valid and binding obligations of Borrower, valid, binding and enforceable obligation of the against Borrower in accordance with their respective terms;
(c) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, neither the execution nor the performance of this Agreement or the Security will:
(i) violate in any respect any statute, decree, rule or regulation or any determination, order or award of any court or any governmental, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers of the Borrower or on the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict with, or result in any breach of, or require any consent or approval under, any mortgage, agreement or other undertaking or instrument to which the Borrower is a party or which is binding on the Borrower or any of the Borrower’s assets;
(iv) result in a mortgage, charge, lien or other encumbrance over any of the Borrower’s assets; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower is not in default or difficulty under any deed, agreement or other document or obligation to which it is a party or by which it is bound, or in respect of any financial commitment or obligation, including obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect the ability of the Borrower to comply with its obligations under this Agreement or the Security;
(d) the Borrower is in full and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all other legislation and regulations to which the Borrower may any time and from time to time be subject;
(e) no event of default or event which, with the giving of notice or the lapse of time or both, would be an event of default and, having occurred, is continuing to subsist;
(f) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, no litigation or administrative or other proceedings before, or of, any court or governmental authority, agency or other tribunal have, to the knowledge of the Borrower, been initiated or threatened against the Borrower or any of the Borrower’s assets which would or might have a material adverse effect on the business, assets or financial condition of the Borrower;
(g) the Borrower does not have, and will not during the currency of this Agreement have, any right of set-off, counterclaim, any right to rescind or any other claim with respect to this Agreement by way of cross-action against the Lender;
(h) all of the most recent annual or half-yearly or both, as the case requires, accounts of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles (whether considered in writing a proceeding in equity or at law) relating to enforceability;
F. the representations and warranties contained in Section 5 of the Credit Agreement are and will be true, correct and complete in all material respects on and as of the date hereof and the First Amendment Effective Date (as defined below) to the Lender same extent as though made on and dispensed with in writing by the Lenderas of such dates, no material adverse change has occurred since the date of those accounts except to the financial condition extent such representations and warranties specifically relate to an earlier date, in which case they were true, correct and complete in all material respects on and as of the Borrowersuch earlier date; and
(i) G. no event has occurred and is continuing or will result from the Borrower is not consummation of the trustee transactions contemplated by this Amendment that would constitute an Event of any trust and accordingly enters into this Agreement on its own behalfDefault or a Potential Event of Default.
Appears in 1 contract
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants that:
(a) it is registered as a company under that on the Act, date hereof and has the power to carry on its business and own its property in the manner and in the locations in which such business is presently being carried on or property owned;
(b) it has full power and authority under its constitutioneach Borrowing Date:
(i) the Borrower is a corporation duly organized and validly existing in good standing pursuant to the laws of the State of Delaware; is duly qualified to do business as a foreign corporation in each jurisdiction in which its operations or the nature of its business requires, except where the failure to be so qualified would not have a material adverse effect on the Borrower or its business; is a U.S. Air Carrier; has its chief executive office (as such term is defined in Article 9 of the Uniform Commercial Code) in the State of North Carolina; and has the corporate power and authority to engage in air transport and to carry on scheduled passenger service as presently conducted, to purchase the Aircraft under the Boeing Purchase Agreement and to enter into this Agreement and perform its obligations under the SecurityOperative Documents;
(ii) to do all things required the execution, delivery and performance by this Agreement and the Security;
(iii) Borrower of the Operative Documents have been duly authorized by all necessary meetings have been held;
(iv) all required resolutions have been passed; and
(v) corporate action on the part of the Borrower, do not require any other action necessary to authorise the execution and performance stockholder approval, or approval or consent of this Agreement and the Security has been taken; this Agreement and the Security will each constitute the legal, valid, binding and enforceable obligation any trustee or holders of any indebtedness or obligations of the Borrower except such as have been duly obtained and are in accordance with their respective terms;
(c) except as disclosed in writing to full force and effect, and none of the Lender and dispensed with in writing execution, delivery or performance by Borrower of such Operative Documents contravenes any law, judgment, government rule, regulation or order binding on the Lender, neither the execution nor the performance of this Agreement Borrower or the Security will:
(i) violate in any respect any statute, decree, rule articles of incorporation or regulation or any determination, order or award of any court or any governmental, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers bylaws of the Borrower or on contravenes the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict with, or result in any breach provisions of, or require constitutes a default under, or results in the creation of any consent or approval Lien (other than Permitted Liens) upon the property of the Borrower under, any indenture, mortgage, agreement contract or other undertaking or instrument agreement to which the Borrower is a party or by which is binding it or its properties may be bound or affected;
(iii) neither the execution and delivery by the Borrower of the Operative Documents nor the performance by the Borrower of its obligations thereunder requires the consent or approval of, the giving of notice to, or the registration with, or the taking of any other action in respect of any Federal, state or foreign government authority or agency, except for (A) the orders, permits, waivers, exemptions, authorizations and approvals of the regulatory authorities having jurisdiction over the operation of the Aircraft by the Borrower, which orders, permits, waivers, exemptions, authorizations and approvals, if any, required to be obtained and in full force and effect as of the date hereof, have been duly obtained and are in full force and effect except for those Permits the failure to obtain which would not have a material adverse effect on the financial condition of the Borrower or any the ability of the Borrower’s assetsBorrower to perform its obligations under the Operative Documents, and (B) any filings, registrations or applications specifically described in this Agreement (the items referred to in (A) and (B) collectively referred to as "Permits");
(iv) result the Operative Documents to which the Borrower is a party each constitute legal, valid and binding obligations of the Borrower enforceable against the Borrower in a mortgageaccordance with the terms thereof except as such enforceability may be limited by equitable principles or applicable bankruptcy, chargeinsolvency, lien reorganization, moratorium or other encumbrance over any of the Borrower’s assets; orsimilar laws affecting creditors' rights generally;
(v) cause there are no pending or (to the best of Borrower's knowledge) threatened actions or proceedings before any limit court, arbitrator or administrative agency which individually (or in the aggregate in the case of any group of related lawsuits) is expected to have a material and adverse effect on the powers financial condition of the Borrower in respect or the ability of borrowing, guaranteeing, raising financial accommodation or otherwise the Borrower to be exceededperform its obligations under the Operative Documents;
(vi) except as disclosed in writing for the filing of financing statements (and continuation statements at periodic intervals) with respect to the Lender interests created by such documents under the Uniform Commercial Code of North Carolina, and dispensed Delaware and such other states as may be specified in the opinion furnished pursuant to Section 4(b)(ix) hereof, no further action, including any filing or recording of any document (including any financing statement in respect thereof under Article 9 of the Uniform Commercial Code of any applicable jurisdiction), is necessary or advisable in order to establish and perfect the first mortgage Lien on each of the Purchase Agreements and the rest of the Mortgage Estate in favor of the Security Agent pursuant to the Mortgage in any applicable jurisdiction in the United States;
(vii) there has not occurred any event which constitutes a Default or an Event of Default under the Mortgage which is presently continuing;
(viii) the statements of financial position of the Borrower as of December 31, 1999 and March 31, 2000 and the related statements of earnings and cash flow of the Borrower in all material respects for the year and fiscal quarter, as the case may be, then ended, copies of which have been furnished to each Loan Participant, fairly present the financial condition of the Borrower at such date and the results of operations and cash flow of the Borrower for the period ended on such dates, in accordance with generally accepted accounting principles consistently applied, and subject, in writing the case of the March 31, 2000 statements, to normal year-end adjustments, and since December 31, 1999 there has been no material and adverse change in such condition or operations;
(ix) each of the Purchase Agreements is in full force and effect and neither the Borrower nor, to the knowledge of the Borrower, either the Manufacturer or the Engine Manufacturer is in default of its obligations thereunder. Except as contemplated by the LenderMortgage and Liens granted to third-party financiers and released and terminated prior to the Effective Date, the Borrower has not assigned nor granted any Lien in its rights under either Purchase Agreement in respect of any of the Aircraft or the Engines;
(x) assuming the Loan Participants are acquiring their Loan Certificates in the ordinary course of their normal business operations for their own accounts, none of the transactions contemplated by this Agreement will violate or result in a violation of the Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, or any regulations issued pursuant thereto;
(xi) neither the Borrower nor anyone acting on behalf of the Borrower has directly or indirectly offered any interest in the Loan Certificates for sale to, or solicited any offer to acquire any of the same from, anyone other than the Loan Participants and not more than 35 other institutions believed capable of evaluating and bearing the risks of investment in the transactions contemplated hereby;
(xii) no governmental approval of any kind is required of any Loan Participant for its execution of or performance under this Agreement or any agreement contemplated hereby solely by reason of any fact or circumstance peculiar to the Borrower;
(xiii) the Borrower has filed or caused to be filed all Federal, state, local and (in the Borrower's opinion) foreign tax returns which are required to be filed and has paid or caused to be paid or provided adequate reserves for the payment of all taxes shown to be due and payable on such returns or (except to the extent being contested in good faith and by appropriate proceedings and for the payment of which adequate reserves have been provided in accordance with generally accepted accounting principles) on any assessment received by the Borrower, to the extent that such taxes have become due and payable, except such returns or taxes as to which the failure to file or pay, as the case may be, could not be reasonably expected to materially and adversely affect the assets, operations or financial condition, of the Borrower;
(xiv) the Borrower is not (x) in default or difficulty under any deedindenture, mortgage, lease or credit agreement or under any other document agreement or obligation instrument of a material nature to which it the Borrower is now a party or by which it is bound, or in respect and no event has occurred and is continuing which, under the provisions of any financial commitment or obligationsuch indenture, including obligations under guarantees mortgage, credit agreement or other contingent liabilities, which default material agreement or difficulty is reasonably likely to adversely affect the ability of the Borrower to comply with its obligations under this Agreement or the Security;
(d) the Borrower is in full and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all other legislation and regulations to which the Borrower may any time and from time to time be subject;
(e) no event of default or event whichinstrument, with the giving of notice or the lapse of time or the giving of notice, or both, would be an event constitute a default thereunder or (y) in violation of default andany law, having occurredorder, is continuing to subsist;
(f) except as disclosed in writing injunction, decree, rule or regulation applicable to the Lender and dispensed with in writing by the Lender, no litigation or administrative or other proceedings before, or of, Borrower of any court or governmental authorityadministrative body, agency which default or other tribunal have, violation would reasonably be expected to materially and adversely affect the knowledge of the Borrower, been initiated or threatened against the Borrower or any of the Borrower’s assets which would or might have a material adverse effect on the business, assets operations or financial condition of the Borrower;
(g) the Borrower does not have, and will not during the currency of this Agreement have, any right of set-off, counterclaim, any right to rescind or any other claim with respect to this Agreement by way of cross-action against the Lender;
(h) all of the most recent annual or half-yearly or both, as the case requires, accounts of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrower; and
(i) 's ability to execute, deliver and perform its obligations under the Borrower is not the trustee of any trust and accordingly enters into this Agreement on its own behalf.Operative Documents;
Appears in 1 contract
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants to the Issuer (which representations and warranties shall be deemed to be repeated by the Borrower on each day on which any Application Form is submitted hereunder) that:
(a) it It is registered as a company corporation duly organized, validly existing and in good standing under the Act, and has laws of the power to carry on jurisdiction of its business and own its property in the manner and in the locations in which such business is presently being carried on organization or property ownedincorporation;
(b) it has full power It is duly qualified, in good standing and authority under authorized to do business in each jurisdiction to the extent required by applicable law, regulation or rule, except where the failure to do so could not reasonably be expected to result in a material adverse effect on its constitution:business, assets, liabilities (actual or contingent), operations or condition (financial or otherwise);
(ic) It has the power to enter into and perform its obligations under this Agreement Agreement, and the Securityhas taken all necessary action to authorize such execution, delivery and performance;
(iid) to do all things required by this Agreement and the Security;
(iii) all necessary meetings have been held;
(iv) all required resolutions have been passed; and
(v) any other action necessary to authorise the execution The execution, delivery and performance of this Agreement by the Borrower does not and the Security has will not violate or conflict with any applicable law, any provision of its organizational documents, any order or judgment of any court or other agency of government or any of its assets or any contractual restriction binding on or affecting it or any of its assets;
(e) All governmental and other consents, authorizations, approvals, licenses and orders that are required to have been taken; obtained with respect to this Agreement and the Security will each transactions contemplated herein have been obtained and are in full force and effect and all conditions of any such consents, authorizations, approvals, licenses and orders have been complied with;
(f) Its obligations under this Agreement constitute the its legal, validvalid and binding obligations, binding and enforceable obligation of the Borrower in accordance with their respective termsterms (subject to applicable bankruptcy, reorganization, insolvency, moratorium or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application (regardless of whether enforcement is sought in a proceeding in equity or at law));
(cg) except No Event of Default or Default has occurred or is continuing, and no Event of Default or Default would occur as disclosed in writing to the Lender and dispensed with in writing by the Lender, neither the execution nor the performance a result of this Agreement its entering into or the Security will:
(i) violate in any respect any statute, decree, rule or regulation or any determination, order or award of any court or any governmental, judicial or public body or authority applicable to the Borrowerperforming its obligations hereunder;
(iih) cause any limitationThere is no action, whether imposed by state, decree, rule suit or regulation on any of the powers of the Borrower or on the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict with, or result in any breach of, or require any consent or approval under, any mortgage, agreement or other undertaking or instrument to which the Borrower is a party or which is binding on the Borrower or any of the Borrower’s assets;
(iv) result in a mortgage, charge, lien or other encumbrance over any of the Borrower’s assets; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower is not in default or difficulty under any deed, agreement or other document or obligation to which it is a party or by which it is bound, proceeding at law or in respect of equity or before any financial commitment court, tribunal, governmental body, agency, official or obligationarbitrator, including obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect the ability of the Borrower to comply with its obligations under this Agreement or the Security;
(d) the Borrower is in full and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all other legislation and regulations to which the Borrower may any time and from time to time be subject;
(e) no event of default or event which, with the giving of notice or the lapse of time or both, would be an event of default and, having occurred, is continuing to subsist;
(f) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, no litigation or administrative or other proceedings before, or of, any court or governmental authority, agency or other tribunal havepending or, to the knowledge of the Borrowerits knowledge, been initiated or threatened against the Borrower or any of its subsidiaries (i) that involves the Borrower’s assets which would legality, validity or might have enforceability of this Agreement or its ability to perform its obligations under this Agreement or (ii) that if adversely determined, could reasonably be expected to result in a material adverse effect on (a) the business, assets assets, liabilities (actual or contingent), operations or condition (financial condition or otherwise) of the Borrower, or (b) the validity or enforceability of any of the Facility Documents or the rights or remedies of the Issuer or the ability of the Borrower to perform its obligations thereunder;
(gi) Neither the Borrower nor any Applicant is listed on the Specially Designated Nationals and Blocked Persons List maintained by the OFAC pursuant to Executive Order No. 13224, 66 Fed. Reg. 49079 (Sept. 25, 2001), and/or any other list maintained pursuant to any of the rules and regulations of OFAC or pursuant to any other applicable Executive Orders or otherwise subject to any sanction imposed pursuant to an OFAC implemented regulation;
(j) the Borrower does not have, and will not during the currency of this Agreement have, any right of set-off, counterclaim, any right to rescind or any other claim with respect to this Agreement by way of cross-action against the Lender;
(h) all of the most recent annual or half-yearly or both, as the case requires, accounts of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borroweris Solvent; and
(ik) The Facility Documents do not contain any untrue statement of material fact or omit to state a material fact necessary in order to make the statements contained in this Agreement or the Facility Documents, when taken as a whole at the time made, not misleading in light of the circumstances under which such statements were made. There is no fact known to the Borrower which materially adversely affects or could reasonably be expected to result in a material adverse effect on (a) the Borrower is not business, assets, liabilities (actual or contingent), operations or condition (financial or otherwise) of the trustee Borrower, or (b) the validity or enforceability of any trust and accordingly enters into this Agreement on of the Facility Documents or the rights or remedies of the Issuer or the ability of the Borrower to perform its own behalfobligations thereunder.
Appears in 1 contract
Samples: Master Reimbursement Agreement (Capital Southwest Corp)
BORROWER'S REPRESENTATIONS AND WARRANTIES. The In order to induce Lenders to enter into this Amendment, Borrower represents and warrants thatto each Lender:
(a) it is registered as a company under the Act, and A. Borrower has the power to carry on its business and own its property in the manner and in the locations in which such business is presently being carried on or property owned;
(b) it has full all requisite corporate power and authority under its constitution:
(i) to enter into this Agreement Amendment and to carry out the transactions contemplated by the Amended Credit Agreement;
B. the execution and delivery of this Amendment and the Securityperformance of the Amended Agreement have been duly authorized by all necessary corporate action on the part of Borrower;
C. the execution and delivery by Borrower of this Amendment and the performance by Borrower of the Amended Credit Agreement do not and will not (i) violate any provision of any law or any governmental rule or regulation applicable to Parent or any of its Subsidiaries, the Organizational Documents of Parent or any of its Subsidiaries or any order, judgment or decree of any court or other Government Authority binding on Parent or any of its Subsidiaries, (ii) to do all things required by this Agreement and the Security;
conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any Contractual Obligation of Parent or any of its Subsidiaries, (iii) all necessary meetings have been held;
result in or require the creation or imposition of any Lien upon any of the properties or assets of Parent or any of its Subsidiaries (other than Liens created under any of the Loan Documents in favor of Administrative Agent on behalf of Lenders or as otherwise permitted under the Amended Agreement), or (iv) all required resolutions have been passed; andrequire any approval of stockholders or any approval or consent of any Person under any Contractual Obligation of Parent or any of its Subsidiaries, except for such approvals or consents which will be obtained on or before the First Amendment Effective Date and except, in each case, to the extent such violation, conflict, breach, Lien or failure to obtain such approval or consent could not reasonably be expected to result in a Material Adverse Effect;
(v) any other action necessary to authorise D. the execution and performance delivery by Borrower of this Agreement Amendment and the Security performance by Borrower of the Amended Credit Agreement do not and will not require any Governmental Authorization, except as has been taken; duly obtained and is in full force and effect unless the failure to obtain such Governmental Authorization could not reasonably be expected to have a Material Adverse Effect;
E. this Agreement Amendment and the Security will each constitute Amended Credit Agreement have been duly executed and delivered by Borrower and are the legallegally valid and binding obligations of Borrower, valid, binding and enforceable obligation of the against Borrower in accordance with their respective terms;
(c) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, neither the execution nor the performance of this Agreement or the Security will:
(i) violate in any respect any statute, decree, rule or regulation or any determination, order or award of any court or any governmental, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers of the Borrower or on the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict with, or result in any breach of, or require any consent or approval under, any mortgage, agreement or other undertaking or instrument to which the Borrower is a party or which is binding on the Borrower or any of the Borrower’s assets;
(iv) result in a mortgage, charge, lien or other encumbrance over any of the Borrower’s assets; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower is not in default or difficulty under any deed, agreement or other document or obligation to which it is a party or by which it is bound, or in respect of any financial commitment or obligation, including obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect the ability of the Borrower to comply with its obligations under this Agreement or the Security;
(d) the Borrower is in full and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all other legislation and regulations to which the Borrower may any time and from time to time be subject;
(e) no event of default or event which, with the giving of notice or the lapse of time or both, would be an event of default and, having occurred, is continuing to subsist;
(f) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, no litigation or administrative or other proceedings before, or of, any court or governmental authority, agency or other tribunal have, to the knowledge of the Borrower, been initiated or threatened against the Borrower or any of the Borrower’s assets which would or might have a material adverse effect on the business, assets or financial condition of the Borrower;
(g) the Borrower does not have, and will not during the currency of this Agreement have, any right of set-off, counterclaim, any right to rescind or any other claim with respect to this Agreement by way of cross-action against the Lender;
(h) all of the most recent annual or half-yearly or both, as the case requires, accounts of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or similar laws relating to or limiting creditors' rights generally or by equitable principles (whether considered in writing a proceeding in equity or at law) relating to enforceability;
F. the representations and warranties contained in Section 5 of the Credit Agreement are and will be true, correct and complete in all material respects on and as of the date hereof and the First Amendment Effective Date (as defined below) to the Lender same extent as though made on and dispensed with in writing by the Lenderas of such dates, no material adverse change has occurred since the date of those accounts except to the financial condition extent such representations and warranties specifically relate to an earlier date, in which case they were true, correct and complete in all material respects on and as of the Borrowersuch earlier date; and
(i) G. no event has occurred and is continuing or will result from the Borrower is not consummation of the trustee transactions contemplated by this Amendment that would constitute an Event of any trust and accordingly enters into this Agreement on its own behalfDefault or a Potential Event of Default.
Appears in 1 contract
Samples: Credit Agreement (Brand Services)
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower 3.1. Company represents and warrants that:
to Investor that as of the Effective Date: (a1) it Company is registered as a company corporation duly organized, validly existing and in good standing under the Act, laws of its state of incorporation and has the requisite corporate power to own its properties and to carry on its business as now being conducted; (2) Company is duly qualified as a foreign corporation to do business and own its property is in good standing in each jurisdiction where the manner and in nature of the locations in which such business is presently being carried on conducted or property owned;
owned by it makes such qualification necessary; (b3) it Company has full power registered its Common Stock under Section 12(g) of the Securities Exchange Act of 1934, as amended (the “1934 Act”), and authority under its constitution:
is obligated to file reports pursuant to Section 13 or Section 15(d) of the 1934 Act; (i4) to enter into this Agreement each of the Transaction Documents and the Security;
(ii) to do all things required transactions contemplated hereby and thereby, have been duly and validly authorized by this Agreement Company and the Security;
(iii) all necessary meetings actions have been held;
(iv) all required resolutions have been passed; and
(v) any other action necessary to authorise the execution and performance of this Agreement and the Security has been taken; (5) this Agreement Agreement, the Note, the Company Security Agreement, and the Security will each other Transaction Documents have been duly executed and delivered by Company and constitute the legal, valid, valid and binding and obligations of Company enforceable obligation of the Borrower in accordance with their respective terms;
; (c6) except as disclosed the execution and delivery of the Transaction Documents by Company, the issuance of Securities in writing to accordance with the Lender terms hereof, and dispensed with in writing the consummation by Company of the other transactions contemplated by the Lender, neither the execution nor the performance Transaction Documents do not and will not conflict with or result in a breach by Company of this Agreement or the Security will:
(i) violate in any respect any statute, decree, rule or regulation or any determination, order or award of any court or any governmental, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers of the Borrower terms or on the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict with, or result in any breach provisions of, or require constitute a default under (a) Company’s formation documents or bylaws, each as currently in effect, (b) any consent or approval underindenture, any mortgage, agreement deed of trust, or other undertaking material agreement or instrument to which the Borrower is a party or which is binding on the Borrower or any of the Borrower’s assets;
(iv) result in a mortgage, charge, lien or other encumbrance over any of the Borrower’s assets; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower is not in default or difficulty under any deed, agreement or other document or obligation to which it Company is a party or by which it is or any of its properties or assets are bound, including, without limitation, any listing agreement for the Common Stock, or in respect (c) any existing applicable law, rule, or regulation or any applicable decree, judgment, or order of any financial commitment court, United States federal, state or obligationforeign regulatory body, including obligations under guarantees administrative agency, or other contingent liabilitiesgovernmental body having jurisdiction over Company or any of Company’s properties or assets; (7) no further authorization, which default approval or difficulty consent of any court, governmental body, regulatory agency, self-regulatory organization, or stock exchange or market or the stockholders or any lender of Company is reasonably likely required to adversely affect be obtained by Company for the ability issuance of the Borrower Securities to comply with its obligations under this Agreement Investor or the Security;
entering into of the Transaction Documents; (d) the Borrower is in full and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all other legislation and regulations to which the Borrower may any time and from time to time be subject;
(e) no event 8) none of default or event which, Company’s filings with the giving SEC contained, at the time they were filed, any untrue statement of notice a material fact or omitted to state any material fact required to be stated therein or necessary to make the lapse statements made therein, in light of the circumstances under which they were made, not misleading; (9) Company has filed all reports, schedules, forms, statements and other documents required to be filed by Company with the SEC under the 1934 Act on a timely basis or has received a valid extension of such time of filing and has filed any such report, schedule, form, statement or both, would be an event of default and, having occurred, is continuing to subsist;
(f) except as disclosed in writing other document prior to the Lender and dispensed with in writing expiration of any such extension; (10) there is no action, suit, proceeding, inquiry or investigation before or by the Lenderany court, no litigation public board or administrative or other proceedings before, or of, any court or governmental authority, agency or other tribunal havebody pending or, to the knowledge of the BorrowerCompany, been initiated or threatened against the Borrower or affecting Company before or by any governmental authority or non-governmental department, commission, board, bureau, agency or instrumentality or any of the Borrower’s assets which other person, wherein an unfavorable decision, ruling or finding would or might have a material adverse effect on Company or which would adversely affect the businessvalidity or enforceability of, assets or financial condition the authority or ability of Company to perform its obligations under, any of the Borrower;Transaction Documents; (11) Company has not consummated any financing transaction that has not been disclosed in a periodic filing or current report with the SEC under the 1934 Act; (12) Company is not, nor has it been at any time in the previous twelve (12) months, a “Shell Company,” as such type of “issuer” is described in Rule 144(i)(1) under the 1933 Act; (13) with respect to any commissions, placement agent or finder’s fees or similar payments that will or would become due and owing by Company to any person or entity as a result of this Agreement or the transactions contemplated hereby (“Broker Fees”), any such Broker Fees will be made in full compliance with all applicable laws and regulations and only to a person or entity that is a registered investment adviser or registered broker-dealer; (14) Investor shall have no obligation with respect to any Broker Fees or with respect to any claims made by or on behalf of other persons for fees of a type contemplated in this subsection that may be due in connection with the transactions contemplated hereby and Company shall indemnify and hold harmless each of Investor, Investor’s employees, officers, directors, stockholders, members, managers, agents, and partners, and their respective affiliates, from and against all claims, losses, damages, costs (including the costs of preparation and attorneys’ fees) and expenses suffered in respect of any such claimed Broker Fees; (15) when issued, the Conversion Shares and the Origination Shares will be duly authorized, validly issued, fully paid for and non-assessable, free and clear of all liens, claims, charges and encumbrances; (16) neither Investor nor any of its officers, directors, stockholders, members, managers, employees, agents or representatives has made any representations or warranties to Company or any of its officers, directors, employees, agents or representatives except as expressly set forth in the Transaction Documents and, in making its decision to enter into the transactions contemplated by the Transaction Documents, Company is not relying on any representation, warranty, covenant or promise of Investor or its officers, directors, members, managers, employees, agents or representatives other than as set forth in the Transaction Documents; (17) Company acknowledges that the State of Utah has a reasonable relationship and sufficient contacts to the transactions contemplated by the Transaction Documents and any dispute that may arise related thereto such that the laws and venue of the State of Utah, as set forth more specifically in Section 10.3 below, shall be applicable to the Transaction Documents and the transactions contemplated therein; and (18) Company has performed due diligence and background research on Investor and its affiliates including, without limitation, Xxxx X. Xxxx, and, to its satisfaction, has made inquiries with respect to all matters Company may consider relevant to the undertakings and relationships contemplated by the Transaction Documents including, among other things, the following: xxxx://xxxxxxxxx.xxxxxxxxxxxx.xxx/research/stocks/people/person.asp?personId=7505107&ticker=UAHC; SEC Civil Case No. 07-C-0347 (N.D. Ill.); SEC Civil Action No. 07-CV-347 (N.D. Ill.); and FINRA Case #2011029203701. Company, being aware of the matters described in subsection (xviii) above, acknowledges and agrees that such matters, or any similar matters, have no bearing on the transactions contemplated by the Transaction Documents and covenants and agrees it will not use any such information as a defense to performance of its obligations under the Transaction Documents or in any attempt to avoid, modify or reduce such obligations.
3.2. Boatworks represents and warrants to Investor that: (gi) Boatworks is a limited liability company duly organized, validly existing and in good standing under the laws of its state of organization and has the requisite company power to own its properties and to carry on its business as now being conducted; (ii) Boatworks is duly qualified as a foreign entity to do business and is in good standing in each jurisdiction where the nature of the business conducted or property owned by it makes such qualification necessary; (iii) each of the Transaction Documents and the transactions contemplated hereby and thereby, have been duly and validly authorized by Boatworks; (iv) this Agreement, the Note, the Boatworks Security Agreement and the other applicable Transaction Documents have been duly executed and delivered by Boatworks and constitute the valid and binding obligations of Boatworks enforceable in accordance with their terms, subject as to enforceability only to general principles of equity and to bankruptcy, insolvency, moratorium, and other similar laws affecting the enforcement of creditors’ rights generally; (v) the Borrower execution and delivery of this Agreement, the Note, and the other applicable Transaction Documents by Boatworks does not have, and will not during conflict with or result in a breach by Boatworks of any of the currency terms or provisions of, or constitute a default under (a) Boatworks’s formation documents or operating agreement, each as currently in effect, (b) any indenture, mortgage, deed of this Agreement havetrust, or other material agreement or instrument to which Boatworks is a party or by which it or any of its properties or assets are bound, or (c) to Boatworks’s knowledge, any right of set-offexisting applicable law, counterclaimrule, any right to rescind or regulation or any applicable decree, judgment, or order of any court, United States federal or state regulatory body, administrative agency, or other governmental body having jurisdiction over Boatworks or any of Boatworks’s properties or assets; (vi) Boatworks has taken no action which would give rise to any claim by any person or entity for a brokerage commission, placement agent or finder’s fees or similar payments by Investor relating to the Note or the transactions contemplated hereby; (vii) Investor shall have no obligation with respect to investment fees or with respect to any claims made by or on behalf of other persons for fees of a type contemplated in this Agreement subsection that may be due in connection with the transactions contemplated hereby and Boatworks shall indemnify and hold harmless each of Investor, Investor’s employees, officers, directors, stockholders, managers, agents, and partners, and their respective affiliates, from and against all claims, losses, damages, costs (including the costs of preparation and attorneys’ fees) and expenses suffered in respect of any such claimed or existing fees; and (viii) Boatworks has performed due diligence and background research on Investor and its affiliates including, without limitation, Xxxx X. Xxxx, and, to its satisfaction, has made inquiries with respect to all matters Boatworks may consider relevant to the undertakings and relationships contemplated by way of crossthe Transaction Documents including, among other things, the following: xxxx://xxxxxxxxx.xxxxxxxxxxxx.xxx/research/stocks/people/person.asp?personId=7505107&ticker=UAHC; SEC Civil Case No. 07-action against the Lender;
C-0347 (h) all N.D. Ill.); SEC Civil Action No. 07-CV-347 (N.D. Ill.); and FINRA Case #2011029203701. Boatworks, being aware of the most recent annual matters described in subsection (viii) above, acknowledges and agrees that such matters, or half-yearly or bothany similar matters, as have no bearing on the case requires, accounts of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing transactions contemplated by the LenderTransaction Documents and covenants and agrees it will not use any such information as a defense to performance of its obligations under the Transaction Documents or in any attempt to avoid, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrower; and
(i) the Borrower is not the trustee of any trust and accordingly enters into this Agreement on its own behalfmodify or reduce such obligations.
Appears in 1 contract
Samples: Securities Purchase Agreement (Global Boatworks Holdings, Inc.)
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower hereby reaffirms all of representations and warranties set forth in the Loan Documents, and further represents and warrants that:
: (a) it the Borrower is registered as a company under the Act, sole legal and has beneficial owner of the power to carry on its business and own its property in the manner and in the locations in which such business is presently being carried on or property owned;
Property; (b) it has full power and authority under its constitution:
(i) to enter into this Agreement and the Security;
(ii) to do all things required by this Agreement and the Security;
(iii) all necessary meetings have been held;
(iv) all required resolutions have been passed; and
(v) any other action necessary to authorise the execution and performance delivery of this Agreement and the Security has been taken; this Agreement and the Security will each constitute the legaldoes not contravene, valid, binding and enforceable obligation of the Borrower resulting in accordance with their respective terms;
(c) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, neither the execution nor the performance of this Agreement or the Security will:
(i) violate in any respect any statute, decree, rule or regulation or any determination, order or award of any court or any governmental, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers of the Borrower or on the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict with, or result in any a breach of, or require any consent or approval constitute a default under, any mortgagedeed of trust, agreement loan agreement, indenture or other undertaking contract or instrument agreement to which the Borrower is a party or by which is binding on the Borrower or any of its properties may be bound (nor would such execution and delivery constitute such a default with the passage of time or the giving of notice or both), and does not violate or contravene any law, order, decree, rule, regulation or restriction to which Borrower or the Property is subject; (c) this Agreement constitutes the legal, valid and binding obligations of Borrower enforceable in accordance with its terms; (d) the execution and delivery of, and performance under, this Agreement are within Borrower’s assets;
(iv) result in a mortgagepower and authority without the joinder or consent of any other party and have been duly authorized by all requisite action, charge, lien or other encumbrance over any of the Borrower’s assets; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower is are not in default contravention of any law, or difficulty under of any deedindenture, agreement or other document or obligation undertaking to which it Borrower is a party or by which it is bound, or in respect of any financial commitment or obligation, including obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect the ability of the Borrower to comply with its obligations under this Agreement or the Security;
(d) the Borrower is in full and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all other legislation and regulations to which the Borrower may any time and from time to time be subject;
; (e) triere exists no event of default under the Note or event which, with the giving of notice or the lapse of time or both, would be an event of default and, having occurred, is continuing to subsist;
any other Loan Document; (f) there are no offsets, claims or defenses with respect to the Obligations; and (g) Borrower is duly organized and legally existing under the laws of the state of its organization and is duly qualified to do business in the state of Georgia. The Borrower further represents and warrants that, except as disclosed in writing public filings, there is no suit, judicial or administrative action, claim, investigation, inquiry, proceeding or demand pending (or, to Borrower’s knowledge, threatened) against (i) Borrower, or against any other person liable directly or indirectly for the Obligations, or (ii) which affects the Property or the Borrower’s title to the Lender and dispensed with in writing by the Lender, no litigation or administrative or other proceedings beforeProperty, or of, any court (iii) which affects the validity enforceability or governmental authority, agency or other tribunal have, to the knowledge priority of the Borrower, been initiated or threatened against the Borrower or any of the Borrower’s assets Loan Documents. Borrower agrees to indemnify and hold the Lender harmless against any loss, claim damage, liability or expense (including, without limitation, attorneys’ fees) incurred as a result of any representation or warranty made by Borrower herein which would proves to be untrue or might have a material adverse effect on the business, assets or financial condition of the Borrower;
(g) the Borrower does not haveinaccurate in any respect, and will not during any such occurrence shall constitute a default under the currency of this Agreement have, any right of set-off, counterclaim, any right to rescind or any other claim with respect to this Agreement by way of cross-action against the Lender;
(h) all of the most recent annual or half-yearly or both, as the case requires, accounts of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrower; and
(i) the Borrower is not the trustee of any trust and accordingly enters into this Agreement on its own behalfLoan Documents.
Appears in 1 contract
Samples: Loan Modification Agreement (Comstock Homebuilding Companies, Inc.)
BORROWER'S REPRESENTATIONS AND WARRANTIES. Section 1. The Borrower represents and warrants thatas follows:
(a) it Each Loan Party and each of its Subsidiaries is registered a corporation or limited liability company duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (ii) is duly qualified and in good standing as a foreign corporation or limited liability company under in each jurisdiction other than its jurisdiction of formation in which it owns or leases property or in which the Actconduct of its business requires it to so qualify or be licensed except where the failure to so qualify or be licensed could not be reasonably likely to have a Material Adverse Effect and (iii) has all requisite corporate (or limited liability company) power and authority (including, without limitation, all Governmental Authorizations) to own or lease and has the power operate its properties and to carry on its business as now conducted and own its property as proposed to be conducted. Each Loan Party that is a Liberian corporation is a non-resident domestic corporation as defined in the manner relevant laws of the Republic of Liberia and has no taxable presence or permanent establishment in Liberia as referred to in Section 803 of the locations in which such business is presently being carried on or property owned;Revenue Code of Liberia (2000).
(b) The execution, delivery and performance by each Loan Party of the Credit Agreement Amendment No. 4 and the Second Ship Mortgage Amendment to which it has full power is or is to be a party and authority the consummation of the transactions contemplated under its constitution:
the Credit Agreement Amendment No. 4 and the Second Ship Mortgage Amendment are within such Loan Party's corporate (or limited liability company) powers, have been duly authorized by all necessary corporate (or limited liability company) action, and do not (i) to enter into this Agreement and contravene such Loan Party's charter or bylaws or limited liability company agreement, as the Security;
case may be; (ii) to do all things required by this Agreement violate any law, rule, regulation (including, without limitation, Regulations T, U and X of the Security;
Board of Governors of the United States Federal Reserve System), order, writ, judgment, injunction, decree, determination or award, (iii) all necessary meetings have been held;
conflict with or result in the breach of, or constitute a default or require any payment to be made under, any agreement respecting Indebtedness or any other material contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument binding on or affecting any Loan Party, any of its Subsidiaries or any of their properties or (iv) all required resolutions except for the Liens created under the Loan Documents, result in or require the creation or imposition of any Lien upon or with respect to any Collateral. No Loan Party or any of its Subsidiaries is in material violation of any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award except to the extent that any such violation, individually or in the aggregate, could not be reasonably expected to have been passed; and
(v) any other action necessary to authorise the execution and performance of this Agreement and the Security has been taken; this Agreement and the Security will each constitute the legal, valid, binding and enforceable obligation of the Borrower in accordance with their respective terms;a Material Adverse Effect.
(c) except as disclosed Except for (x) recording requirements under the relevant jurisdiction of Collateral Vessel registration pertaining to any Second Ship Mortgage Amendment, (y) any court filings in writing connection with the enforcement of any ship mortgages generally in any court located in a jurisdiction of enforcement, or (z) any consent of the jurisdiction where a Collateral Vessel is flagged that is required for the transfer of a Collateral Vessel in connection with the exercise of private remedies after an Event of Default shall have occurred and be continuing, no Governmental Authorization, and no notice to the Lender and dispensed with in writing by the Lenderor filing with, neither the execution nor the performance of this Agreement any Governmental Authority or the Security will:
any other third party is required for (i) violate in the due execution, delivery, recordation, filing or performance by any respect any statute, decree, rule or regulation or any determination, order or award Loan Party of any court or any governmental, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers of Credit Agreement Amendment No. 4 and the Borrower or on the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict with, or result in any breach of, or require any consent or approval under, any mortgage, agreement or other undertaking or instrument to which the Borrower is a party or which is binding on the Borrower or any of the Borrower’s assets;
(iv) result in a mortgage, charge, lien or other encumbrance over any of the Borrower’s assets; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower is not in default or difficulty under any deed, agreement or other document or obligation Second Ship Mortgage Amendment to which it is or is to be a party party, (ii) the grant by any Loan Party of the Liens intended to be granted by it pursuant to the Collateral Documents or the validity of such Liens, (iii) the perfection or maintenance of the Liens created under the Collateral Documents (including the first priority nature thereof) (other than appropriate UCC filing in Washington, D.C., Companies Registry or Slavenberg filings) or (iv) the exercise by which it is bound, the Administrative Agent or the Security Trustee or any Lender of its rights under the Loan Documents or the remedies in respect of any financial commitment or obligation, including obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely the Collateral pursuant to adversely affect the ability of the Borrower to comply with its obligations under this Agreement or the Security;Collateral Documents.
(d) The Credit Agreement Amendment No. 4 has been, and the Borrower is related Second Ship Mortgage Amendments when delivered hereunder will have been, duly authorized, executed and delivered by each Loan Party thereto. The Credit Agreement Amendment No. 4 is, each Second Ship Mortgage Amendment when delivered hereunder will be, upon execution and delivery thereof, the legal, valid and binding obligation of each Loan Party thereto, enforceable against such Loan Party in full and ongoing compliance accordance with its constitution terms except to the extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws generally affecting creditors' rights and all companies and securities legislation and regulations, and all other legislation and regulations to which the Borrower may any time and from time to time be subject;by equitable principles (regardless of whether enforcement is sought in equity or at law) but not excepting fraudulent conveyance laws.
(e) no event The representations and warranties of default the Loan Parties contained in each Loan Document, as amended by the Credit Agreement Amendment No. 4 and the Second Ship Mortgage Amendment, are true and correct on and as of the date hereof, as though made on and as of such date, other than any such representations or event whichwarranties that, with by their terms, refer to a date other than the giving of notice or the lapse of time or both, would be an event of default and, having occurred, is continuing to subsist;date hereof.
(f) except as disclosed in writing No Default or Event of Default has occurred and is continuing, or will result, upon execution and delivery of the Credit Agreement Amendment No. 4 or giving effect to the Lender and dispensed with in writing by the Lender, no litigation or administrative or other proceedings before, or of, any court or governmental authority, agency or other tribunal have, to the knowledge of the Borrower, been initiated or threatened against the Borrower or any of the Borrower’s assets which would or might have a material adverse effect on the business, assets or financial condition of the Borrower;
(g) the Borrower does not have, and will not during the currency of this Agreement have, any right of set-off, counterclaim, any right to rescind or any other claim with respect to this Agreement by way of cross-action against the Lender;
(h) all of the most recent annual or half-yearly or both, as the case requires, accounts of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrower; and
(i) the Borrower is not the trustee of any trust and accordingly enters into this Agreement on its own behalftransactions hereby contemplated.
Appears in 1 contract
Samples: Senior Secured Credit Facility (Excel Maritime Carriers LTD)
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower hereby reaffirms all of the representations and warranties set forth in the Loan Documents, and further represents and warrants that:
that (a) it each Borrower, either individually or together with another Borrower, is registered as a company under the Act, sole legal and has the power to carry on beneficial owner of its business and own its property in the manner and in the locations in which such business is presently being carried on or property owned;
Property; (b) it has full power and authority under its constitution:
(i) to enter into this Agreement and the Security;
(ii) to do all things required by this Agreement and the Security;
(iii) all necessary meetings have been held;
(iv) all required resolutions have been passed; and
(v) any other action necessary to authorise the execution and performance delivery of this Agreement and the Security has been taken; this Agreement and the Security will each constitute the legaldo not contravene, valid, binding and enforceable obligation of the Borrower in accordance with their respective terms;
(c) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, neither the execution nor the performance of this Agreement or the Security will:
(i) violate in any respect any statute, decree, rule or regulation or any determination, order or award of any court or any governmental, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers of the Borrower or on the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict with, or result in any a breach of, or require any consent or approval constitute a default under, any mortgageBorrower’s certificate of formation, articles of organization or operating agreement (as applicable), and to Borrower’s knowledge, any contract, agreement or other undertaking or instrument to which the Borrower is a party or by which is binding on the Borrower or any of its properties may be bound (nor would such execution and delivery constitute such a default with the passage of time or the giving of notice or both), and, to the Borrower’s assets;
knowledge, do not violate or contravene any law, order, decree, rule, regulation or restriction to which the Borrower or the Property is subject; (ivc) result this Agreement constitutes the legal, valid and binding obligations of the Borrower enforceable in a mortgageaccordance with its terms; (d) the execution and delivery of, chargeand performance under, lien or other encumbrance over any of this Agreement are within the Borrower’s assetspower and authority, have been duly authorized by all requisite action (including the consent of any other party whose consent is required); or
(ve) cause there exists no default under the Note or any limit on other Loan Document; and (f) to the powers of Borrower’s knowledge there are no offsets, claims, counterclaims, cross-claims or defenses with respect to the Obligations. The Borrower in respect of borrowingfurther represents and warrants that, guaranteeing, raising financial accommodation or otherwise to be exceeded;
(vi) the Borrower’s knowledge and except as disclosed in writing to the Lender and dispensed with Lender, there are no suits, judicial or administrative actions, claims, investigations, inquiries, proceedings or demands pending or threatened in writing by the Lender, the Borrower is not in default or difficulty under any deed, agreement or other document or obligation to which it is a party or by which it is bound, or in respect of any financial commitment or obligation, including obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect the ability of the Borrower to comply with its obligations under this Agreement or the Security;
(d) the Borrower is in full and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all other legislation and regulations to which the Borrower may any time and from time to time be subject;
(e) no event of default or event which, with the giving of notice or the lapse of time or both, would be an event of default and, having occurred, is continuing to subsist;
(f) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, no litigation or administrative or other proceedings before, or of, any court or governmental authority, agency or other tribunal have, to the knowledge of the Borrower, been initiated or threatened against the Borrower or any of the Borrower’s assets which would or might have a material adverse effect on the business, assets or financial condition of the Borrower;
(g) the Borrower does not have, and will not during the currency of this Agreement have, any right of set-off, counterclaim, any right to rescind or any other claim with respect to this Agreement by way of cross-action against the Lender;
(h) all of the most recent annual or half-yearly or both, as the case requires, accounts of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrower; and
(i) the Borrower is not Borrower, or against any other person liable directly or indirectly for the trustee Obligations, or (ii) which affects the Property or the Borrower’s title to its Property, or (iii) which affects the validity, enforceability or priority of any trust of the Loan Documents. The Borrower agrees to indemnify and accordingly enters into this Agreement on its own behalfhold the Lender harmless against any loss, claim, damage, liability or expense (including, without limitation, attorneys’ fees) incurred as a result of any representation or warranty made by the Borrower herein which proves to be untrue or inaccurate in any material respect, and any such occurrence shall constitute a default under the Loan Documents.
Appears in 1 contract
Samples: Modification Agreement (Rexford Industrial Realty, Inc.)
BORROWER'S REPRESENTATIONS AND WARRANTIES. The To induce the Lender to lend monies pursuant to the Note, the Borrower represents and warrants to lender that:
(a) it The Borrower is registered as a company corporation, duly organized, validly existing and in good standing under the Act, laws of the State of Delaware and has the power is duly authorized to carry on do business in each other jurisdiction where its ownership of property or conduct of business and own its property in the manner and in the locations in which such business is presently being carried on or property ownedso requires;
(b) it has full power The Borrower was and authority under its constitution:
(i) is duly authorized to enter into execute and deliver this Agreement, the Note and the Management Agreement and the Security;
(ii) to do all things required by this Agreement perform its obligations hereunder and the Security;
(iii) all necessary meetings have been held;
(iv) all required resolutions have been passed; and
(v) any other action necessary to authorise the execution and performance of this Agreement and the Security has been taken; this Agreement and the Security will each constitute the legal, valid, binding and enforceable obligation of the Borrower in accordance with their respective termsthereunder;
(c) except as disclosed in writing to the Lender The execution and dispensed with in writing delivery by the LenderBorrower of this Agreement, neither the execution nor Note and the Management Agreement and the performance by the Borrower of this Agreement its obligations hereunder and thereunder do not and will not conflict with any provision of the charter or the Security will:
(i) violate in any respect any statute, decree, rule or regulation or any determination, order or award by-laws of any court or any governmental, judicial or public body or authority applicable to the Borrower;
(iid) cause This Agreement, the Note and the Management Agreement are, or when duly executed and delivered will be, the legal, valid and binding obligation of Borrower enforceable against it in accordance with their terms;
(e) Neither the execution and delivery of this Agreement, the Note or the Management Agreement, nor the performance by Borrower of its obligations hereunder and thereunder, have resulted or will result in the creation or imposition of any limitationlien, whether imposed by state, decree, rule charge or regulation on encumbrance of any nature whatsoever upon any of the powers property or assets of the Borrower Borrower, except as contemplated or on the Borrower’s right provided herein or ability to exercise therein and such powers to be exceeded;
(iii) execution, delivery and performance have not and will not conflict with, with or result in the breach or violation of or a default (with due notice or passing of time or both) under the terms, conditions or provisions of: (a) any breach ofindenture, evidence of indebtedness, loan or require any consent or approval under, any mortgage, financing agreement or other undertaking agreement or instrument of whatever nature to which the Borrower is a party or by which is binding on the Borrower or any of the Borrower’s assets;
(iv) result in a mortgage, charge, lien or other encumbrance over any of the Borrower’s assets; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower is not in default bound; or difficulty under (b) any deed, agreement or other document or obligation to which it is a party or by which it is bound, or in respect provision of any financial commitment existing law, rule, regulation, order, writ, injunction or obligationdecree of any court or federal, including obligations under guarantees state, county or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect the ability of the Borrower to comply with its obligations under this Agreement or the Security;
(d) the Borrower is in full and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all other legislation and regulations municipal governmental authority to which the Borrower may any time and from time to time be is subject;
(e) no event of default or event which, with the giving of notice or the lapse of time or both, would be an event of default and, having occurred, is continuing to subsist;
(f) except as disclosed Each representation and warranty contained in writing to the Lender Sections 6.4, 6.5, 6.6 and dispensed with in writing by the Lender, no litigation or administrative or other proceedings before, or of, any court or governmental authority, agency or other tribunal have, to the knowledge 6.7 of the Borrower, been initiated or threatened against the Borrower or any of the Borrower’s assets which would or might have a material adverse effect on the business, assets or financial condition of the Borrower;Management Agreement continues to be true and correct.
(g) No person is entitled to receive from the Borrower does not haveany brokerage commission, and will not during finder's fee or similar fee or payment in connection with the currency of this Agreement have, any right of set-off, counterclaim, any right to rescind or any other claim with respect to this Agreement by way of cross-action against the Lender;
(h) all consummation of the most recent annual transactions contemplated by this Agreement, the Note or half-yearly or both, as the case requires, accounts of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrower; and
(i) the Borrower is not the trustee of any trust and accordingly enters into this Agreement on its own behalfManagement Agreement.
Appears in 1 contract
Samples: Revolving Credit Agreement (Community Care of America Inc)
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower hereby represents and warrants to the Lender that:
(a) 6.1 it is registered as a company an entity duly licensed and existing under the Act, and has laws of the United Arab Emirates with power to carry on its business and own its property in the manner and in the locations in which such business is presently being carried on or property owned;
(b) it has full power and authority under its constitution:
(i) to enter into this Agreement and the Security;
(ii) to do all things required by this Agreement exercise its rights and the Security;
(iii) all necessary meetings have been held;
(iv) all required resolutions have been passedperform its obligations hereunder; and
(v) 6.2 it is competent and fully authorized to issue such declarations, confirmations, agreements and undertakings for the purposes of borrowing/availing of the Loan and proper performance of this Agreement; and
6.3 it does not know of any other action necessary matter or thing which may in any way prevent or restrict the Borrower from entering into or fulfilling its obligations under this Agreement or any of the documents referred to authorise in this Agreement, and that this Agreement constitutes the execution legal, valid and binding obligations of the Borrower and is enforceable in accordance with its terms; and
6.4 the execution, delivery and performance of this Agreement and the Security has been taken; documents referred to in this Agreement do not and the Security will each constitute the legal, valid, binding and enforceable obligation of the Borrower in accordance with their respective terms;
(c) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, neither the execution nor the performance of this Agreement or the Security will:
(i) shall not violate in any respect any statute, decree, rule or regulation or any determination, order or award of any court or any governmental, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers of the Borrower or on the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict with, or result in any breach of, or require any consent or approval under, any mortgage, agreement deed, contract or other undertaking or instrument to which the Borrower is a party or which is binding on the Borrower upon it or any of the Borrower’s assets;
its assets and shall not (ivsave as contemplated herein) result in a mortgage, charge, lien the creation or imposition of any charge or any other encumbrance over whatsoever of any of the Borrower’s its assets; orand
(v) cause any limit 6.5 it has assets that exceed in value its liabilities, is able to pay its debts as they fall due and has reasonable capital to carry on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;its business; and
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower 6.6 it is not in breach of or default or difficulty under any deed, agreement or other document or obligation to which it is a party or by and which is binding on it is bound, or in respect of any financial commitment or obligation, including obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect the ability of the Borrower to comply with its obligations under this Agreement or the Security;
(d) the Borrower is in full and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all other legislation and regulations to which the Borrower may any time and from time to time be subject;
(e) no event of default or event which, with the giving of notice or the lapse of time or both, would be an event of default and, having occurred, is continuing to subsist;
(f) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, no litigation or administrative or other proceedings before, or of, any court or governmental authority, agency or other tribunal have, to the knowledge of the Borrower, been initiated or threatened against the Borrower or any of the Borrower’s its assets which to an extent or in a manner that would or might have a material adverse effect on the business, assets or its financial condition or its ability to perform its obligations under this Agreement; and
6.7 no Event of Default has occurred and is continuing; and
6.8 no legal proceedings have been commenced or, to its knowledge are threatened against the Borrower;, which would have a material adverse effect on its financial condition or its ability to perform its obligations under this Agreement; and
(g) 6.9 no legal proceedings are contemplated by the Borrower does not have, and will not during the currency of this Agreement have, any right of set-off, counterclaim, any right to rescind or any other claim with respect to this Agreement by way of cross-action against the Lender;
(h) all of the most recent annual or half-yearly or both, as far as the case requiresBorrower is aware are pending or threatened for the purpose of dissolving, accounts of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of liquidating or reorganizing the Borrower; and
6.10 all information supplied to the Lender in contemplation or for the purpose of this Agreement or the Loan was true and accurate in all material respects as at the date the information was supplied and did not omit anything material and no change has occurred since that date and the date hereof which renders the same untrue or misleading in any material respect, and all projections and statements of belief and opinion given by the Borrower to the Lender were made honestly and in good faith after due and careful inquiry; and
6.11 all such letter(s) of authorities/power(s) of attorney, if any, executed by the Borrower in favor of any person(s) and which is/ are submitted to the Lender, is/are valid, subsisting and has/have not been revoked by the Borrower; and
6.12 it does not have any immunity from (i) judicial proceedings, (ii) attachment of debts to its properties or assets or (iii) execution of judgment under the laws of the United Arab Emirates (including, for the avoidance of doubt, the laws of any Emirate thereof); and
6.13 it hereby acknowledges and concedes that the Lender’s books and accounts shall be the sole evidence of the sums due or for which the Borrower is not bound to pay in respect of the trustee Loan and this Agreement, and the Borrower also specifically waives any right to challenge the correctness of any trust these records.
6.14 in the event the Loan is granted to more than one Borrower, the Borrowers shall jointly and accordingly enters into severally be responsible and liable to the Lender in respect of all monies due under this Agreement on its own behalfand all the terms and conditions of the Loan and this Agreement shall apply to the Borrowers jointly and severally.
Appears in 1 contract
Samples: Business Finance Loan Agreement
BORROWER'S REPRESENTATIONS AND WARRANTIES. Section 1. The Borrower represents and warrants thatas follows:
(a) it Each Loan Party and each of its Subsidiaries is registered a corporation or limited liability company duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (ii) is duly qualified and in good standing as a foreign corporation or limited liability company under in each jurisdiction other than its jurisdiction of formation in which it owns or leases property or in which the Actconduct of its business requires it to so qualify or be licensed except where the failure to so qualify or be licensed could not be reasonably likely to have a Material Adverse Effect and (iii) has all requisite corporate (or limited liability company) power and authority (including, without limitation, all Governmental Authorizations) to own or lease and has the power operate its properties and to carry on its business as now conducted and own its property as proposed to be conducted. Each Loan Party that is a Liberian corporation is a non-resident domestic corporation as defined in the manner relevant laws of the Republic of Liberia and has no taxable presence or permanent establishment in Liberia as referred to in Section 803 of the locations in which such business is presently being carried on or property owned;Revenue Code of Liberia (2000).
(b) it has full power and authority under its constitution:
(i) to enter into this Agreement and the Security;
(ii) to do all things required by this Agreement and the Security;
(iii) all necessary meetings have been held;
(iv) all required resolutions have been passed; and
(v) any other action necessary to authorise the execution The execution, delivery and performance of this Agreement and the Security Amendment No. 2 is within its powers, has been takenduly authorized by all necessary corporate action, and does not (i) contravene its charter or bylaws; this Agreement (ii) violate any law, rule, regulation (including, without limitation, Regulations T, U and the Security will each constitute the legal, valid, binding and enforceable obligation X of the Borrower Board of Governors of the United States Federal Reserve System), order, writ, judgment, injunction, decree, determination or award, (iii) conflict with or result in accordance the breach of, or constitute a default or require any payment to be made under, any agreement respecting Indebtedness or any other material contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument binding on or affecting it or any of its properties or (iv) except for the Liens created under the Loan Documents, result in or require the creation or imposition of any Lien upon or with their respective terms;respect to any Collateral. No Loan Party or any of it Subsidiaries is in material violation of any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award except to the extent that any such violation, individually or in the aggregate, could not be reasonably expected to have a Material Adverse Effect.
(c) This Amendment No. 2 has been duly authorized, executed and delivered by the Borrower and each other Loan Party as applicable to each such Loan Party. This Amendment No. 2 constitutes the legal, valid and binding obligation of each Loan Party, enforceable against such Loan Party in accordance with its terms except as disclosed in writing to the Lender and dispensed with in writing extent that the enforceability thereof may be limited by the Lenderapplicable bankruptcy, neither the execution nor the performance of this Agreement or the Security will:
(i) violate in any respect any statuteinsolvency, decreereorganization, rule or regulation or any determination, order or award of any court or any governmental, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers of the Borrower or on the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict with, or result in any breach of, or require any consent or approval under, any mortgage, agreement moratorium or other undertaking similar laws generally affecting creditors' rights and by equitable principles (regardless of whether enforcement is sought in equity or instrument to which the Borrower is a party or which is binding on the Borrower or any of the Borrower’s assets;
(ivat law) result in a mortgage, charge, lien or other encumbrance over any of the Borrower’s assets; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower is but not in default or difficulty under any deed, agreement or other document or obligation to which it is a party or by which it is bound, or in respect of any financial commitment or obligation, including obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect the ability of the Borrower to comply with its obligations under this Agreement or the Security;excepting fraudulent conveyance laws.
(d) the Borrower No Default or Event of Default has occurred and is in full continuing, or will result upon execution and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all other legislation and regulations to which the Borrower may any time and from time to time be subject;
(e) no event delivery of default this Amendment No. 2 or event which, with the giving of notice or the lapse of time or both, would be an event of default and, having occurred, is continuing to subsist;
(f) except as disclosed in writing effect to the Lender and dispensed with in writing by the Lender, no litigation or administrative or other proceedings before, or of, any court or governmental authority, agency or other tribunal have, to the knowledge of the Borrower, been initiated or threatened against the Borrower or any of the Borrower’s assets which would or might have a material adverse effect on the business, assets or financial condition of the Borrower;
(g) the Borrower does not have, and will not during the currency of this Agreement have, any right of set-off, counterclaim, any right to rescind or any other claim with respect to this Agreement by way of cross-action against the Lender;
(h) all of the most recent annual or half-yearly or both, as the case requires, accounts of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrower; and
(i) the Borrower is not the trustee of any trust and accordingly enters into this Agreement on its own behalftransactions hereby contemplated.
Appears in 1 contract
Samples: Senior Secured Credit Facility (Excel Maritime Carriers LTD)
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower represents hereby makes the following representations and warrants thatwarranties and acknowledges and agrees that each and every one of the following representations and warranties shall survive closing and shall continue for as long as the Loan remains outstanding:
(a) it is registered The Borrower has been duly organized and validly exists as a limited liability company under the Actlaws of the State of New York, and has the power to carry on its business and own its property in the manner and in the locations in which such business is presently being carried on or property owned;
(b) it has full power and authority under its constitution:
(i) to enter into this Agreement and the Security;
(ii) to do all things required by this Agreement and Note evidencing the Security;
(iii) all necessary meetings have been held;
(iv) all required resolutions have been passed; and
(v) any other action necessary to authorise the execution and performance of this Agreement and the Security has been taken; this Agreement and the Security will each constitute the legal, valid, binding and enforceable debt obligation of the Borrower to the Lender hereunder and has authorized the taking of all action necessary to carry out and give effect to the transactions contemplated by this Agreement.
(b) There is no action or proceeding pending or to the Borrower's knowledge threatened against the Borrower before any court or administrative agency that might adversely affect the ability of the Borrower to perform its obligations under this Agreement and all authorizations, consents and approvals of governmental bodies or agencies, required in accordance connection with their respective terms;the performance of the Borrower's obligations hereunder have been obtained and will be obtained whenever required hereunder or by law.
(c) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, neither Neither the execution and delivery of this Agreement, the consummation of the transactions contemplated hereby, nor the performance fulfillment of or compliance with the terms and conditions of this Agreement or the Security will:
(i) violate in any respect any statuteis prevented, decree, rule or regulation or any determination, order or award of any court or any governmental, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers of the Borrower or on the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict withlimited by, or result conflicts with or results in any a breach of, the terms, conditions, or require provisions of any consent corporate restrictions or approval under, any mortgageevidence of indebtedness, agreement or other undertaking or instrument of whatever nature to which the Borrower is a party or which is binding on the Borrower or any of the Borrower’s assets;
(iv) result in a mortgage, charge, lien or other encumbrance over any of the Borrower’s assets; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower is not in default or difficulty under any deed, agreement or other document or obligation to which it is now a party or by which it is bound, or in respect of constitutes a default under any financial commitment or obligation, including obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect the ability of the Borrower to comply with its obligations under this Agreement or the Security;foregoing.
(d) All tax returns and reports of the Borrower is in full and ongoing compliance with its constitution required by law to be filed have been duly filed and all companies taxes, assessments, fees and securities legislation and regulations, and all other legislation and regulations to which governmental charges upon the Borrower or upon any of its respective properties, assets, income or franchises which are due and payable pursuant to such returns and reports, or pursuant to any assessment received by the Borrower have been paid other than those which may any time and from time to time be subject;presently payable without penalty or interest.
(e) no event The Borrower has, or will have, title to all the Collateral whenever acquired or arising free and clear of default all liens and claims, encumbrances, set-offs, defenses and counterclaims, except those stated in Exhibit C attached hereto or event whichpermitted by the Security Agreement, with and has not made and will not make any assignment, pledge, mortgage, hypothecation or transfer (other than sales or leases in the giving ordinary course of notice business) of any such Collateral or the lapse of time or both, would be an event of default and, having occurred, is continuing to subsist;proceeds thereof.
(f) except All statements, representations and warranties made by the Borrower in its application to the Lender, and any materials furnished in support of the request for Lender financial assistance and this Agreement are true. It is specifically understood by the Borrower that all such statements, representations and warranties shall be deemed to have been relied upon by the Lender as disclosed an inducement to make the Loan and that if any such statements, representations or warranties were materially false at the time they were made or are breached during the term hereof, the Lender may, in its sole discretion, consider any such misrepresentation or breach an event of default.
(g) The chief executive office of the Borrower is located at 0 Xxxxxx Xxxx, Xxxxx Xxxxxxxxxx, Xxx Xxxxxx 00000. None of the Borrower's books or records are maintained at any other location. The Borrower shall notify the Lender in writing of any change in the location of the Borrower's chief executive office.
(h) Borrower represents to the Lender and dispensed with in writing that it has at all times pertinent to this Agreement been represented by advisors of its own selection, including but not limited to attorneys-at-law and/or certified public accountants; that it has not relied upon any statement, representation, warranty, agreement or information provided by the Lender, no litigation its employees, agents or administrative or other proceedings beforeattorneys; that it acknowledges that it is informed by its advisors of its respective rights, or of, any court or governmental authority, agency or other tribunal have, to the knowledge of the Borrower, been initiated or threatened against the Borrower or any of the Borrower’s assets which would or might have a material adverse effect on the business, assets or financial condition of the Borrower;
(g) the Borrower does not haveduties, and will not during the currency of this Agreement have, any right of set-off, counterclaim, any right to rescind or any other claim obligations with respect to this Agreement by way of crossthe Loan under all applicable laws, that it has no set-action offs, defenses or counterclaims against the Lender;
(h) all of Lender with respect to the most recent annual or half-yearly or bothLoan, as the case requires, accounts of the Borrower provided and that it is indebted to the Lender provide a true and fair view of for the financial position of the Borrower and, except as otherwise disclosed amounts stated in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrower; andthis Agreement.
(i) Borrower further acknowledges and agrees that the Lender has made no statements, representations, warranties, agreements or provided information to it in order to induce the execution of this Agreement. Borrower further acknowledges and agrees that all agreements of the parties are set forth in this Agreement or in the financing documents executed by Borrower prior to or on even date hereof.
(j) Owners of the Borrower is shall not form any start-ups venture without the trustee express prior consent of any trust the Lender from the date hereof and accordingly enters into this Agreement on its own behalfending two years after the Investment has been fully repaid.
Appears in 1 contract
Samples: Convertible Loan Agreement (X-Factor Communications Holdings, Inc.)
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants that:
that (a) it is registered as a company in good standing under the Actlaws of the state of its formation, duly qualified to do business and has will remain duly qualified during the power term of each Loan in each state where necessary to carry on its present business and own its property in operations, including the manner and in jurisdiction(s) where the locations in which such business is presently being carried Collateral will be located as specified on or property owned;
each Exhibit A to each Note, except where failure to be so qualified would not have a Material Adverse Effect; (b) it has full power authority to execute and authority under its constitution:
(i) to enter into deliver this Security Agreement and the Security;
(ii) to do all things required by Notes and perform the terms hereof and thereof, and this Security Agreement and the Security;
(iii) all necessary meetings Notes have been held;
(iv) all required resolutions have been passed; and
(v) any other action necessary to authorise the execution duly authorized, executed and performance delivered and constitute valid and binding obligations of this Agreement and the Security has been taken; this Agreement and the Security will each constitute the legal, valid, binding and Borrower enforceable obligation of the Borrower in accordance with their respective terms;
; (c) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, neither the execution nor the performance and delivery of this Security Agreement or and the Security will:
(i) violate in Notes will not contravene any respect any statutelaw, decree, rule or regulation or any determination, order or award of any court or any governmental, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers of the judgment affecting Borrower or on the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict with, or result in any breach of, or require of any consent or approval under, any mortgage, material agreement or other undertaking instrument binding on Borrower; (d) no consent of Borrower's shareholders or instrument to holder of any indebtedness, or filing with, or approval of, any governmental agency or commission, which the Borrower has not already been obtained or performed, as appropriate, is a party or which is binding on condition to the Borrower or any performance of the Borrower’s assets;
(iv) result in a mortgage, charge, lien or other encumbrance over any terms of the Borrower’s assets; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower is not in default or difficulty under any deed, agreement or other document or obligation to which it is a party or by which it is bound, or in respect of any financial commitment or obligation, including obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect the ability of the Borrower to comply with its obligations under this Security Agreement or the Security;
(d) the Borrower is in full and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all other legislation and regulations to which the Borrower may any time and from time to time be subject;
Notes; (e) there is no event of default action or event which, with the giving of notice proceeding pending or the lapse of time or both, would be an event of default and, having occurred, is continuing to subsist;
(f) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, no litigation or administrative or other proceedings before, or of, threatened against Borrower before any court or governmental authority, administrative agency or other tribunal have, to the knowledge of the Borrower, been initiated or threatened against the Borrower or any of the Borrower’s assets which would or might have a material adverse effect Material Adverse Effect on the business, assets or financial condition or operations of Borrower; (f) at the time any Loan is made hereunder, Borrower owns and will keep all of the Borrower;
Collateral free and clear of all liens, claims and encumbrances, and, except for this Security Agreement, there is no deed of trust, mortgage, security agreement or other third party interest against any of the Collateral other than Permitted Liens (as defined below); (g) at the time any Loan is made hereunder, Borrower does not have, has good and will not during marketable title to the currency of this Agreement have, any right of set-off, counterclaim, any right to rescind or any other claim with respect to this Agreement by way of cross-action against the Lender;
Collateral; (h) at the time any Loan is made hereunder, all Collateral has been received, installed and is ready for use and is satisfactory in all respects for the purposes of the most recent annual or half-yearly or both, as the case requires, accounts of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrowerthis Security Agreement; and
(i) the Borrower Collateral is, and will remain at all times under applicable law, removable personal property, which is not the trustee free and clear of any trust lien or encumbrance except in favor of Lender other than Permitted Liens (as defined below), notwithstanding the manner in which the Collateral may be attached to any real property; (j) all credit and accordingly enters into this Agreement on its own behalf.financial information submitted to Lender herewith or at any other time is and will at the time given be true and correct
Appears in 1 contract
Samples: Senior Loan and Security Agreement (Xcyte Therapies Inc)
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower represents In order to induce the Lenders to enter into this Amendment and warrants that:
(a) it is registered as a company under to amend the Act, Credit Agreement and has the power to carry on its business and own its property Schedules thereto in the manner provided herein, Borrower and in Guarantors jointly and severally represent and warrant to each Lender that the locations in which such business is presently being carried on or property owned;
(b) it has full power following statements are true, correct and authority under its constitutioncomplete:
(i) each of Borrower and each Guarantor has all requisite corporate, limited liability company, or partnership power and authority to enter into this Amendment and to carry out the transactions contemplated by, and perform its obligations under, the Credit Agreement and as amended by this Amendment (the Security“Amended Agreement”);
(ii) to do all things required by the execution and delivery of this Agreement Amendment and the Securityperformance of the Amended Agreement have been authorized by all necessary corporate, limited liability company, or partnership action (as the case may be) on the part of Borrower and each Guarantor;
(iii) the execution and delivery by Borrower and each Guarantor of this Amendment and the performance by Borrower and each Guarantor of the Amended Agreement (i) are within the authority of Borrower or such Guarantor, (ii) have been duly authorized by all necessary meetings have been heldproceedings on the part of Borrower or such Guarantor, (iii) do not conflict with or result in any breach or contravention of any provision of law, statute, rule or regulation to which Borrower or such Guarantor is subject or any judgment, order, writ, injunction, license or permit applicable to Borrower or such Guarantor and (iv) do not conflict with any provision of Borrower or such Guarantor’s charter documents or by-laws, partnership agreement, limited liability company agreement, operating agreement, declaration of trust, or any agreement (except agreements as to which such a conflict would not result in a Material Adverse Effect) or other instrument binding upon Borrower or such Guarantor or to which any of Borrower’s or Guarantor’s properties are subject;
(iv) all required resolutions have been passed; andthe execution and delivery by Borrower and each Guarantor of this Amendment and the performance by Borrower and each Guarantor of the Amended Agreement do not and will not require any registration with, consent or approval of, or notice to, or other action to, with or by, any federal, state or other governmental authority or regulatory body;
(v) any other action necessary to authorise the execution and performance of this Agreement Amendment and the Security has Amended Agreement have been taken; this Agreement duly executed and the Security will delivered by Borrower and each constitute the legalGuarantor and are legally valid and binding obligations of Borrower and each Guarantor, valid, binding enforceable against Borrower and enforceable obligation of the Borrower each Guarantor in accordance with their respective terms;
(c) , except as disclosed in writing may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to the Lender and dispensed with in writing or limiting creditors’ rights generally or by the Lender, neither the execution nor the performance of this Agreement or the Security will:
(i) violate in any respect any statute, decree, rule or regulation or any determination, order or award of any court or any governmental, judicial or public body or authority applicable equitable principles relating to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers of the Borrower or on the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict with, or result in any breach of, or require any consent or approval under, any mortgage, agreement or other undertaking or instrument to which the Borrower is a party or which is binding on the Borrower or any of the Borrower’s assets;
(iv) result in a mortgage, charge, lien or other encumbrance over any of the Borrower’s assetsenforceability; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;and
(vi) except as disclosed in writing to no event has occurred and is continuing or will result from the Lender and dispensed with in writing by the Lender, the Borrower is not in default or difficulty under any deed, agreement or other document or obligation to which it is a party or by which it is bound, or in respect of any financial commitment or obligation, including obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect the ability consummation of the Borrower to comply with its obligations under transactions contemplated by this Agreement Amendment that would constitute a Default or the Security;
(d) the Borrower is in full and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all other legislation and regulations to which the Borrower may any time and from time to time be subject;
(e) no event an Event of default or event which, with the giving of notice or the lapse of time or both, would be an event of default and, having occurred, is continuing to subsist;
(f) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, no litigation or administrative or other proceedings before, or of, any court or governmental authority, agency or other tribunal have, to the knowledge of the Borrower, been initiated or threatened against the Borrower or any of the Borrower’s assets which would or might have a material adverse effect on the business, assets or financial condition of the Borrower;
(g) the Borrower does not have, and will not during the currency of this Agreement have, any right of set-off, counterclaim, any right to rescind or any other claim with respect to this Agreement by way of cross-action against the Lender;
(h) all of the most recent annual or half-yearly or both, as the case requires, accounts of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrower; and
(i) the Borrower is not the trustee of any trust and accordingly enters into this Agreement on its own behalfDefault.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Sl Green Realty Corp)
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants that:
Xxxxxxxx Sherbrooke hereby jointly and severally reaffirm all of the representations and warranties set forth in the Loan Documents (as defined in the Loan Agreement, as amended hereby), and further jointly and severally represent and warrant that (a) it is registered as a company under the Act, and has the power to carry on its business and own its property in the manner and in the locations in which such business is presently being carried on or property owned;
(b) it has full power and authority under its constitution:
(i) to enter into this Agreement and the Security;
(ii) to do all things required by this Agreement and the Security;
(iii) all necessary meetings have been held;
(iv) all required resolutions have been passed; and
(v) any other action necessary to authorise the execution and performance delivery of this Agreement and the Security has been taken; this Agreement and the Security will each constitute the legaldo not contravene, valid, binding and enforceable obligation of the Borrower resulting in accordance with their respective terms;
(c) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, neither the execution nor the performance of this Agreement or the Security will:
(i) violate in any respect any statute, decree, rule or regulation or any determination, order or award of any court or any governmental, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers of the Borrower or on the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict with, or result in any an breach of, or require any consent or approval constitute a default under, any mortgagedeed of trust, agreement loan agreement, indenture or other undertaking contract or instrument agreement to which the Borrower or Xxxxxxxx Sherbrooke is a party or by which the Borrower, Xxxxxxxx Sherbrooke or any of their respective properties may be bound (nor would such execution and delivery constitute such a default with the passage of time or the giving of notice or both), and do not violate or contravene any law, order, decree, rule, regulation or restriction to which the Borrower, Xxxxxxxx Sherbrooke or the Property is subject; (b) this Agreement constitutes the legal, valid and binding on obligations of the Borrower and Xxxxxxxx Sherbrooke enforceable in accordance with its terms; (c) the execution and delivery of, and performance under, this Agreement are within the Borrower’s and Comstack Sherbrooke’s power and authority without the joinder or consent of any other party and have been duly authorized by all requisite action, and are not in contravention of any law, or of the Borrower’s assets;
(iv) result in a mortgageor Xxxxxxxx Sherbrooke’s charter, charge, lien bylaws or other encumbrance over corporate organizational documents or of any of the Borrower’s assets; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower is not in default or difficulty under any deedindenture, agreement or other document or obligation undertaking to which it the Borrower or Xxxxxxxx Sherbrooke is a party or by which it is bound, or in respect of any financial commitment or obligation, including obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect the ability of the Borrower to comply with its obligations under this Agreement or the Security;
; (d) there exists no default under the Borrower is in full and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all Note or any other legislation and regulations to which the Borrower may any time and from time to time be subject;
Loan Document; (e) there are no event offsets, claims or defenses with respect to the Borrower’s or Guarantor’s obligations under any of default or event which, with the giving of notice or Loan Documents (the lapse of time or both, would be an event of default and, having occurred, is continuing to subsist;
“Obligations”); and (f) the Borrower and Xxxxxxxx Sherbrooke are each duly organized and legally existing under the laws of the Commonwealth of Virginia and is duly qualified to do business in the Commonwealth of Virginia. The Borrower and Xxxxxxxx Sherbrooke further jointly and severally represent and warrant that, except as disclosed in writing to the Lender and dispensed with in writing by the Lender, there is no litigation suit, judicial or administrative action, claims, investigation, inquiry, proceeding or other proceedings before, or of, any court or governmental authority, agency or other tribunal havedemand pending (or, to the knowledge of the Borrower, been initiated or threatened against the Borrower or any of the Borrower’s assets which would or might have a material adverse effect on the business, assets or financial condition of the Borrower;
(gXxxxxxxx Sherbrooke’s knowledge threatened) the Borrower does not have, and will not during the currency of this Agreement have, any right of set-off, counterclaim, any right to rescind or any other claim with respect to this Agreement by way of cross-action against the Lender;
(h) all of the most recent annual or half-yearly or both, as the case requires, accounts of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrower; and
(i) the Borrower is not Borrower, or against any other person liable directly or indirectly for the trustee Obligations, or (ii) which affects the Property or the Borrower’s or Xxxxxxxx Sherbrooke’s title to the Property, or (iii) which affects the validity, enforceability or priority of any trust of the Loan Documents. The Borrower and accordingly enters into this Agreement on its own behalfXxxxxxxx Sherbrooke jointly and severally agree to indemnify and hold the Lender harmless against any loss, claim, damage, liability or expense (including, without limitation, attorneys’ fees) incurred as a result of any representation or warranty made by the Borrower or Xxxxxxxx Sherbrooke herein which proves to be untrue or inaccurate in any respect, and any such occurrence shall constitute a default under the Loan Documents.
Appears in 1 contract
Samples: Loan Agreement (Comstock Homebuilding Companies, Inc.)
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower represents hereby represents, warrants and warrants that:
covenants, as applicable, to Buyers (a) it as of the date hereof and (b) as of any subsequent extension of the Due Date or the time of funding any advance or loan of any funds pursuant to any of the Financing Documents, as follows:
8.1. Borrower is registered as a company duly organized, validly existing and in good standing under the Actlaws of its state of incorporation, and is duly qualified to do business and in good standing in each jurisdiction in which the nature of its business requires it to be so qualified.
8.2. Borrower has operated, and is operating, in compliance with all material laws, rules and regulations applicable to Borrower’s business, and currently possesses all material permits, licenses and approvals necessary to conduct Borrower’s business as currently conducted and as proposed to be conducted in the future.
8.3. If Borrower is a “registered organization” (as defined in the Uniform Commercial Code), Borrower’s name and organizational number is as provided in the Financing Documents is accurate, and its main office is located as may be therein set forth.
8.4. Borrower has the power and authority to carry on perform the transactions and its business obligations as contemplated under the Financing Documents.
8.5. The execution, delivery and own performance by Borrower of its property obligations under the Financing Documents, and consummation by Borrower of the transactions contemplated thereby:
8.5.1. have been duly authorized and executed by all necessary authorizations, approvals and consents of Borrower, its officers and directors, its shareholders, and any applicable third parties or governmental agencies or authorities;
8.5.2. does not and will not contravene or cause Borrower to be in the manner and default under (I) Borrower’s organizational or governing documents, (II) any material contractual restriction contained in the locations in which such business is presently being carried any indenture, loan or credit agreement, lease, mortgage, security agreement, bond, note, or other agreement or instrument binding on or property ownedaffecting Borrower or Borrower’s business or property, or (III) any law, rule, regulation, order, writ, judgment, award, injunction, or decree applicable to, binding on or affecting Borrower or Borrower’s property;
8.5.3. does not and will not result in or require the creation of any adverse claim upon or with respect to any of the property of Borrower (b) it has full power and authority under its constitution:
(i) to enter into this Agreement and the Security;
(ii) to do all things required by this Agreement and the Security;
(iii) all necessary meetings have been held;
(iv) all required resolutions have been passedother than those in favor of Buyers as contemplated hereunder); and
(v) any other action necessary to authorise the execution 8.5.4. are valid and performance binding obligations of this Agreement and the Security has been taken; this Agreement and the Security will each constitute the legalBorrower, valid, binding and enforceable obligation of the against Borrower in accordance with their respective terms;
(c) terms except as disclosed enforcement may be limited by bankruptcy, reorganization, insolvency, moratorium or other similar laws presently or hereafter in writing effect affecting the enforcement of creditors’ rights generally and subject to general principles of equity.
8.6. As of October 27, 2020, the Lender authorized capital stock of the Company consists of: 100,000,000 authorized shares of Common Stock, $0.001 par value per share, of which as of November 3, 2020 5,000,000 shares were issued in the aggregate to Xxxxxx Xxxxxx and dispensed with in writing by Xxxxx Xxxxxxxxx and no other shares of common stock are issued and outstanding and there are no shares of preferred stock are authorized or outstanding. All of such outstanding shares of capital stock of the LenderCompany and the Conversion Shares, neither are, or upon issuance will be, duly authorized, validly issued, fully paid and non-assessable. No shares of capital stock of the execution nor Company are subject to preemptive rights or any other similar rights of the performance shareholders of the Company or any liens or encumbrances imposed through the actions or failure to act of the Company. As of the effective date of this Agreement or the Security will:
Agreement, (i) violate in there are no outstanding options, warrants, scrip, rights to subscribe for, puts, calls, rights of first refusal, agreements, understandings, claims or other commitments or rights of any respect character whatsoever relating to, or securities or rights convertible into or exchangeable for any statute, decree, rule or regulation shares of capital stock of the Company or any determinationof its subsidiaries, order or award of any court arrangements by which the Company or any governmentalof its Subsidiaries is or may become bound to issue additional shares of capital stock of the Company or any of its subsidiaries, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule there are no agreements or regulation on arrangements under which the Company or any of its subsidiaries is obligated to register the powers sale of any of its or their securities under the Borrower or on the Borrower’s right or ability to exercise such powers to be exceeded;
1933 Act and (iii) conflict with, there are no anti-dilution or result price adjustment provisions contained in any breach of, security issued by the Company (or require in any consent or approval under, any mortgage, agreement or other undertaking or instrument providing rights to which security holders) that will be triggered by transactions contemplated in this Agreement. The Company has furnished to the Borrower is a party or which is binding on the Borrower or any Buyers true and correct copies of the BorrowerCompany’s assets;
(iv) result Articles of Incorporation as in a mortgage, charge, lien or other encumbrance over any of the Borrower’s assets; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower is not in default or difficulty under any deed, agreement or other document or obligation to which it is a party or by which it is bound, or in respect of any financial commitment or obligation, including obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect the ability of the Borrower to comply with its obligations under this Agreement or the Security;
(d) the Borrower is in full and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all other legislation and regulations to which the Borrower may any time and from time to time be subject;
(e) no event of default or event which, with the giving of notice or the lapse of time or both, would be an event of default and, having occurred, is continuing to subsist;
(f) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, no litigation or administrative or other proceedings before, or of, any court or governmental authority, agency or other tribunal have, to the knowledge of the Borrower, been initiated or threatened against the Borrower or any of the Borrower’s assets which would or might have a material adverse effect on the businessdate hereof (“Articles of Incorporation”), assets the Company’s By-laws, as in effect on the date hereof (the “By-laws”), and the terms of all securities convertible into or financial condition exercisable for Common Stock of the Borrower;
(g) Company and the Borrower does not have, and will not during the currency of this Agreement have, any right of set-off, counterclaim, any right to rescind or any other claim with respect to this Agreement by way of cross-action against the Lender;
(h) all material rights of the most recent annual or half-yearly or both, as the case requires, accounts of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed holders thereof in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrower; and
(i) the Borrower is not the trustee of any trust and accordingly enters into this Agreement on its own behalfrespect thereto.
Appears in 1 contract
Samples: Note Purchase and Security Agreement (THUMZUP MEDIA Corp)
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower represents and ----------------------------------------- warrants thatto Provident as follows as of the date hereof and as of each Funding Date:
(a) it Borrower is registered as a company and shall at all times be, duly organized, validly existing and in good standing under the Actlaws of the State set forth in the first paragraph of this Agreement and has, and has the shall at all times have, full power and authority and legal right to engage in and carry on Borrowers business as now being conducted, to undertake the borrowings contemplated hereby and to execute and deliver each of the Loan Documents. Borrower is qualified and licensed in each jurisdiction wherein the nature or conduct of its business make such qualification necessary or advisable. Borrower is currently qualified and own its property licensed in good standing in each such jurisdiction. Borrower's name as set forth in the manner caption of this Agreement and in as set forth on the locations in which such business signature page of this Agreement is presently being carried on Borrower's correct individual, partnership or property owned;corporate name, as the case may be.
(b) it Borrower has full power and authority under its constitution:
(i) and legal right to enter into this Agreement and each of the Security;other Loan Documents, and to perform, observe and comply with all of its agreements and obligations under each of such documents, including without limitation, the making by Borrower of the borrowings contemplated hereby and the granting by Borrower of the security interest in the Collateral pursuant to Section 5.
(iic) to do all things required by this Agreement and the Security;
(iii) all necessary meetings have been held;
(iv) all required resolutions have been passed; and
(v) any other action necessary to authorise the The execution and performance delivery by Borrower of this Agreement and the Security has been taken; other Loan Documents, the performance by Borrower of all of its agreements and obligations hereunder and thereunder and the making by Borrower of the borrowings contemplated by this Agreement have been duly authorized by all necessary corporate action on the part of Borrower and do not and will not constitute a breach, violation or event of default (or an event which would become an event of default with the Security will each constitute the legal, valid, binding and enforceable obligation lapse of the Borrower in accordance with their respective terms;
(ctime or notice or both) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, neither the execution nor the performance of this Agreement or the Security will:
(i) violate in under any respect any statutejudgment, decree, rule or regulation or any determinationnote, order or award of any court or any governmentalagreement, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers of the Borrower or on the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict with, or result in any breach of, or require any consent or approval under, any mortgage, agreement indenture or other undertaking or instrument to which the Borrower is a party or which is binding on the Borrower or any of the Borrower’s assets;
(iv) result in a mortgage, charge, lien or other encumbrance over any of the Borrower’s assets; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower is not in default or difficulty under any deed, agreement or other document or obligation to which it is a party or by which it is bound, or in respect of any financial commitment or obligation, including obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect the ability of the Borrower to comply with its obligations under this Agreement or the Security;subject.
(d) Borrower owns or possesses all rights, licenses, permits, franchises and the like necessary for the conduct of its business as presently conducted and proposed to be conducted. All of the foregoing rights, licenses, permits and franchises are in full force and effect, and Borrower is in full and ongoing compliance with its constitution and all companies and securities legislation and regulationsof the foregoing. No event has occurred which permits, and all other legislation and regulations to which or after notice or lapse of time or both would permit, the revocation or termination of any such right, license, permit or franchise, or affects the rights of Borrower may any time and from time to time be subject;thereunder.
(e) The balance sheets, statements of income and other financial statements previously delivered to Provident present fairly the financial condition and results of operations of Borrower as of the dates thereof and for the fiscal periods then ended. There are no event material liabilities or obligations, secured and unsecured (whether accrued, absolute or actual, contingent or otherwise), which were not reflected in the balance sheets of default or event which, with Borrower as of the giving of notice or the lapse of time or both, would be an event of default and, having occurred, is continuing to subsist;dates thereof.
(f) except as disclosed No changes have occurred in writing to the Lender and dispensed with in writing by the Lenderassets, no litigation or administrative or other proceedings before, or of, any court or governmental authority, agency or other tribunal have, to the knowledge of the Borrower, been initiated or threatened against the Borrower or any of the Borrower’s assets which would or might have a material adverse effect on the business, assets liabilities or financial condition of Borrower from those reflected on the most recent balance sheet delivered to Provident (the "Current Balance Sheet") which, individually or in the aggregate, have been adverse. Since the date of the Current Balance Sheet, there has been no adverse development in the business or in the operations or prospects of Borrower;.
(g) Borrower is the sole owner of and has good and marketable title to the Collateral, free and clear of all Liens and encumbrances whatsoever, except for the security interest granted by Borrower does not have, pursuant to Section 5. All information famished to Provident concerning the Collateral is and will not during the currency of this Agreement havebe complete, any right of set-off, counterclaim, any right to rescind or any other claim with respect to this Agreement by way of cross-action against the Lender;
(h) accurate and correct in all of the most recent annual or half-yearly or both, as the case requires, accounts of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrower; and
(i) the Borrower is not the trustee of any trust and accordingly enters into this Agreement on its own behalfrespects when furnished.
Appears in 1 contract
Samples: Warehouse Loan and Security Agreement (Homegold Financial Inc)
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants thatas of the date of execution and delivery of this Agreement and as of the date of the Loan as follows:
(a) it Borrower is registered as a company corporation organized under the Actlaws of the State of Kentucky, and has having a principal place of business at 0000 Xxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxx Xxxxxx, Xxxxxxxx, 00000, duly organized, validly existing under the power to carry on laws of the jurisdiction of its business and own its property in the manner and in the locations in which such business is presently being carried on or property owned;
(b) it has organization with full power and authority under its constitution:
(i) to enter into and to pay and perform its obligations under this Agreement and the Security;
other Loan Documents, and is duly qualified or licensed in all other jurisdictions where its failure to so qualify would adversely affect the conduct of its business or its ability to perform any of its obligations under or the enforceability of this Agreement; (iib) to do all things required by this Agreement and the Security;
(iii) all necessary meetings other Loan Documents have been held;
(iv) all required resolutions have been passed; and
(v) any other action necessary to authorise the execution duly authorized, executed and performance of this Agreement and the Security has been taken; this Agreement and the Security will each constitute the legaldelivered by Borrower, are valid, legal and binding and obligations of Borrower, are enforceable obligation of the against Borrower in accordance with their respective terms;
(c) except as disclosed in writing to the Lender terms and dispensed with in writing by the Lender, neither the execution nor the performance do not and will not contravene any provisions of this Agreement or the Security will:
(i) violate in any respect any statute, decree, rule or regulation or any determination, order or award of any court or any governmental, judicial or public body or authority applicable to the constitute a default under Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers of the Borrower or on the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict with, or result in any breach of, or require any consent or approval under's organization documents, any mortgage, agreement or other undertaking or instrument to which the Borrower is a party or which is binding on the Borrower or any of the Borrower’s assets;
(iv) result in a mortgage, charge, lien or other encumbrance over any of the Borrower’s assets; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower is not in default or difficulty under any deed, agreement or other document or obligation to which it is a party or by which it or any of its property is bound, or in respect any applicable law, regulation or order of any financial commitment or obligation, including obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect governmental authority; (c) the ability proceeds of the Borrower Loan will be used exclusively to comply with its obligations under this Agreement or finance the Security;
acquisition of the Equipment; (d) the Borrower is in full (or upon the acquisition thereof will be) the sole owner of, and ongoing compliance with its constitution has good and all companies and securities legislation and regulationsmarketable title to, and all other legislation necessary rights in, and regulations power to which transfer pursuant to the Borrower may any time terms hereof, all of the Equipment, free and from time to time be subject;
clear of all liens and encumbrances (excepting only the Lien of the Lender), and upon the filing with the Secretary of State of Kentucky of a Uniform Commercial Code financing statement naming Lender, as secured party, Borrower, as debtor, and the Equipment as the collateral, Lender shall have a valid, perfected, first priority security interest in the Equipment; (e) no event of default approval of, or event whichfiling with, any governmental authority or other person is required in connection with the giving of notice Borrower's entering into, or the lapse payment or performance of time or bothits obligations under, would be an event of default and, having occurred, is continuing to subsist;
this Agreement and the other Loan Documents; (f) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, there are no litigation suits or administrative or other proceedings before, or of, any court or governmental authority, agency or other tribunal havepending or, to the knowledge of the Borrower, been initiated threatened, before any court or threatened governmental agency against or affecting Borrower which, if decided adversely to Borrower, would adversely affect the Borrower conduct of its business or its ability to perform any of its obligations under or the Borrower’s assets which would or might have a material adverse effect on enforceability of this Agreement and the business, assets or financial condition of the Borrower;
other Loan Documents; (g) the financial statements of Borrower does not havewhich have been delivered to Lender have been prepared in accordance with generally accepted accounting principals consistently applied, and will not during fairly present Borrower's financial condition and the currency results of this Agreement haveits operations as of the date of and for the period covered by such statements (subject to customary year-end adjustments), any right and since the date of set-off, counterclaim, any right to rescind such statements there has been no adverse change in such financial condition or any other claim with respect to this Agreement by way of cross-action against the Lenderoperations;
(h) all Borrower's full and correct legal name is set forth on the signature page hereof and Borrower will not change its legal name or the location of the most recent annual or half-yearly or both, as the case requires, accounts its jurisdiction of the Borrower provided organization without giving to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrowerat least thirty (30) days prior written notice thereof; and
(i) the Equipment will always be used for business or commercial, and not personal purposes; (j) Borrower is not in default under any obligation for borrowed money, for the trustee deferred purchase price of property or any trust lease agreement which, either individually or in the aggregate, would have an adverse effect on the condition of its business or its ability to perform any of its obligations under or the enforceability of this Agreement; (k) under the laws of the jurisdiction(s) in which the Equipment is to be located, the Equipment consists solely of personal property and accordingly enters into not fixtures; and (i) Borrower is, and will remain, in full compliance with all laws and regulations applicable to it including without limitation, (i) ensuring that no person who owns a controlling interest in or otherwise controls Borrower is or shall be (A) listed on the Specially Designated National and Blocked Person List maintained by the Office of Foreign Assets Control ("OFAC"), Department of the Treasury and/or any other similar lists maintained by OFAC pursuant to any authorizing statute, executive order or regulations or (C) a person designated under Section 1(b), (c) or (d) of Executive Order No. 13224 (September 23, 2001), any related enabling legislation or any other similar executive order and (ii) compliance with all applicable Bank Secrecy Act ("BSA") laws, regulations and government guidance on BSA compliance and on the prevention and detection of money laundering violations. Borrower's representations and warranties shall survive termination or expiration of this Agreement on its own behalfAgreement.
Appears in 1 contract
Samples: Loan and Security Agreement (Industrial Services of America Inc /Fl)
BORROWER'S REPRESENTATIONS AND WARRANTIES. The 8.1 Each Borrower and the Guarantor each hereby represents and warrants thatto IFC that each of the following statements is true, accurate and complete as of the date hereof and as of the Effective Date:
(a) it is registered as a company under has carefully read and fully understands all of the Act, terms and has the power to carry on its business and own its property in the manner and in the locations in which such business is presently being carried on or property ownedconditions of this Agreement;
(b) it has consulted with, or has had a full power and authority under fair opportunity to consult with, an attorney of its constitution:choosing regarding the terms and conditions of this Agreement;
(c) it had a full and fair opportunity to participate in the drafting of this Agreement;
(d) it is freely, voluntarily and knowingly entering into this Agreement;
(e) in entering into this Agreement, it has not relied upon (i) to enter into any representation or warranty of IFC; or (ii) any covenant of IFC that is not set forth in this Agreement and the SecurityAgreement;
(iif) to do all things required by this Agreement and the Security;
(iii) all necessary meetings have been held;
(iv) all required resolutions have been passed; and
(v) any other action necessary to authorise the execution and performance delivery of this Agreement and the Security has been taken; performance by it of its obligations under this Agreement and the Security will each constitute the legal, valid, binding and enforceable obligation of the Borrower in accordance with their respective terms;
(c) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, neither the execution nor the performance of this Agreement or the Security will:
(i) violate in any respect any statute, decree, rule or regulation or any determination, order or award of any court or any governmental, judicial or public body or authority applicable to the Borrower;
are within such its powers; (ii) cause any limitation, whether imposed have been duly authorized by state, decree, rule or regulation on any of the powers of the Borrower or on the Borrower’s right or ability to exercise such powers to be exceeded;
all necessary action; (iii) do not and will not contravene or conflict with, with any provision of law or result in any breach of, or its charter and other constitutional documents; (iv) does not require any consent or approval underof, notice to, or any other action by or before, any mortgageAuthority, except such as have been obtained or made and are in full force and effect; (v) will not violate or result in a default or event of default under any material indenture, agreement or other undertaking instrument binding upon it or instrument its assets, or give rise to which the Borrower is a party or which is binding on the Borrower or right thereunder to require any of the Borrower’s assets;
(iv) result in a mortgage, charge, lien or other encumbrance over any of the Borrower’s assets; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise payment to be exceeded;
made by it including under the Indenture, the Offshore Facility or the OFID Loan Agreement; and (vi) except as disclosed will not result in writing to the Lender and dispensed with in writing by the Lender, the Borrower is not in default creation or difficulty under any deed, agreement or other document or obligation to which it is a party or by which it is bound, or in respect imposition of any financial commitment or obligation, including obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect the ability of the Borrower to comply with its obligations under this Agreement or the Security;
(d) the Borrower is in full and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all other legislation and regulations to which the Borrower may any time and from time to time be subject;
(e) no event of default or event which, with the giving of notice or the lapse of time or both, would be an event of default and, having occurred, is continuing to subsist;
(f) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, no litigation or administrative or other proceedings before, or of, any court or governmental authority, agency or other tribunal have, to the knowledge of the Borrower, been initiated or threatened against the Borrower or Lien on any of its asset, except Liens created under the Borrower’s assets which would or might have a material adverse effect on the business, assets or financial condition of the BorrowerTransaction Documents;
(g) the Borrower does not have, and will not during the currency of this Agreement haveconstitutes its legal, any right of set-offvalid and binding obligation and is enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, counterclaiminsolvency, any right reorganization, moratorium or similar laws now or hereafter in effect relating to rescind creditors' rights generally or any other claim with respect to this Agreement as such enforcement may be limited by way of cross-action against the Lenderequitable principles generally;
(h) all it understands the temporary nature of the most recent annual or half-yearly or both, as the case requires, accounts Forbearance and of the Borrower provided other provisions of this Agreement in its favour and recognizes that IFC has no obligation to expand or extend the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrower; andForbearance or any such other provision (if any);
(i) no Event of Default (other than the Borrower is not the trustee Current Events of any trust and accordingly enters into this Agreement on its own behalf.Default) exists;
Appears in 1 contract
BORROWER'S REPRESENTATIONS AND WARRANTIES. The 8.1 Each Borrower and each Obligor represents and warrants thatto IFC that each of the following statements is true, accurate and complete as of the date hereof and as of the Effective Date:
(a) it is registered as a company under has carefully read and fully understands all of the Act, terms and has the power to carry on its business and own its property in the manner and in the locations in which such business is presently being carried on or property ownedconditions of this Agreement;
(b) it has consulted with, or has had a full power and authority under fair opportunity to consult with, an attorney of its constitution:choosing regarding the terms and conditions of this Agreement;
(c) it had a full and fair opportunity to participate in the drafting of this Agreement;
(d) it is freely, voluntarily and knowingly entering into this Agreement;
(e) in entering into this Agreement, it has not relied upon (i) to enter into any representation or warranty of IFC; or (ii) any covenant of 'EC that is not set forth in this Agreement and the SecurityAgreement;
(iif) to do all things required by this Agreement and the Security;
(iii) all necessary meetings have been held;
(iv) all required resolutions have been passed; and
(v) any other action necessary to authorise the execution and performance delivery of this Agreement and the Security has been taken; performance by it of its obligations under this Agreement and the Security will each constitute the legal, valid, binding and enforceable obligation of the Borrower in accordance with their respective terms;
(c) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, neither the execution nor the performance of this Agreement or the Security will:
(i) violate in any respect any statute, decree, rule or regulation or any determination, order or award of any court or any governmental, judicial or public body or authority applicable to the Borrower;
are within such its powers; (ii) cause any limitation, whether imposed have been duly authorized by state, decree, rule or regulation on any of the powers of the Borrower or on the Borrower’s right or ability to exercise such powers to be exceeded;
all necessary action; (iii) do not and will not contravene or conflict with, with any provision of law or result in any breach of, or its charter and other constitutional documents; (iv) does not require any consent or approval underof, notice to, or any other action by or before, any mortgageAuthority, except such as have been obtained or made and are in full force and effect; (v) will not violate or result in a default or event of default under any material indenture, agreement or other undertaking instrument binding upon it or instrument its assets, or give rise to which the Borrower is a party or which is binding on the Borrower or right thereunder to require any of the Borrower’s assets;
(iv) result in a mortgage, charge, lien or other encumbrance over any of the Borrower’s assets; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise payment to be exceeded;
made by it including under the Indenture, the Offshore Facility or the OFID Loan Agreement; and (vi) except as disclosed will not result in writing to the Lender and dispensed with in writing by the Lender, the Borrower is not in default creation or difficulty under any deed, agreement or other document or obligation to which it is a party or by which it is bound, or in respect imposition of any financial commitment or obligation, including obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect the ability of the Borrower to comply with its obligations under this Agreement or the Security;
(d) the Borrower is in full and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all other legislation and regulations to which the Borrower may any time and from time to time be subject;
(e) no event of default or event which, with the giving of notice or the lapse of time or both, would be an event of default and, having occurred, is continuing to subsist;
(f) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, no litigation or administrative or other proceedings before, or of, any court or governmental authority, agency or other tribunal have, to the knowledge of the Borrower, been initiated or threatened against the Borrower or Lien on any of its asset, except Liens created under the Borrower’s assets which would or might have a material adverse effect on the business, assets or financial condition of the BorrowerTransaction Documents;
(g) the Borrower does not have, and will not during the currency of this Agreement haveconstitutes its legal, any right of set-offvalid and binding obligation and is enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, counterclaiminsolvency, any right reorganization, moratorium or similar laws now or hereafter in effect relating to rescind creditors' rights generally or any other claim with respect to this Agreement as such enforcement may be limited by way of cross-action against the Lenderequitable principles generally;
(h) all it understands the temporary nature of the most recent annual Forbearance and of the other provisions of this Agreement in its favour and recognizes that IFC has no obligation to expand or half-yearly extend the Forbearance or bothany such other provision (if any);
(i) no Event of Default (other than the Current Events of Default) exists;
(j) no Termination Event has occurred and is continuing;
(k) there is no currently proceeding or pending proposals to dissolve or liquidate any of the Ultrapetrol Entities;
(l) the representations and warranties contained in the IFC Loan Agreement and each other Transaction Document are true and correct on and as of the date hereof and on the Effective Date, after giving effect to the Forbearance provided for herein, as the case requires, accounts though made on and as of the Borrower provided date hereof and on the Effective Date, as applicable, other than any such representation or warranty that, by its terms, refers to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrowerspecific date; and
(im) no representation, warranty or statement made or certificate, document or financial statement, proposal including any restructuring plan provided by the Borrowers and the other Obligor pursuant to this Agreement or any other Transaction Document, or in any other document furnished in connection herewith or therewith is untrue or incomplete or inaccurate in any material respect or contains any misrepresentation of a material fact or omits any fact or matter necessary to make any such representation, warranty or statement herein or therein is misleading.
8.2 Each Borrower and each Obligor acknowledges that it has made the representations and warranties under Section 8.1 for the purposes of inducing IFC to agree to the Forbearance. Each of the parties hereto further understands and acknowledges that IFC is relying on, and would not the trustee of any trust and accordingly enters have entered into this Agreement on its own behalf(and would not have agreed to grant the Forbearance) had it not been for the representations and warranties of the Borrowers and the other Obligors set forth herein.
Appears in 1 contract
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower represents makes the following representations and warrants that:
warranties set out in this Section 7 to each Loan Participant on the date hereof and on the Delivery Date of each Designated Aircraft (a) except to the extent such representation or warranties relates to an earlier date, in which case such representation or warranty shall only be made as to the date on which it is registered as a company under the Act, and has the power expressed to carry on its business and own its property in the manner and in the locations in which such business is presently being carried on or property owned;
(b) it has full power and authority under its constitution:be made):
(i) the Borrower is a corporation duly organized and validly existing in good standing pursuant to the laws of the State of Delaware; is duly qualified to do business as a foreign corporation in each jurisdiction in which its operations or the nature of its business requires, except where the failure to be so qualified would not have a Material Adverse Change on the Borrower or its business; is a U.S. Air Carrier; and has the corporate power and authority to engage in air transport and to carry on cargo service as presently conducted, to own such Designated Aircraft and to enter into this Agreement and perform its obligations under the SecurityOperative Documents;
(ii) to do all things required by it has duly authorized, executed and delivered this Agreement and each of the SecurityOperative Documents to which it is (or will be) a party, and each of the Operative Documents to which it is (or will be) a party constitutes, or when entered into will constitute, a legal, valid and binding obligation of the Borrower, enforceable against the Borrower in accordance with its terms, except as the same may be limited by applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or similar laws affecting the rights of creditors generally and by general principles of equity;
(iii) all necessary meetings have been held;
(iv) all required resolutions have been passed; and
(v) any other action necessary to authorise neither the execution and performance delivery by the Borrower of this Agreement the Operative Documents to which it is or will be a party, nor the consummation by the Borrower of any of the transactions contemplated hereby or thereby, nor the compliance by the Borrower with any of the terms and the Security has been taken; this Agreement provisions hereof and the Security thereof, (A) requires or will each constitute the legalrequire any approval of its stockholders, valid, binding and enforceable obligation or approval or consent of any trustees or holders of any indebtedness or obligations of the Borrower in accordance with their respective terms;
except such as have been (cor will be) except as disclosed in writing to the Lender and dispensed with in writing by the Lenderduly obtained, neither the execution nor the performance (B) violates or will violate its certificate of this Agreement incorporation or the Security will:
by-laws, (iC) violate in contravenes or will contravene any respect any statute, decree, rule or regulation or any determination, order or award of any court or any governmental, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers of the Borrower or on the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict withprovision of, or constitutes or will constitute a default under, or results or will result in any breach of, or require any consent or approval underindenture, any mortgage, agreement lease, chattel mortgage, deed of trust, conditional sale contract, bank loan or credit agreement, license or other undertaking agreement, instrument or instrument to which the Borrower is a party or which is binding on the Borrower or any of the Borrower’s assets;
(iv) result in a mortgage, charge, lien or other encumbrance over any of the Borrower’s assets; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower is not in default or difficulty under any deed, agreement or other document or obligation contractual restriction to which it is a party or by which it is bound, bound or in respect of (D) contravenes or will contravene any financial commitment or obligation, including obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect the ability of the Borrower to comply with its obligations under this Agreement or the Securityapplicable law binding on it;
(div) no authorization of, giving of notice to, or registration with, or taking of any other action in respect of, any governmental authority or agency or any other applicable governmental authority or agency is required for the execution and delivery of, or the carrying out by, the Borrower is in full and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all of any of the transactions contemplated hereby or any other legislation and regulations of the Operative Documents to which the Borrower may is or will be a party, except for (A) the orders, permits, waivers, exemptions, authorizations and approvals of the regulatory authorities having jurisdiction over the operation of such Designated Aircraft by the Borrower, which orders, permits, waivers, exemptions, authorizations and approvals have been duly obtained or will on or prior to the Delivery Date of such Designated Aircraft be duly obtained, and will on such Delivery Date be in full force and effect, (B) any time normal periodic and from time other reporting requirements under the Federal Aviation Act and the regulations promulgated thereunder and the applicable rules, and regulations of the FAA, in each case to time the extent required to be subjectgiven or obtained only after the Delivery Date of such Designated Aircraft and (C) any filings, registrations or applications specifically described in this Agreement;
(ev) there are no event of default pending or, to the Borrower’s knowledge, threatened actions or event which, with proceedings against the giving of notice Borrower before any court or administrative agency that would reasonably be expected to materially adversely affect Borrower’s ability to perform its obligations under the lapse of time or both, would be an event of default and, having occurred, is continuing to subsistOperative Documents;
(fvi) except as disclosed for (A) the filing with the FAA of an FAA Entry Point Filing Form — AC Form 8050-135 and the procurement of unique authorization codes for the registration of the ownership interest of the Borrower in writing to the Lender Airframe and dispensed each Engine associated with in writing such Designated Aircraft represented by the Lender, no litigation or administrative or other proceedings before, or of, any court or governmental authority, agency or other tribunal have, to contract of sale constituting the knowledge FAA Xxxx of Sale and/or the Borrower, been initiated or threatened against Warranty Xxxx of Sale and the Borrower or any registration of the Borrower’s assets which would or might have a material adverse effect on ownership interest with respect to each contract of sale in respect of the businessAirframe and each Engine associated with such Designated Aircraft, assets or financial condition the filing with the FAA of an FAA Entry Point Filing Form — AC Form 8050-135 as to the international interest of the Security Trustee with respect to the Airframe and each Engine associated with such Designated Aircraft and the procurement of unique authorization codes for each thereof and the registration of the Security Trustee’s international interest in the Airframe and each Engine associated with such Designated Aircraft with the International Registry, (B) the filing for recording pursuant to the Federal Aviation Act of the FAA Xxxx of Sale for such Designated Aircraft (and the application for registration of such Designated Aircraft in the name of the Borrower) and the Mortgage with the Mortgage Supplement for such Designated Aircraft, (C) the filing of financing statements (and continuation statements at periodic intervals) with respect to the interests created by such documents under the Uniform Commercial Code of Delaware and such other states as may be specified in the opinion furnished pursuant to Section 4(b)(xi)(i) hereof and (D) the affixation of the nameplates referred to in Section 3.04 of the Mortgage for such Designated Aircraft, no further action, including any filing or recording of any document (including any financing statement in respect thereof under Article 9 of the Uniform Commercial Code of any applicable jurisdiction), is necessary or advisable in order to establish and perfect the first mortgage Lien on such Designated Aircraft in favor of the Security Trustee pursuant to the Mortgage for such Designated Aircraft or to establish as against third parties the international interest under such Mortgage in any applicable jurisdiction in the United States;
(gvii) there has not occurred any event which constitutes a Default or an Event of Default under the Borrower does not have, and will not during the currency of this Agreement have, any right of set-off, counterclaim, any right to rescind or any other claim with respect to this Agreement by way of cross-action against the LenderMortgage for such Designated Aircraft which is presently continuing;
(h) all of the most recent annual or half-yearly or both, as the case requires, accounts of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrower; and
(i) the Borrower is not the trustee of any trust and accordingly enters into this Agreement on its own behalf.
Appears in 1 contract
Samples: Facility Agreement (Atlas Air Worldwide Holdings Inc)
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower represents makes the following representations and warrants thatwarranties:
(a) it The Borrower is registered as a company nonprofit corporation duly organized and validly existing under the Actlaws of the State, is duly authorized to conduct business in the State and has full legal right, power and authority to own the power to carry on its business Borrower’s properties and own its property in conduct the manner and in the locations in which such business is presently being carried on or property owned;Borrower’s business.
(b) it The Borrower has full legal right, power and authority under its constitution:
(i) to enter into execute and deliver this Bond Purchase Agreement, the Loan Agreement and the Security;
(ii) Notes, and to do provide for the operation and management of the Project, and to take any and all things such action as may be required on its part to carry out, give effect to and consummate the transactions contemplated by this Bond Purchase Agreement, the Loan Agreement and the Security;Notes.
(iiic) all necessary meetings The Borrower has duly executed and delivered this Bond Purchase Agreement, and on the Closing Date will have been held;
(iv) all required resolutions have been passed; and
(v) any other action necessary to authorise duly authorized, executed and delivered the execution and performance of this Loan Agreement and the Security Notes, and has been taken; this taken or will take all such action as may be required on the part of the Borrower to carry out, give effect to and consummate the transactions contemplated by each of such documents. This Bond Purchase Agreement constitutes, and the Loan Agreement and the Security will each Notes, when executed and delivered, will, assuming the due and valid authorization, execution and delivery by the other parties thereto, constitute the legal, valid, valid and binding and enforceable obligation obligations of the Borrower Borrower, enforceable in accordance with their respective terms;, except that enforceability may be limited by laws relating to bankruptcy, reorganization or other similar laws affecting the rights of creditors or by equitable principles which may affect the availability of specific performance or other equitable remedies.
(cd) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, neither Neither the execution nor the performance and delivery of this Bond Purchase Agreement, the Loan Agreement or the Security will:
(i) violate in any respect any statuteNotes, decree, rule or regulation or any determination, order or award of any court or any governmental, judicial or public body or authority applicable to nor the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any consummation of the powers of transactions contemplated therein or the Borrower or on compliance with the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) provisions thereof, will conflict with, or result in any breach constitute on the part of the Borrower a violation of, or require a breach of or default under the Borrower’s Articles of Incorporation or Bylaws or any consent or approval undermaterial indenture, any mortgage, agreement commitment, note or other undertaking agreement or instrument to which the Borrower is a party or by which the Borrower is binding on bound, or any material order, rule or regulation of any court or governmental agency or body having jurisdiction over the Borrower or any of its activities or properties. All consents, approvals, authorizations and orders of governmental or regulatory authorities (except as required under state securities laws) which are required for the Borrower’s assets;execution and delivery of, consummation of the transactions contemplated by and compliance with the provisions of this Bond Purchase Agreement, the Loan Agreement and the Notes have been obtained, or with respect to the construction and equipping of the Project, are expected to be obtained in due course.
(ive) result There is no action, suit, proceeding, inquiry or investigation, at law or in a mortgageequity, chargebefore or by any court, lien public board or other encumbrance over any body, pending or, to the best of the knowledge of the Borrower’s assets; or, threatened, against or affecting the Borrower, or the actions taken or contemplated to be taken by the Borrower, nor, to the best of the knowledge of the Borrower, is there any basis therefor, wherein an unfavorable decision, ruling or finding would materially adversely affect the business or financial condition of the Borrower, or the transactions contemplated by, or the validity or enforceability of, this Bond Purchase Agreement, the Loan Agreement or the Notes, or which would in any way jeopardize the tax-exempt status of interest on the Series 2012A Bonds and the Series 2012B Bonds.
(vf) cause any limit on the powers No event has occurred and no condition exists which, upon issuance of the Borrower in respect Bonds, would constitute (or with the giving of borrowingnotice or lapse of time, guaranteeingor both, raising financial accommodation or otherwise to be exceeded;would constitute) an “event of default” under the Loan Agreement.
(vig) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the The Borrower is not in violation of any provisions of, or in default under its Articles of Incorporation or difficulty under Bylaws or any deedstatute, indenture, mortgage, commitment, note or other agreement or other document or obligation instrument to which it he is a party or by which it is bound, or in respect any order, rule, regulation or decision of any financial commitment or obligation, including obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect the ability of the Borrower to comply with its obligations under this Agreement or the Security;
(d) the Borrower is in full and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all other legislation and regulations to which the Borrower may any time and from time to time be subject;
(e) no event of default or event which, with the giving of notice or the lapse of time or both, would be an event of default and, having occurred, is continuing to subsist;
(f) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, no litigation or administrative or other proceedings before, or of, any court or governmental authority, agency or other tribunal have, to the knowledge of the Borrower, been initiated or threatened against the Borrower body having jurisdiction over it or any of the Borrower’s assets its activities or properties, which violation would or might have a material adverse effect on the business, assets materially and adversely affect its business or financial condition of the Borrower;
(g) the Borrower does not have, and will not during the currency of this Agreement have, any right of set-off, counterclaim, any right to rescind or any other claim with respect to this Agreement by way of cross-action against the Lender;condition.
(h) all of the most recent annual or half-yearly or both, as the case requires, accounts Any certificate signed by any duly authorized officer of the Borrower provided and delivered to the Lender provide Issuer, Bond Counselor the Purchaser at or before the Closing Date shall be deemed a true representation and fair view warranty by the Borrower to the Issuer and the Purchaser as to the truth of the financial position statements therein contained as of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrower; and
(i) the Borrower is not the trustee of any trust and accordingly enters into this Agreement on its own behalfsuch date.
Appears in 1 contract
Samples: Bond Purchase Agreement
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower represents and ----------------------------------------- warrants thatto Provident as follows as of the date hereof and as of each Funding Date:
(a) it Borrower is registered as a company and shall at all times be, duly organized, validly existing and in good standing under the Actlaws of the State set forth in the first paragraph of this Agreement and has, and has the shall at all times have, full power and authority and legal right to engage in and carry on Borrower's business as now being conducted, to undertake the borrowings contemplated hereby and to execute and deliver each of the Loan Documents. Borrower is qualified and licensed in each jurisdiction wherein the nature or conduct of its business make such qualification necessary or advisable. Borrower is currently qualified and own its property licensed in good standing in each such jurisdiction. Borrower's name as set forth in the manner caption of this Agreement and in as set forth on the locations in which such business signature page of this Agreement is presently being carried on Borrower's correct individual, partnership or property owned;corporate name, as the case may be.
(b) it Borrower has full power and authority under its constitution:
(i) and legal right to enter into this Agreement and each of the Security;other Loan Documents, and to perform, observe and comply with all of its agreements and obligations under each of such documents, including without limitation, the making by Borrower of the borrowings contemplated hereby and the granting by Borrower of the security interest in the Collateral pursuant to Section 5.
(iic) to do all things required by this Agreement and the Security;
(iii) all necessary meetings have been held;
(iv) all required resolutions have been passed; and
(v) any other action necessary to authorise the Thc execution and performance delivery by Borrower of this Agreement and the Security has been taken; other Loan Documents, the performance by Borrower of all of its agreements and obligations hereunder and thereunder and the making by Borrower of the borrowings contemplated by this Agreement have been duly authorized by all necessary corporate action on the part of Borrower and do not and will not constitute a breach, violation or event of default (or an event which would become an event of default with the Security will each constitute the legal, valid, binding and enforceable obligation lapse of the Borrower in accordance with their respective terms;
(ctime or notice or both) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, neither the execution nor the performance of this Agreement or the Security will:
(i) violate in under any respect any statutejudgment, decree, rule or regulation or any determinationnote, order or award of any court or any governmentalagreement, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers of the Borrower or on the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict with, or result in any breach of, or require any consent or approval under, any mortgage, agreement indenture or other undertaking or instrument to which the Borrower is a party or which is binding on the Borrower or any of the Borrower’s assets;
(iv) result in a mortgage, charge, lien or other encumbrance over any of the Borrower’s assets; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower is not in default or difficulty under any deed, agreement or other document or obligation to which it is a party or by which it is bound, or in respect of any financial commitment or obligation, including obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect the ability of the Borrower to comply with its obligations under this Agreement or the Security;subject.
(d) Borrower owns or possesses all rights, licenses, permits, franchises and the like necessary for the conduct of its business as presently conducted and proposed to be conducted, All of the foregoing rights, licenses, permits and franchises are in full force and effect, and Borrower is in full and ongoing compliance with its constitution and all companies and securities legislation and regulationsof the foregoing. No event has occurred which permits, and all other legislation and regulations to which or after notice or lapse of time or both would permit, the revocation or termination of any such right, license, permit or franchise, or affects the rights of Borrower may any time and from time to time be subject;thereunder.
(e) The balance sheets, statements of income and other financial statements previously delivered to Provident present fairly the financial condition and results of operations of Borrower as of the dates thereof and for the fiscal periods then ended. There are no event material liabilities or obligations, secured and unsecured (whether accrued, absolute or actual, contingent or otherwise), which were not reflected in the balance sheets of default or event which, with Borrower as of the giving of notice or the lapse of time or both, would be an event of default and, having occurred, is continuing to subsist;dates thereof.
(f) except as disclosed No changes have occurred in writing to the Lender and dispensed with in writing by the Lenderassets, no litigation or administrative or other proceedings before, or of, any court or governmental authority, agency or other tribunal have, to the knowledge of the Borrower, been initiated or threatened against the Borrower or any of the Borrower’s assets which would or might have a material adverse effect on the business, assets liabilities or financial condition of Borrower from those reflected on the most recent balance sheet delivered to Provident (the "Current Balance Sheet") which, individually or in the aggregate, have been adverse. Since the date of the Current Balance Sheet, there has been no adverse development in the business or in the operations or prospects of Borrower;.
(g) Borrower is the sole owner of and has good and marketable title to the Collateral, free and clear of all Liens and encumbrances whatsoever, except for the security interest granted by Borrower does not have, pursuant to Section 5. All information furnished to Provident concerning the Collateral is and will not during the currency of this Agreement havebe complete, any right of set-off, counterclaim, any right to rescind or any other claim with respect to this Agreement by way of cross-action against the Lender;
(h) accurate and correct in all of the most recent annual or half-yearly or both, as the case requires, accounts of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrower; and
(i) the Borrower is not the trustee of any trust and accordingly enters into this Agreement on its own behalfrespects when furnished.
Appears in 1 contract
Samples: Warehouse Loan and Security Agreement (Loraca International Inc)
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants that:
(a) it Borrower is registered as a company under (or to the Actextent that this Agreement states that the Collateral is to be acquired after the date hereof, and has will be) the power sole owner of the Collateral; upon delivery of the Collateral to carry on its business and own its property Lender the security interest hereunder in the manner Collateral will be a first, prior and perfected security interest; there are no security interests, liens or encumbrances, or adverse claims of title to, community property interests in, or any other interest whatsoever in, the Collateral or any portion thereof except that created by this Agreement; and no financing statement, mortgage or deed of trust covering the Collateral or any portion thereof exists or is on file in the locations in which such business is presently being carried on or property owned;any public office; and
(b) it Borrower has the full power and authority under its constitution:
(i) to enter into this Agreement pledge, transfer and assign the Security;
(ii) Collateral to do all things required by this Agreement Lender, and the Security;
(iii) all necessary meetings have been held;
(iv) all required resolutions have been passedsuch pledge, transfer and assignment to Lender will not violate any federal or state law, rule or regulation, including without limitation federal or state securities laws; and
(vc) any other action necessary No part of the Collateral is subject to authorise a risk of forfeiture or vesting provisions applicable to Borrower pursuant to the terms of the instrument pursuant to which Borrower acquired the Collateral; and
(d) Neither the execution and performance delivery of this Agreement and by Borrower nor the Security has been taken; this Agreement and the Security will each constitute the legal, valid, binding and enforceable obligation consummation of the Borrower in accordance with their respective terms;
(c) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, neither the execution transactions herein contemplated nor the performance fulfillment of this Agreement the terms hereof will result in a breach of any of the terms or the Security will:
(i) violate provisions of, or constitute a default under, or constitute an event which with notice or lapse of time or both will result in a breach of or constitute a default under, any respect material agreement, indenture, mortgage, deed of trust, equipment lease or other instrument to which Borrower is a party, or conflict with any statutelaw, decreeorder, rule or regulation or any determination, order or award applicable to Borrower of any court or any governmentalfederal or state government, judicial or public regulatory body or authority applicable to the Borrower;
(ii) cause any limitationadministrative agency, whether imposed by state, decree, rule or regulation on any of the powers of the Borrower or on the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict with, or result in any breach of, or require any consent or approval under, any mortgage, agreement or other undertaking or instrument to which the Borrower is a party or which is binding on the Borrower or any of the Borrower’s assets;
(iv) result in a mortgage, charge, lien or other encumbrance over any of the Borrower’s assets; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower is not in default or difficulty under any deed, agreement or other document or obligation to which it is a party or by which it is bound, or in respect of any financial commitment or obligation, including obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect the ability of the Borrower to comply with its obligations under this Agreement or the Security;
(d) the Borrower is in full and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all other legislation and regulations to which the Borrower may any time and from time to time be subject;
(e) no event of default or event which, with the giving of notice or the lapse of time or both, would be an event of default and, having occurred, is continuing to subsist;
(f) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, no litigation or administrative or other proceedings before, or of, any court or governmental authority, agency or other tribunal have, to the knowledge of the Borrower, been initiated or threatened against the Borrower or any of the Borrower’s assets which would or might have a material adverse effect on the business, assets or financial condition of the Borrower;
(g) the Borrower does not have, and will not during the currency of this Agreement have, any right of set-off, counterclaim, any right to rescind or any other claim with respect to this Agreement by way of cross-action against the Lender;
(h) all of the most recent annual governmental body having jurisdiction over Borrower or half-yearly or both, as the case requires, accounts of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrower; and
(i) the Borrower is not the trustee of any trust and accordingly enters into this Agreement on its own behalf's properties.
Appears in 1 contract
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants that:
(a) it is registered as a company under that on the Act, date hereof and has the power to carry on its business and own its property in the manner and in the locations in which such business is presently being carried on or property owned;
(b) it has full power and authority under its constitutioneach ----------------------------------------- Delivery Date:
(i) the Borrower is a corporation duly organized and validly existing in good standing pursuant to the laws of the State of Colorado; is duly qualified to do business as a foreign corporation in each jurisdiction in which its operations or the nature of its business requires, except where the failure to be so qualified would not have a material adverse effect on the Borrower or its business; is a U.S. Air Carrier; has its chief executive office (as such term is defined in Article 9 of the Uniform Commercial Code) in Colorado; and has the corporate power and authority to engage in air transport and to carry on scheduled passenger service as presently conducted, to own the Aircraft and to enter into this Agreement and perform its obligations under the SecurityOperative Documents;
(ii) to do all things required the execution, delivery and performance by this Agreement and the Security;
(iii) Borrower of the Operative Documents will, on such Delivery Date, have been duly authorized by all necessary meetings have been held;
(iv) all required resolutions have been passed; and
(v) corporate action on the part of the Borrower, do not require any other action necessary to authorise the execution and performance stockholder approval, or approval or consent of this Agreement and the Security has been taken; this Agreement and the Security will each constitute the legal, valid, binding and enforceable obligation any trustee or holders of any indebtedness or obligations of the Borrower except such as have been duly obtained or by such Delivery Date will have been duly obtained and will on such Delivery Date be in accordance with their respective terms;
(c) except as disclosed in writing to full force and effect, and none of such Operative Documents contravenes any law, judgment, government rule, regulation or order binding on the Lender and dispensed with in writing by the Lender, neither the execution nor the performance of this Agreement Borrower or the Security will:
(i) violate in any respect any statute, decree, rule articles of incorporation or regulation or any determination, order or award of any court or any governmental, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers bylaws of the Borrower or on contravenes the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict with, or result in any breach provisions of, or require constitutes a default under, or results in the creation of any consent or approval Lien (other than Permitted Liens) upon the property of the Borrower under, any indenture, mortgage, agreement contract or other undertaking or instrument agreement to which the Borrower is a party or by which is binding on it or its properties may be bound or affected;
(iii) neither the execution and delivery by the Borrower or any of the Operative Documents nor the performance by the Borrower of its obligations thereunder requires the consent or approval of, the giving of notice to, or the registration with, or the taking of any other action in respect of any Federal, state or foreign government authority or agency, except for (A) the orders, permits, waivers, exemptions, authorizations and approvals of the regulatory authorities having jurisdiction over the operation of the Aircraft by the Borrower’s assets, which orders, permits, waivers, exemptions, authorizations and approvals have been duly obtained or will on or prior to such Delivery Date be duly obtained, and will on such Delivery Date be in full force and effect, (B) any normal periodic and other reporting requirements under the Federal Aviation Act and the regulations promulgated thereunder and the applicable rules, and regulations of the FAA, in each case to the extent required to be given or obtained only after such Delivery Date, (C) any filings, registrations or applications specifically described in this Agreement, and (D) an air operator's certificate with respect to Airbus Model A319 aircraft, which certificate shall be obtained and effected by Borrower in the ordinary course of business;
(iv) result the Operative Documents to which the Borrower is a party delivered on or prior to the date hereof or such Delivery Date, as the case may be, each constitute legal, valid and binding obligations of the Borrower enforceable against the Borrower in a mortgageaccordance with the terms thereof except as such may be limited by equitable principles or applicable bankruptcy, chargeinsolvency, lien reorganization, moratorium or other encumbrance over any of the Borrower’s assets; orsimilar laws affecting creditors' rights generally;
(v) cause there are no pending or, to the best of Borrower's knowledge, threatened actions or proceedings before any limit court, arbitrator or administrative agency which individually (or in the aggregate in the case of any group of related lawsuits) is expected to have a material and adverse effect on the powers financial condition of the Borrower in respect or the ability of borrowing, guaranteeing, raising financial accommodation or otherwise the Borrower to be exceededperform its obligations under the Operative Documents;
(vi) except for (A) the filing for recording pursuant to the Federal Aviation Act of the FAA Xxxx of Sale for each Aircraft (and the application for registration of such Aircraft in the name of the Borrower) and the Mortgage with the Mortgage Supplement for each Aircraft, (B) the filing of financing statements (and continuation statements at periodic intervals) with respect to the interests created by such documents under the Uniform Commercial Code of Colorado and such other states as disclosed may be specified in writing the opinion furnished pursuant to Section 4(b)(ix) hereof and (C) the affixation of the nameplates referenced in Section 3.04 of the Mortgage, no further action, including any filing or recording of any document (including any financing statement in respect thereof under Article 9 of the Uniform Commercial Code of any applicable jurisdiction), is necessary or advisable in order to establish and perfect the first mortgage Lien on each Aircraft in favor of the Collateral Agent pursuant to the Mortgage in any applicable jurisdiction in the United States;
(vii) there has not occurred any event which constitutes a Default or an Event of Default hereunder which is presently continuing;
(viii) the statements of financial position of the Borrower as of March 31, 2000 and the date of the most recently concluded fiscal quarter of the Borrower for which a statement of financial position has been provided and the related statements of earnings and cash flow of the Borrower in all material respects for the year and fiscal quarter, respectively, then ended, copies of which have been furnished to the Lender, fairly present the financial condition of the Borrower at such date and the results of operations and cash flow of the Borrower for the period ended on such dates, in accordance with generally accepted accounting principles consistently applied, and subject, in the case of the statements pertaining to the Borrower's most recently concluded fiscal quarter, to normal year-end adjustments, and since the date of the most recently concluded fiscal quarter of the Borrower for which a statement of financial position has been provided there has been no material and adverse change in such condition or operations;
(ix) on such Delivery Date the Borrower will have good title to the Mortgage Estate delivered on such Delivery Date free and clear of all Liens, except the Lien of the Mortgage, and Inchoate Liens;
(x) neither the Borrower nor anyone acting on behalf of the Borrower has directly or indirectly offered any interest in the Notes for sale to, or solicited any offer to acquire any of the same from, anyone other than the Lender and dispensed not more than 35 other institutions believed capable of evaluating and bearing the risks of investment in the transactions contemplated hereby;
(xi) the Borrower has filed or caused to be filed all Federal, state, local and (to the best of Borrower's knowledge) foreign tax returns which are required to be filed and has paid or caused to be paid or provided adequate reserves for the payment of all taxes shown to be due and payable on such returns or (except to the extent being contested in good faith and by appropriate proceedings and for the payment of which adequate reserves have been provided in accordance with in writing generally accepted accounting principles) on any assessment received by the LenderBorrower, to the extent that such taxes have become due and payable, except such returns or taxes as do not materially and adversely affect the business, property or assets, operations or financial condition, of the Borrower and do not involve a material risk of the sale, forfeiture or loss of, or the creation of any Lien (other than a Permitted Lien) on the Aircraft;
(xii) the Borrower is not (x) in default or difficulty under any deedindenture, mortgage, lease or Credit Agreement or under any other agreement or other document or obligation instrument of a material nature to which it the Borrower is now a party or by which it is bound, or in respect and no event has occurred and is continuing which, under the provisions of any financial commitment or obligationsuch indenture, including obligations under guarantees mortgage, Credit Agreement or other contingent liabilities, which default material agreement or difficulty is reasonably likely to adversely affect the ability of the Borrower to comply with its obligations under this Agreement or the Security;
(d) the Borrower is in full and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all other legislation and regulations to which the Borrower may any time and from time to time be subject;
(e) no event of default or event whichinstrument, with the giving of notice or the lapse of time or the giving of notice, or both, would be an event constitute a default thereunder or (y) in violation of default andany law, having occurredorder, is continuing to subsist;
(f) except as disclosed in writing injunction, decree, rule or regulation applicable to the Lender and dispensed with in writing by the Lender, no litigation or administrative or other proceedings before, or of, Borrower of any court or governmental authorityadministrative body, agency or other tribunal have, which violation (a) would reasonably be expected to the knowledge of the Borrower, been initiated or threatened against the Borrower or any of the Borrower’s assets which would or might have a material adverse effect on materially and adversely affect the business, assets operations or financial condition of the Borrower or the Borrower's ability to execute, deliver and perform its obligations under the Operative Documents or (b) would involve a material risk of the sale, forfeiture or loss of, or the creation of any Lien (other than a Permitted Lien) on, any of the Mortgage Estate;
(gxiii) the Borrower does has not haveengaged in any transaction in connection with which the Borrower could be subjected to either a material civil penalty assessed pursuant to Section 502(i) of ERISA, and will not during or a material tax imposed by Section 4975 of the currency of this Agreement have, any right of set-off, counterclaim, any right Code; (w) no material liability to rescind or any the Pension Benefit Guaranty Corporation (other claim than liability for premiums) has been incurred by the Borrower with respect to this Agreement any Plan; (x) there has been no event or condition which presents a material risk of termination of any Plan by way the Pension Benefit Guaranty Corporation; (y) no accumulated funding deficiency (as defined in Section 302 of cross-action against the Lender;
(h) all ERISA and Section 412 of the most recent annual Code), whether or half-yearly not waived, exists with respect to any Plan; and (z) no material amount of "withdrawal liability," as that term is used in Section 4201 of ERISA, has been or both, as is expected to be incurred by the case requires, accounts Borrower nor has the Borrower or any affiliate of the Borrower provided been notified by any multi-employer plan (within the meaning of Section 3(37)(A) of ERISA) that such multi-employer plan is in reorganization or insolvency within the meaning of Section 4241 or Section 4245 of ERISA or that such multi-employer plan intends to terminate or has been terminated under Section 4041A of ERISA (for purposes of this subclause (z), the Lender provide term "affiliate" shall mean any corporation or person which is a true and fair view member of the financial position same controlled group of corporations (within the meaning of Section 414(b) of the Code) as the Borrower and, except as otherwise disclosed in writing to or is under common control (within the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date meaning of those accounts to the financial condition Section 414(c) of the Code) with the Borrower; and
(i) the Borrower is not the trustee of any trust and accordingly enters into this Agreement on its own behalf.);
Appears in 1 contract
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants on the date of this Agreement and on each Disbursement Date that:
(a) it is registered as a company legal entity duly and validly incorporated and existing in good standing under the Act, and has laws of the power to carry on its business and own its property in the manner and in the locations in which such business is presently being carried on or property ownedState of Delaware;
(b) it has full the legal capacity and power and authority under its constitution:
(i) to enter into into, execute, deliver this Agreement and the Security;
(ii) to do all things required by this Agreement and the Security;
(iii) all necessary meetings have been held;
(iv) all required resolutions have been passed; and
(v) any other action necessary to authorise the execution and performance of this Agreement and the Security has been taken; this Agreement and the Security will each constitute the legal, valid, binding and enforceable obligation of the Borrower in accordance with their respective termsperform its obligations hereunder;
(c) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, neither the execution nor the performance of this Agreement or the Security will:
(i) violate in any respect any statute, decree, rule or regulation or any determination, order or award of any court or any governmental, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed has been duly and validly executed by state, decree, rule or regulation on any of the powers of the Borrower or on the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict with, or result in any breach of, or require any consent or approval under, any mortgage, agreement or other undertaking or instrument to which the Borrower is a party or which is binding on the Borrower or any of the Borrower’s assets;
(iv) result in a mortgage, charge, lien or other encumbrance over any of the Borrower’s assets; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower is not in default or difficulty under any deed, agreement or other document or obligation to which it is a party or by which it is bound, or in respect of any financial commitment or obligation, including obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect the ability of the Borrower to comply with its obligations under this Agreement or the Securityit;
(d) the Borrower is in full execution, delivery and ongoing compliance performance by it of this Agreement do not violate or conflict with any law applicable to it, any order or judgment of any court or other agency of government applicable to it or any of its constitution and all companies and securities legislation and regulations, and all other legislation and regulations to which the Borrower may assets or any time and from time to time be subjectcontractual restriction binding on or affecting it or any of its assets;
(e) no event its obligations under this Agreement constitute its legal, valid and binding obligations, enforceable in accordance with its terms (subject to applicable bankruptcy, insolvency, moratorium or similar laws affecting creditors' rights generally and subject, as to enforceability, to equitable principles of default or event which, with the giving of notice or the lapse of time or both, would be an event of default and, having occurred, is continuing to subsistgeneral application);
(f) except as disclosed it has obtained all authorisations, consents, licenses and permits required in writing to connection with the Lender entry into, performance, validity and dispensed with enforceability of, and the transactions contemplated by this Agreement and all such authorisations, consents, licenses and permits are in writing by the Lenderfull force and effect;
(g) no Event of Default is outstanding;
(h) no litigation, no litigation arbitration or administrative or other proceedings beforeare current, or of, any court or governmental authority, agency or other tribunal have, to the knowledge of the Borrower, been initiated pending or threatened against the Borrower or any of its assets except as disclosed in the Borrower’s assets which would or might have a material adverse effect on filings Borrower has made with the business, assets or financial condition of U.S. Securities and Exchange Commission (the Borrower“Filings”);
(gi) all information (the Information) supplied by or on behalf of the Borrower does not have, and will not during to the currency Lender prior to the execution of this Agreement havewas true, complete and accurate in all respects at its date and did not omit any right of set-offinformation which, counterclaimif disclosed, any right to rescind or any other claim with respect to this Agreement by way of cross-action against might adversely affect the Lender;
(h) all of the most recent annual or half-yearly or both, as the case requires, accounts of the Borrower provided 's decision to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change enter into this Agreement. Nothing has occurred since the date of those accounts the Information which renders it untrue or misleading in any respect;
(j) its payment obligations under this Agreement rank at least pari passu with all its other present and future unsecured payment obligations, except for obligations mandatorily preferred by law applying to companies generally;
(k) all amounts payable by it under this Agreement may be made without any deduction or withholding for or on account of Tax from a payment under this Agreement;
(l) the financial condition execution by it of this Agreement constitutes, and the exercise by it of its rights and performance of its obligations under this Agreement will constitute, private and commercial acts performed for private and commercial purposes and it will not be entitled to claim immunity from suit, execution, attachment or other legal process in any proceedings taken in its jurisdiction of incorporation in relation to this Agreement;
(m) it is not necessary under the laws of its jurisdiction of incorporation in order to enable the Lender to enforce its rights under this Agreement or by reason of the execution of this Agreement or the performance by it of its obligations under this Agreement that the Lender should be licensed, qualified or otherwise entitled to carry on business in the Borrower's jurisdiction of incorporation and the Lender is not and will not be deemed to be resident, domiciled or carrying on business in the Borrower's jurisdiction of incorporation by reason only of the execution, performance and/or enforcement of this Agreement; and
(in) the Borrower is not the trustee of any trust and accordingly enters into its irrevocable submission under this Agreement on to arbitration and/or the jurisdiction of the courts of England, agreement that this Agreement is governed by English law and its own behalfagreement not to claim any immunity to which it or its assets may be entitled are legal, valid and binding under the laws of its jurisdiction of incorporation and any judgment obtained in England will be recognised and be enforceable by the courts of its jurisdiction of incorporation.
Appears in 1 contract
Samples: Loan Agreement (Tekoil & Gas Corp)
BORROWER'S REPRESENTATIONS AND WARRANTIES. Section 1. The Borrower represents and warrants thatas follows:
(a) it Each Loan Party and each of its Subsidiaries is registered a corporation or limited liability company duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (ii) is duly qualified and in good standing as a foreign corporation or limited liability company under in each jurisdiction other than its jurisdiction of formation in which it owns or leases property or in which the Actconduct of its business requires it to so qualify or be licensed except where the failure to so qualify or be licensed could not be reasonably likely to have a Material Adverse Effect and (iii) has all requisite corporate (or limited liability company) power and authority (including, without limitation, all Governmental Authorizations) to own or lease and has the power operate its properties and to carry on its business as now conducted and own its property as proposed to be conducted. Each Loan Party that is a Liberian corporation is a non-resident domestic corporation as defined in the manner relevant laws of the Republic of Liberia and has no taxable presence or permanent establishment in Liberia as referred to in Section 803 of the locations in which such business is presently being carried on or property owned;Revenue Code of Liberia (2000).
(b) it has full power and authority under its constitution:
(i) to enter into this Agreement and the Security;
(ii) to do all things required by this Agreement and the Security;
(iii) all necessary meetings have been held;
(iv) all required resolutions have been passed; and
(v) any other action necessary to authorise the execution The execution, delivery and performance of this Agreement and the Security Amendment No. 3 is within its powers, has been takenduly authorized by all necessary corporate action, and does not (i) contravene its charter or bylaws; this Agreement (ii) violate any law, rule, regulation (including, without limitation, Regulations T, U and the Security will each constitute the legal, valid, binding and enforceable obligation X of the Borrower Board of Governors of the United States Federal Reserve System), order, writ, judgment, injunction, decree, determination r award, (iii) conflict with or result in accordance the breach of, or constitute a default or require any payment to be made under, any agreement respecting Indebtedness or any other material contract, loan agreement, indenture, mortgage, deed of trust, lease or other instrument binding on or affecting it or any of its properties or (iv) except for the Liens created under the Loan Documents, result in or require the creation or imposition of any Lien upon or with their respective terms;respect to any Collateral. No Loan Party or any of it Subsidiaries is in material violation of any such law, rule, regulation, order, writ, judgment, injunction, decree, determination or award except to the extent that any such violation, individually or in the aggregate, could not be reasonably expected to have a Material Adverse Effect.
(c) This Amendment No. 3 has been duly authorized, executed and delivered by the Borrower and each other Loan Party as applicable to each such Loan Party. This Amendment No. 3 constitutes the legal, valid and binding obligation of each Loan Party, enforceable against such Loan Party in accordance with its terms except as disclosed in writing to the Lender and dispensed with in writing extent that the enforceability thereof may be limited by the Lenderapplicable bankruptcy, neither the execution nor the performance of this Agreement or the Security will:
(i) violate in any respect any statuteinsolvency, decreereorganization, rule or regulation or any determination, order or award of any court or any governmental, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers of the Borrower or on the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict with, or result in any breach of, or require any consent or approval under, any mortgage, agreement moratorium or other undertaking similar laws generally affecting creditors' rights and by equitable principles (regardless of whether enforcement is sought in equity or instrument to which the Borrower is a party or which is binding on the Borrower or any of the Borrower’s assets;
(ivat law) result in a mortgage, charge, lien or other encumbrance over any of the Borrower’s assets; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower is but not in default or difficulty under any deed, agreement or other document or obligation to which it is a party or by which it is bound, or in respect of any financial commitment or obligation, including obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect the ability of the Borrower to comply with its obligations under this Agreement or the Security;excepting fraudulent conveyance laws.
(d) the Borrower No Default or Event of Default has occurred and is in full continuing, or will result upon execution and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all other legislation and regulations to which the Borrower may any time and from time to time be subject;
(e) no event delivery of default this Amendment No. 3 or event which, with the giving of notice or the lapse of time or both, would be an event of default and, having occurred, is continuing to subsist;
(f) except as disclosed in writing effect to the Lender and dispensed with in writing by the Lender, no litigation or administrative or other proceedings before, or of, any court or governmental authority, agency or other tribunal have, to the knowledge of the Borrower, been initiated or threatened against the Borrower or any of the Borrower’s assets which would or might have a material adverse effect on the business, assets or financial condition of the Borrower;
(g) the Borrower does not have, and will not during the currency of this Agreement have, any right of set-off, counterclaim, any right to rescind or any other claim with respect to this Agreement by way of cross-action against the Lender;
(h) all of the most recent annual or half-yearly or both, as the case requires, accounts of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrower; and
(i) the Borrower is not the trustee of any trust and accordingly enters into this Agreement on its own behalftransactions hereby contemplated.
Appears in 1 contract
Samples: Senior Secured Credit Facility (Excel Maritime Carriers LTD)
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower hereby reaffirms all of the representations and warranties set forth in the Loan Documents, and further represents and warrants that:
that (a) it Each Borrower is registered as a company under the Act, sole legal and has beneficial owner of the power to carry on Property covered by its business and own its property in the manner and in the locations in which such business is presently being carried on or property owned;
respective Mortgage; (b) it has full power and authority under its constitution:
(i) to enter into this Agreement and the Security;
(ii) to do all things required by this Agreement and the Security;
(iii) all necessary meetings have been held;
(iv) all required resolutions have been passed; and
(v) any other action necessary to authorise the execution and performance delivery of this Agreement and the Security has been taken; this Agreement and the Security will each constitute the legaldo not contravene, valid, binding and enforceable obligation of the Borrower in accordance with their respective terms;
(c) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, neither the execution nor the performance of this Agreement or the Security will:
(i) violate in any respect any statute, decree, rule or regulation or any determination, order or award of any court or any governmental, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers of the Borrower or on the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict with, or result in any a breach of, or require any consent or approval constitute a default under, any mortgage, agreement loan agreement, indenture or other undertaking contract or instrument agreement to which the any Borrower is a party or by which is binding on the any Borrower or any of its properties may be bound (nor would such execution and delivery constitute such a default with the passage of time or the giving of notice or both), and do not violate or contravene any law, order, decree, rule, regulation or restriction to which any Borrower or any Property is subject; (c) this Agreement constitutes the legal, valid and binding obligations of each Borrower enforceable in accordance with its terms; (d) the execution and delivery of, and performance under, this Agreement are within each Borrower’s assets;
(iv) result in a mortgage's power and authority without the joinder or consent of any other party and have been duly authorized by all requisite action, charge, lien or other encumbrance over any of the Borrower’s assets; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower is are not in default contravention of any law, or difficulty under of any deedBorrower's articles of organization or operating agreement or of any indenture, agreement or other document or obligation undertaking to which it any Borrower is a party or by which it is bound, or in respect of any financial commitment or obligation, including obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect the ability of the Borrower to comply with its obligations under this Agreement or the Security;
(d) the Borrower is in full and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all other legislation and regulations to which the Borrower may any time and from time to time be subject;
; (e) there exists no event default under the Bank of default America Note or event which, with the giving of notice The PrivateBank Note or the lapse of time or both, would be an event of default and, having occurred, is continuing to subsist;
any other Loan Document; (f) there are no offsets, claims, counterclaims, cross-claims or defenses with respect to the Obligations; and (g) each Borrower is duly organized and legally existing under the laws of the state of its organization and is duly qualified to do business in the state of Florida. Each Borrower further represents and warrants that, except as disclosed in writing to the Lender and dispensed with in writing by the LenderAdministrative Agent, there is no litigation suit, judicial or administrative action, claim, investigation, inquiry, proceeding or other proceedings beforedemand pending (or, to any Borrower's knowledge, threatened) against (i) any Borrower, or of(ii) which affects the Property or any Borrower's title to its respective Property, any court or governmental authority, agency (iii) which affects the validity enforceability or other tribunal have, to the knowledge priority of the Borrower, been initiated or threatened against the Borrower or any of the Borrower’s assets Loan Documents. Each Borrower agrees to indemnify and hold the Lender harmless against any loss, claim, damage, liability or out-of-pocket expense (including, without limitation, reasonable attorneys' fees) incurred as a result of any representation or warranty made by that Borrower herein which would proves to be untrue or might have a inaccurate in any material adverse effect on the business, assets or financial condition of the Borrower;
(g) the Borrower does not haverespect, and will not during any such occurrence shall constitute a default under the currency of this Agreement have, any right of set-off, counterclaim, any right to rescind or any other claim with respect to this Agreement by way of cross-action against the Lender;
(h) all of the most recent annual or half-yearly or both, as the case requires, accounts of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrower; and
(i) the Borrower is not the trustee of any trust and accordingly enters into this Agreement on its own behalfLoan Documents.
Appears in 1 contract
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower represents makes the following representations and warrants that:
warranties set out in this Section 7 to the Loan Participant on the date hereof and on the Delivery Date of the Designated Aircraft (a) except to the extent such representation or warranty relates to an earlier date, in which case such representation or warranty shall only be made as to the date on which it is registered as a company under the Act, and has the power expressed to carry on its business and own its property in the manner and in the locations in which such business is presently being carried on or property owned;
(b) it has full power and authority under its constitution:be made):
(i) the Borrower is a corporation duly organized and validly existing in good standing pursuant to the laws of the State of Delaware; is duly qualified to do business as a foreign corporation in each jurisdiction in which its operations or the nature of its business requires, except where the failure to be so qualified would give rise to a Material Adverse Change; is a U.S. Air Carrier; and has the corporate power and authority to, and holds all licenses, permits and franchises from the appropriate Governmental Body necessary to authorize the Borrower to, engage in air transport and to carry on scheduled commercial passenger service as presently conducted, to own the Designated Aircraft and to enter into this Agreement and perform its obligations under the SecurityOperative Documents, except where the failure to hold such license, permit or franchise would not give rise to a Material Adverse Change;
(ii) to do all things required by the Borrower has duly authorized, executed and delivered this Agreement and each of the SecurityOperative Documents to which it is (or will be) a party, and each of the Operative Documents to which it is (or will be) a party constitutes, or when entered into will constitute, a legal, valid and binding obligation of the Borrower, enforceable against the Borrower in accordance with its terms, except as the same may be limited by applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or similar laws affecting the rights of creditors generally and by general principles of equity;
(iii) all necessary meetings have been held;
(iv) all required resolutions have been passed; and
(v) any other action necessary to authorise neither the execution and performance delivery by the Borrower of this Agreement the Operative Documents to which it is or will be a party, nor the consummation by the Borrower of any of the transactions contemplated hereby or thereby, nor the compliance by the Borrower with any of the terms and the Security has been taken; this Agreement provisions hereof and the Security thereof, (A) requires or will each constitute the legalrequire any approval of its stockholders, valid, binding and enforceable obligation or approval or consent of any trustees or holders of any indebtedness or obligations of the Borrower in accordance with their respective terms;
except such as have been (cor will be) except as disclosed in writing to the Lender and dispensed with in writing by the Lenderduly obtained, neither the execution nor the performance (B) violates or will violate its certificate of this Agreement incorporation or the Security will:
by-laws, (iC) violate in contravenes or will contravene any respect any statute, decree, rule or regulation or any determination, order or award of any court or any governmental, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers of the Borrower or on the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict withprovision of, or constitutes or will constitute a default under, or results or will result in any breach of, or require any consent or approval underindenture, any mortgage, agreement lease, chattel mortgage, deed of trust, conditional sale contract, bank loan or credit agreement, material license, or other undertaking agreement, instrument or instrument to which the Borrower is a party or which is binding on the Borrower or any of the Borrower’s assets;
(iv) result in a mortgage, charge, lien or other encumbrance over any of the Borrower’s assets; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower is not in default or difficulty under any deed, agreement or other document or obligation contractual restriction to which it is a party or by which it is bound, or in respect of any financial commitment or obligationprovided, including obligations under guarantees or other contingent liabilitieshowever, which default or difficulty is reasonably likely to adversely affect that the ability of grant by the Borrower to comply with its obligations the Loan Participant of a Lien in certain after-acquired property of the type described in clause (4) of the Granting Clause of the Mortgage may require the consent of lenders under this Agreement or the Security;
(d) the Borrower is in full and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all other legislation and regulations third-party loan agreements to which the Borrower may is a party, which consent shall be obtained by the Borrower prior to the Borrower having any time and from time to time be subjectrights in such after-acquired property, or (D) contravenes or will contravene any law binding on it;
(eiv) no event of default or event whichauthorization of, with the giving of notice or the lapse of time or both, would be an event of default and, having occurred, is continuing to subsist;
(f) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, no litigation or administrative or other proceedings beforeto, or registration with, or taking of any other action in respect of, any court Governmental Body is required for the execution and delivery of, or governmental authoritythe carrying out by, agency the Borrower of any of the transactions contemplated hereby or by any other tribunal haveof the Operative Documents to which the Borrower is or will be a party, to except for (A) the knowledge orders, permits, waivers, exemptions, authorizations and approvals of the regulatory authorities having jurisdiction over the operation of the Designated Aircraft by the Borrower, which orders, permits, waivers, exemptions, authorizations and approvals have been initiated duly obtained or threatened against will on or prior to the Borrower Delivery Date of the Designated Aircraft be duly obtained, and will on the Delivery Date be in full force and effect, (B) any normal periodic and other reporting requirements under the Federal Aviation Act and the regulations promulgated thereunder and the applicable rules, and regulations of the FAA, in each case to the extent required to be given or obtained only after the Delivery Date of the Designated Aircraft and (C) any filings, registrations or applications specifically described in this Agreement or any of the other Operative Documents;
(v) there are no pending or, to the Borrower’s assets which actual knowledge, threatened actions or proceedings against the Borrower before any court or administrative agency that would or might have a material adverse effect on reasonably be expected to materially adversely affect Borrower’s ability to perform its obligations under the business, assets or financial condition Operative Documents;
(vi) except for (A) the filing with the FAA of an FAA Entry Point Filing Form — AC Form 8050-135 and the procurement of unique authorization codes for the registration of the ownership interest of the Borrower in the Airframe and each Engine associated with the Designated Aircraft represented by the contract of sale constituting the FAA Xxxx of Sale and/or the Warranty Xxxx of Sale and the registration of the Borrower’s ownership interest with respect to each contract of sale in respect of the Airframe and each Engine associated with the Designated Aircraft, (B) the filing with the FAA of an FAA Entry Point Filing Form — AC Form 8050-135 as to the prospective international interest of the Mortgagee with respect to the Airframe and each Engine associated with the Designated Aircraft and the procurement of unique authorization codes for each thereof and the registration of the Loan Participant’s prospective international interest in the Airframe and each Engine associated with the Designated Aircraft with the International Registry, (C) the filing for recording pursuant to the Federal Aviation Act of the FAA Xxxx of Sale for the Designated Aircraft (and the application for registration of the Designated Aircraft in the name of the Borrower) and the Mortgage with the Mortgage Supplement for the Designated Aircraft, (C) the filing of financing statements (and continuation statements at periodic intervals) with respect to the interests created by such documents under the Uniform Commercial Code of Delaware and such other states as may be specified in the opinion furnished pursuant to Section 4(b)(x)(A) hereof and (D) the affixation of the nameplates referred to in Section 3.04 of the Mortgage for the Designated Aircraft, no further action, including any filing or recording of any document (including any financing statement in respect thereof under Article 9 of the Uniform Commercial Code of any applicable jurisdiction), is necessary in order to establish and perfect the Lien on the Designated Aircraft on a first priority basis in favor of the Loan Participant pursuant to the Mortgage for the Designated Aircraft or to establish as against third parties the international interest under such Mortgage in any applicable jurisdiction in the United States;
(gvii) there has not occurred any event which constitutes a Default or an Event of Default under the Borrower does not have, and will not during Mortgage for the currency of this Agreement have, any right of set-off, counterclaim, any right to rescind or any other claim with respect to this Agreement by way of cross-action against the LenderDesignated Aircraft which is presently continuing;
(h) all of the most recent annual or half-yearly or both, as the case requires, accounts of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrower; and
(i) the Borrower is not the trustee of any trust and accordingly enters into this Agreement on its own behalf.
Appears in 1 contract
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants that:
that (a) it is registered as a company in good standing under the Actlaws of the state of its formation, duly qualified to do business and has will remain duly qualified during the power term of each Loan in each state where necessary to carry on its present business and own its property in operations, including the manner and in jurisdiction(s) where the locations in which such business is presently being carried Collateral will be located as specified on or property owned;
each Exhibit A to each Note, except where failure to be so qualified would not have a Material Adverse Effect; (b) it has full power authority to execute and authority under its constitution:
(i) to enter into deliver this Security Agreement and the Security;
(ii) to do all things required by Notes and perform the terms hereof and thereof, and this Security Agreement and the Security;
(iii) all necessary meetings Notes have been held;
(iv) all required resolutions have been passed; and
(v) any other action necessary to authorise the execution duly authorized, executed and performance delivered and constitute valid and binding obligations of this Agreement and the Security has been taken; this Agreement and the Security will each constitute the legal, valid, binding and Borrower enforceable obligation of the Borrower in accordance with their respective terms;
; (c) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, neither the execution nor the performance and delivery of this Security Agreement or and the Security will:
(i) violate in Notes will not contravene any respect any statutelaw, decree, rule or regulation or any determination, order or award of any court or any governmental, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers of the judgment affecting Borrower or on the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict with, or result in any breach of, or require of any consent or approval under, any mortgage, material agreement or other undertaking instrument binding on Borrower; (d) no consent of Borrower's shareholders or instrument to holder of any indebtedness, or filing with, or approval of, any governmental agency or commission, which the Borrower has not already been obtained or performed, as appropriate, is a party or which is binding on condition to the Borrower or any performance of the Borrower’s assets;
(iv) result in a mortgage, charge, lien or other encumbrance over any terms of the Borrower’s assets; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower is not in default or difficulty under any deed, agreement or other document or obligation to which it is a party or by which it is bound, or in respect of any financial commitment or obligation, including obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect the ability of the Borrower to comply with its obligations under this Security Agreement or the Security;
(d) the Borrower is in full and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all other legislation and regulations to which the Borrower may any time and from time to time be subject;
Notes; (e) no event of default or event which, with the giving of notice or the lapse of time or both, would be an event of default and, having occurred, is continuing to subsist;
(f) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, best of its knowledge there is no litigation action or administrative proceeding pending or other proceedings before, or of, threatened against Borrower before any court or governmental authority, administrative agency or other tribunal have, to the knowledge of the Borrower, been initiated or threatened against the Borrower or any of the Borrower’s assets which would or might have a material adverse effect Material Adverse Effect on the business, assets or financial condition or operations of Borrower; (f) at the time any Loan is made hereunder, Borrower owns and will keep all of the Borrower;
Collateral free and clear of all liens, claims and encumbrances, and, except for this Security Agreement, there is no deed of trust, mortgage security agreement or other third party interest against any of the Collateral other than Permitted Liens (as defined below); (g) at the time any Loan is made hereunder, Borrower does not have, has good and will not during marketable title to the currency of this Agreement have, any right of set-off, counterclaim, any right to rescind or any other claim with respect to this Agreement by way of cross-action against the Lender;
Collateral; (h) at the time any Loan is made hereunder, all Collateral has been received, installed and is ready for use and is satisfactory in all respects for the purposes of the most recent annual or half-yearly or both, as the case requires, accounts of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrowerthis Security Agreement; and
(i) the Borrower Collateral is, and will remain at all times under applicable law, removable personal property, which is not the trustee free and clear of any trust lien or encumbrance except in favor of Lender other than Permitted Liens (as defined below), notwithstanding the manner in which the Collateral may be attached to any real property; (j) all credit and accordingly enters financial information submitted to Lender herewith or at any other time is and will at the time given be true and correct in all material respects; and (k) the security interest granted to Lender hereunder is a first priority security interest, and (l) on or before January 1, 2000, Borrower's computer system shall be Year 2000 performance compliant and will thus be able to accurately process date data from, into this Agreement on its own behalfand between the twentieth and twenty-first centuries including leap year calculations. "Permitted Liens" shall mean and include: (i) liens for taxes or other governmental charges not at the time delinquent or thereafter payable without penalty or being contested in good faith; and (ii) liens of carriers, warehousemen, mechanics, materialmen, vendors, landlords and other liens arising by operation of law incurred in the ordinary course of business.
Appears in 1 contract
Samples: Senior Loan and Security Agreement (Pointshare Corp)
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower hereby reaffirms all of representations and warranties set forth in the Loan Documents, and further represents and warrants that:
: (a) it is registered as a company under the Act, and has the power to carry on its business and own its property in the manner and in the locations in which such business is presently being carried on or property owned;
(b) it has full power and authority under its constitution:
(i) to enter into this Agreement and the Security;
(ii) to do all things required by this Agreement and the Security;
(iii) all necessary meetings have been held;
(iv) all required resolutions have been passed; and
(v) any other action necessary to authorise the execution and performance delivery of this Agreement and the Security has been taken; this Agreement and the Security will each constitute the legaldoes not contravene, valid, binding and enforceable obligation of the Borrower resulting in accordance with their respective terms;
(c) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, neither the execution nor the performance of this Agreement or the Security will:
(i) violate in any respect any statute, decree, rule or regulation or any determination, order or award of any court or any governmental, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers of the Borrower or on the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict with, or result in any a breach of, or require any consent or approval constitute a default under, any mortgagedeed of trust, agreement loan agreement, indenture or other undertaking contract or instrument agreement to which the Borrower is a party or by which is binding on the Borrower or any of its properties may be bound (nor would such execution and delivery constitute such a default with the passage of time or the giving of notice or both), and does not violate or contravene any law, order, decree, rule, regulation or restriction to which Borrower or any of Borrower’s assets;
Property is subject; (ivb) result this Agreement constitutes the legal, valid and binding obligations of Borrower enforceable in a mortgageaccordance with its terms; (c) the execution and delivery of, chargeand performance under, lien or other encumbrance over any of the this Agreement are within Borrower’s assets; or
(v) cause power and authority without the joinder or consent of any limit on the powers of the Borrower in respect of borrowingother party and have been duly authorized by all requisite action, guaranteeing, raising financial accommodation or otherwise to be exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower is are not in default contravention of any law, or difficulty under of any deedindenture, agreement or other document or obligation undertaking to which it Borrower is a party or by which it is bound, or in respect of any financial commitment or obligation, including obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect the ability of the Borrower to comply with its obligations under this Agreement or the Security;
; (d) there exists no default under the Borrower is in full and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all Note or any other legislation and regulations to Loan Document which the Borrower may any time and from time to time will not be subject;
cured by execution of this Modification; (e) there are no event of default offsets, claims or event which, defenses with respect to the giving of notice or the lapse of time or both, would be an event of default and, having occurred, is continuing to subsist;
Obligations; and (f) Borrower is duly organized and legally existing under the laws of the state of its organization and is duly qualified to do business in the Commonwealth of Virginia. The Borrower further represents and warrants that, except as disclosed in writing to the Lender and dispensed with in writing by the Lenderpublic filings, there is no litigation material suit, judicial or administrative action, claim, investigation, inquiry, proceeding or other proceedings beforedemand pending (or, to Borrower’s knowledge, threatened) against (i) Borrower, or ofagainst any other person liable directly or indirectly for the Obligations, or (ii) which affects title to any court of Borrower’s Property or governmental authority, agency or other tribunal have, to the knowledge of the Borrower’s title to any of Borrower’s Property, been initiated or threatened against (iii) which affects the Borrower validity enforceability or priority of any of the Borrower’s assets Loan Documents. Borrower agrees to indemnify and hold the Lender harmless against any loss, claim damage, liability or expense (including, without limitation, attorneys’ fees) incurred as a result of any representation or warranty made by Borrower herein which would proves to be untrue or might have a material adverse effect on the business, assets or financial condition of the Borrower;
(g) the Borrower does not haveinaccurate in any respect, and will not during any such occurrence shall constitute a default under the currency of this Agreement have, any right of set-off, counterclaim, any right to rescind or any other claim with respect to this Agreement by way of cross-action against the Lender;
(h) all of the most recent annual or half-yearly or both, as the case requires, accounts of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrower; and
(i) the Borrower is not the trustee of any trust and accordingly enters into this Agreement on its own behalfLoan Documents.
Appears in 1 contract
Samples: Loan Modification Agreement (Comstock Homebuilding Companies, Inc.)
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants that:
that (a) it is registered as a company in good standing under the Actlaws of the state of its formation, duly qualified to do business and has will remain duly qualified during the power term of each Loan in each state where necessary to carry on its present business and own its property in operations, including the manner and in jurisdiction(s) where the locations in which such business is presently being carried Collateral will be located as specified on or property owned;
each Exhibit A to each Note, except where failure to be so qualified would not have a Material Adverse Effect; (b) it has full power authority to execute and authority under its constitution:
(i) to enter into deliver this Security Agreement and the Security;
(ii) to do all things required by Notes and perform the terms hereof and thereof, and this Security Agreement and the Security;
(iii) all necessary meetings Notes have been held;
(iv) all required resolutions have been passed; and
(v) any other action necessary to authorise the execution duly authorized, executed and performance delivered and constitute valid and binding obligations of this Agreement and the Security has been taken; this Agreement and the Security will each constitute the legal, valid, binding and Borrower enforceable obligation of the Borrower in accordance with their respective terms;
; (c) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, neither the execution nor the performance and delivery of this Security Agreement or and the Security will:
(i) violate in Notes will not contravene any respect any statutelaw, decree, rule or regulation or any determination, order or award of any court or any governmental, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers of the judgment affecting Borrower or on the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict with, or result in any breach of, or require of any consent or approval under, any mortgage, material agreement or other undertaking instrument binding on Borrower; (d) no consent of Borrower's shareholders or instrument to holder of any indebtedness, or filing with, or approval of, any governmental agency or commission, which the Borrower has not already been obtained or performed, as appropriate, is a party or which is binding on condition to the Borrower or any performance of the Borrower’s assets;
(iv) result in a mortgage, charge, lien or other encumbrance over any terms of the Borrower’s assets; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower is not in default or difficulty under any deed, agreement or other document or obligation to which it is a party or by which it is bound, or in respect of any financial commitment or obligation, including obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect the ability of the Borrower to comply with its obligations under this Security Agreement or the Security;
(d) the Borrower is in full and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all other legislation and regulations to which the Borrower may any time and from time to time be subject;
Notes; (e) there is no event of default action or event which, with the giving of notice proceeding pending or the lapse of time or both, would be an event of default and, having occurred, is continuing to subsist;
(f) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, no litigation or administrative or other proceedings before, or of, threatened against Borrower before any court or governmental authority, administrative agency or other tribunal have, to the knowledge of the Borrower, been initiated or threatened against the Borrower or any of the Borrower’s assets which would or might have a material adverse effect Material Adverse Effect on the business, assets or financial condition or operations of Borrower; (f) at the time any Loan is made hereunder, Borrower owns and will keep all of the Borrower;
Collateral free and clear of all liens, claims and encumbrances, and, except for this Security Agreement, there is no deed of trust, mortgage, security agreement or other third party interest against any of the Collateral; (g) at the time any Loan is made hereunder, Borrower does not have, has good and will not during marketable title to the currency of this Agreement have, any right of set-off, counterclaim, any right to rescind or any other claim with respect to this Agreement by way of cross-action against the Lender;
Collateral; (h) at the time any Loan is made hereunder, all Collateral has been received, installed and is ready for use and is satisfactory in all respects for the purposes of the most recent annual or half-yearly or both, as the case requires, accounts of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrowerthis Security Agreement; and
(i) the Borrower Collateral is, and will remain at all times under applicable law, removable personal property, which is not the trustee free and clear of any trust lien or encumbrance except in favor of Lender, notwithstanding the manner in which the Collateral may be attached to any real property; (j) all credit and accordingly enters into this Agreement on its own behalf.financial information submitted to Lender herewith or at any other time is and will at the time given be true and correct in all material respects; (k) the security interest granted to Lender hereunder is a first priority security interest; and (l)Borrower owes approximately $30,000 to Autonet, Inc. pursuant to a certain promissory note. Borrower represents and warrants to Lender that Borrower shall not borrow any additional funds from Autonet, Inc. after March 27,
Appears in 1 contract
Samples: Senior Loan and Security Agreement (Autoweb Com Inc)
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants thatas of the date of execution and delivery of this Agreement and as of the date of each Advance as follows:
(a) it Borrower is registered as a company corporation organized under the Actlaws of the State of Florida, and has having a principal place of business at 7000 Xxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx, 00000, duly organized, validly existing under the power to carry on laws of the jurisdiction of its business and own its property in the manner and in the locations in which such business is presently being carried on or property owned;
(b) it has organization with full power and authority under its constitution:
(i) to enter into and to pay and perform its obligations under this Agreement and the Security;
other Loan Documents, and is duly qualified or licensed in all other jurisdictions where its failure to so qualify would adversely affect the conduct of its business or its ability to perform any of its obligations under or the enforceability of this Agreement; (iib) to do all things required by this Agreement and the Security;
(iii) all necessary meetings other Loan Documents have been held;
(iv) all required resolutions have been passed; and
(v) any other action necessary to authorise the execution duly authorized, executed and performance of this Agreement and the Security has been taken; this Agreement and the Security will each constitute the legaldelivered by Borrower, are valid, legal and binding and obligations of Borrower, are enforceable obligation of the against Borrower in accordance with their respective terms;
(c) except as disclosed in writing to the Lender terms and dispensed with in writing by the Lender, neither the execution nor the performance do not and will not contravene any provisions of this Agreement or the Security will:
(i) violate in any respect any statute, decree, rule or regulation or any determination, order or award of any court or any governmental, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers of the Borrower or on the constitute a default under Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict with, or result in any breach of, or require any consent or approval underorganization documents, any mortgage, agreement or other undertaking or instrument to which the Borrower is a party or which is binding on the Borrower or any of the Borrower’s assets;
(iv) result in a mortgage, charge, lien or other encumbrance over any of the Borrower’s assets; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower is not in default or difficulty under any deed, agreement or other document or obligation to which it is a party or by which it or any of its property is bound, or in respect any applicable law, regulation or order of any financial commitment or obligation, including obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely governmental authority; (c) the proceeds of each Advance will be used exclusively to adversely affect finance the ability acquisition of the Borrower to comply with its obligations under this Agreement or the Security;
Equipment; (d) the Borrower is in full (or upon the acquisition thereof will be) the sole owner of, and ongoing compliance with its constitution has good and all companies and securities legislation and regulationsmarketable title to, and all other legislation necessary rights in, and regulations power to which transfer pursuant to the Borrower may any time terms hereof, all of the Equipment, free and from time to time be subject;
clear of all liens and encumbrances (excepting only the Lien of the Lender), and upon the filing with the Secretary of State of Florida of a Uniform Commercial Code financing statement naming Lender, as secured party, Borrower, as debtor, and the Equipment as the collateral, Lender shall have a valid, perfected, first priority security interest in the Equipment; (e) no event of default approval of, or event whichfiling with, any governmental authority or other person is required in connection with the giving of notice Borrower’s entering into, or the lapse payment or performance of time or bothits obligations under, would be an event of default and, having occurred, is continuing to subsist;
this Agreement and the other Loan Documents; (f) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, there are no litigation suits or administrative or other proceedings before, or of, any court or governmental authority, agency or other tribunal havepending or, to the knowledge of the Borrower, threatened, before any court or governmental agency against or affecting Borrower which, if decided adversely to Borrower, would adversely affect the conduct of its business or its ability to perform any of its obligations under or the enforceability of this Agreement and the other Loan Documents; (g) the financial statements of Borrower which have been initiated delivered or threatened against made publicly available to Lender have been prepared in accordance with generally accepted accounting principles consistently applied, and fairly present Borrower’s financial condition and the results of its operations as of the date of and for the period covered by such statements (subject to customary year-end adjustments), and since the date of such statements there has been no adverse change in such financial condition or operations; (h) Borrower’s full and correct legal name is set forth on the signature page hereof and Borrower will not change its legal name or the location of its jurisdiction of organization without giving to Lender at least thirty (30) days prior written notice thereof; (i) the Equipment will always be used for business or commercial, and not personal purposes; (j) Borrower is not in default under any obligation for borrowed money, for the deferred purchase price of property or any of lease agreement which, either individually or in the Borrower’s assets which aggregate, would or might have a material an adverse effect on the business, assets or financial condition of its business or its ability to perform any of its obligations under or the Borrower;
enforceability of this Agreement; (gk) under the laws of the jurisdiction(s) in which the Equipment is to be located, the Equipment consists solely of personal property and not fixtures; and (l) Borrower does not haveis, and will not during remain, in full compliance with all laws and regulations applicable to it including without limitation, (i) ensuring that no person who owns a controlling interest in or otherwise controls Borrower is or shall be (A) listed on the currency Specially Designated National and Blocked Person List maintained by the Office of this Agreement haveForeign Assets Control (“OFAC”), Department of the Treasury and/or any other similar lists maintained by OFAC pursuant to any authorizing statute, executive order or regulations or (C) a person designated under Section 1(b), (c) or (d) of Executive Order No. 13224 (September 23, 2001), any right of set-off, counterclaim, any right to rescind related enabling legislation or any other claim similar executive order and (ii) compliance with respect to all applicable Bank Secrecy Act (“BSA”) laws, regulations and government guidance on BSA compliance and on the prevention and detection of money laundering violations. Borrower’s representations and warranties shall survive termination or expiration of this Agreement by way of cross-action against the Lender;
(h) all of the most recent annual or half-yearly or both, as the case requires, accounts of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrower; and
(i) the Borrower is not the trustee of any trust and accordingly enters into this Agreement on its own behalfAgreement.
Appears in 1 contract
Samples: Loan and Security Agreement (Industrial Services of America Inc /Fl)
BORROWER'S REPRESENTATIONS AND WARRANTIES. The 8.1 Each Borrower and each Obligor represents and warrants thatto OFID that each of the following statements is true, accurate and complete as of the date hereof and as of the Effective Date:
(a) it is registered as a company under has carefully read and fully understands all of the Act, terms and has the power to carry on its business and own its property in the manner and in the locations in which such business is presently being carried on or property ownedconditions of this Agreement;
(b) it has consulted with, or has had a full power and authority under fair opportunity to consult with, an attorney of its constitution:choosing regarding the terms and conditions of this Agreement;
(c) it had a full and fair opportunity to participate in the drafting of this Agreement;
(d) it is freely, voluntarily and knowingly entering into this Agreement;
(e) in entering into this Agreement, it has not relied upon (i) to enter into any representation or warranty of OFID; or (ii) any covenant of OFID that is not set forth in this Agreement and the SecurityAgreement;
(iif) to do all things required by this Agreement and the Security;
(iii) all necessary meetings have been held;
(iv) all required resolutions have been passed; and
(v) any other action necessary to authorise the execution and performance delivery of this Agreement and the Security has been taken; performance by it of its obligations under this Agreement and the Security will each constitute the legal, valid, binding and enforceable obligation of the Borrower in accordance with their respective terms;
(c) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, neither the execution nor the performance of this Agreement or the Security will:
(i) violate in any respect any statute, decree, rule or regulation or any determination, order or award of any court or any governmental, judicial or public body or authority applicable to the Borrower;
are within such its powers; (ii) cause any limitation, whether imposed have been duly authorized by state, decree, rule or regulation on any of the powers of the Borrower or on the Borrower’s right or ability to exercise such powers to be exceeded;
all necessary action; (iii) do not and will not contravene or conflict with, with any provision of law or result in any breach of, or its charter and other constitutional documents; (iv) does not require any consent or approval underof, notice to, or any other action by or before, any mortgageAuthority, except such as have been obtained or made and are in full force and effect; (v) will not violate or result in a default or event of default under any material indenture, agreement or other undertaking instrument binding upon it or instrument its assets, or give rise to which the Borrower is a party or which is binding on the Borrower or right thereunder to require any of the Borrower’s assets;
(iv) result in a mortgage, charge, lien or other encumbrance over any of the Borrower’s assets; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise payment to be exceeded;
made by it including under the Indenture, the Offshore Facility or the IFC Loan Agreement; and (vi) except as disclosed will not result in writing to the Lender and dispensed with in writing by the Lender, the Borrower is not in default creation or difficulty under any deed, agreement or other document or obligation to which it is a party or by which it is bound, or in respect imposition of any financial commitment or obligation, including obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect the ability of the Borrower to comply with its obligations under this Agreement or the Security;
(d) the Borrower is in full and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all other legislation and regulations to which the Borrower may any time and from time to time be subject;
(e) no event of default or event which, with the giving of notice or the lapse of time or both, would be an event of default and, having occurred, is continuing to subsist;
(f) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, no litigation or administrative or other proceedings before, or of, any court or governmental authority, agency or other tribunal have, to the knowledge of the Borrower, been initiated or threatened against the Borrower or Lien on any of its asset, except Liens created under the Borrower’s assets which would or might have a material adverse effect on the business, assets or financial condition of the BorrowerTransaction Documents;
(g) the Borrower does not have, and will not during the currency of this Agreement haveconstitutes its legal, any right of set-offvalid and binding obligation and is enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, counterclaiminsolvency, any right reorganization, moratorium or similar laws now or hereafter in effect relating to rescind creditors' rights generally or any other claim with respect to this Agreement as such enforcement may be limited by way of cross-action against the Lenderequitable principles generally;
(h) all it understands the temporary nature of the most recent annual Forbearance and of the other provisions of this Agreement in its favour and recognizes that OFID has no obligation to expand or half-yearly extend the Forbearance or bothany such other provision (if any);
(i) no Event of Default (other than the Current Events of Default) exists;
(j) no Termination Event has occurred and is continuing;
(k) there is no currently proceeding or pending proposals to dissolve or liquidate any of the Ultrapetrol Entities;
(l) the representations and warranties contained in the OFID Loan Agreement and each other Transaction Document are true and correct on and as of the date hereof and on the Effective Date, after giving effect to the Forbearance provided for herein, as the case requires, accounts though made on and as of the Borrower provided date hereof and on the Effective Date, as applicable, other than any such representation or warranty that, by its terms, refers to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrowerspecific date; and
(im) no representation, warranty or statement made or certificate, document or financial statement, proposal including any restructuring plan provided by the Borrowers and the other Obligor pursuant to this Agreement or any other Transaction Document, or in any other document furnished in connection herewith or therewith is untrue or incomplete or inaccurate in any material respect or contains any misrepresentation of a material fact or omits any fact or matter necessary to make any such representation, warranty or statement herein or therein is misleading.
8.2 Each Borrower and each Obligor acknowledges that it has made the representations and warranties under Section 8.1 for the purposes of inducing OFID to agree to the Forbearance. Each of the parties hereto further understands and acknowledges that OFID is relying on, and would not the trustee of any trust and accordingly enters have entered into this Agreement on its own behalf(and would not have agreed to grant the Forbearance) had it not been for the representations and warranties of the Borrowers and the other Obligors set forth herein.
Appears in 1 contract
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower hereby reaffirms all of the representations and warranties set forth in the Loan Documents (as defined in the Loan Agreement, as amended hereby), and further represents and warrants that:
that (a) it is registered as a company under the Act, and has the power to carry on its business and own its property in the manner and in the locations in which such business is presently being carried on or property owned;
(b) it has full power and authority under its constitution:
(i) to enter into this Agreement and the Security;
(ii) to do all things required by this Agreement and the Security;
(iii) all necessary meetings have been held;
(iv) all required resolutions have been passed; and
(v) any other action necessary to authorise the execution and performance delivery of this Agreement and the Security has been taken; this Agreement and the Security will each constitute the legaldo not contravene, valid, binding and enforceable obligation of the Borrower resulting in accordance with their respective terms;
(c) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, neither the execution nor the performance of this Agreement or the Security will:
(i) violate in any respect any statute, decree, rule or regulation or any determination, order or award of any court or any governmental, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers of the Borrower or on the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict with, or result in any an breach of, or require any consent or approval constitute a default under, any mortgagedeed of trust, agreement loan agreement, indenture or other undertaking contract or instrument agreement to which the Borrower is a party or by which is binding on the Borrower or any of its properties may be bound (nor would such execution and delivery constitute such a default with the passage of time or the giving of notice or both), and do not violate or contravene any law, order, decree, rule, regulation or restriction to which the Borrower or the Property is subject; (b) this Agreement constitutes the legal, valid and binding obligations of the Borrower enforceable in accordance with its terms; (c) the execution and delivery of, and performance under, this Agreement are within the Borrower’s assets;
(iv) result power and authority without the joinder or consent of any other party and have been duly authorized by all requisite action, and are not in a mortgagecontravention of any law, charge, lien or other encumbrance over any of the Borrower’s assets; or
(v) cause charter, bylaws or other corporate organizational documents or of any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower is not in default or difficulty under any deedindenture, agreement or other document or obligation undertaking to which it the Borrower is a party or by which it is bound; (d) there exists no default under the Note or any other Loan Document; (e) there are no offsets, claims or in defenses with respect of any financial commitment to the Borrower’s or obligation, including Guarantor’s obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect the ability any of the Borrower to comply with its obligations under this Agreement or Loan Documents (the Security;
“Obligations”); and (df) the Borrower is duly organized and legally existing under the laws of the Commonwealth of Virginia and is duly qualified to do business in full the Commonwealth of Virginia. The Borrower further represents and ongoing compliance with its constitution and all companies and securities legislation and regulationswarrants that, and all other legislation and regulations to which the Borrower may any time and from time to time be subject;
(e) no event of default or event which, with the giving of notice or the lapse of time or both, would be an event of default and, having occurred, is continuing to subsist;
(f) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, there is no litigation suit, judicial or administrative action, claims, investigation, inquiry, proceeding or other proceedings before, or of, any court or governmental authority, agency or other tribunal havedemand pending (or, to the knowledge of the Borrower, been initiated or threatened against the Borrower or any of the Borrower’s assets which would or might have a material adverse effect on the business, assets or financial condition of the Borrower;
(g) the Borrower does not have, and will not during the currency of this Agreement have, any right of set-off, counterclaim, any right to rescind or any other claim with respect to this Agreement by way of cross-action against the Lender;
(h) all of the most recent annual or half-yearly or both, as the case requires, accounts of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrower; andknowledge
(i) the Borrower is not Borrower, or against any other person liable directly or indirectly for the trustee Obligations, or (ii) which affects the Property or the Borrower’s title to the Property, or (iii) which affects the validity, enforceability or priority of any trust of the Loan Documents. The Borrower agrees to indemnify and accordingly enters into this Agreement on its own behalfhold the Lender harmless against any loss, claim, damage, liability or expense (including, without limitation, attorneys’ fees) incurred as a result of any representation or warranty made by the Borrower herein which proves to be untrue or inaccurate in any respect, and any such occurrence shall constitute a default under the Loan Documents.
Appears in 1 contract
Samples: Loan Agreement (Comstock Homebuilding Companies, Inc.)
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants that:
that (a) it is registered as a company in good standing under the Actlaws of the state of its formation, duly qualified to do business and has will remain duly qualified during the power term of each Loan in each state where necessary to carry on its present business and own its property in operations, including the manner and in jurisdiction(s) where the locations in which such business is presently being carried Collateral will be located as specified on or property owned;
each Exhibit A to each Note, except where failure to be so qualified would not have a Material Adverse Effect; (b) it has full power authority to execute and authority under its constitution:
(i) to enter into deliver this Security Agreement and the Security;
(ii) to do all things required by Notes and perform the terms hereof and thereof, and this Security Agreement and the Security;
(iii) all necessary meetings Notes have been held;
(iv) all required resolutions have been passed; and
(v) any other action necessary to authorise the execution duly authorized, executed and performance delivered and constitute valid and binding obligations of this Agreement and the Security has been taken; this Agreement and the Security will each constitute the legal, valid, binding and Borrower enforceable obligation of the Borrower in accordance with their respective terms;
; (c) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, neither the execution nor the performance and delivery of this Security Agreement or and the Security will:
(i) violate in Notes will not contravene any respect any statutelaw, decree, rule or regulation or any determination, order or award of any court or any governmental, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers of the judgment affecting Borrower or on the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict with, or result in any breach of, or require of any consent or approval under, any mortgage, material agreement or other undertaking instrument binding on Borrower; (d) no consent of Borrower's shareholders or instrument to holder of any indebtedness, or filing with, or approval of, any governmental agency or commission, which the Borrower has not already been obtained or performed, as appropriate, is a party or which is binding on condition to the Borrower or any performance of the Borrower’s assets;
(iv) result in a mortgage, charge, lien or other encumbrance over any terms of the Borrower’s assets; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower is not in default or difficulty under any deed, agreement or other document or obligation to which it is a party or by which it is bound, or in respect of any financial commitment or obligation, including obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect the ability of the Borrower to comply with its obligations under this Security Agreement or the Security;
(d) the Borrower is in full and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all other legislation and regulations to which the Borrower may any time and from time to time be subject;
Notes; (e) there is no event of default action or event which, with the giving of notice proceeding pending or the lapse of time or both, would be an event of default and, having occurred, is continuing to subsist;
(f) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, no litigation or administrative or other proceedings before, or of, threatened against Borrower before any court or governmental authority, administrative agency or other tribunal have, to the knowledge of the Borrower, been initiated or threatened against the Borrower or any of the Borrower’s assets which would or might have a material adverse effect Material Adverse Effect on the business, assets or financial condition or operations of Borrower, (f) at the time any Loan is made hereunder, Borrower owns and will keep all of the Borrower;
Collateral free and clear of all liens, claims and encumbrances, and, except for this Security Agreement, there is no deed of trust, mortgage, security agreement or other third party interest against any of the Collateral; (g) at the time any Loan is made hereunder, Borrower does not have, has good and will not during marketable title to the currency of this Agreement have, any right of set-off, counterclaim, any right to rescind or any other claim with respect to this Agreement by way of cross-action against the Lender;
Collateral; (h) at the time any Loan is made hereunder, all Collateral has been received, installed and is ready for use and is satisfactory in all respects for the purposes of the most recent annual or half-yearly or both, as the case requires, accounts of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrowerthis Security Agreement; and
(i) the Borrower Collateral is, and will remain at all times under applicable law, removable personal property, which is not the trustee free and clear of any trust lien or encumbrance except in favor of Lender, notwithstanding the manner in which the Collateral may be attached to any real property; (j) all credit and accordingly enters financial information submitted to Lender herewith or at any other time is and will at the time given be true and correct in all material respects; and (k) the security interest granted to Lender hereunder is a first priority security interest, and (l) on or before January 1, 2000, Borrower's computer system shall be Year 2000 performance compliant and will thus be able to accurately process date data from, into this Agreement on its own behalfand between the twentieth and twenty-first centuries including leap year calculations.
Appears in 1 contract
Samples: Senior Loan and Security Agreement (Egain Communications Corp)
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants to Lender that:
(a) it is registered as a company under It has the full power and authority to execute and deliver this Agreement and to perform its obligations hereunder; the execution, delivery and performance of this Agreement by Borrower has been duly and validly authorized; and all requisite action has been taken by Borrower to make this Agreement valid and binding upon Borrower, enforceable in accordance with its terms;
(b) Its execution of, and compliance with, this Agreement will not result in the breach of any term or provision of the Act, and has or other governing instrument of Borrower or result in the power breach of any term or provision of, or conflict with or constitute a default under, or result in the acceleration of any obligation under, any agreement, indenture or loan or credit agreement or other instrument to which Borrower or the Theater Property is subject, or result in the violation of any law, rule, regulation, order, judgment or decree to which Borrower or the Theater Property is subject;
(c) There is no action, suit, proceeding or investigation pending or, to the best of Borrower’s knowledge, threatened against it which, either in any one instance or in the aggregate, may result in any material adverse change in the business, operations, financial condition, properties or assets of Borrower, or in any material impairment of the right or ability of Borrower to carry on its business and own its property substantially as now conducted, or in any material liability on the manner and in part of Borrower, or which would draw into question the locations in which such business is presently being carried on or property owned;
(b) it has full power and authority under its constitution:
(i) to enter into this Agreement and the Security;
(ii) to do all things required by this Agreement and the Security;
(iii) all necessary meetings have been held;
(iv) all required resolutions have been passed; and
(v) any other action necessary to authorise the execution and performance of this Agreement and the Security has been taken; this Agreement and the Security will each constitute the legal, valid, binding and enforceable obligation of the Borrower in accordance with their respective terms;
(c) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, neither the execution nor the performance validity of this Agreement or the Security will:
(i) violate in any respect any statute, decree, rule or regulation or any determination, order or award of any court action taken or any governmental, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers of the Borrower or on the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict withtaken in connection with the obligations of Borrower contemplated herein, or result in any breach of, or require any consent or approval under, any mortgage, agreement or other undertaking or instrument to which the Borrower is a party or which is binding on the Borrower or any of the Borrower’s assets;
(iv) result in a mortgage, charge, lien or other encumbrance over any of the Borrower’s assets; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to would be exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower is not in default or difficulty under any deed, agreement or other document or obligation to which it is a party or by which it is bound, or in respect of any financial commitment or obligation, including obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect impair materially the ability of the Borrower to comply with its obligations perform under the terms of this Agreement or the SecurityAgreement;
(d) the Borrower is It does not believe, nor does it have any reason or cause to believe, that it cannot perform each and every covenant contained in full and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all other legislation and regulations to which the Borrower may any time and from time to time be subjectthis Agreement;
(e) To the best of Borrower’s knowledge, no event approval, authorization, order, license or consent of, or registration or filing with, any governmental authority or other person, and no approval, authorization or consent of default or event which, any other party is required in connection with the giving of notice or the lapse of time or both, would be an event of default this Agreement which has not been obtained; and, having occurred, is continuing to subsist;
(f) except as disclosed in writing to the Lender This Agreement constitutes a valid, legal and dispensed with in writing by the Lender, no litigation or administrative or other proceedings before, or of, any court or governmental authority, agency or other tribunal have, to the knowledge binding obligation of the Borrower, been initiated or threatened enforceable against it in accordance with the Borrower or any of the Borrower’s assets which would or might have a material adverse effect on the business, assets or financial condition of the Borrower;
(g) the Borrower does not have, and will not during the currency of this Agreement have, any right of set-off, counterclaim, any right to rescind or any other claim with respect to this Agreement by way of cross-action against the Lender;
(h) all of the most recent annual or half-yearly or both, as the case requires, accounts of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrower; and
(i) the Borrower is not the trustee of any trust and accordingly enters into this Agreement on its own behalfterms hereof.
Appears in 1 contract
Samples: Tax Regulatory Agreement
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants that:
that (a) it is registered as a company in good standing under the Actlaws of the state of its formation, duly qualified to do business and has will remain duly qualified during the power term of each Loan in each state where necessary to carry on its present business and own its property in operations, including the manner and in jurisdiction(s) where the locations in which such business is presently being carried Collateral will be located as specified on or property owned;
each Exhibit A to each Note, except where failure to be so qualified would not have a Material Adverse Effect; (b) it has full power authority to execute and authority under its constitution:
(i) to enter into deliver this Security Agreement and the Security;
(ii) to do all things required by Notes and perform the terms hereof and thereof, and this Security Agreement and the Security;
(iii) all necessary meetings Notes have been held;
(iv) all required resolutions have been passed; and
(v) any other action necessary to authorise the execution duly authorized, executed and performance delivered and constitute valid and binding obligations of this Agreement and the Security has been taken; this Agreement and the Security will each constitute the legal, valid, binding and Borrower enforceable obligation of the Borrower in accordance with their respective terms;
; (c) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, neither the execution nor the performance and delivery of this Security Agreement or and the Security will:
(i) violate in Notes will not contravene any respect any statutelaw, decree, rule or regulation or any determination, order or award of any court or any governmental, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers of the judgment affecting Borrower or on the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict with, or result in any breach of, or require of any consent or approval under, any mortgage, material agreement or other undertaking instrument binding on Borrower; (d) no consent of Borrower's shareholders or instrument to holder of any indebtedness, or filing with, or approval of, any governmental agency or commission, which the Borrower has not already been obtained or performed, as appropriate, is a party or which is binding on condition to the Borrower or any performance of the Borrower’s assets;
(iv) result in a mortgage, charge, lien or other encumbrance over any terms of the Borrower’s assets; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower is not in default or difficulty under any deed, agreement or other document or obligation to which it is a party or by which it is bound, or in respect of any financial commitment or obligation, including obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect the ability of the Borrower to comply with its obligations under this Security Agreement or the Security;
(d) the Borrower is in full and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all other legislation and regulations to which the Borrower may any time and from time to time be subject;
Notes; (e) there is no event of default action or event which, with the giving of notice proceeding pending or the lapse of time or both, would be an event of default and, having occurred, is continuing to subsist;
(f) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, no litigation or administrative or other proceedings before, or of, threatened against Borrower before any court or governmental authority, administrative agency or other tribunal have, to the knowledge of the Borrower, been initiated or threatened against the Borrower or any of the Borrower’s assets which would or might have a material adverse effect Material Adverse Effect on the business, assets or financial condition or operations of Borrower; (f) at the Borrower;
(g) the time any Loan is made hereunder, Borrower does not have, owns and will not during the currency of this Agreement have, any right of set-off, counterclaim, any right to rescind or any other claim with respect to this Agreement by way of cross-action against the Lender;
(h) keep all of the most recent annual or half-yearly or both, as the case requires, accounts Collateral free and clear of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrower; and
(i) the Borrower is not the trustee of any trust and accordingly enters into this Agreement on its own behalf.all liens,
Appears in 1 contract
Samples: Senior Loan and Security Agreement (Resourcephoenix Com)
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower As a material inducement to Administrative Agent and the Lenders to execute and deliver this Amendment, each Obligated Party represents and warrants that:to Administrative Agent and the Lenders (with the knowledge and
(a) it is registered as a company under the ActThe execution, delivery, and has the power to carry on its business and own its property in the manner and in the locations in which performance by such business is presently being carried on or property owned;
(b) it has full power and authority under its constitution:
(i) to enter into Person of this Agreement Amendment and the Security;
(ii) Joinders to do all things required by this Agreement the extent party thereto and compliance with the Security;
(iii) all necessary meetings terms and provisions hereof and thereof have been held;
(iv) duly authorized by all required resolutions have been passed; and
(v) any other requisite action necessary to authorise on the execution part of such Person and performance of this Agreement do not and the Security has been taken; this Agreement and the Security will each constitute the legal, valid, binding and enforceable obligation of the Borrower in accordance with their respective terms;
(c) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, neither the execution nor the performance of this Agreement or the Security will:
not (i) violate in any respect any statute, decree, rule or regulation or any determination, order or award of any court or any governmental, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers of the Borrower or on the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict with, or result in any a breach of, or require any consent under (A) the Constituent Documents of such Person, (B) any applicable law, rule, or approval underregulation or any order, writ, injunction, or decree of any mortgageGovernmental Authority or arbitrator which could result in a Material Adverse Event, or (C) any agreement or other undertaking or instrument to which the Borrower is a party or which is binding on the Borrower or any of the Borrower’s assets;
(iv) result in a mortgage, charge, lien or other encumbrance over any of the Borrower’s assets; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower is not in default or difficulty under any deed, agreement or other document or obligation to which it such Person is a party or by which it or any of its Properties is boundbound or subject which could result in a Material Adverse Event, or (i) constitute a default under any such agreement or instrument which could result in respect a Material Adverse Event, or result in the creation or imposition of any financial commitment or obligation, including obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect the ability Lien upon any of the Borrower revenues or assets of such Person.
(b) This Amendment and the Joinders constitute legal, valid, and binding obligations of such Person to comply the extent that it is a party thereto, enforceable against such Person in accordance with its obligations under their respective terms, except as limited by Debtor Relief Laws.
(c) No authorization, approval, or consent of, and no filing or registration with, any Governmental Authority or third party is or will be necessary for the execution, delivery, or performance by such Person of this Agreement Amendment or the Security;Joinders to the extent party thereto or the validity or enforceability hereof or thereof.
(d) All of the Borrower is representations and warranties contained in full Article 6 of the Credit Agreement are true and ongoing compliance correct on and as of the Fifth Amendment Execution Date with its constitution the same force and all companies effect as if such representations and securities legislation warranties had been made on and regulationsas of the Fifth Amendment Execution Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date, and all other legislation except that for purposes of this Section 7(d), the representations and regulations warranties contained in Section 6.2 of the Credit Agreement shall be deemed to which refer to the Borrower may any time most recent statements furnished pursuant to Section 7.1(a) and from time to time be subject;(b) of the Credit Agreement, respectively.
(e) no event At the time of default or event which, with the and after giving of notice or the lapse of time or both, would be an event of default and, having occurred, is continuing effect to subsist;
(f) except as disclosed in writing to the Lender and dispensed with in writing by the Lenderthis Amendment, no litigation or administrative or other proceedings before, or of, any court or governmental authority, agency or other tribunal have, to the knowledge of the Borrower, been initiated or threatened against the Borrower or any of the Borrower’s assets which would or might have a material adverse effect on the business, assets or financial condition of the Borrower;
(g) the Borrower does not have, and will not during the currency of this Agreement have, any right of set-off, counterclaim, any right to rescind or any other claim with respect to this Agreement by way of cross-action against the Lender;
(h) all of the most recent annual or half-yearly or both, as the case requires, accounts of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrower; and
(i) the Borrower is not the trustee of any trust and accordingly enters into this Agreement on its own behalfDefault exists.
Appears in 1 contract
BORROWER'S REPRESENTATIONS AND WARRANTIES. The To induce the Lender to lend monies pursuant to the Note, the Borrower represents and warrants to Lender that:
(a) it The Borrower is registered as a company under duly authorized to execute and deliver this Agreement, the Act, Note and has the power Management Agreement and to carry on perform its business obligations hereunder and own its property in the manner and in the locations in which such business is presently being carried on or property ownedthereunder;
(b) it has full power and authority under its constitution:
(i) to enter into this Agreement and the Security;
(ii) to do all things required by this Agreement and the Security;
(iii) all necessary meetings have been held;
(iv) all required resolutions have been passed; and
(v) any other action necessary to authorise the execution and performance delivery by the Borrower of this Agreement Agreement, the Note and the Security has been taken; this Agreement Management Agreement, and the Security performance by the Borrower of its obligations hereunder and thereunder do not and will each constitute the legal, valid, binding and enforceable obligation not conflict with any provision of the Borrower in accordance with their respective termscharter or by-laws of the Borrower;
(c) except as disclosed this Agreement, the Note and the Management Agreement when duly executed and delivered, will be the legal, valid and binding obligation of Borrower enforceable against it in writing to the Lender and dispensed accordance with in writing by the Lender, neither its terms;
(d) Neither the execution and delivery of this Agreement, the Note or the Management Agreement nor the performance by Borrower of this Agreement its obligations hereunder and thereunder will result in the creation or the Security will:
(i) violate in any respect any statute, decree, rule or regulation or any determination, order or award imposition of any court lien, charge or encumbrance of any governmental, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on nature whatsoever upon any of the powers property or assets of the Borrower Borrower, except as contemplated or on the Borrower’s right provided herein or ability to exercise therein, and such powers to be exceeded;
(iii) execution, delivery and performance will not conflict with, with or result in the breach or violation of or a default (with due notice or passing of time or both) under the terms, conditions or provisions of (a) any breach ofindenture, evidence of indebtedness, loan or financing agreement, or require any consent or approval under, any mortgage, other agreement or other undertaking or instrument of whatever nature to which the Borrower is a party or by which is binding on the Borrower or any of the Borrower’s assets;
(iv) result in a mortgage, charge, lien or other encumbrance over any of the Borrower’s assets; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower is not in default bound; or difficulty under (b) any deed, agreement or other document or obligation to which it is a party or by which it is bound, or in respect provision of any financial commitment existing law, rule, regulation, order, writ, injunction or obligationdecree of any court or federal, including obligations under guarantees state, county or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect the ability of the Borrower to comply with its obligations under this Agreement or the Security;
(d) the Borrower is in full and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all other legislation and regulations municipal governmental authority to which the Borrower may any time and from time to time be is subject;
(e) no event of default or event whichEach representation and warranty contained in Sections 6.4, with the giving of notice or the lapse of time or both6.5, would be an event of default and, having occurred, is continuing to subsist;
(f) except as disclosed in writing to the Lender 6.6 and dispensed with in writing by the Lender, no litigation or administrative or other proceedings before, or of, any court or governmental authority, agency or other tribunal have, to the knowledge 6.7 of the Borrower, been initiated or threatened against the Borrower or any of the Borrower’s assets which would or might have a material adverse effect on the business, assets or financial condition of the Borrower;
(g) the Borrower does not have, and will not during the currency of this Management Agreement have, any right of set-off, counterclaim, any right to rescind or any other claim with respect to this Agreement by way of cross-action against the Lender;
(h) all of the most recent annual or half-yearly or both, as the case requires, accounts of the Borrower provided to the Lender provide a is true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrower; and
(i) the Borrower is not the trustee of any trust and accordingly enters into this Agreement on its own behalfcorrect.
Appears in 1 contract
Samples: Revolving Credit Agreement (Integrated Health Services Inc)
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants thatas of the date of execution and delivery of this Agreement and as of the date of the Loan as follows:
(a) it Borrower is registered as a company corporation organized under the Actlaws of the State of Florida, and has having a principal place of business at 7100 Xxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxx Xxxxxx, Xxxxxxxx, 00000, xuly organized, validly existing under the power to carry on laws of the jurisdiction of its business and own its property in the manner and in the locations in which such business is presently being carried on or property owned;
(b) it has organization with full power and authority under its constitution:
(i) to enter into and to pay and perform its obligations under this Agreement and the Security;
other Loan Documents, and is duly qualified or licensed in all other jurisdictions where its failure to so qualify would adversely affect the conduct of its business or its ability to perform any of its obligations under or the enforceability of this Agreement; (iib) to do all things required by this Agreement and the Security;
(iii) all necessary meetings other Loan Documents have been held;
(iv) all required resolutions have been passed; and
(v) any other action necessary to authorise the execution duly authorized, executed and performance of this Agreement and the Security has been taken; this Agreement and the Security will each constitute the legaldelivered by Borrower, are valid, legal and binding and obligations of Borrower, are enforceable obligation of the against Borrower in accordance with their respective terms;
(c) except as disclosed in writing to the Lender terms and dispensed with in writing by the Lender, neither the execution nor the performance do not and will not contravene any provisions of this Agreement or the Security will:
(i) violate in any respect any statute, decree, rule or regulation or any determination, order or award of any court or any governmental, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers of the Borrower or on the constitute a default under Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict with, or result in any breach of, or require any consent or approval underorganization documents, any mortgage, agreement or other undertaking or instrument to which the Borrower is a party or which is binding on the Borrower or any of the Borrower’s assets;
(iv) result in a mortgage, charge, lien or other encumbrance over any of the Borrower’s assets; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower is not in default or difficulty under any deed, agreement or other document or obligation to which it is a party or by which it or any of its property is bound, or in respect any applicable law, regulation or order of any financial commitment or obligation, including obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect governmental authority; (c) the ability proceeds of the Borrower Loan will be used exclusively to comply with its obligations under this Agreement or finance the Security;
acquisition of the Equipment; (d) the Borrower is in full (or upon the acquisition thereof will be) the sole owner of, and ongoing compliance with its constitution has good and all companies and securities legislation and regulationsmarketable title to, and all other legislation necessary rights in, and regulations power to which transfer pursuant to the Borrower may any time terms hereof, all of the Equipment, free and from time to time be subject;
clear of all liens and encumbrances (excepting only the Lien of the Lender), and upon the filing with the Secretary of State of Florida of a Uniform Commercial Code financing statement naming Lender, as secured party, Borrower, as debtor, and the Equipment as the collateral, Lender shall have a valid, perfected, first priority security interest in the Equipment; (e) no event of default approval of, or event whichfiling with, any governmental authority or other person is required in connection with the giving of notice Borrower’s entering into, or the lapse payment or performance of time or bothits obligations under, would be an event of default and, having occurred, is continuing to subsist;
this Agreement and the other Loan Documents; (f) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, there are no litigation suits or administrative or other proceedings before, or of, any court or governmental authority, agency or other tribunal havepending or, to the knowledge of the Borrower, threatened, before any court or governmental agency against or affecting Borrower which, if decided adversely to Borrower, would adversely affect the conduct of its business or its ability to perform any of its obligations under or the enforceability of this Agreement and the other Loan Documents; (g) the financial statements of Borrower which have been initiated delivered to Lender have been prepared in accordance with generally accepted accounting principles consistently applied, and fairly present Borrower’s financial condition and the results of its operations as of the date of and for the period covered by such statements (subject to customary year-end adjustments), and since the date of such statements there has been no adverse change in such financial condition or threatened against operations; (h) Borrower’s full and correct legal name is set forth on the signature page hereof and Borrower will not change its legal name or the location of its jurisdiction of organization without giving to Lender at least thirty (30) days prior written notice thereof; (i) the Equipment will always be used for business or commercial, and not personal purposes; (j) Borrower is not in default under any obligation for borrowed money, for the deferred purchase price of property or any of lease agreement which, either individually or in the Borrower’s assets which aggregate, would or might have a material an adverse effect on the business, assets or financial condition of its business or its ability to perform any of its obligations under or the Borrower;
enforceability of this Agreement; (gk) under the laws of the jurisdiction(s) in which the Equipment is to be located, the Equipment consists solely of personal property and not fixtures; and (l) Borrower does not haveis, and will not during remain, in full compliance with all laws and regulations applicable to it including without limitation, (i) ensuring that no person who owns a controlling interest in or otherwise controls Borrower is or shall be (A) listed on the currency Specially Designated National and Blocked Person List maintained by the Office of this Agreement haveForeign Assets Control (“OFAC”), Department of the Treasury and/or any other similar lists maintained by OFAC pursuant to any authorizing statute, executive order or regulations or (C) a person designated under Section 1(b), (c) or (d) of Executive Order No. 13224 (September 23, 2001), any right of set-off, counterclaim, any right to rescind related enabling legislation or any other claim similar executive order and (ii) compliance with respect to all applicable Bank Secrecy Act (“BSA”) laws, regulations and government guidance on BSA compliance and on the prevention and detection of money laundering violations. Borrower’s representations and warranties shall survive termination or expiration of this Agreement by way of cross-action against the Lender;
(h) all of the most recent annual or half-yearly or both, as the case requires, accounts of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrower; and
(i) the Borrower is not the trustee of any trust and accordingly enters into this Agreement on its own behalfAgreement.
Appears in 1 contract
Samples: Loan and Security Agreement (Industrial Services of America Inc /Fl)
BORROWER'S REPRESENTATIONS AND WARRANTIES. The In order to induce the Lenders to enter into this Amendment and to amend the Credit Agreement in the manner provided herein, the Borrower represents and warrants thatto each Lender that the following statements are true, correct and complete:
(a) it is registered as a company under the ActAuthorization, Validity, and Enforceability of this Amendment. The Borrower has the power to carry on its business and own its property in the manner and in the locations in which such business is presently being carried on or property owned;
(b) it has full corporate power and authority under to execute and deliver this Amendment and to perform the Credit Agreement as amended by this Amendment (the “Amended Agreement”). The Borrower has taken all necessary corporate action (including, without limitation, obtaining approval of its constitution:
(istockholders if necessary) to enter into authorize its execution and delivery of this Agreement Amendment and the Security;
(ii) to do all things required performance of the Amended Agreement. This Amendment has been duly executed and delivered by the Borrower, and this Agreement Amendment and the Security;
(iii) all necessary meetings have been held;
(iv) all required resolutions have been passed; and
(v) any other action necessary to authorise the execution and performance of this Amended Agreement and the Security has been taken; this Agreement and the Security will each constitute the legal, valid, valid and binding and enforceable obligation obligations of the Borrower Borrower, enforceable against it in accordance with their respective terms;
(c) , except as disclosed enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in writing to equity or at law). The Borrower’s execution and delivery of this Amendment and the Lender and dispensed with in writing performance by the LenderBorrower of the Amended Agreement do not and will not conflict with, neither or constitute a violation or breach of, or constitute a default under, or result in the execution nor the performance of this Agreement creation or the Security will:
(i) violate in any respect any statute, decree, rule or regulation or any determination, order or award imposition of any court or any governmental, judicial or public body or authority applicable to Lien upon the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers property of the Borrower or on any of its Subsidiaries by reason of the Borrower’s right or ability to exercise such powers to be exceeded;
terms of (iiii) conflict withany contract, or result in any breach of, or require any consent or approval under, any mortgage, agreement or other undertaking Lien, lease, agreement, indenture, or instrument to which the Borrower is a party or which is binding on upon it, (ii) any Requirement of Law applicable to the Borrower or any of the Borrower’s assets;
(iv) result in a mortgage, charge, lien or other encumbrance over any of the Borrower’s assets; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower is not in default or difficulty under any deed, agreement or other document or obligation to which it is a party or by which it is boundits Subsidiaries, or in respect of any financial commitment or obligation, including obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect the ability of the Borrower to comply with its obligations under this Agreement or the Security;
(diii) the Borrower is in full and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all other legislation and regulations to which the Borrower may any time and from time to time be subject;
(e) no event certificate or articles of default incorporation or event which, with the giving bylaws of notice or the lapse of time or both, would be an event of default and, having occurred, is continuing to subsist;
(f) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, no litigation or administrative or other proceedings before, or of, any court or governmental authority, agency or other tribunal have, to the knowledge of the Borrower, been initiated or threatened against the Borrower or any of the Borrower’s assets which would or might have a material adverse effect on the business, assets or financial condition of the Borrower;
(g) the Borrower does not have, and will not during the currency of this Agreement have, any right of set-off, counterclaim, any right to rescind or any other claim with respect to this Agreement by way of cross-action against the Lender;
(h) all of the most recent annual or half-yearly or both, as the case requires, accounts of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrower; and
(i) the Borrower is not the trustee of any trust and accordingly enters into this Agreement on its own behalfSubsidiaries.
Appears in 1 contract
BORROWER'S REPRESENTATIONS AND WARRANTIES. The To induce the Lender to lend monies pursuant to the Note, the Borrower represents and warrants to Lender that:
(a) it The Borrower is registered as a company under duly authorized to execute and deliver this Agreement, the Act, Note and has the power Management Agreement and to carry on perform its business obligations hereunder and own its property in the manner and in the locations in which such business is presently being carried on or property ownedthereunder;
(b) it has full power and authority under its constitution:
(i) to enter into this Agreement and the Security;
(ii) to do all things required by this Agreement and the Security;
(iii) all necessary meetings have been held;
(iv) all required resolutions have been passed; and
(v) any other action necessary to authorise the execution and performance delivery by the Borrower of this Agreement Agreement, the Note and the Security has been taken; this Agreement Management Agreement, and the Security performance by the Borrower of its obligations hereunder and thereunder do not and will each constitute the legal, valid, binding and enforceable obligation not conflict with any provision of the Borrower in accordance with their respective termscharter or by-laws of the Borrower;
(c) except as disclosed this Agreement, the Note and the Management Agreement when duly executed and delivered, will be the legal, valid and binding obligation of Borrower enforceable against it in writing to the Lender and dispensed accordance with in writing by the Lender, neither its terms;
(d) Neither the execution and delivery of this Agreement, the Note or the Management Agreement nor the performance by Borrower of this Agreement its obligations hereunder and thereunder will result in the creation or the Security will:
(i) violate in any respect any statute, decree, rule or regulation or any determination, order or award imposition of any court lien, charge or encumbrance of any governmental, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on nature whatsoever upon any of the powers property or assets of the Borrower Borrower, except as contemplated or on the Borrower’s right provided herein or ability to exercise therein, and such powers to be exceeded;
(iii) execution, delivery and performance will not conflict with, with or result in the breach or violation of or a default (with due notice or passing of time or both) under the terms, conditions or provisions of (a) any breach ofindenture, evidence of indebtedness, loan or financing agreement, or require any consent or approval under, any mortgage, other agreement or other undertaking or instrument of whatever nature to which the Borrower is a party or by which is binding on the Borrower or any of the Borrower’s assets;
(iv) result in a mortgage, charge, lien or other encumbrance over any of the Borrower’s assets; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower is not in default bound; or difficulty under (b) any deed, agreement or other document or obligation to which it is a party or by which it is bound, or in respect provision of any financial commitment existing law, rule, regulation, order, writ, injunction or obligationdecree of any court or federal, including obligations under guarantees state, county or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect the ability of the Borrower to comply with its obligations under this Agreement or the Security;
(d) the Borrower is in full and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all other legislation and regulations municipal governmental authority to which the Borrower may any time and from time to time be is subject;
(e) no event Each representation and warranty contained in Sections 6.4, 6.5, 6.6 and 6.7 of default or event which, with the giving of notice or the lapse of time or both, would be an event of default and, having occurred, Management Agreement is continuing to subsist;true and correct.
(f) except as disclosed No person is entitled to receive from the Borrower any brokerage commission, finder's fee or similar fee or payment in writing to connection with the Lender and dispensed with in writing by the Lender, no litigation or administrative or other proceedings before, or of, any court or governmental authority, agency or other tribunal have, to the knowledge consummation of the Borrowertransactions contemplated by this Agreement, been initiated the Note or threatened against the Borrower or any of the Borrower’s assets which would or might have a material adverse effect on the business, assets or financial condition of the Borrower;
(g) the Borrower does not have, and will not during the currency of this Agreement have, any right of set-off, counterclaim, any right to rescind or any other claim with respect to this Agreement by way of cross-action against the Lender;
(h) all of the most recent annual or half-yearly or both, as the case requires, accounts of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrower; and
(i) the Borrower is not the trustee of any trust and accordingly enters into this Agreement on its own behalfManagement Agreement.
Appears in 1 contract
Samples: Revolving Credit Agreement (Community Care of America Inc)
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants to the Lenders (with the knowledge and intent that the Lenders are relying upon the same in entering into this Amendment) that as of the Increase and Amendment Effective Date and as of the date of its execution of this Amendment, before and after giving effect to the increase in Commitments described herein, that:
(ai) it is registered the representations and warranties set forth in the Credit Agreement are true and correct in all material respects as though made on the date hereof, except to the extent that any of them speak to a company under the Actdifferent specific date, in which case they are true and correct as of such earlier date, and has the power to carry on its business and own its property in the manner and in the locations in which such business is presently being carried on (ii) no Default or property ownedEvent of Default exists;
(b) it has full power the execution, delivery and authority under its constitution:
(i) to enter into performance by the Borrower of this Agreement and the Security;
(ii) to do all things required Amendment have been duly authorized by this Agreement and the Security;
(iii) all necessary meetings have been held;
(iv) all required resolutions have been passed; and
(v) any other action necessary to authorise corporate action, and do not and will not contravene the execution and performance terms of this Agreement and the Security has been taken; this Agreement and the Security will each constitute the legal, valid, binding and enforceable obligation of the Borrower in accordance with their respective terms;
(c) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, neither the execution nor the performance of this Agreement or the Security will:
(i) violate in any respect any statute, decree, rule or regulation or any determination, order or award of any court or any governmental, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers of the Borrower or on the Borrower’s right organizational documents or ability to exercise such powers to be exceeded;
(iii) conflict with, any Law or result in any breach of, indenture or require any consent loan or approval under, any mortgage, credit agreement or any other undertaking material agreement or instrument to which the Borrower is a party or which is binding on the Borrower or any of the Borrower’s assets;
(iv) result in a mortgage, charge, lien or other encumbrance over any of the Borrower’s assets; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower is not in default or difficulty under any deed, agreement or other document or obligation to which it is a party or by which it is boundbound or to which it or its properties are subject;
(c) no authorizations, approvals or consents of, and no filings or registrations with, any Governmental Authority or any other person are necessary for the execution, delivery or performance by the Borrower of this Amendment or for the validity or enforceability thereof, or in respect of any financial commitment or obligation, including obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect for the ability borrowing by the Borrower of the Borrower to comply full amount of the Commitments as increased hereby, other than routine informational filings with its obligations under this Agreement or the Security;SEC and/or other Governmental Authorities; and
(d) this Amendment constitutes the Borrower is in full legal, valid and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all other legislation and regulations to which the Borrower may any time and from time to time be subject;
(e) no event of default or event which, with the giving of notice or the lapse of time or both, would be an event of default and, having occurred, is continuing to subsist;
(f) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, no litigation or administrative or other proceedings before, or of, any court or governmental authority, agency or other tribunal have, to the knowledge binding obligations of the Borrower, been initiated or threatened enforceable against the Borrower or any of the Borrower’s assets which would or might have a material adverse effect on the business, assets or financial condition of the Borrower;
(g) the Borrower does not have, and will not during the currency of this Agreement have, any right of set-off, counterclaim, any right to rescind or any other claim in accordance with respect to this Agreement by way of cross-action against the Lender;
(h) all of the most recent annual or half-yearly or both, as the case requires, accounts of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower andits terms, except as otherwise disclosed limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability, and by judicial discretion regarding the enforcement of or any applicable laws affecting remedies (whether considered in writing to the Lender and dispensed with a court of law or a proceeding in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrower; and
(i) the Borrower is not the trustee of any trust and accordingly enters into this Agreement on its own behalfequity).
Appears in 1 contract
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants thatas of the date of execution and delivery of this Agreement and as of the date of each Advance as follows:
(a) it Borrower is registered as a limited liability company organized under the Actlaws of the State of Nevada, and has having a principal place of business at 00000 Xxxxxxxxxxxx Xxxxx, Xxxx Xxxxxx, Xxxxxxxxxx, 00000, duly organized, validly existing under the power to carry on laws of the jurisdiction of its business and own its property in the manner and in the locations in which such business is presently being carried on or property owned;
(b) it has organization with full power and authority under its constitution:
(i) to enter into and to pay and perform its obligations under this Agreement and the Security;
other Loan Documents, and is duly qualified or licensed in all other jurisdictions where its failure to so qualify would adversely affect the conduct of its business or its ability to perform any of its obligations under or the enforceability of this Agreement; (iib) to do all things required by this Agreement and the Security;
(iii) all necessary meetings other Loan Documents have been held;
(iv) all required resolutions have been passed; and
(v) any other action necessary to authorise the execution duly authorized, executed and performance of this Agreement and the Security has been taken; this Agreement and the Security will each constitute the legaldelivered by Borrower, are valid, legal and binding and obligations of Borrower, are enforceable obligation of the against Borrower in accordance with their respective terms;
(c) except as disclosed in writing to the Lender terms and dispensed with in writing by the Lender, neither the execution nor the performance do not and will not contravene any provisions of this Agreement or the Security will:
(i) violate in any respect any statute, decree, rule or regulation or any determination, order or award of any court or any governmental, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers of the Borrower or on the constitute a default under Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict with, or result in any breach of, or require any consent or approval underorganization documents, any mortgage, agreement or other undertaking or instrument to which the Borrower is a party or which is binding on the Borrower or any of the Borrower’s assets;
(iv) result in a mortgage, charge, lien or other encumbrance over any of the Borrower’s assets; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower is not in default or difficulty under any deed, agreement or other document or obligation to which it is a party or by which it or any of its property is bound, or in respect any applicable law, regulation or order of any financial commitment or obligation, including obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely governmental authority; (c) the proceeds of each Advance will be used exclusively to adversely affect finance the ability acquisition of the Borrower to comply with its obligations under this Agreement or the Security;
Equipment; (d) the Borrower is in full (or upon the acquisition thereof will be) the sole owner of, and ongoing compliance with its constitution has good and all companies and securities legislation and regulationsmarketable title to, and all other legislation necessary rights in, and regulations power to which transfer pursuant to the Borrower may any time terms hereof, all of the Equipment, free and from time to time be subject;
clear of all liens and encumbrances (excepting only the Lien of the Lender), and upon the filing with the Secretary of State of Nevada of a Uniform Commercial Code financing statement naming Lender, as secured party, Borrower, as debtor, and the Equipment as the collateral, Lender shall have a valid, perfected, first priority security interest in the Equipment; (e) no event of default approval of, or event whichfiling with, any governmental authority or other person is required in connection with the giving of notice Borrower’s entering into, or the lapse payment or performance of time or bothits obligations under, would be an event of default and, having occurred, is continuing to subsist;
this Agreement and the other Loan Documents; (f) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, there are no litigation suits or administrative or other proceedings before, or of, any court or governmental authority, agency or other tribunal havepending or, to the knowledge of the Borrower, threatened, before any court or governmental agency against or affecting Borrower which, if decided adversely to Borrower, would adversely affect the conduct of its business or its ability to perform any of its obligations under or the enforceability of this Agreement and the other Loan Documents; (g) the financial statements of Borrower which have been initiated delivered or threatened against made publicly available to Lender have been prepared in accordance with generally accepted accounting principals consistently applied, and fairly present Borrower’s financial condition and the results of its operations as of the date of and for the period covered by such statements (subject to customary year-end adjustments), and since the date of such statements there has been no adverse change in such financial condition or operations; (h) Borrower’s full and correct legal name is set forth on the signature page hereof and Borrower will not change its legal name or the location of its jurisdiction of organization without giving to Lender at least thirty (30) days prior written notice thereof; (i) the Equipment will always be used for business or commercial, and not personal purposes; (j) Borrower is not in default under any obligation for borrowed money, for the deferred purchase price of property or any of lease agreement which, either individually or in the Borrower’s assets which aggregate, would or might have a material an adverse effect on the business, assets or financial condition of its business or its ability to perform any of its obligations under or the Borrower;
enforceability of this Agreement; (gk) under the laws of the jurisdiction(s) in which the Equipment is to be located, the Equipment consists solely of personal property and not fixtures; and (l) Borrower does not haveis, and will not during remain, in full compliance with all laws and regulations applicable to it including without limitation, (i) ensuring that no person who owns a controlling interest in or otherwise controls Borrower is or shall be (A) listed on the currency Specially Designated National and Blocked Person List maintained by the Office of this Agreement haveForeign Assets Control (“OFAC”), Department of the Treasury and/or any other similar lists maintained by OFAC pursuant to any authorizing statute, executive order or regulations or (C) a person designated under Section 1(b), (c) or (d) of Executive Order No. 13224 (September 23, 2001), any right of set-off, counterclaim, any right to rescind related enabling legislation or any other claim similar executive order and (ii) compliance with respect to all applicable Bank Secrecy Act (“BSA”) laws, regulations and government guidance on BSA compliance and on the prevention and detection of money laundering violations. Borrower’s representations and warranties shall survive termination or expiration of this Agreement by way of cross-action against the Lender;
(h) all of the most recent annual or half-yearly or both, as the case requires, accounts of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrower; and
(i) the Borrower is not the trustee of any trust and accordingly enters into this Agreement on its own behalfAgreement.
Appears in 1 contract
Samples: Master Loan and Security Agreement (Primoris Services CORP)
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower 8.1 Each Obligor represents and warrants thatto OFID that each of the following statements is true, accurate and complete as of the date hereof and as of the Effective Date:
(a) it is registered as a company under has carefully read and fully understands all of the Act, terms and has the power to carry on its business and own its property in the manner and in the locations in which such business is presently being carried on or property ownedconditions of this Agreement;
(b) it has consulted with, or has had a full power and authority under fair opportunity to consult with, an attorney of its constitution:choosing regarding the terms and conditions of this Agreement;
(c) it had a full and fair opportunity to participate in the drafting of this Agreement;
(d) it is freely, voluntarily and knowingly entering into this Agreement;
(e) in entering into this Agreement, it has not relied upon (i) to enter into any representation or warranty of OFID; or (ii) any covenant of OFID that is not set forth in this Agreement and the SecurityAgreement;
(iif) to do all things required by this Agreement and the Security;
(iii) all necessary meetings have been held;
(iv) all required resolutions have been passed; and
(v) any other action necessary to authorise the execution and performance delivery of this Agreement and the Security has been taken; performance by it of its obligations under this Agreement and the Security will each constitute the legal, valid, binding and enforceable obligation of the Borrower in accordance with their respective terms;
(c) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, neither the execution nor the performance of this Agreement or the Security will:
(i) violate in any respect any statute, decree, rule or regulation or any determination, order or award of any court or any governmental, judicial or public body or authority applicable to the Borrower;
are within such its powers; (ii) cause any limitation, whether imposed have been duly authorized by state, decree, rule or regulation on any of the powers of the Borrower or on the Borrower’s right or ability to exercise such powers to be exceeded;
all necessary action; (iii) do not and will not contravene or conflict with, with any provision of law or result in any breach of, or its charter and other constitutional documents; (iv) does not require any consent or approval underof, notice to, or any other action by or before, any mortgageAuthority, except such as have been obtained or made and are in full force and effect; (v) will not violate or result in a default or event of default under any material indenture, agreement or other undertaking instrument binding upon it or instrument its assets, or give rise to which the Borrower is a party or which is binding on the Borrower or right thereunder to require any of the Borrower’s assets;
(iv) result in a mortgage, charge, lien or other encumbrance over any of the Borrower’s assets; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise payment to be exceeded;
made by it including under the Indenture, the Offshore Facility or the IFC Loan Agreement; and (vi) except as disclosed will not result in writing to the Lender and dispensed with in writing by the Lender, the Borrower is not in default creation or difficulty under any deed, agreement or other document or obligation to which it is a party or by which it is bound, or in respect imposition of any financial commitment or obligation, including obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect the ability of the Borrower to comply with its obligations under this Agreement or the Security;
(d) the Borrower is in full and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all other legislation and regulations to which the Borrower may any time and from time to time be subject;
(e) no event of default or event which, with the giving of notice or the lapse of time or both, would be an event of default and, having occurred, is continuing to subsist;
(f) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, no litigation or administrative or other proceedings before, or of, any court or governmental authority, agency or other tribunal have, to the knowledge of the Borrower, been initiated or threatened against the Borrower or Lien on any of its asset, except Liens created under the Borrower’s assets which would or might have a material adverse effect on the business, assets or financial condition of the BorrowerTransaction Documents;
(g) the Borrower does not have, and will not during the currency of this Agreement haveconstitutes its legal, any right of set-offvalid and binding obligation and is enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, counterclaiminsolvency, any right reorganization, moratorium or similar laws now or hereafter in effect relating to rescind creditors' rights generally or any other claim with respect to this Agreement as such enforcement may be limited by way of cross-action against the Lenderequitable principles generally;
(h) all it understands the temporary nature of the most recent annual Forbearance and of the other provisions of this Agreement in its favour and recognizes that OFID has no obligation to expand or half-yearly extend the Forbearance or bothany such other provision (if any);
(i) no Event of Default (other than the Current Events of Default) exists;
(j) no Termination Event has occurred and is continuing;
(k) there is no currently proceeding or pending proposals to dissolve or liquidate any of the Ultrapetrol Entities;
(l) the representations and warranties contained in the OFID Loan Agreement and each other Transaction Document are true and correct on and as of the date hereof and on the Effective Date, after giving effect to the Forbearance provided for herein, as the case requires, accounts though made on and as of the Borrower provided date hereof and on the Effective Date, as applicable, other than any such representation or warranty that, by its terms, refers to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrowerspecific date; and
(im) no representation, warranty or statement made or certificate, document or financial statement, proposal including any restructuring plan provided by any Obligor pursuant to this Agreement or any other Transaction Document, or in any other document furnished in connection herewith or therewith is untrue or incomplete or inaccurate in any material respect or contains any misrepresentation of a material fact or omits any fact or matter necessary to make any such representation, warranty or statement herein or therein is misleading.
8.2 Each Obligor acknowledges that it has made the Borrower representations and warranties under Section 8.1 for the purposes of inducing OFID to agree to the Forbearance. Each of the parties hereto further understands and acknowledges that OFID is relying on, and would not the trustee of any trust and accordingly enters have entered into this Agreement on its own behalf(and would not have agreed to grant the Forbearance) had it not been for the representations and warranties of the Obligors set forth herein.
Appears in 1 contract
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower represents In order to induce Lenders to enter into this Amendment and warrants that:
(a) it is registered as a company under to amend the Act, Credit Agreement and has the power to carry on its business and own its property Schedules thereto in the manner provided herein, the Borrower and in the locations in which such business is presently being carried on or property owned;
(b) it has full power Guarantors jointly and authority under its constitutionseverally represent and warrant to each Lender that the following statements are true, correct and complete:
(i) each of the Borrower and each Guarantor has all requisite corporate, limited liability company, or partnership power and authority to enter into this Amendment and to carry out the transactions contemplated by, and perform its obligations under, the Credit Agreement and as amended by this Amendment (the Security"Amended Agreement");
(ii) to do all things required by the execution and delivery of this Agreement Amendment and the Securityperformance of the Amended Agreement have been duly authorized by all necessary corporate, limited liability company, or partnership action (as the case may be) on the part of Borrower and each Guarantor;
(iii) the execution and delivery by the Borrower and each Guarantor of this Amendment and the performance by the Borrower and each Guarantor of the Amended Agreement (i) are within the authority of the Borrower or such Guarantor, (ii) have been duly authorized by all necessary meetings have been heldproceedings on the part of the Borrower or such Guarantor, (iii) do not conflict with or result in any breach or contravention of any provision of law, statute, rule or regulation to which the Borrower or such Guarantor is subject or any judgment, order, writ, injunction, license or permit applicable to the Borrower or such Guarantor and (iv) do not conflict with any provision of the Borrower or such Guarantor's charter documents or bylaws, partnership agreement, declaration of trust, or any agreement (except agreements as to which such a conflict would not result in a Material Adverse Effect) or other instrument binding upon the Borrower or such Guarantor or to which any of the Borrower's or such Guarantor's properties are subject;
(iv) all required resolutions have been passed; andthe execution and delivery by the Borrower and each Guarantor of this Amendment and the performance by the Borrower and each Guarantor of the Amended Agreement do not and will not require any registration with, consent or approval of, or notice to, or other action to, with or by, any federal, state or other governmental authority or regulatory body;
(v) any other action necessary to authorise the execution and performance of this Agreement Amendment and the Security has Amended Agreement have been taken; this Agreement duly executed and delivered by the Security will Borrower and each constitute Guarantor and are the legal, valid, legally valid and binding and enforceable obligation obligations of the Borrower and each Guarantor, enforceable against the Borrower and each Guarantor in accordance with their respective terms;
(c) , except as disclosed in writing may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to the Lender and dispensed with in writing or limiting creditors' rights generally or by the Lender, neither the execution nor the performance of this Agreement or the Security will:
(i) violate in any respect any statute, decree, rule or regulation or any determination, order or award of any court or any governmental, judicial or public body or authority applicable equitable principles relating to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers of the Borrower or on the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict with, or result in any breach of, or require any consent or approval under, any mortgage, agreement or other undertaking or instrument to which the Borrower is a party or which is binding on the Borrower or any of the Borrower’s assets;
(iv) result in a mortgage, charge, lien or other encumbrance over any of the Borrower’s assetsenforceability; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;and
(vi) except as disclosed in writing to no event has occurred and is continuing or will result from the Lender and dispensed with in writing by the Lender, the Borrower is not in default or difficulty under any deed, agreement or other document or obligation to which it is a party or by which it is bound, or in respect of any financial commitment or obligation, including obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect the ability consummation of the Borrower to comply with its obligations under transactions contemplated by this Agreement Amendment that would constitute a Default or the Security;
(d) the Borrower is in full and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all other legislation and regulations to which the Borrower may any time and from time to time be subject;
(e) no event an Event of default or event which, with the giving of notice or the lapse of time or both, would be an event of default and, having occurred, is continuing to subsist;
(f) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, no litigation or administrative or other proceedings before, or of, any court or governmental authority, agency or other tribunal have, to the knowledge of the Borrower, been initiated or threatened against the Borrower or any of the Borrower’s assets which would or might have a material adverse effect on the business, assets or financial condition of the Borrower;
(g) the Borrower does not have, and will not during the currency of this Agreement have, any right of set-off, counterclaim, any right to rescind or any other claim with respect to this Agreement by way of cross-action against the Lender;
(h) all of the most recent annual or half-yearly or both, as the case requires, accounts of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrower; and
(i) the Borrower is not the trustee of any trust and accordingly enters into this Agreement on its own behalfDefault.
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (Sl Green Realty Corp)
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants thatthat on the date hereof and on each Borrowing Date:
(a) it the Borrower is registered a corporation duly organized and validly existing in good standing pursuant to the laws of the State of Virginia; is duly qualified to do business as a company under foreign corporation in each jurisdiction in which its operations or the Actnature of its business requires, except where the failure, in each case, to be so qualified would not have a Material Adverse Effect; is a U.S. Air Carrier; has its “location” (as such term is defined in Article 9 of the Uniform Commercial Code) in the State of Virginia; and has the corporate power and authority to carry on purchase the Aircraft under the Bombardier Purchase Agreement and to enter into and perform its business and own its property in obligations under the manner and in the locations in Operative Documents to which such business it is presently being carried on or property owneda party;
(b) the execution, delivery and performance by the Borrower of the Operative Documents to which it has full power and authority under its constitution:
(i) to enter into this Agreement and the Security;
(ii) to do all things required is a party have been duly authorized by this Agreement and the Security;
(iii) all necessary meetings have been held;
(iv) all required resolutions have been passed; and
(v) corporate action on the part of the Borrower, do not require any other action necessary to authorise the execution and performance stockholder approval, or approval or consent of this Agreement and the Security has been taken; this Agreement and the Security will each constitute the legal, valid, binding and enforceable obligation any trustee or holders of any indebtedness or obligations of the Borrower except such as have been duly obtained and are in accordance with their respective terms;
(c) except as disclosed in writing to full force and effect, and none of the Lender and dispensed with in writing execution, delivery or performance by the LenderBorrower of such Operative Documents contravenes any law, neither judgment, government rule, regulation or order binding on the execution nor the performance of this Agreement Borrower or the Security will:
(i) violate in any respect any statute, decree, rule Certificate of Incorporation or regulation or any determination, order or award of any court or any governmental, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers By-laws of the Borrower or on contravenes the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict with, or result in any breach provisions of, or require constitutes a default under, or results in the creation of any consent or approval Lien upon the property of the Borrower under, any indenture, mortgage, agreement contract or other undertaking or instrument agreement to which the Borrower is a party or by which is binding on the Borrower it or any of the Borrower’s assetsits properties may be bound or affected;
(ivc) result in a mortgage, charge, lien or other encumbrance over any neither the execution and delivery by the Borrower of the Borrower’s assets; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower is not in default or difficulty under any deed, agreement or other document or obligation Operative Documents to which it is a party nor the performance by the Borrower of its obligations thereunder requires the consent or approval of, the giving of notice to, or the registration with, or the taking of any other action in respect of any Federal, state or foreign government authority or agency, except for (A) the orders, permits, waivers, exemptions, authorizations and approvals of the regulatory authorities having jurisdiction over the operation of the Aircraft by the Borrower, which orders, permits, waivers, exemptions, authorizations and approvals, if any, concurrently required to be obtained and in full force and effect have been duly obtained and are in full force and effect except for those orders, permits, waivers, exemptions, authorizations and approvals the failure to obtain which would not have a Material Adverse Effect, and (B) any filings, registrations or applications specifically described in this Agreement (the items referred to in (A) and (B) collectively referred to as “Permits”);
(d) the Operative Documents to which the Borrower is a party each constitute legal, valid and binding obligations of the Borrower enforceable against the Borrower in accordance with the terms thereof except as such enforceability may be limited by equitable principles or applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally;
(e) there is no pending or (to the Borrower’s knowledge) threatened action or proceeding before any court, arbitrator or administrative agency that individually (or in the aggregate in the case of any group of related lawsuits) is expected by the Borrower to have a Material Adverse Effect;
(f) except for the filing of financing statements (and continuation statements at periodic intervals) with respect to the interests created by such documents under the Uniform Commercial Code of Virginia, no further action, including any filing or recording of any document (including any financing statement in respect thereof under Article 9 of the Uniform Commercial Code of any applicable jurisdiction), is necessary or advisable in order to establish and perfect the first mortgage Lien on the Collateral in favor of the Lender pursuant to the Mortgage;
(g) there has not occurred any event which constitutes a Default or an Event of Default which is presently continuing;
(h) the statements of financial position of each of the Borrower and Guarantor as of December 31, 2007, and the related statements of earnings and cash flow of each of the Borrower and Guarantor in all material respects for the year then ended, copies of which have been furnished to the Lender, fairly present the financial condition of each of the Borrower and Guarantor and subsidiaries of each, respectively, at such date and the results of operations and cash flow of the Borrower and Guarantor for the period ended on such date, in accordance with generally accepted accounting principles consistently applied, and since December 31, 2007, there has been no material and adverse change in the financial or operational condition of the Borrower or the Guarantor and no event or circumstance has occurred which would have a Material Adverse Effect;
(i) the Borrower has provided to the Lender a true, accurate and complete copy of the Bombardier Purchase Agreement and the Bombardier Purchase Agreement is in full force and effect and neither the Borrower nor, to the knowledge of the Borrower, Bombardier is in default of any of its material obligations thereunder. Except as contemplated by the Mortgage, the Borrower has neither assigned nor granted any Lien in its rights under the Bombardier Purchase Agreement in respect of any of the Aircraft or the Engines;
(j) the issuance of the Loan Certificate to the Lender will not require registration of the Loan Certificate pursuant to the Securities Act;
(k) the Borrower has filed or caused to be filed all Federal, state, local and foreign tax returns which are required to be filed and has paid or caused to be paid or provided adequate reserves for the payment of all taxes shown to be due and payable on such returns or (except to the extent being contested in good faith and by appropriate proceedings and for the payment of which adequate reserves have been provided in accordance with generally accepted accounting principles) on any assessment received by the Borrower, to the extent that such taxes have become due and payable, except such returns or taxes as to which the failure to file or pay, as the case may be, could not be reasonably expected to result in a Material Adverse Effect of the Borrower;
(l) the Borrower and its subsidiaries are not:
(i) in default under any indenture, mortgage, lease or credit agreement or under any other agreement or instrument of a material nature to which the Borrower or its subsidiaries is now a party or by which it is bound, or in respect and no event has occurred and is continuing which, under the provisions of any financial commitment or obligationsuch indenture, including obligations under guarantees mortgage, credit agreement or other contingent liabilities, which default material agreement or difficulty is reasonably likely to adversely affect the ability of the Borrower to comply with its obligations under this Agreement or the Security;
(d) the Borrower is in full and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all other legislation and regulations to which the Borrower may any time and from time to time be subject;
(e) no event of default or event whichinstrument, with the giving of notice or the lapse of time or the giving of notice, or both, would be an event of constitute a default and, having occurred, is continuing to subsist;thereunder; or
(fii) except as disclosed in writing violation of any law, order, injunction, decree, rule or regulation applicable to the Lender and dispensed with in writing by the Lender, no litigation or administrative or other proceedings before, or of, Borrower of any court or governmental authorityadministrative body, agency which default or other tribunal have, violation would reasonably be expected to materially and adversely affect the knowledge of the Borrower, been initiated or threatened against the Borrower or any of the Borrower’s assets which would or might have a material adverse effect on the business, assets operations or financial condition of the Borrower or the Borrower’s ability to execute, deliver and perform its obligations under the Operative Documents;
(g) the Borrower does not have, and will not during the currency of this Agreement have, any right of set-off, counterclaim, any right to rescind or any other claim with respect to this Agreement by way of cross-action against the Lender;
(h) all of the most recent annual or half-yearly or both, as the case requires, accounts of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrower; and
(im) the Borrower is not an “investment company” as defined in, or subject to regulation under, the trustee Investment Company Act of 1940;
(n) none of the information furnished in writing by or on behalf of the Borrower to the Lender in connection with the negotiation of this Agreement or delivered hereunder (as modified or supplemented by other information so furnished) contains any material misstatement of fact or omits any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(o) no part of the proceeds of any trust Drawing hereunder will be used, whether directly or indirectly, for any purpose that entails a violation of any of the Regulations of the Board of Governors of the Federal Reserve, including Regulations U and accordingly enters into this Agreement X;
(p) the Lender has, or will have upon the filing of necessary UCC-1 financing statements in Virginia, a duly perfected first priority security interest in the Collateral;
(q) the Collateral is free and clear of all Liens (except Liens contemplated in and otherwise permitted by the Mortgage);
(r) (i) there are no pre-delivery deposit payments or other advances with respect to any Aircraft other than the Advances listed on its own behalf.Schedule II;
Appears in 1 contract
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower hereby reaffirms all of representations and warranties set forth in the Loan Documents, and further represents and warrants that:
; (a) it the Borrower is registered as a company under the Act, sole legal and has beneficial owner of the power to carry on its business and own its property in the manner and in the locations in which such business is presently being carried on or property owned;
Property; (b) it has full power and authority under its constitution:
(i) to enter into this Agreement and the Security;
(ii) to do all things required by this Agreement and the Security;
(iii) all necessary meetings have been held;
(iv) all required resolutions have been passed; and
(v) any other action necessary to authorise the execution and performance delivery of this Agreement and the Security has been taken; this Agreement and the Security will each constitute the legaldoes not contravene, valid, binding and enforceable obligation of the Borrower in accordance with their respective terms;
(c) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, neither the execution nor the performance of this Agreement or the Security will:
(i) violate in any respect any statute, decree, rule or regulation or any determination, order or award of any court or any governmental, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers of the Borrower or on the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict with, or result in any a breach of, or require any consent or approval constitute a default under, any mortgagedeed of trust, agreement loan agreement, indenture or other undertaking contract or instrument agreement to which the Borrower is a party or by which is binding on the Borrower or any of its properties may be bound (nor would such execution and delivery constitute such a default with the passage of time or the giving of notice or both), and does not violate or contravene any law, order, decree, rule, regulation or restriction to which Borrower or the Property is subject; (c) this Agreement constitutes the legal, valid and binding obligations of Borrower enforceable in accordance with its terms; (d) the execution and delivery of, and performance under, this Agreement are within Borrower’s assets;
(iv) result in a mortgagepower and authority without the joinder or consent of any other party and have been duly authorized by all requisite action, charge, lien or other encumbrance over any of the Borrower’s assets; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower is are not in default contravention of any law, or difficulty under of any deedindenture, agreement or other document or obligation undertaking to which it Borrower is a party or by which it is bound, or in respect of any financial commitment or obligation, including obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect the ability of the Borrower to comply with its obligations under this Agreement or the Security;
(d) the Borrower is in full and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all other legislation and regulations to which the Borrower may any time and from time to time be subject;
; (e) there exists no event of default under the Note or event which, with the giving of notice or the lapse of time or both, would be an event of default and, having occurred, is continuing to subsist;
any other Loan Document; (f) there are no offsets, claims or defenses with respect to the Obligations; and (g) Borrower is duly organized and legally existing under the laws of the state of its organization and is duly qualified to do business in the Commonwealth of Virginia. The Borrower further represents and warrants that, except as disclosed in writing public filings, there is no material suit, judicial or administrative action, claim, investigation, inquiry, proceeding or demand pending (or, to Borrower’s knowledge, threatened) against (i) Borrower, or against any other person liable directly or indirectly for the Obligations, or (ii) which affects the Property or the Borrower’s title to the Lender and dispensed with in writing by the Lender, no litigation or administrative or other proceedings beforeProperty, or of, any court (iii) which affects the validity enforceability or governmental authority, agency or other tribunal have, to the knowledge priority of the Borrower, been initiated or threatened against the Borrower or any of the Borrower’s assets Loan Documents. Borrower agrees to indemnify and hold the Lender harmless against any loss, claim, damage, liability or expense (including, without limitation, attorneys’ fees) incurred as a result of any representation or warranty made by Borrower herein which would proves to be untrue or might have a material adverse effect on the business, assets or financial condition of the Borrower;
(g) the Borrower does not haveinaccurate in any respect, and will not during any such occurrence shall constitute a default under the currency of this Agreement have, any right of set-off, counterclaim, any right to rescind or any other claim with respect to this Agreement by way of cross-action against the Lender;
(h) all of the most recent annual or half-yearly or both, as the case requires, accounts of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrower; and
(i) the Borrower is not the trustee of any trust and accordingly enters into this Agreement on its own behalfLoan Documents.
Appears in 1 contract
Samples: Loan Modification Agreement (Comstock Homebuilding Companies, Inc.)
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower represents hereby makes the following representations and warrants thatwarranties for the benefit of the Lender:
(a) it is registered as a company duly incorporated and validly existing under the Act, laws of the State of Colorado and is duly qualified to conduct business in such state; it has the corporate power and authority to own its property and assets and to carry on its business and own its property in the manner and in the locations in which such business as it is presently now being carried on or property owned;conducted
(b) it has full the corporate power and authority to execute, deliver and carry out the terms and provisions of this Agreement, the Note and any other agreements and documents (collectively called the "Other Agreements") executed under its constitution:
(i) to enter into or in connection with this Agreement and the Security;
(ii) to do all things required by this Agreement Note, and the Security;
(iii) it has taken all necessary meetings have been held;
(iv) all required resolutions have been passed; and
(v) any other corporate action necessary to authorise authorize the execution execution, delivery and performance of this Agreement Agreement, the Note and the Security has been takenOther Agreements; this Agreement Agreement, the Note and the Security will each Other Agreements constitute the legal, valid, legally binding obligations of the Borrower and are enforceable obligation of against the Borrower in accordance with their respective terms;
(c) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, neither the execution nor the performance delivery of this Agreement Agreement, the Note or any of the Security Other Agreements, nor the transaction contemplated hereby or thereby, nor compliance with the terms and conditions hereof or thereof will:
(i) violate in contravene any respect provision of the Articles of Incorporation or bylaws of the Borrower, or any provision of any law, statute, decree, rule or regulation as to which the Borrower or any determinationof its property is bound, or any judgment, decree, franchise, order or award of any court or any governmental, judicial or public body or authority permit applicable to the BorrowerBorrower or any of its property;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers of the Borrower or on the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict with, or result in any breach of any terms, covenants, conditions or provisions of, or require constitute a default (with or without the giving of notice or passage of time or both) under or pursuant to the terms of any consent or approval under, any mortgage, other agreement or other undertaking or instrument to which the Borrower is a party or by which it is binding on bound; or
(iii) result in the creation or imposition of any lien, security interest, charge or encumbrance upon any of the property or assets of the Borrower;
(d) no authorization, consent or approval of, or exemption by, any governmental, judicial or public body or authority is required to authorize or is required in connection with the execution, delivery and performance by the Borrower of this Agreement, the Note or any of the Borrower’s assetsOther Agreements;
(ive) result in a mortgage, charge, lien or other encumbrance over any of the Borrower’s assets; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower is not in default and would not with the giving of notice or difficulty passage of time or both be in default under any deed, agreement or other document or obligation to which it is a party or by which it is bound, or in respect of any financial commitment or obligation, including obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect the ability of the Borrower to comply with its obligations under this Agreement or the Security;
(d) the Borrower is in full and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all other legislation and regulations to which the Borrower may any time and from time to time be subject;
(e) no event of default or event which, with the giving of notice or the lapse of time or both, would be an event of default and, having occurred, is continuing to subsist;
(f) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, no litigation or administrative or other proceedings before, or of, any court or governmental authority, agency or other tribunal have, to the knowledge of the Borrower, been initiated or threatened against the Borrower or any of the Borrower’s assets its property may be bound; and no litigation, arbitration or administrative proceeding is currently pending or threatened which would or might have a material an adverse effect on the business, assets or financial condition of the Borrower;
(f) there is no order, writ, injunction or decree of any court, government or governmental agency affecting the Borrower or any of its businesses, assets or interests;
(g) as of the date hereof the Borrower's chief executive office and the office at which the Borrower does not havemaintains its books and records is located at 0000 Xxxxxxxxx Xx., and will not during Suite 140, Colorado Springs, CO 80919. Apart from this location, the currency of this Agreement have, any right of set-off, counterclaim, any right to rescind or any Borrower has no other claim with respect to this Agreement by way of cross-action against the Lenderoffices;
(h) all there are no claims, security interests, options, rights or other privileges outstanding with respect to any of the most recent annual Collateral or half-yearly or both, as the case requires, accounts any of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrower; and
(i) the Borrower is not the trustee of any trust and accordingly enters into this Agreement on its own behalf's other assets.
Appears in 1 contract
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower hereby reaffirms all of representations and warranties set forth in the Loan Documents, and further represents and warrants that:
: (a) it the Borrower is registered as a company under the Act, sole legal and has beneficial owner of the power to carry on its business and own its property in the manner and in the locations in which such business is presently being carried on or property owned;
Property; (b) it has full power and authority under its constitution:
(i) to enter into this Agreement and the Security;
(ii) to do all things required by this Agreement and the Security;
(iii) all necessary meetings have been held;
(iv) all required resolutions have been passed; and
(v) any other action necessary to authorise the execution and performance delivery of this Agreement and the Security has been taken; this Agreement and the Security will each constitute the legaldoes not contravene, valid, binding and enforceable obligation of the Borrower resulting in accordance with their respective terms;
(c) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, neither the execution nor the performance of this Agreement or the Security will:
(i) violate in any respect any statute, decree, rule or regulation or any determination, order or award of any court or any governmental, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers of the Borrower or on the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict with, or result in any a breach of, or require any consent or approval constitute a default under, any mortgagedeed of trust, agreement loan agreement, indenture or other undertaking contract or instrument agreement to which the Borrower is a party or by which is binding on the Borrower or any of its properties may be bound (nor would such execution and delivery constitute such a default with the passage of time or the giving of notice or both), and does not violate or contravene any law, order, decree, rule, regulation or restriction to which Borrower or the Property is subject; (c) this Agreement constitutes the legal, valid and binding obligations of Borrower enforceable in accordance with its terms; (d) the execution and delivery of, and performance under, this Agreement are within Borrower’s assets;
(iv) result in a mortgagepower and authority without the joinder or consent of any other party and have been duly authorized by all requisite action, charge, lien or other encumbrance over any of the Borrower’s assets; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower is are not in default contravention of any law, or difficulty under of any deedindenture, agreement or other document or obligation undertaking to which it Borrower is a party or by which it is bound, or in respect of any financial commitment or obligation, including obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect the ability of the Borrower to comply with its obligations under this Agreement or the Security;
(d) the Borrower is in full and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all other legislation and regulations to which the Borrower may any time and from time to time be subject;
; (e) there exists no event of default under the Note or event which, with the giving of notice or the lapse of time or both, would be an event of default and, having occurred, is continuing to subsist;
any other Loan Document; (f) there are no offsets, claims or defenses with respect to the Obligations; and (g) Borrower is duly organized and legally existing under the laws of the state of its organization and is duly qualified to do business in the state of Georgia. The Borrower further represents and warrants that, except as disclosed in writing public filings, there is no material suit, judicial or administrative action, claim, investigation, inquiry, proceeding or demand pending (or, to Borrower’s knowledge, threatened) against (i) Borrower, or against any other person liable directly or indirectly for the Obligations, or (ii) which affects the Property or the Borrower’s title to the Lender and dispensed with in writing by the Lender, no litigation or administrative or other proceedings beforeProperty, or of, any court (iii) which affects the validity enforceability or governmental authority, agency or other tribunal have, to the knowledge priority of the Borrower, been initiated or threatened against the Borrower or any of the Borrower’s assets Loan Documents. Borrower agrees to indemnify and hold the Lender harmless against any loss, claim damage, liability or expense (including, without limitation, attorneys’ fees) incurred as a result of any representation or warranty made by Borrower herein which would proves to be untrue or might have a material adverse effect on the business, assets or financial condition of the Borrower;
(g) the Borrower does not haveinaccurate in any respect, and will not during any such occurrence shall constitute a default under the currency Loan Documents. Bank of this Agreement have, any right of set-off, counterclaim, any right to rescind or any other claim with respect to this Agreement by way of cross-action against the Lender;
(h) all of the most recent annual or half-yearly or both, as the case requires, accounts of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrower; and
(i) the Borrower is not the trustee of any trust and accordingly enters into this Agreement on its own behalf.America — Cxxxxxxx Atlanta Homes Modification
Appears in 1 contract
Samples: Loan Modification Agreement (Comstock Homebuilding Companies, Inc.)
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants thatthat on the Amendment Effective Date, each Borrowing Date and each Funding Substitution Date:
(a) it the Borrower is registered a Cayman Islands exempted company, duly organized and validly existing pursuant to the laws of the Cayman Islands; is duly qualified to do business as a company under foreign corporation in each jurisdiction in which its operations or the Actnature of its business requires, except where the failure to be so qualified would not have a Material Adverse Effect; and has the corporate power and authority to carry on purchase the Aircraft under the Assigned Purchase Agreement and to enter into and perform its business and own its property in obligations under the manner and in the locations in Operative Documents to which such business it is presently being carried on or property ownedshall be a party;
(b) the execution, delivery and performance by the Borrower of the Operative Documents to which it has full power and authority under its constitution:
(i) to enter into this Agreement and the Security;
(ii) to do all things required is a party have been duly authorized by this Agreement and the Security;
(iii) all necessary meetings have been held;
(iv) all required resolutions have been passed; and
(v) corporate action on the part of the Borrower, do not require any other action necessary to authorise the execution and performance shareholder approval, or approval or consent of this Agreement and the Security has been taken; this Agreement and the Security will each constitute the legal, valid, binding and enforceable obligation any trustee or holders of any indebtedness or obligations of the Borrower except such as have been duly obtained and are in accordance with their respective terms;
(c) except as disclosed in writing to full force and effect, and none of the Lender and dispensed with in writing execution, delivery or performance by the LenderBorrower of such Operative Documents contravenes any law, neither judgment, government rule, regulation or order binding on the execution nor the performance of this Agreement Borrower or the Security will:
(i) violate in any respect any statute, decree, rule or regulation or any determination, order or award memorandum and articles of any court or any governmental, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers association of the Borrower or on contravenes the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict with, or result in any breach provisions of, or require constitutes a default under, or results in the creation of any consent or approval Lien (other than Permitted Liens) upon the property of the Borrower under, any indenture, mortgage, agreement contract or other undertaking or instrument agreement to which the Borrower is a party or by which is binding on the Borrower it or any of the Borrower’s assetsits properties may be bound or affected;
(ivc) result in a mortgage, charge, lien or other encumbrance over any neither the execution and delivery by the Borrower of the Borrower’s assets; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower is not in default or difficulty under any deed, agreement or other document or obligation Operative Documents to which it is a party nor the performance by the Borrower of its obligations thereunder requires the consent or by which it is boundapproval of, the giving of notice to, or the registration with, or the taking of any other action in respect of any financial commitment Federal, state or obligationforeign government authority or agency, including obligations under guarantees except for those specified in the opinions referred to in Clause 4.1(g) or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect those that would not have a Material Adverse Effect (the ability of the Borrower to comply with its obligations under this Agreement or the Security“Permits”);
(d) the Borrower is in full and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all other legislation and regulations Operative Documents to which the Borrower is a party each constitute legal, valid and binding obligations of the Borrower enforceable against the Borrower in accordance with the terms thereof except as such enforceability may any time and from time to time be subjectlimited by equitable principles or applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally;
(e) there is no event pending or (to the best of default Borrower’s knowledge) threatened action or event whichproceeding before any court, with arbitrator or administrative agency that individually (or in the giving aggregate in the case of notice or any group of related lawsuits) is expected by the lapse of time or both, would be an event of default and, having occurred, is continuing Borrower to subsisthave a Material Adverse Effect;
(f) except as disclosed specified in writing the opinions referred to the Lender and dispensed with in writing by the LenderClause 4.1(g), no litigation further action, including any filing or administrative recording of any document, is necessary or other proceedings before, advisable in order to establish and perfect the first ranking Lien on the Collateral in favour of the Security Trustee pursuant to either (i) the Mortgage or of, (ii) the Lease Security Assignments;
(g) there has not occurred any court event which constitutes a Default or governmental authority, agency or other tribunal havean Event of Default which is presently continuing;
(h) the Assigned Purchase Agreement and the Engine Agreements are in full force and effect and none of the Borrower or, to the knowledge of the Borrower, been initiated Airbus or threatened against any Engine Manufacturer is in default of any of its material obligations thereunder. Neither the Borrower Borrower, Intrepid, the Guarantor or the Irish Company has assigned or granted any Lien in its rights under the Assigned Purchase Agreement in respect of any of the Aircraft or the Engine Agreements or the Engines;
(i) the Borrower has filed or caused to be filed all state, local and foreign tax returns which are required to be filed and has paid or caused to be paid or provided adequate reserves for the payment of all taxes shown to be due and payable on such returns or (except to the extent being contested in good faith and by appropriate proceedings and for the payment of which adequate reserves have been provided in accordance with generally accepted accounting principles) on any assessment received by the Borrower’s assets , to the extent that such taxes have become due and payable, except such returns or taxes as to which would the failure to file or might have a material adverse effect on pay, as the businesscase may be, assets could not be reasonably expected to materially and adversely affect the assets, operations or financial condition condition, of the Borrower;
(g) the Borrower does not have, and will not during the currency of this Agreement have, any right of set-off, counterclaim, any right to rescind or any other claim with respect to this Agreement by way of cross-action against the Lender;
(h) all of the most recent annual or half-yearly or both, as the case requires, accounts of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrower; and
(ij) the Borrower is not the trustee in violation of any trust law, order, injunction, decree, rule or regulation applicable to the Borrower of any court or administrative body, which default or violation would reasonably be expected to materially and accordingly enters into adversely affect the operations or financial condition of the borrower or the borrower’s ability to execute, deliver and perform its obligations under the Operative Documents;
(k) the Borrower is not an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940;
(l) none of the information furnished by or on behalf of the Borrower to the Facility Agent or any Lender in connection with the negotiation of this Agreement or delivered hereunder (as modified or supplemented by other information so furnished) contains any material misstatement of fact or omits any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
(m) the Borrower, the Guarantor and the Irish Company are fully solvent (on its own behalfa cash flow and balance sheet basis) and will be fully solvent immediately following the execution of this Agreement and the Operative Documents.
Appears in 1 contract
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower represents makes the following representations and warrants that:
warranties set out in this Section 7 to each Loan Participant on the date hereof and on the Delivery Date of the Designated Aircraft (a) except to the extent such representation or warranty relates to an earlier date, in which case such representation or warranty shall only be made as to the date on which it is registered as a company under the Act, and has the power expressed to carry on its business and own its property in the manner and in the locations in which such business is presently being carried on or property owned;
(b) it has full power and authority under its constitution:be made):
(i) the Borrower is a corporation duly organized and validly existing in good standing pursuant to the laws of the State of Delaware; is duly qualified to do business as a foreign corporation in each jurisdiction in which its operations or the nature of its business requires, except where the failure to be so qualified would give rise to a Material Adverse Change; is a U.S. Air Carrier; and has the corporate power and authority to, and holds all licenses, permits and franchises from the appropriate Governmental Body necessary to authorize the Borrower to, engage in air transport and to carry on scheduled commercial passenger service as presently conducted, to own the Designated Aircraft and to enter into this Agreement and perform its obligations under the SecurityOperative Documents, except where the failure to hold such license, permit or franchise would not give rise to a Material Adverse Change;
(ii) to do all things required by the Borrower has duly authorized, executed and delivered this Agreement and each of the SecurityOperative Documents to which it is (or will be) a party, and each of the Operative Documents to which it is (or will be) a party constitutes, or when entered into will constitute, a legal, valid and binding obligation of the Borrower, enforceable against the Borrower in accordance with its terms, except as the same may be limited by applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or similar laws affecting the rights of creditors generally and by general principles of equity;
(iii) all necessary meetings have been held;
(iv) all required resolutions have been passed; and
(v) any other action necessary to authorise neither the execution and performance delivery by the Borrower of this Agreement the Operative Documents to which it is or will be a party, nor the consummation by the Borrower of any of the transactions contemplated hereby or thereby, nor the compliance by the Borrower with any of the terms and the Security has been taken; this Agreement provisions hereof and the Security thereof, (A) requires or will each constitute the legalrequire any approval of its stockholders, valid, binding and enforceable obligation or approval or consent of any trustees or holders of any indebtedness or obligations of the Borrower in accordance with their respective terms;
except such as have been (cor will be) except as disclosed in writing to the Lender and dispensed with in writing by the Lenderduly obtained, neither the execution nor the performance (B) violates or will violate its certificate of this Agreement incorporation or the Security will:
by-laws, (iC) violate in contravenes or will contravene any respect any statute, decree, rule or regulation or any determination, order or award of any court or any governmental, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers of the Borrower or on the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict withprovision of, or constitutes or will constitute a default under, or results or will result in any breach of, or require any consent or approval underindenture, any mortgage, agreement lease, chattel mortgage, deed of trust, conditional sale contract, bank loan or credit agreement, material license, or other undertaking agreement, instrument or instrument to which the Borrower is a party or which is binding on the Borrower or any of the Borrower’s assets;
(iv) result in a mortgage, charge, lien or other encumbrance over any of the Borrower’s assets; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower is not in default or difficulty under any deed, agreement or other document or obligation contractual restriction to which it is a party or by which it is bound, or in respect of any financial commitment or obligationprovided, including obligations under guarantees or other contingent liabilitieshowever, which default or difficulty is reasonably likely to adversely affect that the ability of grant by the Borrower to comply with its obligations the Security Trustee of a Lien in certain after-acquired property of the type described in clause (4) of the Granting Clause of the Mortgage may require the consent of lenders under this Agreement or the Security;
(d) the Borrower is in full and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all other legislation and regulations third-party loan agreements to which the Borrower may is a party, which consent shall be obtained by the Borrower prior to the Borrower having any time and from time to time be subjectrights in such after-acquired property, or (D) contravenes or will contravene any law binding on it;
(eiv) no event of default or event whichauthorization of, with the giving of notice or the lapse of time or both, would be an event of default and, having occurred, is continuing to subsist;
(f) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, no litigation or administrative or other proceedings beforeto, or registration with, or taking of any other action in respect of, any court Governmental Body is required for the execution and delivery of, or governmental authoritythe carrying out by, agency the Borrower of any of the transactions contemplated hereby or by any other tribunal haveof the Operative Documents to which the Borrower is or will be a party, to except for (A) the knowledge orders, permits, waivers, exemptions, authorizations and approvals of the regulatory authorities having jurisdiction over the operation of the Designated Aircraft by the Borrower, which orders, permits, waivers, exemptions, authorizations and approvals have been initiated duly obtained or threatened against will on or prior to the Borrower Delivery Date of the Designated Aircraft be duly obtained, and will on the Delivery Date be in full force and effect, (B) any normal periodic and other reporting requirements under the Federal Aviation Act and the regulations promulgated thereunder and the applicable rules, and regulations of the FAA, in each case to the extent required to be given or obtained only after the Delivery Date of the Designated Aircraft and (C) any filings, registrations or applications specifically described in this Agreement or any of the other Operative Documents;
(v) there are no pending or, to the Borrower’s assets which actual knowledge, threatened actions or proceedings against the Borrower before any court or administrative agency that would or might have a material adverse effect on reasonably be expected to materially adversely affect Borrower’s ability to perform its obligations under the business, assets or financial condition Operative Documents;
(vi) except for (A) the filing with the FAA of an FAA Entry Point Filing Form — AC Form 8050-135 and the procurement of unique authorization codes for the registration of the ownership interest of the Borrower in the Airframe and each Engine associated with the Designated Aircraft represented by the contract of sale constituting the FAA Xxxx of Sale and/or the Warranty Xxxx of Sale and the registration of the Borrower’s ownership interest with respect to each contract of sale in respect of the Airframe and each Engine associated with the Designated Aircraft, (B) the filing with the FAA of an FAA Entry Point Filing Form – AC Form 8050-135 as to the international interest of the Security Trustee with respect to the Airframe and each Engine associated with the Designated Aircraft and the procurement of unique authorization codes for each thereof and the registration of the Security Trustee’s international interest in the Airframe and each Engine associated with the Designated Aircraft with the International Registry, (C) the filing for recording pursuant to the Federal Aviation Act of the FAA Xxxx of Sale for the Designated Aircraft (and the application for registration of the Designated Aircraft in the name of the Borrower) and the Mortgage with the Mortgage Supplement for the Designated Aircraft, (C) the filing of financing statements (and continuation statements at periodic intervals) with respect to the interests created by such documents under the Uniform Commercial Code of Delaware and such other states as may be specified in the opinion furnished pursuant to Section 4(b)(x)(A) hereof and (D) the affixation of the nameplates referred to in Section 3.04 of the Mortgage for the Designated Aircraft, no further action, including any filing or recording of any document (including any financing statement in respect thereof under Article 9 of the Uniform Commercial Code of any applicable jurisdiction), is necessary in order to establish and perfect the Lien on the Designated Aircraft on a first priority basis in favor of the Security Trustee pursuant to the Mortgage for the Designated Aircraft or to establish as against third parties the international interest under such Mortgage in any applicable jurisdiction in the United States;
(gvii) there has not occurred any event which constitutes a Default or an Event of Default under the Borrower does not have, and will not during Mortgage for the currency of this Agreement have, any right of set-off, counterclaim, any right to rescind or any other claim with respect to this Agreement by way of cross-action against the LenderDesignated Aircraft which is presently continuing;
(h) all of the most recent annual or half-yearly or both, as the case requires, accounts of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrower; and
(i) the Borrower is not the trustee of any trust and accordingly enters into this Agreement on its own behalf.
Appears in 1 contract
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower hereby reaffirms all of the representations and warranties set forth in the Loan Documents (as defined in the Loan Agreement, as amended hereby), and further represents and warrants that:
that (a) it is registered as a company under the Act, and has the power to carry on its business and own its property in the manner and in the locations in which such business is presently being carried on or property owned;
(b) it has full power and authority under its constitution:
(i) to enter into this Agreement and the Security;
(ii) to do all things required by this Agreement and the Security;
(iii) all necessary meetings have been held;
(iv) all required resolutions have been passed; and
(v) any other action necessary to authorise the execution and performance delivery of this Agreement and the Security has been taken; this Agreement and the Security will each constitute the legaldo not contravene, valid, binding and enforceable obligation of the Borrower resulting in accordance with their respective terms;
(c) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, neither the execution nor the performance of this Agreement or the Security will:
(i) violate in any respect any statute, decree, rule or regulation or any determination, order or award of any court or any governmental, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers of the Borrower or on the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict with, or result in any an breach of, or require any consent or approval constitute a default under, any mortgagedeed of trust, agreement loan agreement, indenture or other undertaking contract or instrument agreement to which the Borrower is a party or by which is binding on the Borrower or any of its properties may be bound (nor would such execution and delivery constitute such a default with the passage of time or the giving of notice or both), and do not violate or contravene any law, order, decree, rule, regulation or restriction to which the Borrower or the Property is subject; (b) this Agreement constitutes the legal, valid and binding obligations of the Borrower enforceable in accordance with its terms; (c) the execution and delivery of, and performance under, this Agreement are within the Borrower’s assets;
(iv) result power and authority without the joinder or consent of any other party and have been duly authorized by all requisite action, and are not in a mortgagecontravention of any law, charge, lien or other encumbrance over any of the Borrower’s assets; or
(v) cause charter, bylaws or other corporate organizational documents or of any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower is not in default or difficulty under any deedindenture, agreement or other document or obligation undertaking to which it the Borrower is a party or by which it is bound; (d) there exists no default under the Note or any other Loan Document; (e) there are no offsets, claims or in defenses with respect of any financial commitment to the Borrower’s or obligation, including Guarantor’s obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect the ability any of the Borrower to comply with its obligations under this Agreement or Loan Documents (the Security;
“Obligations.”); and (df) the Borrower is duly organized and legally existing under the laws of the Commonwealth of Virginia and is duly qualified to do business in full the Commonwealth of Virginia. The Borrower further represents and ongoing compliance with its constitution and all companies and securities legislation and regulationswarrants that, and all other legislation and regulations to which the Borrower may any time and from time to time be subject;
(e) no event of default or event which, with the giving of notice or the lapse of time or both, would be an event of default and, having occurred, is continuing to subsist;
(f) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, there is no litigation suit, judicial or administrative action, claims, investigation, inquiry, proceeding or other proceedings before, or of, any court or governmental authority, agency or other tribunal havedemand pending (or, to the knowledge of the Borrower, been initiated or threatened against the Borrower or any of the Borrower’s assets which would or might have a material adverse effect on the business, assets or financial condition of the Borrower;
(gknowledge threatened) the Borrower does not have, and will not during the currency of this Agreement have, any right of set-off, counterclaim, any right to rescind or any other claim with respect to this Agreement by way of cross-action against the Lender;
(h) all of the most recent annual or half-yearly or both, as the case requires, accounts of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrower; and
(i) the Borrower is not Borrower, or against any other person liable directly or indirectly for the trustee Obligations, or (ii) which affects the Property or the Borrower’s title to the Property, or (iii) which affects the validity, enforceability or priority of any trust of the Loan Documents. The Borrower agrees to indemnify and accordingly enters into this Agreement on its own behalfhold the Lender harmless against any loss, claim, damage, liability or expense (including, without limitation, attorneys’ fees) incurred as a result of any representation or warranty made by the Borrower herein which proves to be untrue or inaccurate in any respect, and any such occurrence shall constitute a default under the Loan Documents.
Appears in 1 contract
Samples: Loan Agreement (Comstock Homebuilding Companies, Inc.)
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants thatas of the date of execution and delivery of this Agreement and as of the date of each Advance as follows:
(a) it Borrower is registered as a company corporation organized under the Actlaws of the State of Missouri, and has having a principal place of business at 2000 Xxxxxx Xxxx, Xxxx Xxxxx, Xxxxxxx, 00000, duly organized, validly existing under the power to carry on laws of the jurisdiction of its business and own its property in the manner and in the locations in which such business is presently being carried on or property owned;
(b) it has organization with full power and authority under its constitution:
(i) to enter into and to pay and perform its obligations under this Agreement and the Security;
other Loan Documents, and is duly qualified or licensed in all other jurisdictions where its failure to so qualify would adversely affect the conduct of its business or its ability to perform any of its obligations under or the enforceability of this Agreement; (iib) to do all things required by this Agreement and the Security;
(iii) all necessary meetings other Loan Documents have been held;
(iv) all required resolutions have been passed; and
(v) any other action necessary to authorise the execution duly authorized, executed and performance of this Agreement and the Security has been taken; this Agreement and the Security will each constitute the legaldelivered by Borrower, are valid, legal and binding and obligations of Borrower, are enforceable obligation of the against Borrower in accordance with their respective terms;
(c) except as disclosed in writing to the Lender terms and dispensed with in writing by the Lender, neither the execution nor the performance do not and will not contravene any provisions of this Agreement or the Security will:
(i) violate in any respect any statute, decree, rule or regulation or any determination, order or award of any court or any governmental, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers of the Borrower or on the constitute a default under Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict with, or result in any breach of, or require any consent or approval underorganization documents, any mortgage, agreement or other undertaking or instrument to which the Borrower is a party or which is binding on the Borrower or any of the Borrower’s assets;
(iv) result in a mortgage, charge, lien or other encumbrance over any of the Borrower’s assets; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower is not in default or difficulty under any deed, agreement or other document or obligation to which it is a party or by which it or any of its property is bound, or in respect any applicable law, regulation or order of any financial commitment or obligation, including obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely governmental authority; (c) the proceeds of each Advance will be used exclusively to adversely affect finance the ability acquisition of the Borrower to comply with its obligations under this Agreement or the Security;
Equipment; (d) the Borrower is in full (or upon the acquisition thereof will be) the sole owner of, and ongoing compliance with its constitution has good and all companies and securities legislation and regulationsmarketable title to, and all other legislation necessary rights in, and regulations power to which transfer pursuant to the Borrower may any time terms hereof, all of the Equipment, free and from time to time be subject;
clear of all liens and encumbrances (excepting only the Lien of the Lender), and upon the filing with the Secretary of State of Missouri of a Uniform Commercial Code financing statement naming Lender, as secured party, Borrower, as debtor, and the Equipment as the collateral, Lender shall have a valid, perfected, first priority security interest in the Equipment; (e) no event of default approval of, or event whichfiling with, any governmental authority or other person is required in connection with the giving of notice Borrower’s entering into, or the lapse payment or performance of time or bothits obligations under, would be an event of default and, having occurred, is continuing to subsist;
this Agreement and the other Loan Documents; (f) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, there are no litigation suits or administrative or other proceedings before, or of, any court or governmental authority, agency or other tribunal havepending or, to the knowledge of the Borrower, threatened, before any court or governmental agency against or affecting Borrower which, if decided adversely to Borrower, would adversely affect the conduct of its business or its ability to perform any of its obligations under or the enforceability of this Agreement and the other Loan Documents; (g) the financial statements of Borrower which have been initiated delivered or threatened against made publicly available to Lender have been prepared in accordance with generally accepted accounting principles consistently applied, and fairly present Borrower’s financial condition and the results of its operations as of the date of and for the period covered by such statements (subject to customary year-end adjustments), and since the date of such statements there has been no adverse change in such financial condition or operations; (h) Borrower’s full and correct legal name is set forth on the signature page hereof and Borrower will not change its legal name or the location of its jurisdiction of organization without giving to Lender at least thirty (30) days prior written notice thereof; (i) the Equipment will always be used for business or commercial, and not personal purposes; (j) Borrower is not in default under any obligation for borrowed money, for the deferred purchase price of property or any of lease agreement which, either individually or in the Borrower’s assets which aggregate, would or might have a material an adverse effect on the business, assets or financial condition of its business or its ability to perform any of its obligations under or the Borrower;
enforceability of this Agreement; (gk) under the laws of the jurisdiction(s) in which the Equipment is to be located, the Equipment consists solely of personal property and not fixtures; and (l) Borrower does not haveis, and will not during remain, in full compliance with all laws and regulations applicable to it including without limitation, (i) ensuring that no person who owns a controlling interest in or otherwise controls Borrower is or shall be (A) listed on the currency Specially Designated National and Blocked Person List maintained by the Office of this Agreement haveForeign Assets Control (“OFAC”), Department of the Treasury and/or any other similar lists maintained by OFAC pursuant to any authorizing statute, executive order or regulations or (B) a person designated under Section 1(b), (c) or (d) of Executive Order No. 13224 (September 23, 2001), any right of set-off, counterclaim, any right to rescind related enabling legislation or any other claim similar executive order and (ii) compliance with respect to all applicable Bank Secrecy Act (“BSA”) laws, regulations and government guidance on BSA compliance and on the prevention and detection of money laundering violations. Borrower’s representations and warranties shall survive termination or expiration of this Agreement by way of cross-action against the Lender;
(h) all of the most recent annual or half-yearly or both, as the case requires, accounts of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrower; and
(i) the Borrower is not the trustee of any trust and accordingly enters into this Agreement on its own behalfAgreement.
Appears in 1 contract
Samples: Master Loan and Security Agreement (Banyan Rail Services Inc.)
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants that:
that (a) it is registered as a company in good standing under the Actlaws of the state of its formation, duly qualified to do business and has will remain duly quality during the power term of each Loan in each state where necessary to carry on its present business and own its property in operations, including the manner and in jurisdiction(s) where the locations in which such business is presently being carried Collateral will be located as specified on or property owned;
each Exhibit A to each Note, except where failure to be so qualified would not have a Material Adverse Effect; (b) it has full power authority to execute and authority under its constitution:
(i) to enter into deliver this Security Agreement and the Security;
(ii) to do all things required by Notes and perform the terms hereof and thereof, and this Security Agreement and the Security;
(iii) all necessary meetings Notes have been held;
(iv) all required resolutions have been passed; and
(v) any other action necessary to authorise the execution duly authorized, executed and performance delivered and constitute valid and binding obligations of this Agreement and the Security has been taken; this Agreement and the Security will each constitute the legal, valid, binding and Borrower enforceable obligation of the Borrower in accordance with their respective terms;
; (c) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, neither the execution nor the performance and delivery of this Security Agreement or and the Security will:
(i) violate in Notes will not contravene any respect any statutelaw, decree, rule or regulation or any determination, order or award of any court or any governmental, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers of the judgment affecting Borrower or on the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict with, or result in any breach of, or require of any consent or approval under, any mortgage, material agreement or other undertaking instrument binding on Borrower; (d) no consent of Borrower's shareholders or instrument to holder of any indebtedness, or filing with, or approval of, any governmental agency or commission, which the Borrower has not already been obtained or performed, as appropriate, is a party or which is binding on condition to the Borrower or any performance of the Borrower’s assets;
(iv) result in a mortgage, charge, lien or other encumbrance over any terms of the Borrower’s assets; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower is not in default or difficulty under any deed, agreement or other document or obligation to which it is a party or by which it is bound, or in respect of any financial commitment or obligation, including obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect the ability of the Borrower to comply with its obligations under this Security Agreement or the Security;
(d) the Borrower is in full and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all other legislation and regulations to which the Borrower may any time and from time to time be subject;
Notes; (e) no event of default or event which, with the giving of notice or the lapse of time or both, would be an event of default and, having occurred, is continuing to subsist;
(f) except as disclosed in writing to the Lender and dispensed with in writing by the Lenderbest of Borrower's knowledge, there is no litigation action or administrative proceeding pending or other proceedings before, or of, threatened against Borrower before any court or governmental authority, administrative agency or other tribunal have, to the knowledge of the Borrower, been initiated or threatened against the Borrower or any of the Borrower’s assets which would or might have a material adverse effect Material Adverse Effect on the business, assets or financial condition or operations of Borrower; (f) at the time any Loan is made hereunder, Borrower owns and will keep all of the Borrower;
Collateral; (g) at the Borrower does not havetime any Loan is made hereunder, all Collateral has been received, installed and will not during is ready for use and is satisfactory in all respects for the currency purposes of this Agreement have, any right of set-off, counterclaim, any right to rescind or any other claim with respect to this Agreement by way of cross-action against the Lender;
(h) all of the most recent annual or half-yearly or both, as the case requires, accounts of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the BorrowerSecurity Agreement; and
(i) the Borrower Collateral is, and will remain at all times under applicable law, removable personal property, which is not the trustee free and clear of any trust lien or encumbrance except in favor of Lender, notwithstanding the manner in which the Collateral may be attached to any real property; (j) all credit and accordingly enters financial information submitted to Lender herewith or at any other time is and will at the time given be true and correct in all material respects; and (k) the security interest granted to Lender hereunder is a first priority security interest, and (l) on or before January 1, 2000, Borrower's computer system shall be Year 2000 performance compliant and will thus be able to accurately process date data from, into this Agreement on its own behalfand between the years 1999 and 2000, including leap year calculations.
Appears in 1 contract
Samples: Senior Loan and Security Agreement (Embark Com Inc)
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants that:
that (a) it is registered as a company in good standing under the Actlaws of the state of its formation, duly qualified to do business and has will remain duly qualified during the power term of each Loan in each state where necessary to carry on its present business and own its property in operations, including the manner and in jurisdiction(s) where the locations in which such business is presently being carried Collateral will be located as specified on or property owned;
each Exhibit A to each Note, except where failure to be so qualified would not have a Material Adverse Effect; (b) it has full power authority to execute and authority under its constitution:
(i) to enter into deliver this Security Agreement and the Security;
(ii) to do all things required by Notes and perform the terms hereof and thereof, and this Security Agreement and the Security;
(iii) all necessary meetings Notes have been held;
(iv) all required resolutions have been passed; and
(v) any other action necessary to authorise the execution duly authorized, executed and performance delivered and constitute valid and binding obligations of this Agreement and the Security has been taken; this Agreement and the Security will each constitute the legal, valid, binding and Borrower enforceable obligation of the Borrower in accordance with their respective terms;
; (c) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, neither the execution nor the performance and delivery of this Security Agreement or and the Security will:
(i) violate in Notes will not contravene any respect any statutelaw, decree, rule or regulation or any determination, order or award of any court or any governmental, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers of the judgment affecting Borrower or on the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict with, or result in any breach of, or require of any consent or approval under, any mortgage, material agreement or other undertaking instrument binding on Borrower; (d) no consent of Borrower's shareholders or instrument to holder of any indebtedness, or filing with, or approval of, any governmental agency or commission, which the Borrower has not already been obtained or performed, as appropriate, is a party or which is binding on condition to the Borrower or any performance of the Borrower’s assets;
(iv) result in a mortgage, charge, lien or other encumbrance over any terms of the Borrower’s assets; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower is not in default or difficulty under any deed, agreement or other document or obligation to which it is a party or by which it is bound, or in respect of any financial commitment or obligation, including obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect the ability of the Borrower to comply with its obligations under this Security Agreement or the Security;
(d) the Borrower is in full and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all other legislation and regulations to which the Borrower may any time and from time to time be subject;
Notes; (e) there is no event of default action or event which, with the giving of notice proceeding pending or the lapse of time or both, would be an event of default and, having occurred, is continuing to subsist;
(f) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, no litigation or administrative or other proceedings before, or of, threatened against Borrower before any court or governmental authority, administrative agency or other tribunal have, to the knowledge of the Borrower, been initiated or threatened against the Borrower or any of the Borrower’s assets which would or might have a material adverse effect Material Adverse Effect on the business, assets or financial condition or operations of Borrower; (f) at the time any Loan is made hereunder, Borrower owns and will keep all of the Borrower;
Collateral free and clear of all liens, claims and encumbrances, and, except for this Security Agreement, there is no deed of trust, mortgage, security agreement or other third party interest against any of the Collateral; (g) at the time any Loan is made hereunder, Borrower does not have, has good and will not during marketable title to the currency of this Agreement have, any right of set-off, counterclaim, any right to rescind or any other claim with respect to this Agreement by way of cross-action against the Lender;
Collateral; (h) at the time any Loan is made hereunder, all Collateral has been received, instaled and is ready for use and is satisfactory in all respects for the purposes of the most recent annual or half-yearly or both, as the case requires, accounts of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrowerthis Security Agreement; and
(i) the Borrower Collateral is, and will remain at all times under applicable law, removable personal property, which is not the trustee free and clear of any trust lien or encumbrance except in favor of Lender, notwithstanding the manner in which the Collateral may be attached to any real property; (j) all credit and accordingly enters into this Agreement on its own behalffinancial information submitted to Lender herewith or at any other time is and will at the time given be true and correct in all material respects; and (k) the security interest granted to Lender hereunder is a first priority security interest.
Appears in 1 contract
Samples: Senior Loan and Security Agreement (Gric Communications Inc)
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower hereby represents and warrants that:
(a) it is registered to Lender as a company under follows, which representations and warranties shall survive the Act, execution and has the power to carry on its business and own its property in the manner and in the locations in which such business is presently being carried on or property owned;
(b) it has full power and authority under its constitutiondelivery of this Note:
(i) Borrower is a limited liability company duly formed and validly existing under the laws of the State of Delaware and qualified to do business in the State of California, and Borrower has the requisite power to own its properties and assets and to enter into and perform its obligations under this Agreement and the SecurityNote;
(ii) to do This Note has been duly authorized by all things required by this Agreement and necessary action on the Securitypart of Borrower;
(iii) all necessary meetings have been heldThis Note constitutes the legally valid and binding obligation of Borrower, enforceable against Borrower in accordance with its terms;
(iv) all required resolutions have been passedThe execution and delivery by Borrower of this Note, the consummation of the transactions contemplated hereby, and the performance of the terms and conditions hereof by Borrower, do not conflict with, result in a breach of or constitute a default under, any of the terms, conditions or provisions of (i) the organizational documents of Borrower; and(ii) any order, writ, judgment or decree by which Borrower is bound or to which it is a party; (iii) any law, rule, regulation or restriction of any governmental authority or agency applicable to Borrower; or (iv) any contract, commitment, indenture, instrument or other agreement by which Borrower is bound or to which Borrower is a party;
(v) No consent or authorization of, filing with or other act by or in respect of any other action necessary governmental authority, bureau or agency is required to authorise be obtained or made by Borrower in connection with the execution execution, delivery and performance of this Agreement and the Security has been taken; this Agreement and the Security will each constitute the legal, valid, binding and enforceable obligation of the Borrower in accordance with their respective terms;
(c) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, neither the execution nor the performance of this Agreement or the Security will:
(i) violate in any respect any statute, decree, rule or regulation or any determination, order or award of any court or any governmental, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers of the Borrower or on the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict with, or result in any breach of, or require any consent or approval under, any mortgage, agreement or other undertaking or instrument to which the Borrower is a party or which is binding on the Borrower or any of the Borrower’s assets;
(iv) result in a mortgage, charge, lien or other encumbrance over any of the Borrower’s assets; or
(v) cause any limit on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceededNote;
(vi) except Borrower has not granted a security interest in any of its assets or Collateral (as disclosed defined in writing the Security) to the Lender and dispensed with in writing by the any person or entity other than Lender, and Xxxxx Fargo Vendor Financial Services, LLC (UCC Financing Statement Nos. 20172560644 and 20172560685) for the Borrower is not in default or difficulty under any deed, agreement or other document or obligation equipment lease of two floor scrubbers each with an approximate value of Twenty-Eight Thousand Dollars ($28,000) to which it is a party or by which it is bound, or in respect of any financial commitment or obligation, including obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely Thirty Three Thousand Dollars ($33,000) (collectively referred to adversely affect the ability of the Borrower to comply with its obligations under this Agreement or the Security;
(d) the Borrower is in full and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all other legislation and regulations to which the Borrower may any time and from time to time be subject;
(e) no event of default or event which, with the giving of notice or the lapse of time or both, would be an event of default and, having occurred, is continuing to subsist;
(f) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, no litigation or administrative or other proceedings before, or of, any court or governmental authority, agency or other tribunal have, to the knowledge of the Borrower, been initiated or threatened against the Borrower or any of the Borrower’s assets which would or might have a material adverse effect on the business, assets or financial condition of the Borrower;
(g) the Borrower does not have, and will not during the currency of this Agreement have, any right of set-off, counterclaim, any right to rescind or any other claim with respect to this Agreement by way of cross-action against the Lender;
(h) all of the most recent annual or half-yearly or both, herein as the case requires, accounts of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of the Borrower; and
(i) the Borrower is not the trustee of any trust and accordingly enters into this Agreement on its own behalf“Xxxxx Fargo Liens”).
Appears in 1 contract
BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower hereby represents and warrants to the Lender that:
(a) 6.1 it is registered as a company an entity duly licensed and existing under the Act, and has laws of the United Arab Emirates with power to carry on its business and own its property in the manner and in the locations in which such business is presently being carried on or property owned;
(b) it has full power and authority under its constitution:
(i) to enter into this Agreement and the Security;
(ii) to do all things required by this Agreement exercise its rights and the Security;
(iii) all necessary meetings have been held;
(iv) all required resolutions have been passedperform its obligations hereunder; and
(v) 6.2 it is competent and fully authorized to issue such declarations, confirmations, agreements and undertakings for the purposes of borrowing/availing of the Loan and proper performance of this Agreement; and
6.3 it does not know of any other action necessary matter or thing which may in any way prevent or restrict the Borrower from entering into or fulfilling its obligations under this Agreement or any of the documents referred to authorise in this Agreement, and that this Agreement constitutes the execution legal, valid and binding obligations of the Borrower and is enforceable in accordance with its terms; and
6.4 the execution, delivery and performance of this Agreement and the Security has been taken; documents referred to in this Agreement do not and the Security will each constitute the legal, valid, binding and enforceable obligation of the Borrower in accordance with their respective terms;
(c) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, neither the execution nor the performance of this Agreement or the Security will:
(i) shall not violate in any respect any statute, decree, rule or regulation or any determination, order or award of any court or any governmental, judicial or public body or authority applicable to the Borrower;
(ii) cause any limitation, whether imposed by state, decree, rule or regulation on any of the powers of the Borrower or on the Borrower’s right or ability to exercise such powers to be exceeded;
(iii) conflict with, or result in any breach of, or require any consent or approval under, any mortgage, agreement deed, contract or other undertaking or instrument to which the Borrower is a party or which is binding on the Borrower upon it or any of the Borrower’s assets;
its assets and shall not (ivsave as contemplated herein) result in a mortgage, charge, lien the creation or imposition of any charge or any other encumbrance over whatsoever of any of the Borrower’s its assets; orand
(v) cause any limit 6.5 it has assets that exceed in value its liabilities, is able to pay its debts as they fall due and has reasonable capital to carry on the powers of the Borrower in respect of borrowing, guaranteeing, raising financial accommodation or otherwise to be exceeded;its business; and
(vi) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, the Borrower 6.6 it is not in breach of or default or difficulty under any deed, agreement or other document or obligation to which it is a party or by and which is binding on it is bound, or in respect of any financial commitment or obligation, including obligations under guarantees or other contingent liabilities, which default or difficulty is reasonably likely to adversely affect the ability of the Borrower to comply with its obligations under this Agreement or the Security;
(d) the Borrower is in full and ongoing compliance with its constitution and all companies and securities legislation and regulations, and all other legislation and regulations to which the Borrower may any time and from time to time be subject;
(e) no event of default or event which, with the giving of notice or the lapse of time or both, would be an event of default and, having occurred, is continuing to subsist;
(f) except as disclosed in writing to the Lender and dispensed with in writing by the Lender, no litigation or administrative or other proceedings before, or of, any court or governmental authority, agency or other tribunal have, to the knowledge of the Borrower, been initiated or threatened against the Borrower or any of the Borrower’s its assets which to an extent or in a manner that would or might have a material adverse effect on the business, assets or its financial condition or its ability to perform its obligations under this Agreement; and
6.7 no Event of Default has occurred and is continuing; and
6.8 no legal proceedings have been commenced or, to its knowledge are threatened against the Borrower;, which would have a material adverse effect on its financial condition or its ability to perform its obligations under this Agreement; and
(g) 6.9 no legal proceedings are contemplated by the Borrower does not have, and will not during the currency of this Agreement have, any right of set-off, counterclaim, any right to rescind or any other claim with respect to this Agreement by way of cross-action against the Lender;
(h) all of the most recent annual or half-yearly or both, as far as the case requiresBorrower is aware are pending or threatened for the purpose of dissolving, accounts of the Borrower provided to the Lender provide a true and fair view of the financial position of the Borrower and, except as otherwise disclosed in writing to the Lender and dispensed with in writing by the Lender, no material adverse change has occurred since the date of those accounts to the financial condition of liquidating or reorganizing the Borrower; and
6.10 all information supplied to the Lender in contemplation or for the purpose of this Agreement or the Loan was true and accurate in all material respects as at the date the information was supplied and did not omit anything material and no change has occurred since that date and the date hereof which renders the same untrue or misleading in any material respect, and all projections and statements of belief and opinion given by the Borrower to the Lender were made honestly and in good faith after due and careful inquiry; and
6.11 all such letter(s) of authorities/power(s) of attorney, if any, executed by the Borrower in favour of any person(s) and which is/ are submitted to the Lender, is/are valid, subsisting and has/have not been revoked by the Borrower; and
6.12 it does not have any immunity from (i) judicial proceedings, (ii) attachment of debts to its properties or assets or (iii) execution of judgment under the laws of the United Arab Emirates (including, for the avoidance of doubt, the laws of any Emirate thereof); and
6.13 it hereby acknowledges and concedes that the Lender’s books and accounts shall be the sole evidence of the sums due or for which the Borrower is not bound to pay in respect of the trustee Loan and this Agreement, and the Borrower also specifically waives any right to challenge the correctness of any trust these records.
6.14 in the event the Loan is granted to more than one Borrower, the Borrowers shall jointly and accordingly enters into severally be responsible and liable to the Lender in respect of all monies due under this Agreement on its own behalfand all the terms and conditions of the Loan and this Agreement shall apply to the Borrowers jointly and severally.
Appears in 1 contract
Samples: Business Finance Loan Agreement
