DEBTOR'S REPRESENTATIONS AND WARRANTIES. The Debtor represents and warrants that: (a) the Debtor is (or, to the extent that the Collateral is acquired after the date hereof, will be) the sole legal and beneficial owner of its respective Collateral and has exclusive possession and control thereof; there are no security interests in, liens, charges or encumbrances on, or adverse claims of title to, or any other interest whatsoever in, such Collateral or any portion thereof except such liens that are created by this Security Agreement or as permitted by Section 9.2 of the Development Agreement and Section 10.6 of the Management Agreement (collectively, "PERMITTED LIENS"); and that no financing statement, notice of lien, mortgage, deed of trust or instrument similar in effect covering the Collateral or any portion thereof or any proceeds thereof ("LIEN NOTICE") exists or is on file in any public office, except as relates to Permitted Liens and except as may have been filed in favor of Secured Party relating to this Security Agreement or related agreements, or for which duly executed termination statements have been delivered to Secured Party for filing; (b) the Debtor has full right, power and authority to execute, deliver and perform this Security Agreement and the same constitutes a legally valid and binding obligation of the Debtor, enforceable against the Debtor in accordance with its terms subject to any limitations set forth in the Resolution of Limited Waiver attached to the Management Agreement. Subject to the completion of the items identified in Section 4(c) below, the provisions of this Security Agreement are effective to create in favor of Secured Party a valid and enforceable perfected security interest in the Collateral; (c) except for the filing or recording of the financing statements and (prior to transfer of the Gaming Site into trust) fixture filings that are to be filed in connection with this Security Agreement and compliance with applicable Minnesota law as to creation and perfection of security interests, and after adoption by Borrower of a commercial code governing secured transactions, compliance with the applicable filing and other provisions of such code, no authorization, approval or other action by, no notice to or registration or filing with, any person or entity, including without limitation, any creditor of Debtor or any governmental authority or regulatory body is required, except as may be agreed to by Debtor and Secured Party: (i) for the grant by the Debtor of the security interest in the Collateral pursuant to this Security Agreement or for the execution, delivery or performance of this Security Agreement by the Debtor, (ii) for the perfection or maintenance of such security interest created hereby, or the exercise by Secured
Appears in 1 contract
DEBTOR'S REPRESENTATIONS AND WARRANTIES. The Debtor represents and warrants and, so long as this Security Agreement is in effect, shall be deemed continuously to represent and warrant, that:
(a) the Debtor is (or, to the extent that owns the Collateral is acquired after free and clear of any Liens (as defined in the date hereofNote), will be) the sole legal and beneficial owner of its respective Collateral and has exclusive possession and control thereof; there are no security interests in, liens, charges or encumbrances on, or adverse claims of title to, or any other interest whatsoever in, such Collateral or any portion thereof except such liens that are created by this Security Agreement or as for Liens permitted by Section 9.2 6(b) of the Development Note.
(b) Debtor has all necessary corporate power and authority and has taken all corporate action necessary to execute, deliver and perform this Agreement and Section 10.6 of the Management Agreement Notes and to encumber and grant a security interest in the Collateral.
(collectively, "PERMITTED LIENS"); and that c) There is no effective financing statement, notice of lien, mortgage, deed of trust statement or other instrument similar in effect covering all or any part of the Collateral or any portion thereof or any proceeds thereof ("LIEN NOTICE") exists or is on file in any public office, recording office except as relates to Permitted Liens and except as (i) may have been filed in favor of the Secured Party relating to this Security Agreement or related agreementsParty, or for which duly executed termination statements (ii) as may have been delivered to Secured Party for filing;
(b) the Debtor has full right, power and authority to execute, deliver and perform this Security Agreement and the same constitutes a legally valid and binding obligation filed by any landlords of real property leased by the Debtor, enforceable against the Debtor in accordance with its terms subject to any limitations or (iii) as set forth on Schedule I hereto.
(d) This Agreement creates a valid security interest of the Secured Party in the Resolution of Limited Waiver attached to the Management Agreement. Subject to the completion Collateral securing payment of the items identified in Section 4(c) below, the provisions of this Security Agreement are effective to create in favor of Secured Party a valid and enforceable perfected security interest in the Collateral;
(c) except for Obligations. Upon the filing or recording of the financing statements and the other instruments similar in effect under Section 5(b) or the taking of any other action necessary to perfect, the Secured Party will have valid and perfected first priority liens on and security interests in the Collateral (except that such liens and security interests may not be first priority to the extent preceded by any Liens permitted by Section 6(b) of the Note existing prior to transfer of the Gaming Site into trustdate hereof).
(e) fixture filings that are to be filed in connection with this Security Agreement and compliance with applicable Minnesota law as to creation and perfection of security interestsNo consent, and after adoption by Borrower of a commercial code governing secured transactions, compliance with the applicable filing and other provisions of such code, no authorization, approval or other action by, and no notice to or registration or filing with, any governmental authority, regulatory body, lessor, franchise or other person or entity, including without limitation, any creditor of Debtor or any governmental authority or regulatory body entity is required, except as may be agreed to by Debtor and Secured Party: (i) required for the grant by the Debtor of the security interest in the Collateral pursuant to this Security Agreement granted hereby or for the execution, delivery or performance of this Security Agreement by the Debtor, (ii) Debtor or for the perfection or maintenance of such security interest created hereby, or the exercise by Securedthe Secured Party of its rights and remedies hereunder, except filings of financing documents or as otherwise set forth on Schedule I hereto.
(f) Debtor does not transact any part of its business under any tradenames, division names, assumed names or other names, except for their names set forth in the preamble or on Schedule I hereto; Debtor's business addresses and chief executive offices are as set forth in the preamble hereto; and Debtor's records concerning the Collateral are kept at such address.
(g) Each Account, General Intangible and Chattel Paper constituting Collateral is genuine and enforceable in accordance with its terms against the party obligated to pay it (the "Account Debtor"), and no Account Debtor has any defense, setoff, claim or counterclaim against Debtor which can be asserted against the Secured Party, whether in any proceeding to enforce the Collateral or otherwise.
(h) Debtor will promptly deliver to the Secured Party a schedule of all Accounts, General Intangibles and Chattel Paper, and will provide updated schedules thereof from time to time as the Secured Party may reasonably request, but not more frequently than monthly. The amounts represented on such schedules by Debtor to the Secured Party as owing by each Account Debtor or by all Account Debtors are and will be the correct amounts actually and unconditionally owing by such Account Debtor or Account Debtors individually and in the aggregate, except for normal cash discounts where applicable.
(i) Each Instrument and each Document constituting Collateral is genuine and in all respects what it purports to be.
(j) Any Collateral which is a Fixture is affixed to real property at Debtor's addresses specified on Schedule II hereto.
Appears in 1 contract
DEBTOR'S REPRESENTATIONS AND WARRANTIES. The Debtor hereby represents and warrants to each Secured Party on the date hereof that:
(a) this Agreement constitutes the Debtor is (orlegal, to the extent that the Collateral is acquired after the date hereof, will be) the sole legal and beneficial owner of its respective Collateral and has exclusive possession and control thereof; there are no security interests in, liens, charges or encumbrances on, or adverse claims of title to, or any other interest whatsoever in, such Collateral or any portion thereof except such liens that are created by this Security Agreement or as permitted by Section 9.2 of the Development Agreement and Section 10.6 of the Management Agreement (collectively, "PERMITTED LIENS"); and that no financing statement, notice of lien, mortgage, deed of trust or instrument similar in effect covering the Collateral or any portion thereof or any proceeds thereof ("LIEN NOTICE") exists or is on file in any public office, except as relates to Permitted Liens and except as may have been filed in favor of Secured Party relating to this Security Agreement or related agreements, or for which duly executed termination statements have been delivered to Secured Party for filing;
(b) the Debtor has full right, power and authority to execute, deliver and perform this Security Agreement and the same constitutes a legally valid and binding obligation obligations of the Debtor, and constitutes a valid first priority security interest under the Law, enforceable against the Debtor in accordance with its terms subject to any limitations set forth in terms;
(b) no event has occurred or circumstance exists which constitutes or with the Resolution giving of Limited Waiver attached to the Management Agreement. Subject to the completion notice or lapse of the items identified in Section 4(c) below, the provisions time or both would constitute an Event of this Security Agreement are effective to create in favor of Secured Party a valid and enforceable perfected security interest in the CollateralDefault;
(c) except for the filing or recording Debtor and Dxxxx Xxxxxx are the sole legal and the Debtor is the sole beneficial owner of and has good title to the Collateral subject only to the rights granted in favour of the financing statements Secured Parties by this Agreement;
(d) the Securities have been duly authorised and validly issued and are fully paid;
(prior to transfer e) the Collateral is free from all Encumbrances and rights of set-off other than those created by this Agreement in favour of the Gaming Site into trustSecured Parties;
(f) fixture filings that are the Debtor has the necessary power to be filed in connection with execute, deliver and perform its obligations under this Security Agreement; and the execution, delivery and performance by the Debtor of this Agreement and compliance the consummation of the transactions contemplated hereby have been duly authorised by all necessary corporate action;
(g) all necessary authorisations or approvals or other actions by and notices or filings with applicable Minnesota law as any governmental authority, regulatory body or any other third party to creation enable the Debtor to execute, deliver and perform this Agreement and the perfection of the security interestsinterest created hereunder have been obtained and are, in full force and after adoption effect;
(h) the execution, delivery and performance by Borrower the Debtor of a commercial code governing secured transactions, compliance with this Agreement and the applicable filing and other provisions of such code, no authorization, approval or other action by, no notice to or registration or filing with, any person or entity, including without limitation, any creditor of Debtor or any governmental authority or regulatory body is required, except as may be agreed to by Debtor and Secured Party: (i) for the grant consummation by the Debtor of the security interest transactions contemplated hereby do not:
(i) require any consent or approval of any Person that has not been obtained and each such consent or approval that has been obtained is in full force and effect;
(ii) violate any provision of the Collateral pursuant memorandum and articles of association of the Debtor;
(iii) violate any provision of any statute, regulation, order, injunction or judgement applicable to this Security Agreement each Debtor which violation could reasonably be expected to have a Material Adverse Effect; or
(iv) violate, result in a breach of or for constitute a default under any mortgage, indenture or any other material agreement to which the executionDebtor is a party or by which it or its property may be bound which violation or breach could reasonably be expected to have a Material Adverse Effect.
(i) there are no actions, delivery suits, litigation, administrative proceedings or performance other proceedings at law or in equity or by or before any governmental authority or arbitral tribunal now pending, or to the Knowledge of this Security Agreement by the Debtor, (ii) for threatened against or affecting the perfection or maintenance of such security interest created hereby, or the exercise by SecuredCollateral which could reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
DEBTOR'S REPRESENTATIONS AND WARRANTIES. The Debtor represents and warrants that:
(a) the Debtor is (or, to the extent that the Collateral is acquired after the date hereof, will be) the sole legal and beneficial owner of its respective Collateral and has exclusive possession and control thereof; there are no security interests in, liens, charges or encumbrances on, or adverse claims of title to, or any other interest whatsoever in, such Collateral or any portion thereof except such liens permitted by the Development Agreement and Management Agreement and that are created by this Security Agreement or as permitted by Section 9.2 of the Development Agreement and Section 10.6 of the Management Agreement (collectively, "PERMITTED LIENS"); and that no financing statement, notice of lien, mortgage, deed of trust or instrument similar in effect covering the Collateral or any portion thereof or any proceeds thereof ("LIEN NOTICE") exists or is on file in any public office, except as relates to Permitted Liens and except as may have been filed in favor of Secured Party relating to this Security Agreement or related agreements, or for which duly executed termination statements have been delivered to Secured Party for filing;
(b) the Debtor has full right, power and authority to execute, deliver and perform this Security Agreement. This Security Agreement and the same constitutes a legally valid and binding obligation of the Debtor, enforceable against the Debtor in accordance with its terms subject to any limitations set forth in the Resolution of Limited Waiver attached to the Management Agreement. Subject to the completion of the items identified in Section 4(c) below, the provisions of this Security Agreement are effective to create in favor of Secured Party a valid and enforceable first, prior and perfected security interest in the Collateral;
(c) except for the filing or recording of the financing statements and (prior to transfer of the Gaming Site into trust) fixture filings that are to be filed in connection with this Security Agreement and compliance with applicable Minnesota law as to creation and perfection of security interests, and after adoption by Borrower of a commercial code governing secured transactions, compliance with the applicable filing and other provisions of such codeAgreement, no authorization, approval or other action by, no notice to or registration or filing with, any person or entity, including without limitation, any stockholder or creditor of Debtor or any governmental authority or regulatory body is required, except as may be agreed to by Debtor and Secured Party: (i) for the grant by the Debtor of the security interest in the Collateral pursuant to this Security Agreement or for the execution, delivery or performance of this Security Agreement by the Debtor, (ii) for the perfection or maintenance of such security interest created hereby, including the first priority nature of such security interest, or the exercise by SecuredSecured Party of the rights and remedies provided for in this Security Agreement (other than any required governmental consent or filing with respect to any patents, trademarks, copyrights, governmental claims, tax refunds, licenses or permits and the exercise of remedies requiring prior court approval), or (iii) for the enforceability of such security interest against third parties, including, without limitation, judgment lien creditors;
(d) Debtor does not do business, and for the previous five years has not done business, under any fictitious business names or trade names;
(e) the Collateral has not been and will not be used or bought by Debtor for personal, family or household purposes;
(f) the Debtor's chief executive office is located at the address referenced as the first page of this Agreement, Debtor has no places of business other than such address and the Collateral is now and will at all times hereafter be located at Debtor's places of business or as Debtor may otherwise notify Secured Party in writing;
(g) Intentionally omitted;
(h) Debtor has not purchased any Collateral, other than for cash, within twenty-one (21) days prior to the date hereof;
(i) all originals of all promissory notes, other instruments or chattel paper which evidence Collateral (other than checks received by Debtor in the ordinary course of business) have been delivered to Secured Party (with all necessary or appropriate endorsements); and
(j) none of the execution, delivery and performance of this Security Agreement by Debtor, the consummation of the transactions herein contemplated, the fulfillment of the terms hereof or the exercise by Secured Party of any rights or remedies hereunder will constitute or result in a breach of any of the terms or 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 agreement, indenture, mortgage, deed of trust, equipment lease, instrument or other document to which Debtor is a party, conflict with or require approval, authorization, notice or consent under any law, order, rule, regulation, license or permit applicable to Debtor of any court or any federal or state government, regulatory body or administrative agency, or any other governmental body having jurisdiction over Debtor or its properties, or require notice, consent, approval or authorization by or registration or filing with any person or entity (including, without limitation, any stockholder or creditor of Debtor) other than any notices to Debtor from Secured Party required hereunder except as may be agreed to by Debtor and Secured Party. Except for the Permitted Liens, none of the Collateral is subject to any agreement, indenture, mortgage, deed of trust, equipment lease, instrument or other document to which Debtor is a party which may restrict or inhibit Secured Party's rights or ability to sell or dispose of the Collateral or any part thereof after the occurrence of an Event of Default (as defined herein).
Appears in 1 contract
DEBTOR'S REPRESENTATIONS AND WARRANTIES. The Debtor represents and warrants that:
(a) the Debtor is (or, to the extent that the Collateral is acquired after the date hereof, will be) the sole legal and beneficial owner of its respective Collateral and has exclusive possession and control thereof; there are no security interests in, liens, charges or encumbrances on, or adverse claims of title to, or any other interest whatsoever in, such Collateral or any portion thereof except such liens that are created by this Security Agreement or as permitted by Section 9.2 of the Development Agreement and Section 10.6 of the Management Agreement (collectively, "PERMITTED LIENS"); and that no financing statement, notice of lien, mortgage, deed of trust or instrument similar in effect covering the Collateral or any portion thereof or any proceeds thereof ("LIEN NOTICE") exists or is on file in any public office, except as relates to Permitted Liens and except as may have been filed in favor of Secured Party relating to this Security Agreement or related agreements, or for which duly executed termination statements have been delivered to Secured Party for filing;
(b) the Debtor has full right, power and authority to execute, deliver and perform this Security Agreement and the same constitutes a legally valid and binding obligation of the Debtor, enforceable against the Debtor in accordance with its terms subject to any limitations set forth in the Resolution of Limited Waiver attached to the Management Agreement. Subject to the completion of the items identified in Section 4(c) below, the provisions of this Security Agreement are effective to create in favor of Secured Party a valid and enforceable perfected security interest in the Collateral;
(c) except for the filing or recording of the financing statements and (prior to transfer of the Gaming Site into trust) fixture filings that are to be filed in connection with this Security Agreement and compliance with applicable Minnesota law as to creation and perfection of security interests, and after adoption by Borrower of a commercial code governing secured transactions, compliance with the applicable filing and other provisions of such code, no authorization, approval or other action by, no notice to or registration or filing with, any person or entity, including without limitation, any creditor of Debtor or any governmental authority or regulatory body is required, except as may be agreed to by Debtor and Secured Party: (i) for the grant by the Debtor of the security interest in the Collateral pursuant to this Security Agreement or for the execution, delivery or performance of this Security Agreement by the Debtor, (ii) for the perfection or maintenance of such security interest created hereby, or the exercise by SecuredSecured Party of the rights and remedies provided for in this Security Agreement (other than any required governmental consent or filing with respect to any patents, trademarks, copyrights, governmental claims, tax refunds, licenses or permits, compliance with the Johnson Act, 15 U.S.C. Sections 1171 et seq. and other laws applicabxx xx xhe possession, transportation, use and sale of gaming equipment, and the exercise of remedies requiring prior court approval), or (iii) for the enforceability of such security interest against third parties, including, without limitation, judgment lien creditors;
(d) Debtor does not do business, and for the previous five years has not done business, under any fictitious business names or trade names;
(e) the Collateral has not been and will not be used or bought by Debtor for personal, family or household purposes;
(f) the Debtor's chief executive office is located at the address referenced as the first page of this Agreement, Debtor has no places of business other than such address and the Collateral is now and will at all times hereafter be located at Debtor's places of business or as Debtor may otherwise notify Secured Party in writing;
(g) Intentionally omitted;
(h) Debtor has not purchased any Collateral, other than for cash, within twenty-one (21) days prior to the date hereof;
(i) Intentionally omitted; and
(j) none of the execution, delivery and performance of this Security Agreement by Debtor, the consummation of the transactions herein contemplated, the fulfillment of the terms hereof or the exercise by Secured Party of any rights or remedies hereunder will constitute or result in a breach of any of the terms or 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 agreement, indenture, mortgage, deed of trust, equipment lease, instrument or other document to which Debtor is a party, conflict with or require approval, authorization, notice or consent under any law, order, rule, regulation, license or permit applicable to Debtor of any court or any federal or state government, regulatory body or administrative agency, other than compliance with the Johnson Act, 15 U.S.C. Sections 1171 et seq. and other laws applicabxx xx xhe possession, transportation, use and sale of gaming equipment, or any other governmental body having jurisdiction over Debtor or its properties, or require notice, consent, approval or authorization by or registration or filing with any person or entity (including, without limitation, any stockholder or creditor of Debtor) other than any notices to Debtor from Secured Party required hereunder except as may be agreed to by Debtor and Secured Party. Except for the Permitted Liens, none of the Collateral is subject to any agreement, indenture, mortgage, deed of trust, equipment lease, instrument or other document to which Debtor is a party which may restrict or inhibit Secured Party's rights or ability to sell or dispose of the Collateral or any part thereof after the occurrence of an Event of Default (as defined herein).
Appears in 1 contract
DEBTOR'S REPRESENTATIONS AND WARRANTIES. The Debtor represents and warrants that:
(a) the Debtor is (or, or to the extent that this Security Agreement states that the Collateral is to be acquired after the date hereof, will be) the sole legal and beneficial owner of its respective the Collateral; that the security interest hereunder in the Collateral is a first, prior and has exclusive possession and control thereofperfected security interest; that there are no security interests ininterests, liens, charges liens or encumbrances onencumbrances, or adverse claims of title to, or any other interest whatsoever in, such the Collateral or any portion thereof except such liens that are created by this Security Agreement or as permitted by Section 9.2 of the Development Agreement and Section 10.6 of the Management Agreement (collectively, "PERMITTED LIENS")Agreement; and that no financing statement, notice of lien, mortgage, mortgage or deed of trust or instrument similar in effect covering the Collateral or any portion thereof or any proceeds thereof ("LIEN NOTICE") exists or is on file in any public office, except as relates to Permitted Liens and except as may have been filed in favor of Secured Party relating to this Security Agreement or related agreements, or for which duly executed termination statements have been delivered to Secured Party for filing;
(b) the The Collateral has not been and will not be used or bought by Debtor has full rightfor personal, power and authority to execute, deliver and perform this Security Agreement and the same constitutes a legally valid and binding obligation of the Debtor, enforceable against the Debtor in accordance with its terms subject to any limitations set forth in the Resolution of Limited Waiver attached to the Management Agreement. Subject to the completion of the items identified in Section 4(c) below, the provisions of this Security Agreement are effective to create in favor of Secured Party a valid and enforceable perfected security interest in the Collateral;family or household purposes
(c) except for Debtor’s present executive office is located at 0000 Xxxxxxxx Xxxx., Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxxxx 00000. The assets are located only at the filing or recording of the financing statements executive office and (prior at various other off-site locations which may change from time to transfer of the Gaming Site into trust) fixture filings that are to be filed in connection with this Security Agreement and compliance with applicable Minnesota law as to creation and perfection of security interests, and after adoption by Borrower of a commercial code governing secured transactions, compliance with the applicable filing and other provisions of such code, no authorization, approval or other action by, no notice to or registration or filing with, any person or entitytime, including without limitationthe locations of vendors, partners, affiliates and/or clients, the patent applications and the records related thereto. The offsite locations, if any, are described in Schedule 4(c) attached hereto;
(d) The Collateral is now and will at all times hereafter be located at Debtor's places of business, or such other locations as set forth in subsection (c) above;
(e) Debtor is engaged in business as a provider of Web-based storage solutions.
(f) Debtor does not maintain any creditor of deposit accounts other than those set forth in Schedule 4(f) hereto; and that Debtor or is not now indebted to any governmental authority or regulatory body is required, except as may be agreed to by organization with which Debtor maintains a deposit account; and
(g) Neither the execution and Secured Party: (i) for the grant by the Debtor of the security interest in the Collateral pursuant to this Security Agreement or for the execution, delivery or performance of this Security Agreement by Debtor nor the Debtor, (ii) for consummation of the perfection transactions herein contemplated nor the fulfillment of the terms hereof will result in a breach of any of the terms or maintenance of such security interest created herebyprovisions 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 agreement, indenture, mortgage, deed of trust, equipment lease, instrument or other document to which Debtor is a party, or conflict with any law, order, rule or regulation applicable to Debtor of any court or any federal or state government, regulatory body or administrative agency, or any other governmental body having jurisdiction over Debtor or its properties.
(h) The Debtor is authorized to enter into this transaction by, among other things, a resolution of the exercise by SecuredBoard of Directors of the Debtor in a meeting duly authorized under the Bylaws of the Company in accordance with all applicable laws. Attached in Schedule 4(h) is an opinion of company counsel attesting to the same, together with a true and accurate copy of the Board Resolution authorizing the Debtor to enter into the transactions contemplated under the Note and Security Agreement.
Appears in 1 contract
Samples: Security Agreement
DEBTOR'S REPRESENTATIONS AND WARRANTIES. The Debtor represents and warrants that:
(a) the Debtor is (or, to the extent that the Collateral is acquired after the date hereof, will be) the sole legal and beneficial owner of its respective the Collateral and has exclusive possession and control thereof; there are no security interests in, liensLiens, charges or encumbrances on, or adverse claims of title to, or any other interest whatsoever in, such the Collateral or any portion thereof except such liens Liens that are created by this Security Agreement or as permitted by Section 9.2 of the Development Agreement and Section 10.6 of the Management Agreement (collectively, "PERMITTED LIENS")Agreement; and that no financing statement, notice of lien, mortgage, deed of trust or instrument similar in effect covering the Collateral or any portion thereof or any proceeds thereof ("LIEN NOTICE") exists or is on file in any public office, and no Collateral or any portion thereof is in the possession of any third party, except as relates to Permitted Liens and except as may have been filed in favor of Secured Party relating to this Security Agreement or related agreements, or for which duly executed termination statements have been delivered to Secured Party for filing;
(b) the Debtor has full right, power and authority to execute, deliver and perform this Security Agreement. This Security Agreement and the same constitutes a legally valid and binding obligation of the Debtor, enforceable against the Debtor in accordance with its terms subject to any limitations set forth in the Resolution of Limited Waiver attached to the Management Agreementterms. Subject to the completion of the items identified in Section 4(c) below, the provisions of this Security Agreement are effective to create in favor of Secured Party a valid and enforceable first, prior and perfected security interest in the CollateralCollateral subject only to Permitted Liens;
(c) except for (i) the filing or recording of the financing statements and (prior to transfer of the Gaming Site into trust) fixture filings that are to be filed done concurrently with the execution and delivery hereof, (ii) the actual taking of possession of instruments constituting Collateral by the Trustee hereunder, if required by the Louisiana Uniform Commercial Code, Commercial Laws - Secured Transactions, (iii) all consents received and actions taken in connection with this Security Agreement and compliance with applicable Minnesota law as to creation and perfection the closing of security intereststhe offering of the Notes, and after adoption by Borrower of a commercial code governing secured transactions(iv) any filings necessary to perfect Secured Party's security interest in any Patent, compliance with the applicable filing and other provisions of such codeTrademark or Copyright, no authorization, approval or other action by, no notice to or registration or filing with, any person or entity, including without limitation, any stockholder or creditor of Debtor or any governmental authority or regulatory body is required, except as may be agreed to by Debtor and Secured Party: required (ix) for the grant by the Debtor of the security interest in the Collateral pursuant to this Security Agreement or for the execution, delivery or performance of this Security Agreement by the Debtor, (iiy) for the perfection or maintenance of such security interest created hereby, including the first priority nature of such security interest, or (except for notices required under the Louisiana Uniform Commercial Code, Commercial Laws - Secured Transactions) the exercise by Secured Party of the rights and remedies provided for in this Security Agreement (other than any required governmental consent or filing with respect to any Patents, Trademarks, Copyrights, governmental claims, tax refunds, licenses or permits or the exercise of remedies requiring prior court approval, notices, consents, approvals or authorizations in connection with the sale of any securities under laws affecting the offering and sale of securities generally), or (z) for the enforceability of such security interest against third parties, including, without limitation, judgment lien creditors;
(d) except as set forth on Exhibit "A" attached hereto, Debtor does not do business, and for the previous five (5) years has not done business, under any fictitious business names or trade names;
(e) the Collateral has not been and shall not be used or bought by Debtor for personal, family or household purposes. In addition, the Collateral does not include crops, timber, farm products, minerals or the like or accounts resulting from the sale of such minerals at the wellhead or minehead;
(f) Debtor's chief executive office is located at 1701 Old Minden Road, Bossier Xxxx, Xxxxxxxxx 00000, Xxxxxx'x xxxxxxx xxx xxxxxification number is 721310739, and Debtor has nx xxxxxx of business other than such address and the Collateral is now and shall at all times hereafter be located at Debtor's places of business or as Debtor may otherwise notify Secured Party in writing.,
(g) Debtor does not maintain any deposit accounts other than those set forth in Exhibit "B" hereto and Debtor is not now indebted to any organization with which Debtor maintains a deposit account;
(h) Debtor has not purchased any Collateral, other than for cash, within twenty-one (21) days prior to the date hereof;
(i) all originals of all promissory notes, other instruments or chattel paper which evidence Receivables (other than checks received by Debtor in the ordinary course of business, which Debtor promptly shall deposit into one of the deposit accounts encumbered hereunder) have been delivered to Secured Party (with all necessary or appropriate endorsements);
(j) none of the execution, delivery and performance of this Security Agreement by Debtor, the consummation of the transactions herein contemplated, the fulfillment of the terms hereof or the exercise by SecuredSecured Party of any rights or remedies hereunder shall constitute or result in a breach of any of the terms or provisions of, or constitute a default under, or constitute an event which with notice or lapse of time or both shall result in a breach of or constitute a default under, any material agreement, or any indenture, mortgage, deed of trust, equipment lease, instrument or other document to which Debtor is a party, conflict with or require approval, authorization, notice or consent under any material law, order, rule, regulation, license or permit applicable to Debtor of any court or any federal or state government, regulatory body or administrative agency, or any other governmental body having jurisdiction over Debtor or its properties or require notice, consent, approval or authorization by or registration or filing with any person or entity (including, without limitation, any stockholder or creditor of Debtor) other than (i) any notices to Debtor from Secured Party required hereunder, (ii) notices and filings in connection with the perfection of Liens hereunder, and (iii) notices, consents, approvals or authorizations in connection with the sale of any securities under laws affecting the offering and sale of securities generally. None of the Collateral is subject to any material agreement, or any indenture, mortgage, deed of trust, equipment lease, instrument or other document to which Debtor is a party which may restrict or inhibit Secured Party's rights or ability to sell or dispose of the Collateral or any part thereof after the occurrence of a Default or an Event of Default (as defined herein);
Appears in 1 contract
Samples: Security Agreement (Casino Magic of Louisiana Corp)
DEBTOR'S REPRESENTATIONS AND WARRANTIES. The Debtor represents Each of the Debtors hereby represent and warrants thatwarrant to Lender as follows:
(a) this Agreement and the Debtor is (orTransaction Documents are and shall continue to be legal, to the extent that the Collateral is acquired after the date hereof, will be) the sole legal valid and beneficial owner binding obligations of its respective Collateral and has exclusive possession and control thereof; there are no security interests in, liens, charges or encumbrances on, or adverse claims of title to, or any other interest whatsoever in, such Collateral or any portion thereof except such liens that are created by this Security Agreement or as permitted by Section 9.2 each of the Development Agreement Debtors who are parties thereto and Section 10.6 of are enforceable against the Management Agreement (collectively, "PERMITTED LIENS"); and that no financing statement, notice of lien, mortgage, deed of trust or instrument similar Debtors in effect covering the Collateral or any portion thereof or any proceeds thereof ("LIEN NOTICE") exists or is on file in any public office, except as relates to Permitted Liens and except as may have been filed in favor of Secured Party relating to this Security Agreement or related agreements, or for which duly executed termination statements have been delivered to Secured Party for filingaccordance with their respective terms;
(b) each of the Debtor Debtors has full right, the power and authority to execute, execute and deliver and perform this Security Agreement and the same constitutes a legally valid to perform its obligations under this Agreement; and binding obligation this Agreement has been duly executed and delivered by each of the Debtor, enforceable against the Debtor in accordance with its terms subject to any limitations set forth in the Resolution of Limited Waiver attached to the Management Agreement. Subject to the completion of the items identified in Section 4(c) below, the provisions of this Security Agreement are effective to create in favor of Secured Party a valid and enforceable perfected security interest in the CollateralDebtors;
(c) except each of the Debtors execution, delivery and performance of this Agreement shall not and will not (1) violate any law, rule, regulation or court order to which each such Debtor is subject, (2) conflict with or result in a breach of each such Debtor’s organizational documents or any agreement or instrument to which each such Debtor is a party or by which it or its properties are bound, or (3) result in the creation or imposition of any lien, security interest or encumbrance on any property of each such Debtor, whether not owned or hereafter acquired, other than liens and security interests in favor of Lender and Benuvia Holdings;
(d) Lender has and shall continue to have, until the condition under this Agreement are satisfied, a valid second priority lien and security interest in all property in which liens and security interests were granted to Lender by each of the Debtors as security for the filing or recording Obligations, and each of the financing statements Debtors expressly reaffirms all liens and security interests granted to Lender pursuant to the Transaction Documents;
(prior to transfer e) the Recitals set forth in this Agreement are truthful and accurate and are operative parts of this Agreement;
(f) each of the Gaming Site into trust) fixture filings that are Debtors has no defense, counterclaim or offset with respect to be filed in connection with this Security Agreement and compliance with applicable Minnesota law as to creation and perfection of security interests, and after adoption by Borrower of a commercial code governing secured transactions, compliance with the applicable filing and other provisions of such code, no authorization, approval or other action by, no notice to or registration or filing with, any person or entity, including without limitation, any creditor of Debtor or any governmental authority or regulatory body is required, except as may be agreed to by Debtor and Secured Party: (i) for the grant by the Debtor of the security interest in the Collateral pursuant to this Security Agreement Transaction Documents, or for the execution, delivery or performance of this Security Agreement by the Debtor, (ii) for the perfection any lien or maintenance of such security interest created herebygranted to Lender, or (iii) the exercise Obligations or any other amounts due to Lender pursuant to the Transaction Documents; and
(g) the Transaction Documents are in full force and effect and are hereby ratified and confirmed by Securedeach of the Debtors who are parties thereto.
Appears in 1 contract
Samples: Forbearance and Settlement Agreement (Jupiter Wellness, Inc.)
DEBTOR'S REPRESENTATIONS AND WARRANTIES. The Debtor represents and --------------------------------------- warrants that:
(a) the Debtor is (or, to the extent that the Collateral is acquired after the date hereof, will be) the sole legal and beneficial owner of its respective the Collateral and has exclusive possession and control thereof; there are no security interests in, liens, charges or encumbrances on, or adverse claims of title to, or any other interest whatsoever in, such the Collateral or any portion thereof except such liens Permitted Liens (as defined in the Indenture, including without limitation Liens that are created by this Security Agreement or as permitted by Section 9.2 of the Development Agreement and Section 10.6 of the Management Agreement (collectively, "PERMITTED LIENS"Agreement); and that no financing statement, notice of lien, mortgage, deed of trust or instrument similar in effect covering the Collateral or any portion thereof or any proceeds thereof ("LIEN NOTICE") exists or is on file in any public office, except as relates to Permitted Liens and except Liens, including without limitation liens as may have been filed in favor of Secured Party relating to this Security Agreement or related agreements, or for which duly executed termination statements have been delivered to Secured Party for filing;
(b) the Debtor has full right, power and authority to execute, deliver and perform this Security Agreement. This Security Agreement and the same constitutes a legally valid and binding obligation of the Debtor, enforceable against the Debtor in accordance with its terms subject to any limitations set forth in the Resolution of Limited Waiver attached to the Management Agreementterms. Subject to the completion of the items identified in Section 4(c) belowbelow (and except to the extent that registration of motor vehicles, possession of checks, instruments not required to be delivered under Section 5(d) and money are required for perfection and except with respect to deposit accounts), the provisions of this Security Agreement are effective to create in favor of Secured Party a valid and enforceable first, prior and perfected security interest in the CollateralCollateral subject only to Permitted Liens;
(c) except for (i) the filing or recording of the financing statements and fixture filings done concurrently with the execution and delivery hereof, (prior ii) the actual taking of possession of instruments constituting Collateral by the Trustee hereunder or, if the Collateral is required under the 1996 Indenture to transfer be delivered to the 1996 Notes Trustee or is in the possession of the Gaming Site into trust1996 Notes Trustee, the providing of such notice to the Secured Party or the taking of such other actions as are necessary to perfect the Secured Party's security interest in such Collateral, (iii) fixture filings that are to be filed all consents received and actions taken in connection with this Security Agreement and compliance with applicable Minnesota law as to creation and perfection the closing of security intereststhe offering of the Notes, (iv) the actions contemplated by the parenthetical in the second sentence of Section 4(b), and after adoption by Borrower of a commercial code governing secured transactions(v) any filings necessary to perfect Secured Party's security interest in any Patent, compliance with the applicable filing and other provisions of such codeTrademark or Copyright, no authorization, approval or other action by, no notice to or registration or filing with, any person or entity, including without limitation, any stockholder or creditor of Debtor or any governmental authority or regulatory body is required, except as may be agreed to by Debtor and Secured Party: required (ix) for the grant by the Debtor of the security interest in the Collateral pursuant to this Security Agreement or for the execution, delivery or performance of this Security Agreement by the Debtor, (iiy) for the perfection or maintenance of such security interest created hereby, including the first priority nature of such security interest subject to Permitted Liens, or (except for notices required under the UCC) the exercise by Secured Party of the rights and remedies provided for in this Security Agreement (other than any required governmental consent or filing with respect to any Patents, Trademarks, Copyrights, governmental claims, tax refunds, licenses or permits; the exercise of remedies requiring prior court approval, notices, consents, approvals or authorizations in connection with the sale of any securities under laws affecting the offering and sale of securities generally), or (z) for the enforceability of such security interest against third parties, including, without limitation, judgment lien creditors;
(d) Except as indicated on Schedule 1, Debtor does not do business, and for the previous five years has not done business, under any fictitious business names or trade names;
(e) the Collateral has not been and will not be used or bought by Debtor for personal, family or household purposes. In addition, the Collateral does not include crops, timber, farm products, minerals or the like or accounts resulting from the sale of such minerals at the wellhead or minehead;
(i) Debtor's chief executive office is located at 0000 Xxxx Xxxxxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxx 00000, Debtor has no places of business other than such address and other places of business indicated on Schedule 2 and the Collateral is now and will at all times hereafter be located at Debtor's places of business or as Debtor may otherwise notify Secured Party in writing;
(g) Debtor does not maintain any deposit accounts other than those set forth in Exhibit "A" hereto and Debtor is not now indebted to any ----------- organization with which Debtor maintains a deposit account;
(h) Except for purchases in the ordinary course of business, Debtor has not purchased any Collateral, other than for cash, within twenty-one (21) days prior to the date hereof;
(i) all originals of all promissory notes, other instruments or chattel paper which evidence Receivables (other than checks, which Debtor promptly shall deposit into one of the deposit accounts encumbered hereunder, or markers, received by Debtor in the ordinary course of business) with a face or fair market value not to exceed, in the aggregate $250,000, have been delivered to Secured Party (with all necessary or appropriate endorsements) or, if such notes, instruments or chattel paper are required under the 1996 Indenture to be delivered to the 1996 Notes Trustee or are in the possession of the 1996 Notes Trustee, such notice has been provided to the Secured Party or any such other actions have been taken as are necessary to perfect the Secured Party's security interest in such notes, instruments or chattel paper;
(j) none of the execution, delivery and performance of this Security Agreement by Debtor, the consummation of the transactions herein contemplated, the fulfillment of the terms hereof or the exercise by SecuredSecured Party of any rights or remedies hereunder will constitute or result in a breach of any of the terms or 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 material agreement, indenture, mortgage, deed of trust, equipment lease, instrument or other document to which Debtor is a party, conflict with or require approval, authorization, notice or consent under any material law, order, rule, regulation, license or permit applicable to Debtor of any court or any federal or state government, regulatory body or administrative agency, or any other governmental body having jurisdiction over Debtor or its properties or require notice, consent, approval or authorization by or registration or filing with any person or entity (including, without limitation, any stockholder or creditor of Debtor) other than (i) any notices to Debtor or any Guarantor from Secured Party required hereunder, (ii) notices and filings in connection with the perfection of Liens hereunder and (iii) notices, consents, approvals or authorizations in connection with the sale of any securities under laws affecting the offering and sale of securities generally. Except for documents entered into in connection with Permitted Liens or Indebtedness permitted under the Indenture, none of the Collateral is subject to any material agreement, indenture, mortgage, deed of trust, equipment lease, instrument or other document to which Debtor is a party which may restrict or inhibit Secured Party's rights or ability to sell or dispose of the Collateral or any part thereof after the occurrence of an Event of Default (as defined herein);
(k) Debtor represents and warrants that it is the true lawful exclusive owner or licensee of the Marks listed in Annex 1, except those ------- listed as being held under a nonexclusive license, and that said listed Marks include all the United States federal registrations or applications registered in the United States Patent and Trademark office and that said Marks are valid, subsisting and have not been canceled. Debtor represents and warrants that except as indicated on Annex 1, it owns or is licensed to use or not prohibited from using all Marks that it uses. Debtor further warrants that except as indicated on Annex 1, it is aware of no third party claim that any aspect of Debtor's present or contemplated business operations infringes or will infringe Debtor's Xxxx; and
(l) Debtor represents and warrants that it is the true and lawful exclusive owner or licensee of all rights in the Patents listed in Annex 2 ------- hereto and in the Copyrights listed in Annex 3 hereto, that said Patents ------- include all the United States patents and applications for United States patents that Debtor owns and that said Copyrights constitute all the United States copyrights registered in the United States Copyright Office and applications, for United States copyrights that it now uses or practices under. Debtor further warrants that, except as indicated on Annex 2 or 3, it is aware of no third party claim that any aspect of Debtor's present or contemplated business operations infringes or will infringe any Patent or any copyright.
Appears in 1 contract
DEBTOR'S REPRESENTATIONS AND WARRANTIES. The Debtor represents and warrants that:
(a) the each party comprising Debtor is (or, with respect to the extent that the Collateral is acquired after the date hereof, will be) the sole legal and beneficial owner of its respective Collateral and has exclusive possession and control thereof; there are no security interests in, liens, charges or encumbrances on, or adverse claims of title to, or any other interest whatsoever in, such Collateral or any portion thereof except such liens that are created by this Security Agreement or as permitted by and subject to the terms of Section 9.2 7.2 of the Development Agreement Agreement, the Security Interest and Section 10.6 of the Management Agreement other any other lien created by a Transaction Document (collectively, "PERMITTED LIENS"“Permitted Liens”); and that no financing statement, notice of lien, mortgage, deed of trust or instrument similar in effect covering the Collateral or any portion thereof or any proceeds thereof ("LIEN NOTICE"each a “Lien Notice”) exists or is on file in any public office, except as relates to Permitted Liens and except as may have been filed in favor of Secured Party relating to this Security Agreement or related agreements, or for which duly executed termination statements have been delivered to Secured Party for filing;
(b) the Debtor has full right, power and authority to execute, deliver and perform this Security Agreement. This Security Agreement and the same constitutes a legally valid and binding obligation of the Debtor, enforceable against the Debtor in accordance with its terms subject to any limitations set forth in the Resolution of Limited Waiver attached of Sovereign Immunity of the Tribe and the Resolution of Limited Waiver of Sovereign Immunity of the Authority, each dated January 17, 2006, related to and approving the Management AgreementTransaction Documents (the “Resolutions of Limited Waiver”). Subject to the completion of the items identified in Section 4(c5(c) below, the provisions of this Security Agreement are effective to create in favor of Secured Party a valid and enforceable first, prior and perfected security interest in the Collateral;
(c) except for the filing or recording of the financing statements and (prior to transfer of the Gaming Site into trust) fixture filings that are to be filed in connection with this Security Agreement and compliance with applicable Minnesota law as to creation and perfection of security interests, and after adoption by Borrower of a commercial code governing secured transactions, compliance with the applicable filing and other provisions of such codeAgreement, no authorization, approval or other action by, no notice to or registration or filing with, any person or entity, including without limitation, any stockholder or creditor of Debtor or any governmental authority or regulatory body is required, except as may be agreed to by Debtor and Secured Party: (i) for the grant by the Debtor of the security interest in the Collateral Security Interest pursuant to this Security Agreement or for the execution, delivery or performance of this Security Agreement by the Debtor, (ii) for the perfection or maintenance of such security interest Security Interest created hereby, including the first priority nature of such Security Interest, or the exercise by SecuredSecured Party of the rights and remedies provided for in this Security Agreement (other than any required governmental consent or filing with respect to any patents, trademarks, copyrights, governmental claims, tax refunds, licenses or permits and the exercise of remedies requiring prior court approval), or (iii) for the enforceability of such Security Interest against third parties, including, without limitation, judgment lien creditors;
(d) Debtor does not do business, and for the previous five years has not done business, under any fictitious business names or trade names;
(e) the Collateral has not been and will not be used or bought by Debtor for personal, family or household purposes;
(f) Debtor’s chief executive office (the main place where each of the Tribe and the Authority manages the main part of its business operations or other affairs) is located at the address referenced on the first page of this Agreement, Debtor has no places of business other than such address and the locations described on Exhibit A attached hereto, and the Collateral is now and will at all times hereafter be located at such premises or as Debtor may otherwise notify Secured Party in writing in accordance with the provisions of Section 6(a);
(g) The true, correct, complete and only legal name of the Tribe is “Jamul Indian Village,” and the true, correct, complete and only legal name of the Authority is “Jamul Gaming Authority,” and in each case such name is the only legal name of such party within the five-year period preceding the date hereof; the Tribe is an Indian tribe and the Authority is a governmental component and instrumentality organized under the laws of the Tribe; neither Debtor has an organizational number; neither the Tribe nor the Authority is a registered organization under the Uniform Commercial Code; and the tax identification numbers of the Tribe and the Authority are and , respectively;
(h) Debtor has not purchased any Collateral, other than for cash, within twenty-one (21) days prior to the date hereof;
(i) all originals of all promissory notes, other instruments or chattel paper which evidence Collateral (other than checks received by Debtor in the ordinary course of business) have been (or, with respect to such Collateral hereafter acquired, will be) delivered to Secured Party (with all necessary or appropriate endorsements); and
(j) none of the execution, delivery and performance of this Security Agreement by Debtor, the consummation of the transactions herein contemplated, the fulfillment of the terms hereof or the exercise by Secured Party of any rights or remedies hereunder will constitute or result in a breach of any of the terms or 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 agreement, indenture, mortgage, deed of trust, equipment lease, instrument or other document to which Debtor is a party, conflict with or require approval, authorization, notice or consent under any law, order, rule, regulation, license or permit applicable to Debtor of any court or any federal or state government, regulatory body or administrative agency, or any other governmental body having jurisdiction over Debtor or its properties, or require notice, consent, approval or authorization by or registration or filing with any person or entity (including, without limitation, any stockholder or creditor of Debtor) other than any notices to Debtor from Secured Party required hereunder except as may be agreed to by Debtor and Secured Party. Except for the Permitted Liens, none of the Collateral is subject to any agreement, indenture, mortgage, deed of trust, equipment lease, instrument or other document to which Debtor is a party that may restrict or inhibit Secured Party’s rights or ability to sell or dispose of the Collateral or any part thereof after the occurrence of an Event of Default (as defined herein).
Appears in 1 contract
DEBTOR'S REPRESENTATIONS AND WARRANTIES. The Debtor ---------------------------------------- warrants, represents and warrants covenants to the Secured Party that:
(a) the Debtor is (orThe chief executive office and other places of business of Debtor, and its books and records relating to the extent that Collateral and the Collateral is acquired after are and have been since the date hereofof Closing located at the address(es) set forth below: Building #6 Cane Farm Rosemont, NJ 08000 000 Xxxxxx Xxxxxx Xxxxxxxle, PA 18437 (x) Xxxxxx xxxxxx xxxx xxxxxx the term of the Debt, it shall not transfer, assign or otherwise dispose of the Collateral.
(c) Debtor will benot merge or consolidate with any entity, other than Touchstone Applied Science Associates, Inc., without prior written notice to and consent of the Secured Party.
(d) Debtor will use the sole legal Collateral with all reasonable care and beneficial owner caution and in conformity with all applicable laws, ordinances, rules and regulations.
(e) The Secured Party shall at agreed dates and times, upon reasonable notice, but in no event more than once each year of its respective the Debt, have the right to inspect the Collateral and has exclusive possession any records pertaining thereto.
(f) The Collateral is now and control thereof; there are shall remain personal property, consisting of general intangibles and contract rights.
(g) Debtor will perform all acts and execute all necessary documents reasonably requested by the Secured Party from time to time to evidence, maintain or enforce the Secured Party's first priority security interest granted herein, except that no continuation of this security interests ininterest shall be filed or effective upon payment in full of the Note;
(h) At any time and from time to time, liens, charges Debtor shall execute and deliver to the Secured Party such financing statements or encumbrances onother instruments or documents pursuant to the Uniform Commercial Code ("UCC") of the State of New Jersey, or adverse claims Uniform Commercial Code of title to, or any other State affecting the Collateral (the "UCC"), as may be requested by the Secured Party in connection with this Security Agreement. Notwithstanding the prior sentence, no financing statement or other instruments or documents shall be executed by Debtor which shall continue the security interest whatsoever inof the Secured Party after payment in full of the Note, it being the intention of the parties that unless an Event of Default has occurred and is continuing under the Royalty Agreement at such Collateral or any portion thereof except such liens that are created by time,this Security Agreement or as permitted by Section 9.2 terminate upon payment in full of the Development Note regardless of any payment or performance obligations remaining under the Royalty Agreement and Section 10.6 of the Management Agreement at such time;
(collectivelyi) In its discretion, "PERMITTED LIENS"); and that no financing statement, notice of lien, mortgage, deed of trust or instrument similar in effect covering the Collateral or any portion thereof or any proceeds thereof ("LIEN NOTICE") exists or is on file in any public office, except as relates to Permitted Liens and except as may have been filed in favor of Secured Party relating may, at any time and from time to this Security Agreement time, for the account of Debtor, pay any amount or related agreementsdo any act required of Debtor hereunder, which Debtor fails to do or for which duly executed termination statements have been delivered pay, and any such payment shall be deemed an advance by Secured Party to Debtor payable on demand together with interest at the highest rate then payable on the Debt;
(j) Debtor will pay the Secured Party for filing;
(b) the Debtor has full rightall sums, power costs, and authority expenses which Secured Party may pay or incur pursuant to execute, deliver and perform this Security Agreement and the same constitutes a legally valid and binding obligation of the Debtor, enforceable against the Debtor in accordance with its terms subject to any limitations set forth in the Resolution of Limited Waiver attached to the Management Agreement. Subject to the completion of the items identified in Section 4(c) below, the provisions of this Security Agreement are effective to create or in favor of Secured Party a valid and enforceable perfected executing, defending, or protecting the security interest granted herein or in enforcing payment of the CollateralDebt, including but not limited to reasonable attorneys fees, all of which, together with interest at the highest rate then payable on the Debt, shall be part of the Debt, be payable on demand and be secured hereby;
(ck) except for Except as otherwise specifically provided in any agreement between the filing or recording of the financing statements Secured Party and (prior to transfer of the Gaming Site into trust) fixture filings that are to be filed in connection with this Security Agreement and compliance with applicable Minnesota law as to creation and perfection of security interests, and after adoption by Borrower of a commercial code governing secured transactions, compliance with the applicable filing and other provisions of such code, no authorization, approval or other action by, no notice to or registration or filing with, any person or entity, including without limitation, any creditor of Debtor or any governmental authority or regulatory body is required, except as may be agreed to by Debtor and Secured Party: (i) for the grant by the Debtor of the security interest in the Collateral pursuant to this Security Agreement or for the execution, delivery or performance of this Security Agreement by the Debtor, (ii) all proceeds of any Collateral received by Debtor after the occurrence of a default thereunder and the expiation of applicable cure periods, shall not be commingled with other property of Debtor, but shall be segregated, held by Debtor in trust for the perfection Secured Party, and immediately delivered to the Secured Party in the form received, duly endorsed in blank where appropriate to effectuate the provisions hereof, the same to be held by the Secured Party as additional Collateral hereunder or, at Secured Party's option, to be applied to payment of the Debt, whether or maintenance of such security interest created hereby, or not due and in any order the exercise by SecuredSecured Party may elect.
Appears in 1 contract
Samples: Security Agreement (Touchstone Applied Science Associates Inc /Ny/)
DEBTOR'S REPRESENTATIONS AND WARRANTIES. The Debtor represents and warrants thatto Secured Party, the following:
(a) the Debtor is (or, to the extent that the Collateral is acquired after the date hereof, will be) the sole legal and beneficial owner of its respective Collateral and has exclusive possession and control thereof; there are no security interests in, liens, charges or encumbrances on, or adverse claims of title to, or any other interest whatsoever in, such Collateral or any portion thereof except such liens that are created by this Security Agreement or as permitted by Section 9.2 of the Development Agreement and Section 10.6 of the Management Agreement (collectively, "PERMITTED LIENS"); and that no financing statement, notice of lien, mortgage, deed of trust or instrument similar in effect covering the Collateral or any portion thereof or any proceeds thereof ("LIEN NOTICE") exists or is on file in any public office, except as relates to Permitted Liens and except as may have been filed in favor of Secured Party relating to this Security Agreement or related agreements, or for which duly executed termination statements have been delivered to Secured Party for filing;
(b) the The Debtor has full right, power and authority to execute, execute and deliver and perform this Security Agreement and to grant the same security interest in the Collateral as provided herein.
(b) The execution, delivery and performance of this Agreement has been duly authorized by all necessary action appropriate to Debtor's type of entity.
(c) This Agreement has been duly executed and delivered by the Debtor and constitutes a legally the legal, valid and binding obligation of the Debtor, Debtor enforceable against the Debtor in accordance with its terms subject to any limitations set forth in the Resolution of Limited Waiver attached to the Management Agreement. Subject to the completion of the items identified in Section 4(c) below, the provisions of this Security Agreement are effective to create in favor of Secured Party a valid and enforceable perfected security interest in the Collateral;
(c) except for the filing or recording of the financing statements and (prior to transfer of the Gaming Site into trust) fixture filings that are to be filed in connection with this Security Agreement and compliance with applicable Minnesota law as to creation and perfection of security interests, and after adoption by Borrower of a commercial code governing secured transactions, compliance with the applicable filing and other provisions of such code, no authorization, approval or other action by, no notice to or registration or filing with, any person or entity, including without limitation, any creditor of Debtor or any governmental authority or regulatory body is requiredterms, except as may be agreed limited by bankruptcy, reorganization, insolvency, moratorium, or other similar laws from time to time in effect affecting creditor's rights generally and by Debtor principles governing the availability of equitable remedies, and Secured Party: (i) for the grant by the Debtor of the security interest in the Collateral existing on the date hereof constitutes, and, as to subsequently acquired Collateral, will constitute, a valid and perfected first and prior security interest, superior to the rights of any other Person, in and to the Collateral, except as otherwise expressly provided herein.
(d) Debtor owns, and will own, or has rights in or the power to transfer, the Collateral free from any setoff, claim, restriction, lien, security interest or encumbrance, except liens for taxes not yet due, the security interest granted pursuant to this Security Agreement or for the executionterms hereof, delivery or performance of this Security Agreement by and any liens set forth on Schedule 5(d)attached hereto (the "Permitted Liens").
(e) Debtor's (i) chief executive office is located in the state identified in Schedule 5(e) ("Debtor's Chief Executive Office State"), (ii) state of incorporation is the state identified in Schedule 5(e) ("Debtor State"), and (iii) exact legal name is as set forth in the preamble to this Agreement.
(f) None of the Collateral constitutes, or is proceeds of, "farm products" as defined in the UCC.
(g) Except as disclosed on Schedule 5(g) attached hereto, none of the account debtors in respect of any Accounts, Chattel Paper or Payment Intangibles and none of the obligors in respect of any Instruments included in the Collateral is or shall be a governmental entity subject to the Federal Assignment of Claims Act.
(h) To the best of Debtor's knowledge, none of the account debtors under the Accounts, Chattel Paper or Payment Intangibles and none of the obligors under the Instruments have any right of setoff, counterclaim, or adjustment, or defense in connection with or relating to any such Account, Chattel Paper, Payment Intangible, or Instrument, and the enforcement thereof.
(i) Each Account represents an amount owed to the Debtor as a result of a right to payment of a monetary obligation, whether or not earned by performance, for property that has been or is to be sold, leased, licensed, assigned, or otherwise disposed of; for services rendered or to be rendered; for a policy of insurance issued or to be issued; for a secondary obligation incurred or to be incurred; for energy provided or to be provided; for the perfection use or maintenance hire of such security interest created herebya vessel under a charter or other contract; arising out of the use of a credit or charge card or information contained on or for use with the card; or as winnings in a lottery or other game of chance operated or sponsored by a state, governmental unit of a state, or Person licensed or authorized to operate the exercise game by Secureda state or governmental unit of a state.
(j) Except as otherwise disclosed by Debtor to Secured Party in writing, Debtor has no knowledge of any fact, claim, or dispute, by any account debtor, or any third party, which may impair the validity of any Account, Chattel Paper, or Payment Intangible or by any obligor, or any third party, which may impair the validity of any Instrument or Supporting Obligation or make any part of any Account, Chattel Paper, Payment Intangible, Instrument or Supporting Obligation, uncollectible in accordance with its terms and face amount, to include, but not limited to, any dispute or claim as to price, terms, quality, quantity or delay in shipment. Should Debtor become aware of any fact, claim or dispute which may impair the validity of an Account, any Chattel Paper, any Payment Intangible, any Instrument, or any Supporting Obligation, or make any part of it uncollectible, Debtor will notify Secured Party immediately of this knowledge.
Appears in 1 contract
DEBTOR'S REPRESENTATIONS AND WARRANTIES. The Debtor represents and warrants that:
(a) each of the Debtor Tribe and the Authority is (or, with respect to the extent that the Collateral is acquired after the date hereof, will be) the sole legal and beneficial owner of its respective Collateral and has exclusive possession and control thereof; there are no security interests in, liens, charges or encumbrances on, or adverse claims of title to, or any other interest whatsoever in, such Collateral or any portion thereof except such liens that are the Security Interest and other any other lien created by this Security Agreement a Transaction Document or as permitted by Section 9.2 otherwise in favor of the Development Agreement and Section 10.6 of the Management Agreement Secured Party (collectively, "PERMITTED LIENS"“Permitted Liens”); and that no financing statement, notice of lien, mortgage, deed of trust or instrument similar in effect covering the Collateral or any portion thereof or any proceeds thereof ("LIEN NOTICE"each a “Lien Notice”) exists or is on file in any public office, except as relates to Permitted Liens and except as may have been filed in favor of Secured Party relating to this Security Agreement or related agreements, or for which duly executed termination statements have been delivered to Secured Party for filing;
(b) the Debtor has full right, power and authority to execute, deliver and perform this Security Agreement. This Agreement and the same constitutes a legally valid and binding obligation of the Debtor, enforceable against the Debtor in accordance with its terms subject to any limitations set forth in waivers of sovereign immunity adopted by the Resolution Authority and the Tribe relating to and approving the Transaction Documents (the “Resolutions of Limited Waiver attached to the Management AgreementWaiver”). Subject to the completion of the items identified in Section 4(c5(c) below, the provisions of this Security Agreement are effective to create in favor of Secured Party a valid and enforceable first, prior and perfected security interest in the Collateral;
(c) except for the filing or recording of the financing statements and (prior to transfer of the Gaming Site into trust) fixture filings that are to be filed in connection with this Security Agreement and compliance with applicable Minnesota law as to creation and perfection of security interests, and after adoption by Borrower of a commercial code governing secured transactions, compliance with the applicable filing and other provisions of such codeAgreement, no authorization, approval or other action by, no notice to or registration or filing with, any person or entity, including without limitation, any stockholder or creditor of Debtor or any governmental authority or regulatory body is required, except as may be agreed to by Debtor and Secured Party: (i) for the grant by the Debtor of the security interest in the Collateral Security Interest pursuant to this Security Agreement or for the execution, delivery or performance of this Security Agreement by the Debtor, (ii) for the perfection or and maintenance of such security interest created herebythe Security Interest, including the first priority nature of the Security Interest, or the exercise by SecuredSecured Party of the rights and remedies provided for in this Agreement (other than any required governmental consent or filing with respect to any patents, trademarks, copyrights, governmental claims, tax refunds, licenses or permits and the exercise of remedies requiring prior court approval), or (iii) for the enforceability of the Security Interest against third parties, including, without limitation, judgment lien creditors;
(d) Debtor does not do business, and for the previous five years has not done business, under any fictitious business names or trade names;
(e) the Collateral has not been and will not be used or bought by Debtor for personal, family or household purposes;
(f) Debtor’s chief executive office (the main place where each of the Tribe and the Authority manages the main part of its business operations or other affairs) is located at the address referenced on the first page of this Agreement, Debtor has no places of business other than such address and the locations described on Exhibit A attached hereto, and the Collateral is now and will at all times hereafter be located at such premises, the Gaming Facility Site referred to in the Development Agreement, or otherwise as Debtor may hereafter notify Secured Party in writing in accordance with the provisions of Section 6(a);
(g) The true, correct, complete and only legal name of the Tribe is “Jamul Indian Village,” and the true, correct, complete and only legal name of the Authority is “Jamul Gaming Authority,” and in each case such name is the only legal name of such party within the five-year period preceding the date hereof; the Tribe is an Indian tribe and the Authority is a governmental instrumentality organized under the laws of the Tribe; neither Debtor has an organizational number; and neither the Tribe nor the Authority is a registered organization under the Uniform Commercial Code;
(h) Debtor has not purchased any Collateral, other than for cash, within twenty-one (21) days prior to the date hereof;
(i) all originals of all promissory notes, other instruments or chattel paper which evidence Collateral (other than checks received by Debtor in the ordinary course of business) have been (or, with respect to such Collateral hereafter acquired, will be) delivered to Secured Party (with all necessary or appropriate endorsements); and
(j) the execution, delivery and performance of this Agreement by Debtor, the consummation of the transactions herein contemplated, the fulfillment of the terms hereof or the exercise by Secured Party of any rights or remedies hereunder will not (i) constitute or result in a breach of any of the terms or 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 agreement, indenture, mortgage, deed of trust, equipment lease, instrument or other document to which Debtor is a party, (ii) conflict with or require approval, authorization, notice or consent under any law, order, rule, regulation, license or permit applicable to Debtor of any court or any federal or state government, regulatory body or administrative agency, or any other governmental body having jurisdiction over Debtor or its properties, or (iii) require notice, consent, approval or authorization by or registration or filing with any person or entity (including, without limitation, any stockholder or creditor of Debtor) other than notices to Debtor from Secured Party required hereunder. Except for the Permitted Liens, none of the Collateral is subject to any agreement, indenture, mortgage, deed of trust, equipment lease, instrument or other document to which Debtor is a party that may restrict or inhibit Secured Party’s rights or ability to sell or dispose of the Collateral or any part thereof after the occurrence of an Event of Default (as defined herein).
Appears in 1 contract
DEBTOR'S REPRESENTATIONS AND WARRANTIES. The Debtor represents Debtors represent and warrants warrant and, so long as this Security Agreement is in effect, shall be deemed continuously to represent and warrant, that:
(a) the Debtor is (or, to the extent that the Collateral is acquired after the date hereof, will be) Debtors are the sole legal and beneficial owner of its respective the Collateral free and has exclusive possession and control thereof; there are no clear of any liens, security interests, claims, options, adverse interests, or other encumbrances, except for the security interests in, liens, charges or encumbrances on, or adverse claims of title to, or any other interest whatsoever in, such Collateral or any portion thereof except such liens that are created by this Security Agreement or as permitted by Section 9.2 of the Development Agreement.
(b) Debtors have all necessary corporate power and authority and have taken all corporate action necessary to execute, deliver and perform this Agreement and Section 10.6 of the Management Agreement Notes and to encumber and grant a security interest in the Collateral.
(collectively, "PERMITTED LIENS"); and that c) There is no effective financing statement, notice of lien, mortgage, deed of trust statement or other instrument similar in effect covering all or any part of the Collateral or any portion thereof or any proceeds thereof ("LIEN NOTICE") exists or is on file in any public office, recording office except as relates to Permitted Liens and except as (i) may have been filed in favor of the Secured Party relating to this Security or (ii) as set forth on Schedule I hereto.
(d) This Agreement or related agreements, or for which duly executed termination statements have been delivered to creates a valid security interest of the Secured Party for filing;
(b) in the Debtor has full right, power and authority to execute, deliver and perform this Security Agreement and the same constitutes a legally valid and binding obligation Collateral securing payment of the Debtor, enforceable against the Debtor in accordance with its terms subject to any limitations set forth in the Resolution of Limited Waiver attached to the Management AgreementObligations. Subject to the completion of the items identified in Section 4(c) below, the provisions of this Security Agreement are effective to create in favor of Secured Party a valid and enforceable perfected security interest in the Collateral;
(c) except for Upon the filing or recording of the financing statements and the other instruments similar in effect under Section 5(b) or the taking of any other action necessary to perfect, the Secured Party will have valid and perfected first priority liens on and security interests in the Collateral.
(prior to transfer of the Gaming Site into truste) fixture filings that are to be filed in connection with this Security Agreement and compliance with applicable Minnesota law as to creation and perfection of security interestsNo consent, and after adoption by Borrower of a commercial code governing secured transactions, compliance with the applicable filing and other provisions of such code, no authorization, approval or other action by, and no notice to or registration or filing with, any governmental authority, regulatory body, lessor, franchise or other person or entity, including without limitation, any creditor of Debtor or any governmental authority or regulatory body entity is required, except as may be agreed to by Debtor and Secured Party: (i) required for the grant by the Debtor Debtors of the security interest in the Collateral pursuant to this Security Agreement granted hereby or for the execution, delivery or performance of this Security Agreement by the Debtor, (ii) Debtors or for the perfection or maintenance of such security interest created hereby, or the exercise by Securedthe Secured Party of its rights and remedies hereunder, except filings of financing documents or as otherwise set forth on Schedule I hereto.
(f) Debtors do not transact any part of their businesses under any trade names, division names, assumed names or other names, except for the names set forth in the preamble or on Schedule I hereto; Debtors' business addresses and chief executive offices are as set forth on Schedule I hereto; and Debtors' records concerning the Collateral are kept at such address.
(g) Each Account, General Intangible and Chattel Paper constituting Collateral is genuine and enforceable in accordance with its terms against the party obligated to pay it (the "Account Debtor"), and no Account Debtor has any defense, setoff, claim or counterclaim against Debtors which can be asserted against the Secured Party, whether in any proceeding to enforce the Collateral or otherwise.
(h) Debtors will promptly deliver to the Secured Party a schedule of all Accounts, General Intangibles and Chattel Paper, and will provide updated schedules thereof from time to time as the Secured Party may reasonably request, but not more frequently than monthly. The amounts represented on such schedules by Debtors to the Secured Party as owing by each Account Debtor or by all Account Debtors are and will be the correct amounts actually and unconditionally owing by such Account Debtor or Account Debtors individually and in the aggregate, except for normal cash discounts where applicable.
(i) Each Instrument and each Document constituting Collateral is genuine and in all respects what it purports to be.
(j) Any Collateral which is a Fixture is affixed to real property at Debtor's addresses specified on Schedule II hereto.
Appears in 1 contract
Samples: Security Agreement (Conversion Technologies International Inc)
