GENERAL WARRANTIES AND REPRESENTATIONS. Each Borrower warrants and represents to Agent and Lenders that: (A) (i) ModusLink is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and its state issued organizational identification number is 2831732, (ii) SalesLink is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware and its state issued organizational identification number is 2721217 and (iii) SalesLink Mexico is a corporation duly organized, existing and in good standing under the laws of the state of Delaware and its state issued organizational number is 3111152. Each Borrower is qualified or licensed as a foreign corporation to do business in all other states in which the laws thereof require such Borrower to be so qualified or licensed except where a lack of such qualification or licensing will not have a Material Adverse Effect on the business, operations or financial condition of such Borrower; (B) Such Borrower has not used, during the five (5) year period preceding the date of this Agreement, and on the date hereof does not intend to use, any other corporate or fictitious name, except as disclosed in Schedule 6.1(B); (C) Such Borrower has the right and power and is duly authorized and empowered to enter into, execute, deliver and perform this Agreement and the Ancillary Agreements; (D) The execution, delivery and performance by such Borrower of this Agreement and the Ancillary Agreements shall not, by its execution or performance, the lapse of time, the giving of notice or otherwise, constitute a violation of any applicable law, rule, regulation, judgment, order or decree applicable to such Borrower or its assets or constitute a breach of any provision contained in such Borrower’s charter or by-laws or contained in any material agreement, instrument, indenture or other document to which such Borrower is now a party or by which it or any of its property is bound; (E) Such Borrower’s use of the proceeds of any advances made by each Lender hereunder are, and will continue to be, legal and proper corporate uses (duly authorized by its board of directors, in accordance with any applicable law, rule or regulation) and such uses are consistent with all applicable laws, rules and regulations, as in effect as of the date hereof; (F) Such Borrower has, and is current and in good standing with respect to, all material governmental approvals, permits, certificates, inspections, consents and franchises necessary to conduct and to continue to conduct its business and its intended business and to own or lease and operate its properties as now owned or leased and operated by it; (G) None of such approvals, permits, certificates, consents or franchises contains any term, provision, condition or limitation more burdensome than such as are generally applicable to Persons engaged in the same or similar business as such Borrower; (H) Such Borrower now has capital sufficient to carry on its business and transactions and all businesses and transactions in which it is about to engage and is now able to pay its debts as they mature and such Borrower now owns property the fair saleable value of which is greater than the amount required to pay such Borrower’s debts; (I) Except as disclosed in the Financials, (i) there is no litigation, suit, action, proceeding, inquiry or investigation pending or, to the best of such Borrower’s knowledge, threatened against such Borrower which if unfavorably determined would materially adversely affect the transactions contemplated hereby, or such Borrower’s property, assets, operations or condition (financial or otherwise) (except as shown on Financials and on Schedule 6.1(I)) and (ii) such Borrower has no Indebtedness and has not guaranteed the obligations of any other Person (except for Permitted Debt); (i) There are no strikes, work stoppages, labor disputes decertification petitions, union organizing efforts, grievances or other claims pending or, to such Borrower’s knowledge, threatened in writing, between such Borrower and any of its employees, other than employee grievances arising in the ordinary course of business which, in the aggregate, would not have a Material Adverse Effect on such Borrower and (ii) to the best of such Borrower’s knowledge, such Borrower has no obligation under any collective bargaining agreement or any material employment agreement. To such Borrower’s knowledge, there is no organizing activity pending or threatened in writing by any labor union or group of employees. There are no representation proceedings pending or threatened with the National Labor Relations Board or other applicable governmental authority, and no labor organization or group of employees has made a pending demand for recognition. There are no material complaints or charges pending or, to such Borrower’s knowledge, threatened to be filed with any governmental authority or arbitrator based on, arising out of, in connection with or otherwise relating to the employment or termination of employment by such Borrower of any individual or group of individuals which, if decided adversely to such Borrower, would have a Material Adverse Effect on such Borrower; (K) Such Borrower has good, indefeasible and merchantable title to and ownership of its Collateral, free and clear of all Liens, claims, security interests and other encumbrances, except those of Agent and Permitted Liens; (L) Such Borrower is not in violation of any applicable statute, rule, regulation or ordinance of any governmental entity, including, without limitation, the Xxxxxx Xxxxxx xx Xxxxxxx, any state, city, town, municipality, county or of any other jurisdiction, or of any agency thereof, in any respect materially and adversely affecting the Collateral or such Borrower’s business, property, assets, operations or condition, financial or other; (M) Such Borrower is not in default under any indenture, loan agreement, mortgage, material lease, trust deed, deed of trust or other similar agreement relating to the borrowing of monies to which it is a party or by which it or any of its Property is bound; (N) The Financials fairly present in all material respects the assets, liabilities and financial condition and results of operations of such Borrower and such other Persons as are described therein as of the stated dates; there are no omissions or other facts or circumstances which are or may be material and there (i) has been no material and adverse change in the assets, liabilities or financial or other condition of such Borrower or any such Person since the date of the Financials and (ii) exists no equity or long term investments in or outstanding advances to any Person not reflected in the Financials; (O) No Borrower has received a notice to the effect that it is not in full compliance with any of the requirements of ERISA and the regulations promulgated thereunder and, to the best of its knowledge, there exists no event described in Section 4043 of ERISA, excluding subsections 4043(b)(2) and 4043(b)(3) (a “Reportable Event”); (P) Such Borrower has filed all federal, state and local tax returns and other reports (taking into account any extension of time to file granted to or obtained on behalf of Borrower), or has been included in consolidated returns or reports filed by an Affiliate, which such Borrower is required by law, rule or regulation to file and all Charges that are due and payable have been paid, except for Charges being contested in good faith and for which adequate reserves are being maintained; (Q) Such Borrower’s execution and delivery of this Agreement and the Ancillary Agreements do not directly or indirectly violate or result in any violation of the Securities Exchange Act of 1934, as amended, or any regulations issued pursuant thereto, including without limitation, Regulation U, T or X of the Board of Governors of the Federal Reserve System (12 CFR 221, 207, 220 and 224, respectively) and Borrower does not own or intend to purchase or carry any “margin security,” as defined in such Regulations; (R) Except as set forth on Schedule 6.1(R), as of the date of this Agreement such Borrower has no Subsidiaries and does not own an equity interest in any other Person; (S) Such Borrower has no knowledge of any fact or circumstance which would impair the validity or collectibility of any material amount of its Accounts or General Intangibles; (T) None of such Borrower’s Collateral has been pledged or sold to any other Person or otherwise encumbered, such Borrower is the owner of its Collateral free of all Liens and encumbrances except those of Agent and except for the Permitted Liens and no financing statement has been filed concerning the Collateral, except any filed on behalf of Agent and those relating to Permitted Liens; (U) To the best of such Borrower’s knowledge, each property (including underlying ground water), operation and facility that such Borrower operates or controls is in compliance with all statutes, judicial or administrative orders, licenses, permits and governmental rules and regulations applicable to them, including, without limitation, Environmental Laws, the noncompliance with which is reasonably likely to have a Material Adverse Effect on the financial condition, continued operations or Property of such Borrower; (V) Such Borrower possesses adequate copyrights, patents, trademarks, trade secrets and computer software to conduct its business and all such intellectual property (other than computer software and trade secrets) in the possession of such Borrower as of the date of this Agreement is listed on Schedule 6.1(V); and (W) Neither such Borrower nor any Affiliate of such Borrower is in any way associated with or related to The Lake Group, Inc., d/b/a Pacific Direct, Lake Graphics and Elan Resources, which filed bankruptcy in the Northern District of California Case No. 93-30351.
Appears in 2 contracts
Samples: Loan and Security Agreement (Cmgi Inc), Loan and Security Agreement (ModusLink Global Solutions Inc)
GENERAL WARRANTIES AND REPRESENTATIONS. Each Borrower warrants and represents to Agent and Lenders that:
(Aa) (i) ModusLink Borrower is a corporation which is duly organized, validly existing and in good standing under the laws of the State of Delaware Florida and its state issued organizational identification number is 2831732, (ii) SalesLink qualified to do business and is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware and its state issued organizational identification number is 2721217 and (iii) SalesLink Mexico is a corporation duly organized, existing and in good standing under the laws of the state of Delaware and its state issued organizational number is 3111152. Each Borrower is qualified or licensed as a foreign corporation to do business in all other states in which the laws thereof require such Borrower places where it is required to be so qualified or licensed except where a lack of such qualification or licensing will its failure to qualify would not have a Material Adverse Effect material, adverse affect on the Borrower or its ability to conduct its business as currently conducted;
(b) Borrower is not a party to any contract or agreement or subject to any charge, corporate restriction, judgment, decree or order having a material adverse effect, taken as a whole, on its business, property. assets, operations or condition, financial or otherwise, or is a party to any labor dispute which would have a material adverse effect on the financial condition of such Borrower;
(Bc) Such Borrower is not in violation of any applicable statute, regulation or ordinance of any governmental authorities or of any applicable order, writ, injunction or decree or any court or any Federal, state, municipal or other governmental authority, which would in any respect adversely affect its business;
(d) Borrower has not used, during received notice to the five (5) year period preceding effect that it is not in full compliance with any of the date requirements of this AgreementERISA, and on the date hereof does not intend regulations promulgated thereunder and, to usethe best of its knowledge, any other corporate or fictitious name, except as disclosed there exists no event described in Schedule 6.1(BSection 4043(3) thereof (“Reportable Event”);
(Ce) Such Borrower’s books and records, including, without limitation, computer programs, printouts and other computer materials and records are at the locations identified on Schedule 2 attached hereto and hereby made a part hereof;
(f) the address specified in Section 9.9 is Borrower’s chief executive office and principal place of business;
(g) Borrower has the right and power and is duly authorized and empowered to enter into, execute, deliver and perform this Agreement and the Ancillary AgreementsOther Agreements to which it is a party, and the officers executing and delivering this Agreement and such Other Agreements on behalf of Borrower are duly authorized and empowered to do so;
(Dh) The the execution, delivery and performance by such Borrower of this Agreement and the Ancillary Other Agreements shall not, by its execution or performance, the lapse of time, the giving of notice or otherwise, will not constitute a violation of any applicable law, rule, regulation, judgment, order law or decree applicable to such Borrower or its assets or constitute a breach of any provision contained in such Borrower’s charter Articles of Incorporation or byBy-laws Laws or contained in any material agreement, instrument, indenture instrument or other document to which such Borrower is now a party or by which it or any of its property Borrower is bound;
(Ei) Such this Agreement and the Other Agreements are legal, valid and binding obligations of Borrower’s use of the proceeds of any advances made by each Lender hereunder are, and will continue to be, legal and proper corporate uses (duly authorized by its board of directors, enforceable in accordance with any applicable law, rule or regulation) and such uses are consistent with all applicable laws, rules and regulations, as in effect as of the date hereoftheir respective terms;
(Fj) Such Borrower has, and is current and in good standing with respect to, all material governmental approvals, permits, certificates, inspections, consents and franchises necessary to conduct and to continue to conduct its business and its intended business as heretofore conducted and to own or lease and operate its properties as the assets now owned or leased and operated by it;
(G) None of such approvals; and no authorization, permits, certificates, consents consent or franchises contains any term, provision, condition or limitation more burdensome than such as are generally applicable to Persons engaged in the same or similar business as such Borrower;
(H) Such Borrower now has capital sufficient to carry on its business and transactions and all businesses and transactions in which it is about to engage and is now able to pay its debts as they mature and such Borrower now owns property the fair saleable value of which is greater than the amount required to pay such Borrower’s debts;
(I) Except as disclosed in the Financials, (i) there is no litigation, suit, action, proceeding, inquiry or investigation pending or, to the best of such Borrower’s knowledge, threatened against such Borrower which if unfavorably determined would materially adversely affect the transactions contemplated hereby, or such Borrower’s property, assets, operations or condition (financial or otherwise) (except as shown on Financials and on Schedule 6.1(I)) and (ii) such Borrower has no Indebtedness and has not guaranteed the obligations approval of any other Person (except for Permitted Debt);
(i) There are no strikesfederal, work stoppagesstate, labor disputes decertification petitions, union organizing efforts, grievances municipal or other claims pending or, to such Borrower’s knowledge, threatened in writing, between such Borrower and any of its employees, other than employee grievances arising in the ordinary course of business which, in the aggregate, would not have a Material Adverse Effect on such Borrower and (ii) to the best of such Borrower’s knowledge, such Borrower has no obligation under any collective bargaining agreement or any material employment agreement. To such Borrower’s knowledge, there governmental regulatory authority is no organizing activity pending or threatened in writing by any labor union or group of employees. There are no representation proceedings pending or threatened with the National Labor Relations Board or other applicable governmental authority, and no labor organization or group of employees has made a pending demand for recognition. There are no material complaints or charges pending or, to such Borrower’s knowledge, threatened to be filed with any governmental authority or arbitrator based on, arising out of, required in connection with or otherwise relating to either the employment or termination of employment execution and delivery by such Borrower of any individual this Agreement, the Notes or group the Other Agreements to which Borrower is a party, or the performance of individuals which, if decided adversely to such Borrower, would have a Material Adverse Effect on such Borrower;its obligations thereunder; and
(Kk) Such Borrower has good, indefeasible the Financials were prepared in accordance with generally accepted accounting principles and merchantable title to and ownership of its Collateral, free and clear of all Liens, claims, security interests and other encumbrances, except those of Agent and Permitted Liens;
(L) Such Borrower is not in violation of any applicable statute, rule, regulation or ordinance of any governmental entity, including, without limitation, the Xxxxxx Xxxxxx xx Xxxxxxx, any state, city, town, municipality, county or of any other jurisdiction, or of any agency thereof, in any respect materially and adversely affecting the Collateral or such Borrower’s business, property, assets, operations or condition, financial or other;
(M) Such Borrower is not in default under any indenture, loan agreement, mortgage, material lease, trust deed, deed of trust or other similar agreement relating to the borrowing of monies to which it is a party or by which it or any of its Property is bound;
(N) The Financials present fairly present in all material respects the assets, liabilities and financial condition and results of operations of such Borrower at, and such other Persons as are described therein as of of, the stated datesdate thereof; there are no omissions or other facts or circumstances which are or may be material and there (i) has been no material and adverse change in the assets, liabilities or financial or other condition of such Borrower or any such Person since the date of the Financials Financials; and (ii) exists there is no equity material litigation or long term investments in bankruptcy or outstanding advances to any Person not reflected in the Financials;
(O) No Borrower has received a notice to the effect that it is not in full compliance with any of the requirements of ERISA and the regulations promulgated thereunder andgovernmental actions or proceedings which are pending, or to the best of its knowledge, there exists no event described in Section 4043 of ERISA, excluding subsections 4043(b)(2) and 4043(b)(3) (a “Reportable Event”);
(P) Such Borrower has filed all federal, state and local tax returns and other reports (taking into account any extension of time to file granted to or obtained on behalf of Borrower), or has been included in consolidated returns or reports filed by an Affiliate, which such Borrower is required by law, rule or regulation to file and all Charges that are due and payable have been paid, except for Charges being contested in good faith and for which adequate reserves are being maintained;
(Q) Such Borrower’s execution and delivery of this Agreement and the Ancillary Agreements do not directly or indirectly violate or result in any violation of the Securities Exchange Act of 1934, as amended, or any regulations issued pursuant thereto, including without limitation, Regulation U, T or X of the Board of Governors of the Federal Reserve System (12 CFR 221, 207, 220 and 224, respectively) and Borrower does not own or intend to purchase or carry any “margin security,” as defined in such Regulations;
(R) Except as set forth on Schedule 6.1(R), as of the date of this Agreement such Borrower has no Subsidiaries and does not own an equity interest in any other Person;
(S) Such Borrower has no knowledge of any fact or circumstance which would impair the validity or collectibility of any material amount of its Accounts or General Intangibles;
(T) None of such Borrower’s Collateral has been pledged or sold to any other Person or otherwise encumbered, such Borrower is the owner of its Collateral free of all Liens and encumbrances except those of Agent and except for the Permitted Liens and no financing statement has been filed concerning the Collateral, except any filed on behalf of Agent and those relating to Permitted Liens;
(U) To the best of such Borrower’s knowledge, each property (including underlying ground water)threatened, operation and facility that such against Borrower operates or controls is which might result in compliance with all statutesany material, judicial or administrative orders, licenses, permits and governmental rules and regulations applicable to them, including, without limitation, Environmental Laws, the noncompliance with which is reasonably likely to have a Material Adverse Effect on the adverse change in Borrower’s financial condition, continued operations or Property of such Borrower;
(V) Such Borrower possesses adequate copyrights, patents, trademarks, trade secrets and computer software to conduct its business and all such intellectual property (other than computer software and trade secrets) in the possession of such Borrower as of the date of this Agreement is listed on Schedule 6.1(V); and
(W) Neither such Borrower nor any Affiliate of such Borrower is in any way associated with or related to The Lake Group, Inc., d/b/a Pacific Direct, Lake Graphics and Elan Resources, which filed bankruptcy in the Northern District of California Case No. 93-30351.
Appears in 2 contracts
Samples: Loan Agreement (Superior Uniform Group Inc), Loan Agreement (Superior Uniform Group Inc)
GENERAL WARRANTIES AND REPRESENTATIONS. Each Borrower warrants Borrowers, jointly and represents severally, warrant and represent to Agent and Lenders each Lender that:
(A) (i) ModusLink is a corporation Borrowers and each of their respective Subsidiaries are corporations duly organized, organized and validly existing and in good standing under the laws of the State of Delaware and its state issued organizational identification number is 2831732, (ii) SalesLink is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware and its state issued organizational identification number is 2721217 and (iii) SalesLink Mexico is a corporation duly organized, existing and in good standing under the laws of the state of Delaware and its state issued organizational number is 3111152. Each Borrower is are qualified or licensed as a foreign corporation to do business in all other states in which any state where the laws thereof require such Borrower failure to be so qualified or licensed except where a lack of such qualification or licensing will not could reasonably be expected to have a Material Adverse Effect on the business, operations or financial condition of such BorrowerEffect;
(B) Such Borrower has not used, during the five (5) year period preceding the date of this Agreement, and on the date hereof does not intend to use, any other corporate or fictitious name, except as disclosed in Schedule 6.1(B);
(C) Such Borrower has Borrowers have the right and power and is are duly authorized and empowered to enter into, execute, deliver and perform this Agreement and the Ancillary AgreementsAgreements and this Agreement and the Ancillary Agreements when duly executed and delivered will be legal, valid and binding obligations of Borrowers enforceable in accordance with their terms except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors' rights generally or the application of general equitable principles;
(DC) The execution, delivery and performance by such Borrower Borrowers of this Agreement and the Ancillary Agreements shall not, by its their execution or performance, the lapse passing of time, the giving of notice or otherwise, constitute a violation of any applicable law, rule, regulation, judgment, order or decree applicable to such Borrower or its assets enforceable against Borrowers or constitute a breach of any provision contained in such Borrower’s charter Borrowers' certificate of incorporation or by-laws bylaws or contained in any material agreement, instrument, indenture or other document to which such Borrower is Borrowers are now a party or by which it or any of its their property is bound;
(ED) Such Borrower’s Borrowers' use of the proceeds of any advances made by each such Lender hereunder are, and will continue to be, legal and proper corporate uses (duly authorized by its board of directors, in accordance with any applicable law, rule or regulation) and such uses are consistent with all applicable laws, rules and regulations, as in effect as of the date hereof;
(FE) Such Borrower has, Borrowers and is current each of their respective Subsidiaries upon Closing and in good standing with respect to, all material governmental approvals, permits, certificates, inspections, consents and franchises necessary to conduct and to continue to conduct its business and its intended business and to own or lease and operate its properties as now owned or leased and operated upon the consummation of the transactions contemplated by it;
the WorldCom Acquisition has (Gi) None of such approvals, permits, certificates, consents or franchises contains any term, provision, condition or limitation more burdensome than such as are generally applicable to Persons engaged in the same or similar business as such Borrower;
(H) Such Borrower now has capital sufficient to carry on its business and transactions and all businesses and transactions in which it is about to engage and is now solvent and able to pay its debts as they mature and such Borrower now owns property Borrowers and each of their respective Subsidiaries own property, the fair saleable value of which is greater than the amount required to pay Borrowers' or such Borrower’s debtsother Person's debts and (ii) good, indefeasible and merchantable title to and ownership of its assets free and clear of all Liens, other than Permitted Liens;
(Ii) Except as disclosed in the Financials, (i) on Exhibit G there is no litigation, suit, action, proceeding, inquiry or investigation pending or, to the best of such Borrower’s knowledgeBorrowers' Knowledge, threatened against such Borrower Borrowers or any of their respective Subsidiaries which if unfavorably determined would materially adversely affect the transactions contemplated hereby, or such Borrower’s Person's property, prospects assets, operations or condition (financial or otherwise) (except as shown on Financials and on Schedule 6.1(I)) and (ii) such Borrower has no neither Borrowers nor any of their respective Subsidiaries have any Indebtedness and has have not guaranteed the obligations of any other Person (except for other than Permitted Debt);
(iG) There Borrowers and each of their respective Subsidiaries are no strikes, work stoppages, labor disputes decertification petitions, union organizing efforts, grievances or other claims pending ornot, to such Borrower’s knowledgeBorrowers' Knowledge, threatened in writing, between such Borrower and any of its employees, other than employee grievances arising in the ordinary course of business which, in the aggregate, would not have a Material Adverse Effect on such Borrower and (ii) to the best of such Borrower’s knowledge, such Borrower has no obligation under any collective bargaining agreement or any material employment agreement. To such Borrower’s knowledge, there is no organizing activity pending or threatened in writing by any labor union or group of employees. There are no representation proceedings pending or threatened with the National Labor Relations Board or other applicable governmental authority, and no labor organization or group of employees has made a pending demand for recognition. There are no material complaints or charges pending or, to such Borrower’s knowledge, threatened to be filed with any governmental authority or arbitrator based on, arising out of, in connection with or otherwise relating to the employment or termination of employment by such Borrower of any individual or group of individuals which, if decided adversely to such Borrower, would have a Material Adverse Effect on such Borrower;
(K) Such Borrower has good, indefeasible and merchantable title to and ownership of its Collateral, free and clear of all Liens, claims, security interests and other encumbrances, except those of Agent and Permitted Liens;
(L) Such Borrower is not in violation of any applicable statute, rule, regulation or ordinance of any governmental entity, including, without limitation, the Xxxxxx Xxxxxx xx XxxxxxxUnited States of America, any state, city, town, municipality, county or of any other jurisdiction, or of any agency thereof, in any respect materially and adversely affecting the Collateral or such Borrower’s business, property, assets, operations or condition, financial or otherwhich violation could reasonably be expected to have a Material Adverse Effect;
(MH) Such Borrower is Borrowers and each of their respective Subsidiaries are not in default under any indenture, loan agreement, mortgage, material lease, trust deed, deed of trust or other similar agreement relating to the borrowing of monies to which it is they are a party or by which it they or any of its Property their property is bound;
(NI) The Financials fairly present Borrowers and each of their respective Subsidiaries are in compliance in all material respects the assets, liabilities and financial condition and results of operations of such Borrower and such other Persons as are described therein as of the stated dates; there are no omissions or other facts or circumstances which are or may be material and there (i) has been no material and adverse change in the assets, liabilities or financial or other condition of such Borrower or any such Person since the date of the Financials and (ii) exists no equity or long term investments in or outstanding advances to any Person not reflected in the Financials;
(O) No Borrower has received a notice to the effect that it is not in full compliance with any of the requirements of ERISA and the regulations promulgated thereunder and, to the best of its knowledgetheir Knowledge, there exists no event described in Section 4043 of ERISA, excluding subsections 4043(b)(2) and 4043(b)(3) (a “Reportable Event”"REPORTABLE EVENT");
(PJ) Such Borrower has Borrowers and each of their respective Subsidiaries have filed all federal, state and local tax returns and other reports (taking into account any extension of time to file granted to or obtained on behalf of Borrower)reports, or has been included in consolidated returns or reports filed by an Affiliate, which such Borrower Person is required by law, rule or regulation to file and all material Charges that are due and payable have been paid, except for Charges being contested in good faith and for which adequate reserves are being maintained;
(QK) Such Borrower’s Borrowers' execution and delivery of this Agreement and the Ancillary Agreements do not directly or indirectly violate or result in any violation by Borrowers of the Securities Exchange Act of 1934, as amended, amended or any regulations issued pursuant theretothereto (the "EXCHANGE ACT"), including without limitation, Regulation U, T or X of the Board of Governors of the Federal Reserve System (12 CFR 221, 207, 220 and 224, respectively) and Borrower does Borrowers do not own or intend to purchase or carry any “margin security"MARGIN SECURITY,” " as defined in such Regulationsregulations;
(RL) Except as set forth on Schedule 6.1(R)Exhibit H, as of the date of this Agreement such Borrower has Borrowers have no Subsidiaries and does do not own an equity interest in any other Person;
(S) Such Borrower has no knowledge of any fact or circumstance which would impair the validity or collectibility of any material amount of its Accounts or General Intangibles;
(T) None of such Borrower’s Collateral has been pledged or sold to any other Person or otherwise encumbered, such Borrower is the owner of its Collateral free of all Liens and encumbrances except those of Agent and except for the Permitted Liens and no financing statement has been filed concerning the Collateral, except any filed on behalf of Agent and those relating to Permitted Liens;
(UM) To the best of such Borrower’s knowledgeBorrowers' Knowledge, Borrowers, each of their respective Subsidiaries and each property (including underlying ground water), operation and facility that such Borrower Borrowers or any of their respective Subsidiaries operates or controls is are in compliance with all statutes, judicial or administrative orders, licenses, permits and governmental rules and regulations applicable to them, including, without limitation, Environmental Laws, the noncompliance with which is would be reasonably likely to have a Material Adverse Effect on the financial condition, continued operations or Property of such BorrowerEffect;
(VN) Such Borrower possesses Borrowers possess adequate copyrights, patents, trademarks, trade secrets and computer software to conduct its business their businesses and all such intellectual property (other than computer software and trade secrets) in the possession of such Borrower Borrowers as of the date of this Agreement is are listed on Schedule 6.1(V4.1(N);
(O) Borrowers do not currently have any "rights plan" or other similar poison pill agreement that would in any way restrict any Lender or affiliate of any Lender from purchasing or owning shares of Borrowers' capital stock; and
(WP) Neither Each of the documents filed by U.S. RealTel with the U.S. Securities and Exchange Commission ("SEC") complied when filed with all of the requirements of the Securities Act of 1933, as amended, and the Exchange Act, as applicable, and did not contain any untrue statement of a material fact or omit to state any material fact required to be contained therein or necessary or necessary in order to make the statements therein not misleading. The Executive Summary of Cypress, Inc. dated March 2002 and the pro forma financial statements delivered to Lenders did not and do not contain any untrue statement of a material fact or omit to state any material fact required to be contained therein or necessary in order to make the statements therein not misleading and the projections and assumptions stated therein were made in good faith with reasonable basis therefor. Notwithstanding the foregoing, Borrowers make no representations and warranties as to the accuracy of the projections stated therein except as expressly set forth herein.
(Q) The Form 10-K filed by U. S. RealTel on April 16, 2002, contains consolidated balance sheets of U.S. RealTel and its consolidated Subsidiaries, and the consolidated statements of income, stockholders' equity, and cash flows of the U.S. RealTel and its consolidated Subsidiaries for each of the three years ended December 31, 2000 and December 31, 2001, including notes thereto, and the opinion of BDO Xxxxxxx, LLP, independent certified public accountants with respect to such Borrower nor any Affiliate financial statements. The quarterly report on Form 10-Q filed by U.S. RealTel on May 20, 2002, contains the unaudited consolidated balance sheet of U.S. RealTel and its consolidated Subsidiaries at, and the unaudited consolidated statements of income, stockholders' equity, and cash flows of U.S. RealTel and its consolidated Subsidiaries for the period ended, March 31, 2002. All of the foregoing financial statements are complete and correct in all material respects and fairly present in all material respects the consolidated financial condition of U.S. RealTel and its consolidated Subsidiaries at the respective dates of said balance sheets and the consolidated results of operations of the U.S. RealTel and its consolidated Subsidiaries for the respective periods covered thereby. Such financial statements have been prepared in accordance with Regulation S-X promulgated by the SEC applied on a consistent basis throughout the periods involved (except as otherwise noted therein). There were no material liabilities, direct or indirect, fixed or contingent, of U.S. RealTel and its consolidated Subsidiaries as of the respective dates of such Borrower is in any way associated with balance sheets that are not reflected therein or related to The Lake Group, Inc., d/b/a Pacific Direct, Lake Graphics and Elan Resources, which filed bankruptcy in the Northern District of California Case No. 93-30351notes thereto.
Appears in 2 contracts
Samples: Loan Agreement (U S Realtel Inc), Loan Agreement (U S Realtel Inc)
GENERAL WARRANTIES AND REPRESENTATIONS. Each Borrower warrants We warrant and represents to Agent and Lenders represent that:
(A) (i) ModusLink is a corporation We are duly organized, validly organized and existing and in good standing under the laws of the Formation State of Delaware set forth on the Term Sheet, are qualified to do business and its state issued organizational identification number is 2831732, (ii) SalesLink is a limited liability company duly organized, validly existing and are in good standing under the laws of the State of Delaware and its state issued organizational identification number is 2721217 and (iii) SalesLink Mexico is a corporation duly organized, existing and in good standing under the laws of the state of Delaware and its state issued organizational number is 3111152. Each Borrower is qualified or licensed as a foreign corporation to do business in all other states in which the laws thereof require such Borrower qualification and good standing are necessary in order for us to be so qualified or licensed except where a lack of such qualification or licensing will not conduct our business and own our property and have a Material Adverse Effect on the all requisite power and authority to conduct our business, operations or financial condition to own our property and to execute, deliver and perform all of such Borrowerour Obligations;
(B) Such Borrower has not usedWe have not, during the preceding five (5) year period preceding the date of this Agreementyears, and been known by or used any other Assumed Names or Trade Names other than as set forth on the date hereof does not intend to use, any other corporate or fictitious name, except as disclosed in Schedule 6.1(B)Term Sheet;
(C) Such Borrower has the right and power and is duly authorized and empowered to enter into, execute, deliver and perform this Agreement and the Ancillary Agreements;
(D) The execution, delivery and performance by such Borrower us of this Agreement and the Ancillary Agreements shall not, by its execution or performance, the lapse of time, the giving of notice or otherwise, will not constitute a violation of any applicable lawlaw or of our Articles or Certificate of Incorporation, rule, regulation, judgment, order By-Laws or decree applicable to such Borrower Code of Regulations or its assets or constitute a breach of any provision contained in such Borrower’s charter or by-laws or contained in any material agreement, instrument, indenture or other document to which such Borrower is now we are a party or by which it or any bound;
(D) We possess adequate assets, licenses, patents, patent applications, copyrights, trademarks, trademark applications, and tradenames for the conduct of its property is boundour business;
(E) Such Borrower’s use of the proceeds of any advances made by each Lender hereunder are, and will continue to be, legal and proper corporate uses (duly authorized by its board of directors, in accordance with any applicable law, rule or regulation) and such uses are consistent with all applicable laws, rules and regulations, as in effect as of the date hereof;
(F) Such Borrower has, and is current and in good standing with respect to, all material governmental approvals, permits, certificates, inspections, consents and franchises necessary to conduct and to continue to conduct its business and its intended business and to own or lease and operate its properties as now owned or leased and operated by it;
(G) None of such approvals, permits, certificates, consents or franchises contains any term, provision, condition or limitation more burdensome than such as are generally applicable to Persons engaged in the same or similar business as such Borrower;
(H) Such Borrower now has We have capital sufficient to carry on its business conduct our business, are solvent and transactions and all businesses and transactions in which it is about to engage and is now able to pay its our debts as they mature and such Borrower now owns own property the having a fair saleable value of which is greater than the amount required to pay such Borrower’s our debts;
(IF) Except as disclosed in the Financials, (i) there is no litigation, suit, action, proceeding, inquiry or investigation pending or, to the best of such Borrower’s knowledge, threatened against such Borrower which if unfavorably determined would materially adversely affect the transactions contemplated hereby, or such Borrower’s property, assets, operations or condition (financial or otherwise) (except as shown on Financials and on Schedule 6.1(I)) and (ii) such Borrower has no Indebtedness and has not guaranteed the obligations of any other Person (except for Permitted Debt);
(i) There are no strikes, work stoppages, labor disputes decertification petitions, union organizing efforts, grievances or other claims pending or, to such Borrower’s knowledge, threatened in writing, between such Borrower and any of its employees, other than employee grievances trade payables arising in the ordinary course of our business whichand except as heretofore disclosed to you in writing, in we have (i) no pending or threatened litigation, actions or proceedings which would materially and adversely affect our business assets, operations or condition, financial or otherwise, or the aggregate, would not have a Material Adverse Effect on such Borrower Collateral and (ii) to no Indebtedness, other than the best of such Borrower’s knowledge, such Borrower has no obligation under any collective bargaining agreement or any material employment agreement. To such Borrower’s knowledge, there is no organizing activity pending or threatened in writing by any labor union or group of employees. There are no representation proceedings pending or threatened with the National Labor Relations Board or other applicable governmental authority, and no labor organization or group of employees has made a pending demand for recognition. There are no material complaints or charges pending or, to such Borrower’s knowledge, threatened to be filed with any governmental authority or arbitrator based on, arising out of, in connection with or otherwise relating to the employment or termination of employment by such Borrower of any individual or group of individuals which, if decided adversely to such Borrower, would have a Material Adverse Effect on such BorrowerObligations;
(KG) Such Borrower has We have good, indefeasible indefeasible, and merchantable title to and ownership of its the Collateral, free and clear of all Liens, claims, there is no lien or encumbrance thereon other than the security interests and other encumbrances, except those of Agent interest granted to you and Permitted LiensLiens as set forth on the Term Sheet;
(LH) Such Borrower We are not subject to judgment, decree or order materially and adversely affecting our business, assets, operations or condition, financial or otherwise, and are not subject to any labor dispute; and, no labor contract is scheduled to expire during the term of this Agreement, except as heretofore disclosed to you in writing;
(I) We are not in violation of any applicable statute, rule, regulation or ordinance of any governmental entity, including, without limitation, the Xxxxxx Xxxxxx xx Xxxxxxx, any state, city, town, municipality, county or of any other jurisdiction, or of any agency thereofordinance, in any respect materially and adversely affecting the Collateral or such Borrower’s our business, property, assets, operations or condition, financial or otherotherwise;
(MJ) Such Borrower is We are not in default under with respect to any note, indenture, loan agreement, mortgage, material lease, trust deed, deed of trust or other similar agreement relating to the borrowing of monies to which it is we are a party or by which it or any of its Property is bound;
(NK) The Financials financial statements delivered to you fairly present in all material respects the assets, liabilities and our financial condition and results of operations and those of such Borrower and such other Persons as are described therein as of the stated datesdate thereof; there are no omissions or other facts or circumstances which are or may be material and there (i) has been no material and adverse change in the assets, liabilities such financial condition or financial or other condition of such Borrower or any such Person operations since the date of the Financials and (ii) exists no equity or long term investments in or outstanding advances to any Person not reflected in the Financialsstatements;
(OL) No Borrower has We have received a no notice to the effect that it is we are not in full compliance with any of the requirements of ERISA the Employee Retirement Income Security Act of 1974, as amended, (“ERISA”) and the its regulations promulgated thereunder and, to the best of its our knowledge, there exists no event described in Section 4043 of ERISA, excluding subsections 4043(b)(2) and 4043(b)(3) thereof, with respect to us;
(a “Reportable Event”)M) We have filed all tax returns and other reports we are required by law to file and have paid all taxes and similar charges that are due and payable;
(N) Our Chief Executive Office, Principal Place of Business and the Location of Collateral Records is at the location set forth on the Term Sheet;
(O) We have not received any notice alleging and are not aware of any facts indicating noncompliance with any State or Federal law governing the use, generation, storage or release of any hazardous waste or substance;
(P) Such Borrower has filed all federal, state and local tax returns and We have no Subsidiaries or Affiliates other reports (taking into account any extension of time to file granted to or obtained than as set forth on behalf of Borrower), or has been included in consolidated returns or reports filed by an Affiliate, which such Borrower is required by law, rule or regulation to file and all Charges that are due and payable have been paid, except for Charges being contested in good faith and for which adequate reserves are being maintainedthe Term Sheet;
(Q) Such Borrower’s execution and delivery of this Agreement and We own all properties on which Collateral is located other than the Ancillary Agreements do not directly or indirectly violate or result in any violation of Leased Properties set forth on the Securities Exchange Act of 1934, as amended, or any regulations issued pursuant thereto, including without limitation, Regulation U, T or X of the Board of Governors of the Federal Reserve System (12 CFR 221, 207, 220 and 224, respectively) and Borrower does not own or intend to purchase or carry any “margin security,” as defined in such Regulations;Term Sheet; and
(R) Except as All Collateral which is tangible personal property is kept only at the Collateral Locations set forth on Schedule 6.1(R), as of the date of this Agreement such Borrower has no Subsidiaries and does not own an equity interest in any other Person;
(S) Such Borrower has no knowledge of any fact or circumstance which would impair the validity or collectibility of any material amount of its Accounts or General Intangibles;
(T) None of such Borrower’s Collateral has been pledged or sold to any other Person or otherwise encumbered, such Borrower is the owner of its Collateral free of all Liens and encumbrances except those of Agent and except for the Permitted Liens and no financing statement has been filed concerning the Collateral, except any filed on behalf of Agent and those relating to Permitted Liens;
(U) To the best of such Borrower’s knowledge, each property (including underlying ground water), operation and facility that such Borrower operates or controls is in compliance with all statutes, judicial or administrative orders, licenses, permits and governmental rules and regulations applicable to them, including, without limitation, Environmental Laws, the noncompliance with which is reasonably likely to have a Material Adverse Effect on the financial condition, continued operations or Property of such Borrower;
(V) Such Borrower possesses adequate copyrights, patents, trademarks, trade secrets and computer software to conduct its business and all such intellectual property (other than computer software and trade secrets) in the possession of such Borrower as of the date of this Agreement is listed on Schedule 6.1(V); and
(W) Neither such Borrower nor any Affiliate of such Borrower is in any way associated with or related to The Lake Group, Inc., d/b/a Pacific Direct, Lake Graphics and Elan Resources, which filed bankruptcy in the Northern District of California Case No. 93-30351Term Sheet.
Appears in 1 contract
GENERAL WARRANTIES AND REPRESENTATIONS. Each Borrower Group warrants and represents to Agent and Lenders that:
(Aa) (i) ModusLink Each party comprising the Borrower Group and each Subsidiary is a corporation which is duly organized, validly existing and in good standing under the laws of the State of Delaware and its state issued organizational identification number is 2831732, (ii) SalesLink qualified or licensed to do business and is a limited liability company duly organized, validly existing and in good standing in all other countries, states and provinces the laws of which require each Borrower Group and each Subsidiary to be so qualified or licensed except where the failure to so qualify would not have a material adverse effect on the business, property or financial condition of Borrower Group or a Subsidiary;
(b) Borrower Group has good, indefeasible and merchantable title to, and ownership of, the Collateral free and clear of all Liens except those of Lender and those, if any, described on Schedule I;
(c) neither Borrower Group nor any Subsidiary is a party to any contract or agreement or subject to any charge, corporate restriction, judgment, decree or order adversely affecting its business, property, assets, operations or condition, financial or otherwise, or is a party to any labor dispute which would have a material adverse effect on the assets, operations or financial condition of Borrower Group or a Subsidiary, or on the Collateral; there are no strikes, lockouts or walkouts relating to any labor contracts of Borrower Group or any Subsidiary and no such contract is scheduled to expire within the Revolving Credit Facility Term;
(d) neither Borrower Group nor any Subsidiary is in violation of any applicable statute, regulation or ordinance of any governmental authorities having jurisdiction over their activities, or of any order, writ, injunction or decree or any court or any Federal, state, municipal or other governmental authority, which would in any respect adversely affect the Collateral or their business, property, assets, operations or condition, financial or otherwise;
(e) neither Borrower Group nor any Subsidiary is in default with respect to any indenture, loan agreement, mortgage, lease, deed or other similar agreement relating to the borrowing of monies to which any of them is a party or by which any of them is bound;
(f) neither Borrower Group nor any Subsidiary has received notice to the effect that it is not in full compliance with any of the requirements of ERISA, and the regulations promulgated thereunder and, to the best of its knowledge, there exists no event described in Section 4043(3) thereof (“Reportable Event”);
(g) Borrower Group and each Subsidiary have filed all federal, state and local tax returns and other reports required by law to be filed and have paid, to the extent due and payable, all taxes, levies, assessments, charges, liens, claims or encumbrances upon or relating to the Collateral, the Indebtedness, employees, payroll, income and gross receipts, ownership or use of any of their assets, and any other aspect of their business or financial affairs, as the case may be (collectively, the “Charges”), except any Charges being contested in good faith and by appropriate proceedings; and the accruals and reserves in the books of Borrower Group and each Subsidiary in respect of federal taxes are adequate and neither Borrower Group nor any Subsidiary has knowledge of any unpaid assessments for additional federal or state taxes for any fiscal period; 16
(h) the Collateral and Borrower Group’s books and records, including, without limitation, computer programs, printouts and other computer materials and records concerning the Collateral, are at the addresses for Borrower Group set forth herein;
(i) Each party comprising the Borrower Group is organized and incorporated under the laws of the State of Delaware and its state issued organizational identification number is 2721217 and (iii) SalesLink Mexico is a corporation duly organizedand, existing and in good standing since their respective dates of incorporation, have not been known under the laws of the state of Delaware and its state issued organizational number is 3111152. Each Borrower is qualified or licensed used as a foreign corporation to do business in all other states in which the laws thereof require such Borrower to be so qualified or licensed except where a lack of such qualification or licensing will not have a Material Adverse Effect on the business, operations or financial condition of such Borrower;
(B) Such Borrower has not used, during the five (5) year period preceding the date of this Agreement, and on the date hereof does not intend to use, any other corporate or fictitious name, except as disclosed in Schedule 6.1(B);
(Cj) Such Borrower Group has the right and power and is duly authorized and empowered to enter into, execute, deliver and perform this Agreement and the Ancillary AgreementsOther Agreements to which it is a party, and the officers executing and delivering this Agreement and such Other Agreements on behalf of Borrower Group are duly authorized and empowered to do so;
(Dk) The the execution, delivery and performance by such Borrower Group of this Agreement and the Ancillary Other Agreements shall will not, by its execution or performance, the lapse of time, the giving of notice notice, the happening of any further condition, event or act or otherwise, constitute a violation of any applicable law, rule, regulation, judgment, order law or decree applicable to such Borrower or its assets or constitute a breach of any provision contained in such BorrowerBorrower Group’s charter or byrespective Certificates of Incorporation and/or By-laws or Laws and of each party comprising the Borrower Group and/or contained in any material agreement, instrument, indenture instrument or other document to which such Borrower Group is now a party or by which it or any of its property Borrower Group is bound;
(El) Such Borrower’s use this Agreement, the Revolving Line of Credit Note, the proceeds of any advances made by each Lender hereunder areTerm Note, the Merchant Loan, the Guaranty, and will continue to bethe Other Agreements are legal, legal valid and proper corporate uses binding obligations of Borrower Group (duly authorized by its board of directorsas applicable), enforceable in accordance with any applicable law, rule or regulation) and such uses are consistent with all applicable laws, rules and regulations, as in effect as of the date hereoftheir respective terms;
(Fm) Such Borrower hasGroup and each Subsidiary have, and is are current and in good standing with respect to, all material governmental approvals, permits, certificates, inspections, consents and franchises necessary to conduct and to continue to conduct its business and its intended business their respective businesses as heretofore conducted and to own or lease and operate its the properties as now owned or leased by them; and operated no authorization, consent or approval of any federal, state, municipal or other governmental regulatory authority is required in connection with either the execution and delivery by itBorrower Group of this Agreement, the Revolving Line of Credit Note, the Term Note, the Merchant Loan, the Guaranty, or the Other Agreements to which Borrower Group is a party, or the performance of its obligations thereunder;
(Gi) None of such approvals, permits, certificates, consents or franchises contains any term, provision, condition or limitation more burdensome than such as are generally applicable to Persons engaged in the same or similar business as such Borrower;
(H) Such Borrower now Group has sufficient capital sufficient to carry on its business and transactions and all businesses and transactions in which it now engages or is about to engage engage, is not insolvent and will continue to be solvent after the execution of this Agreement and the Other Agreements to which it is a party and the creation of the Lien on the Collateral pursuant to this Agreement and is now able to pay its debts as they mature and such Borrower now owns property the fair saleable value of which is greater than the amount required to pay such Borrower’s debts;
(I) Except as disclosed in the Financialsmature, (i) there is no litigation, suit, action, proceeding, inquiry or investigation pending or, to the best of such Borrower’s knowledge, threatened against such Borrower which if unfavorably determined would materially adversely affect the transactions contemplated hereby, or such Borrower’s property, assets, operations or condition (financial or otherwise) (except as shown on Financials and on Schedule 6.1(I)) and (ii) such Borrower each Subsidiary has no Indebtedness sufficient capital to conduct its financial affairs and has the transactions in which it now engages or is about to engage, is not guaranteed insolvent and will continue to be solvent after the obligations execution of any other Person (except for Permitted Debt);
(i) There are no strikes, work stoppages, labor disputes decertification petitions, union organizing efforts, grievances or other claims pending or, to such Borrower’s knowledge, threatened in writing, between such Borrower and any of its employees, other than employee grievances arising in the ordinary course of business which, in the aggregate, would not have a Material Adverse Effect on such Borrower and (ii) to the best of such Borrower’s knowledge, such Borrower has no obligation under any collective bargaining agreement this Agreement or any material employment agreement. To such Borrower’s knowledge, there is no organizing activity pending or threatened in writing by any labor union or group of employees. There are no representation proceedings pending or threatened with the National Labor Relations Board or other applicable governmental authority, and no labor organization or group of employees has made a pending demand for recognition. There are no material complaints or charges pending or, to such Borrower’s knowledge, threatened to be filed with any governmental authority or arbitrator based on, arising out of, in connection with or otherwise relating to the employment or termination of employment by such Borrower of any individual or group of individuals which, if decided adversely to such Borrower, would have a Material Adverse Effect on such Borrower;
(K) Such Borrower has good, indefeasible and merchantable title to and ownership of its Collateral, free and clear of all Liens, claims, security interests and other encumbrances, except those of Agent and Permitted Liens;
(L) Such Borrower is not in violation of any applicable statute, rule, regulation or ordinance of any governmental entity, including, without limitation, the Xxxxxx Xxxxxx xx Xxxxxxx, any state, city, town, municipality, county or of any other jurisdiction, or of any agency thereof, in any respect materially and adversely affecting the Collateral or such Borrower’s business, property, assets, operations or condition, financial or other;
(M) Such Borrower is not in default under any indenture, loan agreement, mortgage, material lease, trust deed, deed of trust or other similar agreement relating to the borrowing of monies Other Agreement to which it is a party or by which it or any of party, and is able to pay its Property is bounddebts as they mature;
(No) The the Financials have been prepared in accordance with generally accepted accounting principles applied on a consistent basis and fairly present in all material respects the assets, liabilities and financial condition and results of operations of such Borrower Group at, and such other Persons as are described therein as of of, the stated datesdate thereof; there are no material liabilities, direct or indirect, fixed or contingent, of Borrower Group which are not reflected in the Financials nor omissions or of other facts or circumstances which are or may be material material, and there (i) has been no material and adverse change in the assets, liabilities or financial or other condition of such Borrower or any such Person Group since the date of the Financials and (ii) Financials; there exists no equity or long term investments in in, or outstanding advances to to, any Person not reflected in the Financials;
(O) No Borrower has received a notice to the effect that it ; there is not in full compliance with any of the requirements of ERISA and the regulations promulgated thereunder andno litigation or bankruptcy or governmental actions or proceedings which are pending, or to the best of its Borrower Group’s knowledge, there exists threatened, against Borrower Group or any Subsidiary which might result in any adverse change in Borrower Group’s or a Subsidiary’s financial condition or adversely affect their operations, assets or the Collateral; except for trade payables arising in the ordinary course of business since the dates reflected in the Financials and except as disclosed on Schedule II attached hereto and made a part hereof and in the Financials, Borrower Group has no event described in Section 4043 actions or proceedings pending and no Liabilities outstanding and has not guaranteed the obligations of ERISA, excluding subsections 4043(b)(2) and 4043(b)(3) (a “Reportable Event”)any other Person;
(Pp) Such Borrower has filed all federal, state and local tax returns and other reports (taking into account any extension of time to file granted to or obtained on behalf of Borrower), or has been included in consolidated returns or reports filed by an Affiliate, which such Borrower is required by law, rule or regulation to file and all Charges that are due and payable have been paid, except for Charges being contested in good faith and for which adequate reserves are being maintained;
(Q) Such BorrowerGroup’s execution and delivery of this Agreement and or any of the Ancillary Other Agreements do does not directly or indirectly violate or result in any a violation of the Securities Exchange Act of 1934Regulations G, as amendedT, or any regulations issued pursuant thereto, including without limitation, Regulation U, T U or X of the Board of Governors of the Federal Reserve System (12 CFR 221, 207, 220 and 224, respectively) and Borrower Group does not own or intend to purchase or carry any “margin security,” ”, as defined in such said Regulations;
(Rq) Except as set forth on Schedule 6.1(R), as of the date of neither this Agreement such Borrower has no Subsidiaries and does not own an equity interest in nor the Other Agreements nor any other Person;
(S) Such Borrower has no knowledge of any fact documents, certificates or circumstance which would impair the validity statements furnished to Lender by or collectibility of any material amount of its Accounts or General Intangibles;
(T) None of such Borrower’s Collateral has been pledged or sold to any other Person or otherwise encumbered, such Borrower is the owner of its Collateral free of all Liens and encumbrances except those of Agent and except for the Permitted Liens and no financing statement has been filed concerning the Collateral, except any filed on behalf of Agent Borrower Group or any Subsidiary contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein not misleading, and those relating there are no facts known to Permitted Liens;
(U) To Borrower Group which materially or adversely affect, or in the best of such Borrower’s knowledgefuture may so affect, each property (including underlying ground water)their business, operation and facility that such Borrower operates operations, properties, assets or controls is in compliance with all statutes, judicial or administrative orders, licenses, permits and governmental rules and regulations applicable to them, including, without limitation, Environmental Laws, the noncompliance with which is reasonably likely to have a Material Adverse Effect on the financial condition, continued operations or Property of such Borrower;
(V) Such Borrower possesses adequate copyrights, patents, trademarks, trade secrets and computer software to conduct its business and all such intellectual property (other than computer software and trade secrets) in the possession of such Borrower as of the date of this Agreement is listed on Schedule 6.1(V); and
(W) Neither such Borrower nor any Affiliate of such Borrower is in any way associated with or related to The Lake Group, Inc., d/b/a Pacific Direct, Lake Graphics and Elan Resources, which filed bankruptcy in the Northern District of California Case No. 93-30351.
Appears in 1 contract
GENERAL WARRANTIES AND REPRESENTATIONS. Each Borrower warrants We warrant and represents to Agent and Lenders represent that:
(A) (i) ModusLink is a corporation We are duly organized, validly organized and existing and in good standing under the laws of the State of Delaware Minnesota, are qualified to do business and its state issued organizational identification number is 2831732, (ii) SalesLink is a limited liability company duly organized, validly existing and are in good standing under the laws of the State of Delaware and its state issued organizational identification number is 2721217 and (iii) SalesLink Mexico is a corporation duly organized, existing and in good standing under the laws of the state of Delaware and its state issued organizational number is 3111152. Each Borrower is qualified or licensed as a foreign corporation to do business in all other states in which the laws thereof require such Borrower qualification and good standing are necessary in order for us to be so qualified or licensed except where a lack of such qualification or licensing will not conduct our business and own our property and have a Material Adverse Effect on the all requisite power and authority to conduct our business, operations or financial condition to own our property and to execute, deliver and perform all of such Borrowerour Obligations;
(B) Such Borrower has not usedWe have not, during the preceding five (5) year period preceding the date of this Agreementyears, and on the date hereof does not intend to use, been known by or used any other corporate or fictitious name, except as disclosed in Schedule 6.1(B)assumed names;
(C) Such Borrower has the right and power and is duly authorized and empowered to enter into, execute, deliver and perform this Agreement and the Ancillary Agreements;
(D) The execution, delivery and performance by such Borrower us of this Agreement and the Ancillary Agreements shall not, by its execution or performance, the lapse of time, the giving of notice or otherwise, will not constitute a violation of any applicable lawlaw or of our Articles of Incorporation, rule, regulation, judgment, order By-Laws or decree applicable to such Borrower or its assets or constitute a breach of any provision contained in such Borrower’s charter or by-laws or contained in any material agreement, instrument, indenture or other document to which such Borrower is now we are a party or by which it or any bound, except for the Senior Indebtedness;
(D) We possess adequate assets, licenses, patents, patent applications, copyrights, trademarks, trademark applications, and tradenames for the conduct of its property is boundour business;
(E) Such Borrower’s use of the proceeds of any advances made by each Lender hereunder are, and will continue to be, legal and proper corporate uses (duly authorized by its board of directors, in accordance with any applicable law, rule or regulation) and such uses are consistent with all applicable laws, rules and regulations, as in effect as of the date hereof;
(F) Such Borrower has, and is current and in good standing with respect to, all material governmental approvals, permits, certificates, inspections, consents and franchises necessary to conduct and to continue to conduct its business and its intended business and to own or lease and operate its properties as now owned or leased and operated by it;
(G) None of such approvals, permits, certificates, consents or franchises contains any term, provision, condition or limitation more burdensome than such as are generally applicable to Persons engaged in the same or similar business as such Borrower;
(H) Such Borrower now has We have capital sufficient to carry on its business conduct our business, are solvent and transactions and all businesses and transactions in which it is about to engage and is now able to pay its our debts as they mature and such Borrower now owns own property the having a fair saleable value of which is greater than the amount required to pay such Borrower’s our debts;
(IF) Except as disclosed in the Financials, (i) there is no litigation, suit, action, proceeding, inquiry or investigation pending or, to the best of such Borrower’s knowledge, threatened against such Borrower which if unfavorably determined would materially adversely affect the transactions contemplated hereby, or such Borrower’s property, assets, operations or condition (financial or otherwise) (except as shown on Financials and on Schedule 6.1(I)) and (ii) such Borrower has no Indebtedness and has not guaranteed the obligations of any other Person (except for Permitted Debt);
(i) There are no strikes, work stoppages, labor disputes decertification petitions, union organizing efforts, grievances or other claims pending or, to such Borrower’s knowledge, threatened in writing, between such Borrower and any of its employees, other than employee grievances trade payables arising in the ordinary course of our business, we have (i) no pending or threatened litigation, actions or proceedings which would materially and adversely affect our business whichassets, in operations or condition, financial or otherwise, or the aggregate, would not have a Material Adverse Effect on such Borrower Collateral and (ii) to no Indebtedness, other than the best of such Borrower’s knowledge, such Borrower has no obligation under any collective bargaining agreement or any material employment agreement. To such Borrower’s knowledge, there is no organizing activity pending or threatened in writing by any labor union or group of employees. There are no representation proceedings pending or threatened with Obligations and the National Labor Relations Board or other applicable governmental authority, and no labor organization or group of employees has made a pending demand for recognition. There are no material complaints or charges pending or, to such Borrower’s knowledge, threatened to be filed with any governmental authority or arbitrator based on, arising out of, in connection with or otherwise relating to the employment or termination of employment by such Borrower of any individual or group of individuals which, if decided adversely to such Borrower, would have a Material Adverse Effect on such BorrowerSenior Indebtedness;
(KG) Such Borrower has We have good, indefeasible indefeasible, and merchantable title to and ownership of its the Collateral, free and clear of all Liens, claims, there is no lien or encumbrance thereon other than the security interests and other encumbrancesinterest granted to you, except those of Agent and Permitted Liensfor the Senior Lien;
(LH) Such Borrower We are not a party to any contract, or subject to any charge, corporate restriction, judgment, decree or order materially and adversely affecting our business, assets, operations or condition, financial or otherwise, and are not subject to any labor dispute; and, no labor contract is scheduled to expire during the term of this Agreement, except as heretofore disclosed to you in writing;
(I) We are not in violation of any applicable statute, rule, regulation or ordinance of any governmental entity, including, without limitation, the Xxxxxx Xxxxxx xx Xxxxxxx, any state, city, town, municipality, county or of any other jurisdiction, or of any agency thereofordinance, in any respect materially and adversely affecting the Collateral or such Borrower’s our business, property, assets, operations or condition, financial or otherotherwise;
(MJ) Such Borrower is Other than the Senior Indebtedness, we are not in default under with respect to any note, indenture, loan agreement, mortgage, material lease, trust deed, deed of trust or other similar agreement relating to the borrowing of monies to which it is we are a party or by which it or any of its Property is bound;
(NK) The Financials financial statements delivered to you fairly present in all material respects the assets, liabilities and our financial condition and results of operations and those of such Borrower and such other Persons as are described therein as of the stated datesdate thereof; there are no omissions or other facts or circumstances which are or may be material and there (i) has been no material and adverse change in the assets, liabilities such financial condition or financial or other condition of such Borrower or any such Person operations since the date of the Financials and (ii) exists no equity or long term investments in or outstanding advances to any Person not reflected in the Financialsstatements;
(OL) No Borrower has We have received a no notice to the effect that it is we are not in full compliance with any of the requirements of ERISA the Employee Retirement Income Security Act of 1974, as amended, ("ERISA") and the its regulations promulgated thereunder and, to the best of its our knowledge, there exists no event described in Section 4043 of ERISA, excluding subsections 4043(b)(2) and 4043(b)(3) (a “Reportable Event”)thereof, with respect to us;
(PM) Such Borrower has We have filed all federal, state and local tax returns and other reports (taking into account any extension of time to file granted to or obtained on behalf of Borrower), or has been included in consolidated returns or reports filed by an Affiliate, which such Borrower is we are required by law, rule or regulation law to file and have paid all Charges taxes and similar charges that are due and payable have been paid, except for Charges being contested in good faith and for which adequate reserves are being maintainedpayable;
(QN) Such Borrower’s execution and delivery Our chief executive office, principal place of this Agreement business and the Ancillary Agreements do not directly or indirectly violate or result in any violation location of the Securities Exchange Act of 1934collateral records is at 900 Xxxxxx 00 Xxxxxxx, as amendedXxxxx 0000, or any regulations issued pursuant theretoXxxxxxx, including without limitation, Regulation U, T or X of the Board of Governors of the Federal Reserve System (12 CFR 221, 207, 220 and 224, respectively) and Borrower does not own or intend to purchase or carry any “margin security,” as defined in such RegulationsXxxxxxx 00000;
(RO) Except as set forth on Schedule 6.1(R), as of the date of this Agreement such Borrower has no Subsidiaries We have not received any notice alleging and does are not own an equity interest in any other Person;
(S) Such Borrower has no knowledge aware of any fact facts indicating noncompliance with any state or circumstance which would impair federal law governing the validity use, generation, storage or collectibility release of any material amount of its Accounts hazardous waste or General Intangiblessubstance;
(T) None of such Borrower’s Collateral has been pledged or sold to any other Person or otherwise encumbered, such Borrower is the owner of its Collateral free of all Liens and encumbrances except those of Agent and except for the Permitted Liens and no financing statement has been filed concerning the Collateral, except any filed on behalf of Agent and those relating to Permitted Liens;
(U) To the best of such Borrower’s knowledge, each property (including underlying ground water), operation and facility that such Borrower operates or controls is in compliance with all statutes, judicial or administrative orders, licenses, permits and governmental rules and regulations applicable to them, including, without limitation, Environmental Laws, the noncompliance with which is reasonably likely to have a Material Adverse Effect on the financial condition, continued operations or Property of such Borrower;
(V) Such Borrower possesses adequate copyrights, patents, trademarks, trade secrets and computer software to conduct its business and all such intellectual property (other than computer software and trade secrets) in the possession of such Borrower as of the date of this Agreement is listed on Schedule 6.1(V); and
(W) Neither such Borrower nor any Affiliate of such Borrower is in any way associated with or related to The Lake Group, Inc., d/b/a Pacific Direct, Lake Graphics and Elan Resources, which filed bankruptcy in the Northern District of California Case No. 93-30351.
Appears in 1 contract
GENERAL WARRANTIES AND REPRESENTATIONS. Each Borrower warrants and represents to Agent and Lenders that:
(Aa) (i) ModusLink Borrower is a corporation limited liability company, duly organized, validly organized and existing and in good standing under the laws of the Formation State of Delaware set forth on the Term Sheet, is qualified to do business and its state issued organizational identification number is 2831732, (ii) SalesLink is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware and its state issued organizational identification number is 2721217 and (iii) SalesLink Mexico is a corporation duly organized, existing and in good standing under the laws of the state of Delaware and its state issued organizational number is 3111152. Each Borrower is qualified or licensed as a foreign corporation to do business in all other states in which the laws thereof require such qualification and good standing are necessary in order for Borrower to be so qualified or licensed except where a lack of such qualification or licensing will not have a Material Adverse Effect on the conduct its business and own its property, and Borrower has all requisite power and authority to conduct its business, operations or financial condition of such Borrower;
(B) Such Borrower has not used, during the five (5) year period preceding the date of this Agreement, to own its property and on the date hereof does not intend to use, any other corporate or fictitious name, except as disclosed in Schedule 6.1(B);
(C) Such Borrower has the right and power and is duly authorized and empowered to enter into, execute, deliver and perform this Agreement and the Ancillary Agreementsall of its Obligations;
(Db) Borrower has not, during the preceding five (5) years, been known by or used any other Assumed Names or Trade Names other than as set forth on the Term Sheet;
(c) The execution, delivery and performance by such Borrower of this Agreement and the Ancillary Agreements shall not, by its execution or performance, the lapse of time, the giving of notice or otherwise, will not constitute a violation of any applicable lawlaw or of Borrower’s Articles of Organization or Operating Agreement, rule, regulation, judgment, order or decree applicable to such Borrower or its assets or constitute a breach of or default under any provision contained in such Borrower’s charter or by-laws or contained in any material other agreement, instrument, indenture judgment, order, decree, permit, license or other document undertaking binding upon or applicable to which such Borrower is now a party or by which it or any of its property is boundproperties;
(Ed) Such Borrower’s use of the proceeds of any advances made by each Lender hereunder areBorrower possesses adequate assets, licenses, patents, patent applications, copyrights, trademarks, trademark applications, and will continue to be, legal and proper corporate uses (duly authorized by trade names for the conduct of its board of directors, in accordance with any applicable law, rule or regulation) and such uses are consistent with all applicable laws, rules and regulations, as in effect as of the date hereofbusiness;
(Fe) Such Borrower has, and is current and in good standing with respect to, all material governmental approvals, permits, certificates, inspections, consents and franchises necessary to conduct and to continue to conduct its business and its intended business and to own or lease and operate its properties as now owned or leased and operated by it;
(G) None of such approvals, permits, certificates, consents or franchises contains any term, provision, condition or limitation more burdensome than such as are generally applicable to Persons engaged in the same or similar business as such Borrower;
(H) Such Borrower now has capital sufficient to carry on conduct its business business, is solvent and transactions and all businesses and transactions in which it is about to engage and is now able to pay its debts as they mature mature, and such Borrower now owns property the having a fair saleable value of which is greater than the amount required to pay such Borrower’s debts;
(If) Except as disclosed in the Financials, (i) there is no litigation, suit, action, proceeding, inquiry or investigation pending or, to the best of such Borrower’s knowledge, threatened against such Borrower which if unfavorably determined would materially adversely affect the transactions contemplated hereby, or such Borrower’s property, assets, operations or condition (financial or otherwise) (except as shown on Financials and on Schedule 6.1(I)) and (ii) such Borrower has no Indebtedness and has not guaranteed the obligations of any other Person (except for Permitted Debt);
(i) There are no strikes, work stoppages, labor disputes decertification petitions, union organizing efforts, grievances or other claims pending or, to such Borrower’s knowledge, threatened in writing, between such Borrower and any of its employees, other than employee grievances trade payables arising in the ordinary course of Borrower’s business whichand except as heretofore disclosed to Lender in writing, in Borrower has (i) no pending or threatened litigation, actions or proceedings which would materially and adversely affect its business assets, operations or condition, financial or otherwise, or the aggregate, would not have a Material Adverse Effect on such Borrower Collateral and (ii) to no Indebtedness, other than the best of such Borrower’s knowledge, such Borrower has no obligation under any collective bargaining agreement or any material employment agreement. To such Borrower’s knowledge, there is no organizing activity pending or threatened in writing by any labor union or group of employees. There are no representation proceedings pending or threatened with the National Labor Relations Board or other applicable governmental authority, and no labor organization or group of employees has made a pending demand for recognition. There are no material complaints or charges pending or, to such Borrower’s knowledge, threatened to be filed with any governmental authority or arbitrator based on, arising out of, in connection with or otherwise relating to the employment or termination of employment by such Borrower of any individual or group of individuals which, if decided adversely to such Borrower, would have a Material Adverse Effect on such BorrowerObligations;
(Kg) Such Borrower has good, indefeasible indefeasible, and merchantable title to and ownership of its the Collateral, free and clear of all Liens, claims, there is no lien or encumbrance thereon other than the security interests and other encumbrances, except those of Agent interest granted to Lender and Permitted LiensLiens as set forth on the Term Sheet;
(Lh) Such Borrower is not a party to any contract, or subject to any charge, corporate restriction, judgment, decree or order materially and adversely affecting its business, assets, operations or condition, financial or otherwise, and is not subject to any labor dispute; and, no labor contract is scheduled to expire during the term of this Agreement, except as heretofore disclosed to Lender in writing;
(i) Borrower is not in violation of any applicable statute, rule, regulation or ordinance of any governmental entity, including, without limitation, the Xxxxxx Xxxxxx xx Xxxxxxx, any state, city, town, municipality, county or of any other jurisdiction, or of any agency thereofordinance, in any respect materially and adversely affecting the Collateral or such Borrower’s its business, property, assets, operations or condition, financial or otherotherwise;
(Mj) Such Borrower is not in default under with respect to any note, indenture, loan agreement, mortgage, material lease, trust deed, deed of trust or other similar agreement relating to the borrowing of monies to which it is a party or by which it or any of its Property is bound;
(Nk) The Financials financial statements delivered to Lender fairly present in all material respects the assets, liabilities and Borrower’s financial condition and results of operations and those of such Borrower and such other Persons as are described therein as of the stated datesdate thereof; there are no omissions or other facts or circumstances which are or may be material and there (i) has been no material and adverse change in the assets, liabilities such financial condition or financial or other condition of such Borrower or any such Person operations since the date of the Financials and (ii) exists no equity or long term investments in or outstanding advances to any Person not reflected in the Financialsstatements;
(Ol) No Borrower has received a no notice to the effect that it is not in full compliance with any of the requirements of ERISA the Employee Retirement Income Security Act of 1974, as amended, (“ERISA”) and the its regulations promulgated thereunder and, to the best of its knowledge, there exists no event described in Section 4043 of ERISA, excluding subsections 4043(b)(2) and 4043(b)(3) (a “Reportable Event”)thereof, with respect to Borrower;
(Pm) Such Borrower has filed all federal, state and local tax returns and other reports (taking into account any extension of time to file granted to or obtained on behalf of Borrower), or has been included in consolidated returns or reports filed by an Affiliate, which such Borrower it is required by law, rule or regulation law to file and has paid all Charges taxes and similar charges that are due and payable have been paid, except for Charges being contested in good faith and for which adequate reserves are being maintainedpayable;
(Qn) Such Borrower’s execution and delivery Chief Executive Office, Principal Place of this Agreement Business and the Ancillary Agreements do not directly or indirectly violate or result in any violation Location of Collateral Records is at the Securities Exchange Act of 1934, as amended, or any regulations issued pursuant thereto, including without limitation, Regulation U, T or X of location set forth on the Board of Governors of the Federal Reserve System (12 CFR 221, 207, 220 and 224, respectively) and Borrower does not own or intend to purchase or carry any “margin security,” as defined in such RegulationsTerm Sheet;
(Ro) Except Borrower has not received any notice alleging, and is not aware of, any facts indicating noncompliance with any State or Federal law governing the use, generation, storage or release of any hazardous waste or substance;
(p) Borrower has no Subsidiaries or Affiliates other than as set forth on Schedule 6.1(R)the Term Sheet. To the extent any Subsidiary or Affiliate is shown on the Term Sheet, as neither the assets nor chief executive officer of the date such Subsidiary or Affiliate is located at one or more of this Agreement such Borrower has no Subsidiaries and does not own an equity interest Borrower’s locations specified in any other PersonSection 7(n) hereof, except NanoHolding;
(Sq) Such Borrower has no knowledge of any fact or circumstance owns all properties on which would impair Collateral is located other than the validity or collectibility of any material amount of its Accounts or General Intangibles;
(T) None of such Borrower’s Collateral has been pledged or sold to any other Person or otherwise encumbered, such Borrower is the owner of its Collateral free of all Liens and encumbrances except those of Agent and except for the Permitted Liens and no financing statement has been filed concerning the Collateral, except any filed on behalf of Agent and those relating to Permitted Liens;
(U) To the best of such Borrower’s knowledge, each property (including underlying ground water), operation and facility that such Borrower operates or controls is in compliance with all statutes, judicial or administrative orders, licenses, permits and governmental rules and regulations applicable to them, including, without limitation, Environmental Laws, the noncompliance with which is reasonably likely to have a Material Adverse Effect Leased Properties set forth on the financial condition, continued operations or Property of such Borrower;
(V) Such Borrower possesses adequate copyrights, patents, trademarks, trade secrets Term Sheet and computer software to conduct its business and all such intellectual property (other than computer software and trade secrets) in the possession of such Borrower as of the date of this Agreement is listed on Schedule 6.1(V)Vendor Locations; and
(Wr) Neither such Borrower nor any Affiliate of such Borrower All Collateral which is in any way associated with or related to The Lake Grouptangible personal property is kept only at the Collateral Locations, Inc.or, d/b/a Pacific Direct, Lake Graphics and Elan Resources, which filed bankruptcy in the Northern District case of California Case No. 93-30351Inventory, at the Collateral Locations or at the Vendor Locations, all as set forth on the Term Sheet.
Appears in 1 contract
GENERAL WARRANTIES AND REPRESENTATIONS. Each Borrower warrants and represents to Agent and Lenders that:
(A) (i) ModusLink Borrower is a corporation duly organized, organized and validly existing and in good standing under the laws of the State of Delaware and its state issued organizational identification number is 2831732, (ii) SalesLink is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware and its state issued organizational identification number is 2721217 and (iii) SalesLink Mexico is a corporation duly organized, existing and in good standing under the laws of the state of Delaware its incorporation, and its state issued organizational number is 3111152. Each Borrower is qualified or licensed as a foreign corporation to do business in all other countries, states and provinces in which the laws thereof require such required Borrower to be so qualified or licensed except where a lack of such qualification or licensing will not have a Material Adverse Effect on the business, operations or financial condition of such Borrowerlicensed;
(B) Such Borrower has not used, during the five (5) year period preceding the date of this Agreement, and on the date hereof does not intend to use, any other corporate corporation or fictitious name, except as disclosed in Schedule 6.1(B);
(C) Such Borrower has the right and power and is duly authorized and empowered to enter into, execute, deliver and perform this Agreement and the Ancillary Agreements;
(D) The execution, delivery and performance by such Borrower of this Agreement and the Ancillary Agreements shall not, by its their execution or performance, the lapse of time, the giving of notice or otherwise, constitute a violation of any applicable law, rule, regulation, judgment, order or decree applicable to such Borrower or its assets or constitute a breach of any provision contained in such Borrower’s 's charter documents or by-laws or contained in any material agreement, instrument, indenture or other document to which such Borrower is now not a party or by which it or any of its property is bound;
(E) Such Borrower’s 's use of the proceeds of any advances made by each Lender hereunder are, and will continue to be, legal and proper corporate uses (duly authorized by its board of directors, in accordance with any applicable law, rule or regulation) and such uses are are, and will continue to be, consistent with all applicable laws, rules and regulations, as in effect as of the date hereof;
(F) Such Borrower has, and is current and in good standing with respect to, all material governmental approvals, permits, certificates, inspections, consents and franchises necessary to conduct and to continue to conduct its business and its intended business as conducted by it and to own or lease and operate its properties as now owned or leased and operated by it;
(G) None of such said approvals, permits, certificates, consents or franchises contains any term, provision, condition or limitation more burdensome than such as are generally applicable to Persons engaged in the same or similar business as such Borrower;
(H) Such Borrower now has capital sufficient to carry on its business and transactions and all businesses and transactions in which it is about to engage and is now solvent and able to pay its debts as they mature and such Borrower now owns property the fair saleable value of which is greater than the amount required needed to pay such repay Borrower’s 's debts;
(I) Except as disclosed in the Financialson Exhibit C, (i) there is Borrower has no litigation, suit, action, proceeding, inquiry or investigation litigation pending or, to the best of such Borrower’s its knowledge, threatened against such Borrower which if unfavorably determined would materially adversely affect threatened, and no Indebtedness except for the transactions contemplated hereby, or such Borrower’s property, assets, operations or condition (financial or otherwise) (except as Indebtedness shown on Financials and on Schedule 6.1(I)) and (ii) such Exhibit D. Borrower has no Indebtedness and has not guaranteed the obligations of any other Person (except for Permitted Debt)Person;
(J) Borrower (i) There are no strikes, work stoppages, labor disputes decertification petitions, union organizing efforts, grievances is not a party to any contract or other claims pending or, to such Borrower’s knowledge, threatened in writing, between such Borrower and any of its employees, other than employee grievances arising in the ordinary course of business which, in the aggregate, would not have a Material Adverse Effect on such Borrower and (ii) to the best of such Borrower’s knowledge, such Borrower has no obligation under any collective bargaining agreement or subject to any material employment agreement. To such Borrower’s knowledgecharge, there is no organizing activity pending restriction, judgment, decree or threatened in writing by any labor union or group of employees. There are no representation proceedings pending or threatened with the National Labor Relations Board or other applicable governmental authority, and no labor organization or group of employees has made a pending demand for recognition. There are no material complaints or charges pending or, to such Borrower’s knowledge, threatened to be filed with any governmental authority or arbitrator based on, arising out of, in connection with or otherwise relating to the employment or termination of employment by such Borrower of any individual or group of individuals which, if decided adversely to such Borrower, would have a Material Adverse Effect on such Borrower;
(K) Such Borrower has good, indefeasible and merchantable title to and ownership of its Collateral, free and clear of all Liens, claims, security interests and other encumbrances, except those of Agent and Permitted Liens;
(L) Such Borrower is not in violation of any applicable statute, rule, regulation or ordinance of any governmental entity, including, without limitation, the Xxxxxx Xxxxxx xx Xxxxxxx, any state, city, town, municipality, county or of any other jurisdiction, or of any agency thereof, in any respect order materially and adversely affecting the Collateral or such Borrower’s its business, property, assets, operations or condition, financial or other;
otherwise, and is not a party to any labor dispute; and (Mii) Such there are no lockouts, strikes or walkouts relating to any labor contracts and no such contract is scheduled to expire during the Term. Borrower is not in default under any indenturematerial contract, loan agreement, mortgage, material lease, trust deed, deed of trust or other similar agreement relating to the borrowing of monies understanding to which it Borrower is a party or by which it or any of its Property is bound;
(N) The Financials fairly present in all material respects the assets, liabilities and financial condition and results of operations of such Borrower and such other Persons as are described therein as of the stated dates; there are no omissions or other facts or circumstances which are or may be material and there (i) has been no material and adverse change in the assets, liabilities or financial or other condition of such Borrower or any such Person since the date of the Financials and (ii) exists no equity or long term investments in or outstanding advances to any Person not reflected in the Financials;
(O) No Borrower has received a notice to the effect that it is not in full compliance with any of the requirements of ERISA and the regulations promulgated thereunder and, to the best of its knowledge, there exists no event described in Section 4043 of ERISA, excluding subsections 4043(b)(2) and 4043(b)(3) (a “Reportable Event”);
(P) Such Borrower has filed all federal, state and local tax returns and other reports (taking into account any extension of time to file granted to or obtained on behalf of Borrower), or has been included in consolidated returns or reports filed by an Affiliate, which such Borrower is required by law, rule or regulation to file and all Charges that are due and payable have been paid, except for Charges being contested in good faith and for which adequate reserves are being maintained;
(Q) Such Borrower’s execution and delivery of this Agreement and the Ancillary Agreements do not directly or indirectly violate or result in any violation of the Securities Exchange Act of 1934, as amended, or any regulations issued pursuant thereto, including without limitation, Regulation U, T or X of the Board of Governors of the Federal Reserve System (12 CFR 221, 207, 220 and 224, respectively) and Borrower does not own or intend to purchase or carry any “margin security,” as defined in such Regulations;
(R) Except as set forth on Schedule 6.1(R), as of the date of this Agreement such Borrower has no Subsidiaries and does not own an equity interest in any other Person;
(S) Such Borrower has no knowledge of any fact or circumstance which would impair the validity or collectibility of any material amount of its Accounts or General Intangibles;
(T) None of such Borrower’s Collateral has been pledged or sold to any other Person or otherwise encumbered, such Borrower is the owner of its Collateral free of all Liens and encumbrances except those of Agent and except for the Permitted Liens and no financing statement has been filed concerning the Collateral, except any filed on behalf of Agent and those relating to Permitted Liens;
(U) To the best of such Borrower’s knowledge, each property (including underlying ground water), operation and facility that such Borrower operates or controls is in compliance with all statutes, judicial or administrative orders, licenses, permits and governmental rules and regulations applicable to them, including, without limitation, Environmental Laws, the noncompliance with which is reasonably likely to have a Material Adverse Effect on the financial condition, continued operations or Property of such Borrower;
(V) Such Borrower possesses adequate copyrights, patents, trademarks, trade secrets and computer software to conduct its business and all such intellectual property (other than computer software and trade secrets) in the possession of such Borrower as of the date of this Agreement is listed on Schedule 6.1(V); and
(W) Neither such Borrower nor any Affiliate of such Borrower is in any way associated with or related to The Lake Group, Inc., d/b/a Pacific Direct, Lake Graphics and Elan Resources, which filed bankruptcy in the Northern District of California Case No. 93-30351.which
Appears in 1 contract
Samples: Purchase of Accounts and Security Agreement (Bam Entertainment Inc)
GENERAL WARRANTIES AND REPRESENTATIONS. Each Borrower Group warrants and represents to Agent and Lenders that:
(Aa) (i) ModusLink Each party comprising the Borrower Group and each Subsidiary is a corporation which is duly organized, validly existing and in good standing under the laws of the State of Delaware and its state issued organizational identification number is 2831732, (ii) SalesLink qualified or licensed to do business and is a limited liability company duly organized, validly existing and in good standing in all other countries, states and provinces the laws of which require each Borrower Group and each Subsidiary to be so qualified or licensed except where the failure to so qualify would not have a material adverse effect on the business, property or financial condition of Borrower Group or a Subsidiary;
(b) Borrower Group has good, indefeasible and merchantable title to, and ownership of, the Collateral free and clear of all Liens except those of Lender and those, if any, described on Schedule I;
(c) neither Borrower Group nor any Subsidiary is a party to any contract or agreement or subject to any charge, corporate restriction, judgment, decree or order adversely affecting its business, property, assets, operations or condition, financial or otherwise, or is a party to any labor dispute which would have a material adverse effect on the assets, operations or financial condition of Borrower Group or a Subsidiary, or on the Collateral; there are no strikes, lockouts or walkouts relating to any labor contracts of Borrower Group or any Subsidiary and no such contract is scheduled to expire within the Revolving Credit Facility Term;
(d) neither Borrower Group nor any Subsidiary is in violation of any applicable statute, regulation or ordinance of any governmental authorities having jurisdiction over their activities, or of any order, writ, injunction or decree or any court or any Federal, state, municipal or other governmental authority, which would in any respect adversely affect the Collateral or their business, property, assets, operations or condition, financial or otherwise;
(e) neither Borrower Group nor any Subsidiary is in default with respect to any indenture, loan agreement, mortgage, lease, deed or other similar agreement relating to the borrowing of monies to which any of them is a party or by which any of them is bound;
(f) neither Borrower Group nor any Subsidiary has received notice to the effect that it is not in full compliance with any of the requirements of ERISA, and the regulations promulgated thereunder and, to the best of its knowledge, there exists no event described in Section 4043(3) thereof (“Reportable Event”);
(g) Borrower Group and each Subsidiary have filed all federal, state and local tax returns and other reports required by law to be filed and have paid, to the extent due and payable, all taxes, levies, assessments, charges, liens, claims or encumbrances upon or relating to the Collateral, the Indebtedness, employees, payroll, income and gross receipts, ownership or use of any of their assets, and any other aspect of their business or financial affairs, as the case may be (collectively, the “Charges”), except any Charges being contested in good faith and by appropriate proceedings; and the accruals and reserves in the books of Borrower Group and each Subsidiary in respect of federal taxes are adequate and neither Borrower Group nor any Subsidiary has knowledge of any unpaid assessments for additional federal or state taxes for any fiscal period;
(h) the Collateral and Borrower Group’s books and records, including, without limitation, computer programs, printouts and other computer materials and records concerning the Collateral, are at the addresses for Borrower Group set forth herein;
(i) Each party comprising the Borrower Group is organized and incorporated under the laws of the State of Delaware and its state issued organizational identification number is 2721217 and (iii) SalesLink Mexico is a corporation duly organizedand, existing and in good standing since their respective dates of incorporation, have not been known under the laws of the state of Delaware and its state issued organizational number is 3111152. Each Borrower is qualified or licensed used as a foreign corporation to do business in all other states in which the laws thereof require such Borrower to be so qualified or licensed except where a lack of such qualification or licensing will not have a Material Adverse Effect on the business, operations or financial condition of such Borrower;
(B) Such Borrower has not used, during the five (5) year period preceding the date of this Agreement, and on the date hereof does not intend to use, any other corporate or fictitious name, except as disclosed in Schedule 6.1(B);
(Cj) Such Borrower Group has the right and power and is duly authorized and empowered to enter into, execute, deliver and perform this Agreement and the Ancillary AgreementsOther Agreements to which it is a party, and the officers executing and delivering this Agreement and such Other Agreements on behalf of Borrower Group are duly authorized and empowered to do so;
(Dk) The the execution, delivery and performance by such Borrower Group of this Agreement and the Ancillary Other Agreements shall will not, by its execution or performance, the lapse of time, the giving of notice notice, the happening of any further condition, event or act or otherwise, constitute a violation of any applicable law, rule, regulation, judgment, order law or decree applicable to such Borrower or its assets or constitute a breach of any provision contained in such BorrowerBorrower Group’s charter or byrespective Certificates of Incorporation and/or By-laws or Laws and of each party comprising the Borrower Group and/or contained in any material agreement, instrument, indenture instrument or other document to which such Borrower Group is now a party or by which it or any of its property Borrower Group is bound;
(El) Such Borrower’s use this Agreement, the Revolving Line of Credit Note, the proceeds of any advances made by each Lender hereunder areTerm Note, the Merchant Loan, the Guaranty, and will continue to bethe Other Agreements are legal, legal valid and proper corporate uses binding obligations of Borrower Group (duly authorized by its board of directorsas applicable), enforceable in accordance with any applicable law, rule or regulation) and such uses are consistent with all applicable laws, rules and regulations, as in effect as of the date hereoftheir respective terms;
(Fm) Such Borrower hasGroup and each Subsidiary have, and is are current and in good standing with respect to, all material governmental approvals, permits, certificates, inspections, consents and franchises necessary to conduct and to continue to conduct its business and its intended business their respective businesses as heretofore conducted and to own or lease and operate its the properties as now owned or leased by them; and operated no authorization, consent or approval of any federal, state, municipal or other governmental regulatory authority is required in connection with either the execution and delivery by itBorrower Group of this Agreement, the Revolving Line of Credit Note, the Term Note, the Merchant Loan, the Guaranty, or the Other Agreements to which Borrower Group is a party, or the performance of its obligations thereunder;
(Gn) None of such approvals, permits, certificates, consents or franchises contains any term, provision, condition or limitation more burdensome than such as are generally applicable to Persons engaged in the same or similar business as such Borrower;
(H) Such Borrower now Group has sufficient capital sufficient to carry on its business and transactions and all businesses and transactions in which it now engages or is about to engage engage, is not insolvent and will continue to be solvent after the execution of this Agreement and the Other Agreements to which it is a party and the creation of the Lien on the Collateral pursuant to this Agreement and is now able to pay its debts as they mature and such Borrower now owns property the fair saleable value of which is greater than the amount required to pay such Borrower’s debts;
(I) Except as disclosed in the Financialsmature, (i) there is no litigation, suit, action, proceeding, inquiry or investigation pending or, to the best of such Borrower’s knowledge, threatened against such Borrower which if unfavorably determined would materially adversely affect the transactions contemplated hereby, or such Borrower’s property, assets, operations or condition (financial or otherwise) (except as shown on Financials and on Schedule 6.1(I)) and (ii) such Borrower each Subsidiary has no Indebtedness sufficient capital to conduct its financial affairs and has the transactions in which it now engages or is about to engage, is not guaranteed insolvent and will continue to be solvent after the obligations execution of any other Person (except for Permitted Debt);
(i) There are no strikes, work stoppages, labor disputes decertification petitions, union organizing efforts, grievances or other claims pending or, to such Borrower’s knowledge, threatened in writing, between such Borrower and any of its employees, other than employee grievances arising in the ordinary course of business which, in the aggregate, would not have a Material Adverse Effect on such Borrower and (ii) to the best of such Borrower’s knowledge, such Borrower has no obligation under any collective bargaining agreement this Agreement or any material employment agreement. To such Borrower’s knowledge, there is no organizing activity pending or threatened in writing by any labor union or group of employees. There are no representation proceedings pending or threatened with the National Labor Relations Board or other applicable governmental authority, and no labor organization or group of employees has made a pending demand for recognition. There are no material complaints or charges pending or, to such Borrower’s knowledge, threatened to be filed with any governmental authority or arbitrator based on, arising out of, in connection with or otherwise relating to the employment or termination of employment by such Borrower of any individual or group of individuals which, if decided adversely to such Borrower, would have a Material Adverse Effect on such Borrower;
(K) Such Borrower has good, indefeasible and merchantable title to and ownership of its Collateral, free and clear of all Liens, claims, security interests and other encumbrances, except those of Agent and Permitted Liens;
(L) Such Borrower is not in violation of any applicable statute, rule, regulation or ordinance of any governmental entity, including, without limitation, the Xxxxxx Xxxxxx xx Xxxxxxx, any state, city, town, municipality, county or of any other jurisdiction, or of any agency thereof, in any respect materially and adversely affecting the Collateral or such Borrower’s business, property, assets, operations or condition, financial or other;
(M) Such Borrower is not in default under any indenture, loan agreement, mortgage, material lease, trust deed, deed of trust or other similar agreement relating to the borrowing of monies Other Agreement to which it is a party or by which it or any of party, and is able to pay its Property is bounddebts as they mature;
(No) The the Financials have been prepared in accordance with generally accepted accounting principles applied on a consistent basis and fairly present in all material respects the assets, liabilities and financial condition and results of operations of such Borrower Group at, and such other Persons as are described therein as of of, the stated datesdate thereof; there are no material liabilities, direct or indirect, fixed or contingent, of Borrower Group which are not reflected in the Financials nor omissions or of other facts or circumstances which are or may be material material, and there (i) has been no material and adverse change in the assets, liabilities or financial or other condition of such Borrower or any such Person Group since the date of the Financials and (ii) Financials; there exists no equity or long term investments in in, or outstanding advances to to, any Person not reflected in the Financials;
(O) No Borrower has received a notice to the effect that it ; there is not in full compliance with any of the requirements of ERISA and the regulations promulgated thereunder andno litigation or bankruptcy or governmental actions or proceedings which are pending, or to the best of its Borrower Group’s knowledge, there exists threatened, against Borrower Group or any Subsidiary which might result in any adverse change in Borrower Group’s or a Subsidiary’s financial condition or adversely affect their operations, assets or the Collateral; except for trade payables arising in the ordinary course of business since the dates reflected in the Financials and except as disclosed on Schedule II attached hereto and made a part hereof and in the Financials, Borrower Group has no event described in Section 4043 actions or proceedings pending and no Liabilities outstanding and has not guaranteed the obligations of ERISA, excluding subsections 4043(b)(2) and 4043(b)(3) (a “Reportable Event”)any other Person;
(Pp) Such Borrower has filed all federal, state and local tax returns and other reports (taking into account any extension of time to file granted to or obtained on behalf of Borrower), or has been included in consolidated returns or reports filed by an Affiliate, which such Borrower is required by law, rule or regulation to file and all Charges that are due and payable have been paid, except for Charges being contested in good faith and for which adequate reserves are being maintained;
(Q) Such BorrowerGroup’s execution and delivery of this Agreement and or any of the Ancillary Other Agreements do does not directly or indirectly violate or result in any a violation of the Securities Exchange Act of 1934Regulations G, as amendedT, or any regulations issued pursuant thereto, including without limitation, Regulation U, T U or X of the Board of Governors of the Federal Reserve System (12 CFR 221, 207, 220 and 224, respectively) and Borrower Group does not own or intend to purchase or carry any “margin security,” ”, as defined in such said Regulations;
(Rq) Except as set forth on Schedule 6.1(R), as of the date of neither this Agreement such Borrower has no Subsidiaries and does not own an equity interest in nor the Other Agreements nor any other Person;
(S) Such Borrower has no knowledge of any fact documents, certificates or circumstance which would impair the validity statements furnished to Lender by or collectibility of any material amount of its Accounts or General Intangibles;
(T) None of such Borrower’s Collateral has been pledged or sold to any other Person or otherwise encumbered, such Borrower is the owner of its Collateral free of all Liens and encumbrances except those of Agent and except for the Permitted Liens and no financing statement has been filed concerning the Collateral, except any filed on behalf of Agent Borrower Group or any Subsidiary contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein not misleading, and those relating there are no facts known to Permitted Liens;
(U) To Borrower Group which materially or adversely affect, or in the best of such Borrower’s knowledgefuture may so affect, each property (including underlying ground water)their business, operation and facility that such Borrower operates operations, properties, assets or controls is in compliance with all statutes, judicial or administrative orders, licenses, permits and governmental rules and regulations applicable to them, including, without limitation, Environmental Laws, the noncompliance with which is reasonably likely to have a Material Adverse Effect on the financial condition, continued operations or Property of such Borrower;
(V) Such Borrower possesses adequate copyrights, patents, trademarks, trade secrets and computer software to conduct its business and all such intellectual property (other than computer software and trade secrets) in the possession of such Borrower as of the date of this Agreement is listed on Schedule 6.1(V); and
(W) Neither such Borrower nor any Affiliate of such Borrower is in any way associated with or related to The Lake Group, Inc., d/b/a Pacific Direct, Lake Graphics and Elan Resources, which filed bankruptcy in the Northern District of California Case No. 93-30351.
Appears in 1 contract
GENERAL WARRANTIES AND REPRESENTATIONS. Each Borrower warrants We warrant and represents to Agent and Lenders represent that:
(A) (i) ModusLink is a corporation We are each duly organized, validly organized and existing and in good standing under the laws of the Incorporation State of Delaware set forth on the Term Sheet, are qualified to do business and its state issued organizational identification number is 2831732, (ii) SalesLink is a limited liability company duly organized, validly existing and are in good standing under the laws of the State of Delaware and its state issued organizational identification number is 2721217 and (iii) SalesLink Mexico is a corporation duly organized, existing and in good standing under the laws of the state of Delaware and its state issued organizational number is 3111152. Each Borrower is qualified or licensed as a foreign corporation to do business in all other states in which the laws thereof require such Borrower qualification and good standing are necessary in order for us to be so qualified or licensed except where a lack of such qualification or licensing will not conduct our business and own our property and have a Material Adverse Effect on the all requisite power and authority to conduct our business, operations or financial condition to own our property and to execute, deliver and perform all of such Borrowerour Obligations;
(B) Such Borrower has not usedWe have not, during the preceding five (5) year period preceding the date of this Agreementyears, and been known by or used any other Assumed Names or Trade Names other than as set forth on the date hereof does not intend to use, any other corporate or fictitious name, except as disclosed in Schedule 6.1(B)Term Sheet;
(C) Such Borrower has the right and power and is duly authorized and empowered to enter into, execute, deliver and perform this Agreement and the Ancillary Agreements;
(D) The execution, delivery and performance by such Borrower us of this Agreement and the Ancillary Agreements shall not, by its execution or performance, the lapse of time, the giving of notice or otherwise, will not constitute a violation of any applicable lawlaw or of our Articles or Certificate of Incorporation, rule, regulation, judgment, order By-Laws or decree applicable to such Borrower equivalent or its assets or constitute a breach of any provision contained in such Borrower’s charter or by-laws or contained in any material agreement, instrument, indenture or other document to which such Borrower is now we are a party or by which it or any bound;
(D) We possess adequate assets, licenses, patents, patent applications, copyrights, trademarks, trademark applications, and tradenames for the conduct of its property is boundour business;
(E) Such Borrower’s use of the proceeds of any advances made by each Lender hereunder are, and will continue to be, legal and proper corporate uses (duly authorized by its board of directors, in accordance with any applicable law, rule or regulation) and such uses are consistent with all applicable laws, rules and regulations, as in effect as of the date hereof;
(F) Such Borrower has, and is current and in good standing with respect to, all material governmental approvals, permits, certificates, inspections, consents and franchises necessary to conduct and to continue to conduct its business and its intended business and to own or lease and operate its properties as now owned or leased and operated by it;
(G) None of such approvals, permits, certificates, consents or franchises contains any term, provision, condition or limitation more burdensome than such as are generally applicable to Persons engaged in the same or similar business as such Borrower;
(H) Such Borrower now has We have capital sufficient to carry on its business conduct our business, are solvent and transactions and all businesses and transactions in which it is about to engage and is now able to pay its our debts as they mature and such Borrower now owns own property the having a fair saleable value of which is greater than the amount required to pay such Borrower’s our debts;
(F) Except as set forth on the Term Sheet, we have no pending or threatened litigation, actions or proceedings which would materially and adversely affect our business assets, operations or condition, financial or otherwise, or the Collateral;
(G) We have good, indefeasible, and merchantable title to the Collateral, and there is no lien or encumbrance thereon other than the security interest granted to you;
(H) We are not a party to any contract, or subject to any charge, corporate restriction, judgment, decree or order materially and adversely affecting our business, assets, operations or condition, financial or otherwise, and are not subject to any labor dispute; and, no labor contract is scheduled to expire during the term of this Agreement, except as heretofore disclosed to you in writing;
(I) Except as disclosed in the Financials, (i) there is no litigation, suit, action, proceeding, inquiry or investigation pending or, to the best of such Borrower’s knowledge, threatened against such Borrower which if unfavorably determined would materially adversely affect the transactions contemplated hereby, or such Borrower’s property, assets, operations or condition (financial or otherwise) (except as shown on Financials and on Schedule 6.1(I)) and (ii) such Borrower has no Indebtedness and has not guaranteed the obligations of any other Person (except for Permitted Debt);
(i) There We are no strikes, work stoppages, labor disputes decertification petitions, union organizing efforts, grievances or other claims pending or, to such Borrower’s knowledge, threatened in writing, between such Borrower and any of its employees, other than employee grievances arising in the ordinary course of business which, in the aggregate, would not have a Material Adverse Effect on such Borrower and (ii) to the best of such Borrower’s knowledge, such Borrower has no obligation under any collective bargaining agreement or any material employment agreement. To such Borrower’s knowledge, there is no organizing activity pending or threatened in writing by any labor union or group of employees. There are no representation proceedings pending or threatened with the National Labor Relations Board or other applicable governmental authority, and no labor organization or group of employees has made a pending demand for recognition. There are no material complaints or charges pending or, to such Borrower’s knowledge, threatened to be filed with any governmental authority or arbitrator based on, arising out of, in connection with or otherwise relating to the employment or termination of employment by such Borrower of any individual or group of individuals which, if decided adversely to such Borrower, would have a Material Adverse Effect on such Borrower;
(K) Such Borrower has good, indefeasible and merchantable title to and ownership of its Collateral, free and clear of all Liens, claims, security interests and other encumbrances, except those of Agent and Permitted Liens;
(L) Such Borrower is not in violation of any applicable statute, rule, regulation or ordinance of any governmental entity, including, without limitation, the Xxxxxx Xxxxxx xx Xxxxxxx, any state, city, town, municipality, county or of any other jurisdiction, or of any agency thereofordinance, in any respect materially and adversely affecting the Collateral or such Borrower’s our business, property, assets, operations or condition, financial or otherotherwise;
(MJ) Such Borrower is We are not in default under with respect to any note, indenture, loan agreement, mortgage, material lease, trust deed, deed of trust or other similar agreement relating to the borrowing of monies to which it is we are a party or by which it or any of its Property is bound, except as set forth on Schedule 8(J);
(NK) The Financials financial statements delivered to you fairly present in all material respects the assets, liabilities and our financial condition and results of operations and those of such Borrower and such other Persons as are described therein as of the stated datesdate thereof; there are no omissions or other facts or circumstances which are or may be material and there (i) has been no material and adverse change in the assets, liabilities such financial condition or financial or other condition of such Borrower or any such Person operations since the date of the Financials and (ii) exists no equity or long term investments in or outstanding advances to any Person not reflected in the Financialsstatements;
(OL) No Borrower has We have received a no notice to the effect that it is we are not in full compliance with any of the requirements of ERISA the Employee Retirement Income Security Act of 1974, as amended, ("ERISA") and the its regulations promulgated thereunder and, to the best of its our knowledge, there exists no event described in Section 4043 of ERISA, excluding subsections 4043(b)(2) and 4043(b)(3) thereof, with respect to us;
(a “Reportable Event”)M) We have filed all tax returns and other reports we are required by law to file and have paid all taxes and similar charges that are due and payable;
(N) Our Chief Executive Office, Principal Place of Business and the Location of Collateral Records are at the locations set forth on the Term Sheet;
(O) We have not received any notice alleging and are not aware of any facts indicating noncompliance with any State or Federal law governing the use, generation, storage or release of any hazardous waste or substance;
(P) Such Borrower has filed all federalWe have no Subsidiaries or Affiliates other than as set forth on the Term Sheet. To the extent any Subsidiary or Affiliate is shown on the Term Sheet, state and local tax returns and neither the assets nor chief executive office of such Subsidiary or Affiliate is located at any place other reports (taking into account any extension than one or more of time to file granted to or obtained on behalf of Borrower), or has been included our locations specified in consolidated returns or reports filed by an Affiliate, which such Borrower is required by law, rule or regulation to file and all Charges that are due and payable have been paid, except for Charges being contested in good faith and for which adequate reserves are being maintainedParagraph 8(N) hereof;
(Q) Such Borrower’s execution We own all properties on which Collateral is located other than the Leased Properties set forth on the Term Sheet;
(R) All Collateral which is tangible personal property is kept only at the Collateral Locations set forth on the Term Sheet;
(S) Each Person becoming a Subsidiary of Borrower or any Guarantor after the date hereof is and delivery will be duly organized, validly existing and in good standing under the laws of this Agreement its jurisdiction of formation and is and will be duly qualified to do business in each additional jurisdiction where such qualification is or may be necessary under applicable law. Each Subsidiary of Borrower and each Guarantor has and will have all requisite power to own or lease the Ancillary Agreements do not directly properties used in its business and to carry on its business as now being conducted and as proposed to be conducted. All outstanding ownership interests of each Subsidiary of Borrower and each Guarantor have been and will be validly issued and are and will be fully paid and nonassessable and are and will be owned, beneficially and of record, by Borrower or indirectly violate such Guarantor, or result in another Subsidiary of Borrower or such Guarantor, free and clear of any violation Liens;
(T) Borrower and Guarantors will use the proceeds of the Securities Exchange Act Loan for their working capital and general corporate purposes and to repay in full at closing certain Indebtedness. Neither Borrower nor any Guarantor nor any of 1934their respective Subsidiaries extends or maintains, as amendedin the ordinary course of business, credit for the purpose, whether immediate, incidental, or any regulations issued pursuant theretoultimate, including without limitation, of buying or carrying margin stock (within the meaning of Regulation U, T or X U of the Board of Governors of the Federal Reserve System (12 CFR 221, 207, 220 and 224, respectively) and Borrower does not own or intend to purchase or carry any “margin security,” as defined in such Regulations;
(R) Except as set forth on Schedule 6.1(RSystem), as and no part of the date proceeds of any Advance will be used for the purpose, whether immediate, incidental, or ultimate, of buying or carrying any such margin stock or maintaining or extending credit to others for such purpose. After applying the proceeds of each Advance, such margin stock will not constitute more than 25% of the value of the assets (either of Borrower or any Guarantor alone or of Borrower and the Guarantors and their respective Subsidiaries on a consolidated basis) that are subject to any provisions of this Agreement such Borrower has no Subsidiaries and does not own an equity interest in or any other Person;
(S) Such Borrower has no knowledge of any fact Loan Document that may cause the Advances to be deemed secured, directly or circumstance which would impair the validity or collectibility of any material amount of its Accounts or General Intangibles;
(T) None of such Borrower’s Collateral has been pledged or sold to any other Person or otherwise encumberedindirectly, such Borrower is the owner of its Collateral free of all Liens and encumbrances except those of Agent and except for the Permitted Liens and no financing statement has been filed concerning the Collateral, except any filed on behalf of Agent and those relating to Permitted Liensby margin stock;
(U) To No report or other information furnished in writing by or on behalf of Borrower or any Guarantor to you in connection with the best negotiation or administration of such this Agreement contains any material misstatement of fact or, when considered together with Borrower’s knowledge's filings with the SEC and all other information so furnished to you, each property (including underlying ground water), operation and facility that such Borrower operates omits to state any material fact or controls is any fact necessary to make the statements contained therein not misleading in compliance with all statutes, judicial or administrative orders, licenses, permits and governmental rules and regulations applicable to them, including, without limitation, Environmental Lawslight of the circumstances in which they were made. Neither this Agreement, the noncompliance Note nor any other Loan Document, certificate, or report or statement or other information furnished to you by or on behalf of Borrower or any Guarantor in connection with the transactions contemplated hereby contains any untrue statement of a material fact or, when considered together with Borrower's filings with the SEC and all other information so furnished to you, omits to state a material fact necessary in order to make the statements contained herein and therein not misleading in light of the circumstances in which they were made. There is reasonably likely no fact known to have a Material Adverse Effect on Borrower or any Guarantor which materially and adversely affects, or which in the financial future may (so far as Borrower or any Guarantor can now foresee) materially and adversely affect, the business, properties, operations or condition, continued operations financial or Property otherwise, of such Borrower, any Guarantor or any of their respective Subsidiaries, which has not been set forth in this Agreement or in the other documents, certificates, statements, reports and other information furnished in writing, including Borrower's 2001 Form 10-K filing with the SEC, to you by or on behalf of Borrower or the Guarantors in connection with the transactions contemplated hereby;
(V) Such Borrower possesses adequate copyrightsand the Guarantors are engaged as an integrated group in the business of providing permanent and temporary personnel placements. The integrated operation requires financing on such a basis that credit supplied can be made available from time to time to Borrower and the Guarantors, patentsas required for the continued successful operation of Borrower and the Guarantors and the integrated operation as a whole, trademarksand Borrower and the Guarantors have requested that you make credit available to Borrower primarily for the purpose of financing the integrated operation of Borrower and Guarantors, trade secrets with each of Borrower and computer software Guarantors expecting to conduct derive benefit, directly or indirectly, from the credit extended by you, both in its separate capacity and as a member of the integrated group, inasmuch as the successful operation and condition of each of Borrower and the Guarantors is dependent upon the continued successful performance of the functions of the integrated group as a whole;
(W) Each of Borrower and the Guarantors is solvent, able to pay its Indebtedness as it matures, and has capital sufficient to carry on its business and all such intellectual property (other than computer software businesses in which it is about to engage, and trade secrets) in the possession of such Borrower as present fair saleable value of the date assets of this Agreement each of Borrower and each such Guarantor is listed greater than the amount of Borrower's or such Guarantor's, as the case may be, Indebtedness. Borrower and the Guarantors on Schedule 6.1(V)a consolidated basis are solvent, able to pay their Indebtedness as it matures, and have capital sufficient to carry on their business and all businesses in which they are about to engage, and the present fair saleable value of their assets on a consolidated basis is greater than the amount of their Indebtedness on a consolidated basis; and
(WX) Neither such Borrower nor any Affiliate of such Borrower is in any way associated with or related to The Lake Group, Inc., d/b/a Pacific Direct, Lake Graphics We have no Indebtedness (other than trade payables and Elan Resources, which filed bankruptcy in accrued expenses) other than as set forth on the Northern District of California Case No. 93-30351Term Sheet.
(Y) We have no Deposit Accounts other than as set forth on the Term Sheet.
Appears in 1 contract
Samples: Loan and Security Agreement (Diversified Corporate Resources Inc)
GENERAL WARRANTIES AND REPRESENTATIONS. Each Borrower warrants and represents to Agent and Lenders that:
(Aa) (i) ModusLink Borrower is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware Delaware, and its state issued organizational identification number is 2831732, (ii) SalesLink is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware and its state issued organizational identification number is 2721217 and (iii) SalesLink Mexico is a corporation duly organized, existing and in good standing under the laws of the state of Delaware and its state issued organizational number is 3111152. Each Borrower is qualified or licensed as a foreign corporation entity to do business in all other countries, states and provinces in which the laws thereof require such Borrower to be so qualified or licensed except where a lack of such qualification or licensing will licensed, including but not have a Material Adverse Effect limited to those jurisdictions set forth on the business, operations or financial condition of such Borrower;Exhibit F.
(Bb) Such Borrower has not used, during the five (5) year period preceding the date of this Agreement, and on the date hereof does not intend to use, any other corporate or fictitious name, except as disclosed in Schedule 6.1(B);Exhibit G attached hereto.
(Cc) Such Borrower has the right and power and is duly authorized and empowered to enter into, execute, deliver and perform this Agreement and the Ancillary Agreements;.
(Dd) The execution, delivery and performance by such Borrower of this Agreement and the Ancillary Agreements shall not, by its their execution or performance, the lapse of time, the giving of notice or otherwise, constitute a violation of any applicable law, rule, regulation, judgment, order or decree applicable to such Borrower or its assets or constitute a breach of any provision contained in such Borrower’s charter 's articles of incorporation or by-laws laws, or contained in any material agreement, instrument, indenture or other document to which such Borrower is now a party or by which it or any of its property is bound;, which violation would have a material adverse affect on Borrower.
(Ee) Such This Agreement and the Ancillary Agreements are and will be the legal, valid and binding agreements of Borrower enforceable in accordance with their terms, except as enforcement thereof may be subject to the effect of applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally and to general principles of equity (regardless of whether such enforcement is sought in a proceeding in equity or at law).
(f) Borrower’s use 's uses of the proceeds of any advances made by each Lender hereunder hereby are, and will continue to be, legal and proper corporate uses (duly authorized by its board of directors), in accordance with any applicable law, rule or regulation) and such uses are consistent with all applicable laws, rules and regulations, as in effect as of the date hereof;.
(Fg) Such Attached hereto as Exhibit H is a true, accurate and complete list of all United States and foreign patents, trademarks, tradenames, service marks, copyrights and applications therefor owned and or used by Borrower (the "INTELLECTUAL PROPERTY RIGHTS"). Except as set forth on Exhibit C, the Intellectual Property Rights are owned by Borrower or Borrower owns or possesses the royalty-free licenses or other rights to use all Intellectual Property Rights. To the best of Borrower's knowledge, none of the products or processes of Borrower's business conflicts with or infringes or has infringed upon any patents, trademarks, trade names, service marks or copyrights of any other Person or entity; and to the best of Borrower's knowledge, Borrower has the full right to conduct its businesses as heretofore conducted, without incurring license fees or royalty or other payment obligations to any person or entity in respect of the Intellectual Property Rights.
(h) Borrower has, and is current and in good standing with respect to, all material governmental approvals, permits, certificates, inspections, consents and franchises necessary to conduct and to continue to conduct its business present and its intended business and to own or lease and operate its properties as now owned or leased and operated by it;
(G) None of such approvals, permits, certificates, consents or franchises contains any term, provision, condition or limitation more burdensome than such as are generally applicable to Persons engaged in the same or similar business as such Borrower;
(H) Such Borrower now has capital sufficient to carry on its business and transactions and all businesses and transactions in which it is about to engage and is now able to pay its debts as they mature and such Borrower now owns property the fair saleable value of which is greater than the amount required to pay such Borrower’s debts;
(I) Except as disclosed in the Financials, (i) there is no litigation, suit, action, proceeding, inquiry or investigation pending or, to the best of such Borrower’s knowledge, threatened against such Borrower which if unfavorably determined would materially adversely affect the transactions contemplated hereby, or such Borrower’s property, assets, operations or condition (financial or otherwise) (except as shown on Financials and on Schedule 6.1(I)) and (ii) such Borrower has no Indebtedness and has not guaranteed the obligations of any other Person (except for Permitted Debt);
(i) There are no strikes, work stoppages, labor disputes decertification petitions, union organizing efforts, grievances or other claims pending or, to such Borrower’s knowledge, threatened in writing, between such Borrower and any of its employees, other than employee grievances arising in the ordinary course of business which, in the aggregate, would not have a Material Adverse Effect on such Borrower and (ii) to the best of such Borrower’s knowledge, such Borrower has no obligation under any collective bargaining agreement or any material employment agreement. To such Borrower’s knowledge, there is no organizing activity pending or threatened in writing by any labor union or group of employees. There are no representation proceedings pending or threatened with the National Labor Relations Board or other applicable governmental authority, and no labor organization or group of employees has made a pending demand for recognition. There are no material complaints or charges pending or, to such Borrower’s knowledge, threatened to be filed with any governmental authority or arbitrator based on, arising out of, in connection with or otherwise relating to the employment or termination of employment by such Borrower of any individual or group of individuals which, if decided adversely to such Borrower, would have a Material Adverse Effect on such Borrower;
(K) Such Borrower has good, indefeasible and merchantable title to and ownership of its Collateral, free and clear of all Liens, claims, security interests and other encumbrances, except those of Agent and Permitted Liens;
(L) Such Borrower is not in violation of any applicable statute, rule, regulation or ordinance of any governmental entity, including, without limitation, the Xxxxxx Xxxxxx xx Xxxxxxx, any state, city, town, municipality, county or of any other jurisdiction, or of any agency thereof, in any respect materially and adversely affecting the Collateral or such Borrower’s business, property, assets, operations or condition, financial or other;
(M) Such Borrower is not in default under any indenture, loan agreement, mortgage, material lease, trust deed, deed of trust or other similar agreement relating to the borrowing of monies to which it is a party or by which it or any of its Property is bound;
(N) The Financials fairly present in all material respects the assets, liabilities and financial condition and results of operations of such Borrower and such other Persons as are described therein as of the stated dates; there are no omissions or other facts or circumstances which are or may be material and there (i) has been no material and adverse change in the assets, liabilities or financial or other condition of such Borrower or any such Person since the date of the Financials and (ii) exists no equity or long term investments in or outstanding advances to any Person not reflected in the Financials;
(O) No Borrower has received a notice to the effect that it is not in full compliance with any of the requirements of ERISA and the regulations promulgated thereunder and, to the best of its knowledge, there exists no event described in Section 4043 of ERISA, excluding subsections 4043(b)(2) and 4043(b)(3) (a “Reportable Event”);
(P) Such Borrower has filed all federal, state and local tax returns and other reports (taking into account any extension of time to file granted to or obtained on behalf of Borrower), or has been included in consolidated returns or reports filed by an Affiliate, which such Borrower is required by law, rule or regulation to file and all Charges that are due and payable have been paid, except for Charges being contested in good faith and for which adequate reserves are being maintained;
(Q) Such Borrower’s execution and delivery of this Agreement and the Ancillary Agreements do not directly or indirectly violate or result in any violation of the Securities Exchange Act of 1934, as amended, or any regulations issued pursuant thereto, including without limitation, Regulation U, T or X of the Board of Governors of the Federal Reserve System (12 CFR 221, 207, 220 and 224, respectively) and Borrower does not own or intend to purchase or carry any “margin security,” as defined in such Regulations;
(R) Except as set forth on Schedule 6.1(R), as of the date of this Agreement such Borrower has no Subsidiaries and does not own an equity interest in any other Person;
(S) Such Borrower has no knowledge of any fact or circumstance which would impair the validity or collectibility of any material amount of its Accounts or General Intangibles;
(T) None of such Borrower’s Collateral has been pledged or sold to any other Person or otherwise encumbered, such Borrower is the owner of its Collateral free of all Liens and encumbrances except those of Agent and except for the Permitted Liens and no financing statement has been filed concerning the Collateral, except any filed on behalf of Agent and those relating to Permitted Liens;
(U) To the best of such Borrower’s knowledge, each property (including underlying ground water), operation and facility that such Borrower operates or controls is in compliance with all statutes, judicial or administrative orders, licenses, permits and governmental rules and regulations applicable to them, including, without limitation, Environmental Laws, the noncompliance with which is reasonably likely to have a Material Adverse Effect on the financial condition, continued operations or Property of such Borrower;
(V) Such Borrower possesses adequate copyrights, patents, trademarks, trade secrets and computer software to conduct its business and all such intellectual property (other than computer software and trade secrets) in the possession of such Borrower as of the date of this Agreement is listed on Schedule 6.1(V); and
(W) Neither such Borrower nor any Affiliate of such Borrower is in any way associated with or related to The Lake Group, Inc., d/b/a Pacific Direct, Lake Graphics and Elan Resources, which filed bankruptcy in the Northern District of California Case No. 93-30351.as
Appears in 1 contract
GENERAL WARRANTIES AND REPRESENTATIONS. Each Borrower warrants We warrant and represents to Agent and Lenders represent that:
(A) (i) ModusLink is a corporation We are each duly organized, validly organized and existing and in good standing under the laws of the State our respective states of Delaware incorporation set forth on Schedule 8(a), are qualified to do business and its state issued organizational identification number is 2831732, (ii) SalesLink is a limited liability company duly organized, validly existing and are in good standing under the laws of the State of Delaware and its state issued organizational identification number is 2721217 and (iii) SalesLink Mexico is a corporation duly organized, existing and in good standing under the laws of the state of Delaware and its state issued organizational number is 3111152. Each Borrower is qualified or licensed as a foreign corporation to do business in all other states in which the laws thereof require such Borrower qualification and good standing are necessary in order for us to be so qualified or licensed except where a lack of such qualification or licensing will not conduct our business and own our property and have a Material Adverse Effect on the all requisite power and authority to conduct our business, operations or financial condition to own our property and to execute, deliver and perform all of such Borrowerour Obligations;
(B) Such Borrower has not usedWe have not, during the preceding five (5) year period preceding the date of this Agreementyears, and on the date hereof does not intend to use, been known by or used any other corporate Assumed Names or fictitious name, except Trade Names other than as disclosed in set forth on Schedule 6.1(B8(B);
(C) Such Borrower has the right and power and is duly authorized and empowered to enter into, execute, deliver and perform this Agreement and the Ancillary Agreements;
(D) The execution, delivery and performance by such Borrower us of this Agreement and the Ancillary Agreements shall not, by its execution or performance, the lapse of time, the giving of notice or otherwise, will not constitute a violation of any applicable lawlaw or of our Articles or Certificate of Incorporation, rule, regulation, judgment, order By-Laws or decree applicable to such Borrower Code of Regulations or its assets or constitute a breach of any provision contained in such Borrower’s charter or by-laws or contained in any material agreement, instrument, indenture or other document to which such Borrower is now we are a party or by which it or any bound (except with respect to the assignments delivered pursuant to Paragraph and );
(D) We possess adequate assets, licenses, patents, patent applications, copyrights, trademarks, trademark applications, and tradenames for the conduct of its property is boundour business;
(E) Such Borrower’s use of the proceeds of any advances made by each Lender hereunder are, and will continue to be, legal and proper corporate uses (duly authorized by its board of directors, in accordance with any applicable law, rule or regulation) and such uses are consistent with all applicable laws, rules and regulations, as in effect as of the date hereof;
(F) Such Borrower has, and is current and in good standing with respect to, all material governmental approvals, permits, certificates, inspections, consents and franchises necessary to conduct and to continue to conduct its business and its intended business and to own or lease and operate its properties as now owned or leased and operated by it;
(G) None of such approvals, permits, certificates, consents or franchises contains any term, provision, condition or limitation more burdensome than such as are generally applicable to Persons engaged in the same or similar business as such Borrower;
(H) Such Borrower now has We have capital sufficient to carry on its business conduct our business, are solvent and transactions and all businesses and transactions in which it is about to engage and is now able to pay its our debts as they mature and such Borrower now owns own property the having a fair saleable value of which is greater than the amount required to pay such Borrower’s our debts;
(IF) Except as disclosed in the Financials, (i) there is no litigation, suit, action, proceeding, inquiry or investigation pending or, to the best of such Borrower’s knowledge, threatened against such Borrower which if unfavorably determined would materially adversely affect the transactions contemplated hereby, or such Borrower’s property, assets, operations or condition (financial or otherwise) (except as shown on Financials and on Schedule 6.1(I)) and (ii) such Borrower has no Indebtedness and has not guaranteed the obligations of any other Person (except for Permitted Debt);
(i) There are no strikes, work stoppages, labor disputes decertification petitions, union organizing efforts, grievances or other claims pending or, to such Borrower’s knowledge, threatened in writing, between such Borrower and any of its employees, other than employee grievances trade payables arising in the ordinary course of our business whichand except as heretofore disclosed to you in writing or herein, in we have (i) no pending or threatened litigation, actions or proceedings which would materially and adversely affect our business assets, operations or condition, financial or otherwise, or the aggregate, would not have a Material Adverse Effect on such Borrower Collateral and (ii) to no Indebtedness, other than the best of such Borrower’s knowledge, such Borrower has no obligation under any collective bargaining agreement or any material employment agreement. To such Borrower’s knowledge, there is no organizing activity pending or threatened in writing by any labor union or group of employees. There are no representation proceedings pending or threatened with the National Labor Relations Board or other applicable governmental authority, and no labor organization or group of employees has made a pending demand for recognition. There are no material complaints or charges pending or, to such Borrower’s knowledge, threatened to be filed with any governmental authority or arbitrator based on, arising out of, in connection with or otherwise relating to the employment or termination of employment by such Borrower of any individual or group of individuals which, if decided adversely to such Borrower, would have a Material Adverse Effect on such BorrowerObligations;
(KG) Such Borrower has We have good, indefeasible indefeasible, and merchantable title to and ownership of its the Collateral, free and clear of all Liens, claims, there is no lien or encumbrance thereon other than the security interests and other encumbrancesinterest granted to you, except those of Agent as set forth on Schedule 8(G) attached and Permitted Liensas permitted by Paragraph ;
(LH) Such Borrower We are not a party to any contract, or subject to any charge, corporate restriction, judgment, decree or order materially and adversely affecting our business, assets, operations or condition, financial or otherwise, and are not subject to any labor dispute; and, no labor contract is scheduled to expire during the term of this Agreement, except as heretofore disclosed to you in writing;
(I) We are not in violation of any applicable statute, rule, regulation or ordinance of any governmental entity, including, without limitation, the Xxxxxx Xxxxxx xx Xxxxxxx, any state, city, town, municipality, county or of any other jurisdiction, or of any agency thereofordinance, in any respect materially and adversely affecting the Collateral or such Borrower’s our business, property, assets, operations or condition, financial or otherotherwise;
(MJ) Such Borrower is Except with respect to the Xxxxxxx Xxxxxxxxxxx note, and as otherwise disclosed in Schedule 8(J), we are not in default under beyond any applicable grace period with respect to any note, indenture, loan agreement, mortgage, material lease, trust deed, deed of trust or other similar agreement relating to the borrowing of monies to which it is we are a party or by which it or any of its Property is bound;
(NK) The Financials financial statements delivered to you fairly present in all material respects the assets, liabilities and our financial condition and results of operations and those of such Borrower and such other Persons as are described therein as of the stated datesdate thereof; there are no omissions or other facts or circumstances which are or may be material and there (i) has been no material and adverse change in the assets, liabilities such financial condition or financial or other condition of such Borrower or any such Person operations since the date of the Financials and (ii) exists no equity or long term investments in or outstanding advances to any Person not reflected in the Financialsstatements;
(OL) No Borrower has we have received a no notice to the effect that it is we are not in full compliance with any of the requirements of ERISA the Employee Retirement Income Security Act of 1974, as amended, ("ERISA") and the its regulations promulgated thereunder and, to the best of its our knowledge, there exists no event described in Section 4043 of ERISA, excluding subsections 4043(b)(2) and 4043(b)(3) thereof, with respect to us;
(a “Reportable Event”)M) We have filed all tax returns and other reports we are required by law to file and have paid all taxes and similar charges that are due and payable;
(N) Our Chief Executive Office, Principal Place of Business and the Location of Collateral Records is at 0000 Xxxxxxx Xxxxx, Xxxxxxxx, Xxxx 00000;
(O) We have not received any notice alleging and are not aware of any facts indicating noncompliance with any State or Federal law governing the use, generation, storage or release of any hazardous waste or substance;
(P) Such Borrower has filed all federal, state We have no Subsidiaries or Affiliates other than as set forth on Schedule 8(A). For each subsidiary or affiliate shown on Schedule 8(A) the Collateral and local tax returns and other reports (taking into account any extension chief executive office of time to file granted to each such subsidiary or obtained affiliate are as set forth on behalf of BorrowerSchedule 8(P), or has been included in consolidated returns or reports filed by an Affiliate, which such Borrower is required by law, rule or regulation to file and all Charges that are due and payable have been paid, except for Charges being contested in good faith and for which adequate reserves are being maintained;
(Q) Such Borrower’s execution and delivery of this Agreement and We own all properties on which Collateral is located other than the Ancillary Agreements do not directly or indirectly violate or result in any violation of the Securities Exchange Act of 1934, as amended, or any regulations issued pursuant thereto, including without limitation, Regulation U, T or X of the Board of Governors of the Federal Reserve System (12 CFR 221, 207, 220 and 224, respectively) and Borrower does not own or intend to purchase or carry any “margin security,” as defined in such Regulations;Leased Properties set forth on Schedule 8(P); and
(R) Except as All Collateral which is tangible personal property is kept only at the locations set forth on Schedule 6.1(R8(P), as of the date of this Agreement such Borrower has no Subsidiaries and does not own an equity interest in any other Person;
(S) Such Schedule 8(A) hereto correctly sets forth the corporate name, jurisdiction of incorporation and ownership of Borrower has no knowledge of any fact or circumstance which would impair the validity or collectibility of any material amount of its Accounts or General Intangibles;
and each Corporate Guarantor (T) None of such Borrower’s Collateral has been pledged or sold to any other Person or otherwise encumbered, such Borrower is the owner of its Collateral free of all Liens and encumbrances except those of Agent and except for the Permitted Liens and no financing statement has been filed concerning the Collateral, except any filed on behalf of Agent and those relating to Permitted Liens;
(U) To the best of such Borrower’s knowledge, each property (including underlying ground water), operation and facility that such Borrower operates or controls is in compliance with all statutes, judicial or administrative orders, licenses, permits and governmental rules and regulations applicable to them, including, without limitation, Environmental Laws, the noncompliance with which is reasonably likely to have a Material Adverse Effect on the financial condition, continued operations or Property of such Borrower;
(V) Such Borrower possesses adequate copyrights, patents, trademarks, trade secrets and computer software to conduct its business and all such intellectual property (other than computer software and trade secrets) in the possession of such Borrower as of the date of this Agreement is listed on Schedule 6.1(V); and
(W) Neither such Borrower nor any Affiliate of such Borrower is in any way associated with or related to The Lake Group, Inc., d/b/a Pacific Direct, Lake Graphics and Elan Resources, which filed bankruptcy in the Northern District of California Case No. 93-30351."Subsidiary"
Appears in 1 contract
Samples: Loan and Security Agreement (Gaylord Companies Inc)
GENERAL WARRANTIES AND REPRESENTATIONS. Each Borrower warrants and represents to Agent and Lenders Lender that:
(Aa) (i) ModusLink Such Borrower is a corporation duly organized, incorporated and validly existing and in good standing under the laws of the State of Delaware and its state issued organizational identification number is 2831732, (ii) SalesLink is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware and its state issued organizational identification number is 2721217 and (iii) SalesLink Mexico is a corporation duly organized, existing and in good standing under the laws of the state of Delaware its incorporation, as represented at the beginning of this Agreement, and its state issued organizational number is 3111152. Each Borrower is qualified or licensed as a foreign corporation to do business in all other countries, states and provinces in which the laws thereof require such Borrower to be so qualified or licensed except where a lack of such qualification or licensing will not have a Material Adverse Effect on the business, operations or financial condition of such Borrowerand/or licensed;
(Bb) Such Borrower has not used, during the five (5) year period preceding subsequent to the emergence from Chapter 11 Bankruptcy on January 23, 2004 to the date of this Agreement, and on the date hereof does not intend to use, use any other corporate name or fictitious name, except as disclosed in Schedule 6.1(B)Exhibit E attached hereto and made a part hereof;
(Cc) Such Borrower has the right and power and is duly authorized and empowered to enter into, execute, deliver and perform this Agreement and the Ancillary AgreementsAgreements executed concurrently herewith;
(Dd) The execution, delivery and performance by such Borrower of this Agreement and the Ancillary Agreements to which it is a party shall not, by its their execution or performance, the lapse of time, the giving of notice or otherwise, constitute a violation contravention of any applicable law, rule, regulation, judgment, order rule or decree applicable to such Borrower regulation or its assets or constitute a breach of any provision contained in such Borrower’s charter 's Certificate of Incorporation or byBy-laws Laws or contained in any material agreement, instrument, indenture or other document to which such Borrower is now a party or by which it is bound except in the case of this clause (d) where the contravention of such contractual restrictions would not reasonably be expected to have, individually or any of its property is boundin the aggregate, a Material Adverse Effect;
(Ee) Such Borrower’s 's use of the proceeds of any advances and readvances made by each Lender hereunder to such Borrower pursuant to this Agreement are, and will continue to be, legal and proper corporate uses (duly authorized by its board of directors, in accordance with any applicable law, rule or regulationoperating agreement) and such uses are consistent with all material applicable laws, rules laws and regulationsstatutes, as in effect as of the date hereof;
(Ff) Such Borrower has, and is current and in good standing with respect to, all material governmental approvals, permits, certificates, inspections, consents and franchises necessary to conduct and or to continue to conduct its business and its present or intended business as heretofore conducted by it and to own or lease and operate its properties as now owned or leased leases and operated by itit or by the previous owner of those properties where the failure to have such approvals, permits, certificates, inspections, consents and franchises would not materially and adversely affect such Borrower's business, properties, assets, operations, or condition, financial or otherwise;
(Gg) None of such said approvals, permits, certificates, consents or franchises contains contain any term, provision, condition or limitation more burdensome than such as are generally applicable to Persons engaged in the same or similar business in similar locations and under similar conditions and circumstances as such Borrower;
(Hh) Such Borrower on a consolidated basis with the other Borrower, (i) now has capital sufficient to carry on its business and transactions and all businesses and transactions in which it is about to engage and engage, (ii) is now solvent and able to pay its debts as they mature and such Borrower (iii) now owns property the fair saleable value of which is greater than the amount required to pay such Borrower’s 's debts;
(Ii) Except as disclosed on Exhibit F attached hereto and made a part hereof and in the Financials, such Borrower has (i) there is no litigation, suit, action, proceeding, inquiry or investigation litigation pending or, where such litigation would reasonably be expected to the best of such Borrower’s knowledge, threatened against such result in Borrower which if unfavorably determined would materially adversely affect the transactions contemplated hereby, or such Borrower’s property, assets, operations or condition (financial or otherwise) (except as shown on Financials and on Schedule 6.1(I)) liabilities greater than $100,000 and (ii) such Borrower has no Indebtedness (except for trade payables arising in the ordinary course of its business (and which are regularly reflected in financial reports) since the last date reflected in the Financials) and has not guaranteed the obligations of any other Person (except for Permitted Debt)Person;
(ij) There are no strikesSuch Borrower is not a party to any contract or agreement or subject to any charge, work stoppagescorporate restriction, labor disputes decertification petitionsjudgment, union organizing effortsdecree or order which would reasonably be expected to have, grievances individually or other claims pending or, to such Borrower’s knowledge, threatened in writing, between such Borrower and any of its employees, other than employee grievances arising in the ordinary course of business which, in the aggregate, would not have a Material Adverse Effect on such Borrower Effect, and (ii) is not a party to the best of such Borrower’s knowledge, such Borrower has no obligation under any collective bargaining agreement or any material employment agreement. To such Borrower’s knowledge, there is no organizing activity pending or threatened in writing by any labor union or group of employees. There dispute; there are no representation proceedings pending strikes or threatened with the National Labor Relations Board or other applicable governmental authority, walkouts relating to any labor contracts and no labor organization or group such contract is scheduled to expire during the term of employees has this Agreement, except as disclosed on Exhibit G attached hereto and made a pending demand for recognition. There are no material complaints or charges pending or, to such Borrower’s knowledge, threatened to be filed with any governmental authority or arbitrator based on, arising out of, in connection with or otherwise relating to the employment or termination of employment by such Borrower of any individual or group of individuals which, if decided adversely to such Borrower, would have a Material Adverse Effect on such Borrowerpart hereof;
(Kk) Such Borrower has good, indefeasible and merchantable title to and ownership of its the Collateral, free and clear of all Liensliens, claims, security interests and other encumbrances, encumbrances except those of Agent Lender and Permitted Liensthose, if any, described on Exhibit H attached hereto;
(Ll) Such Borrower is not in violation of any applicable statute, rule, regulation or ordinance of any governmental entity, including, without limitation, the Xxxxxx Xxxxxx xx XxxxxxxUnited States of America, any state, city, town, municipality, county or of any other jurisdiction, or of any agency thereof, in any respect materially and adversely affecting the Collateral or such Borrower’s 's business, property, assets, operations or condition, financial or otherotherwise;
(Mm) Such Borrower is not in default under any indenture, loan agreement, mortgage, material lease, trust deed, deed of trust or other similar agreement relating to the borrowing of monies to which it is a party or by which it or any of its Property is bound, except in the case of this clause (m) where such default would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(Nn) The Financials fairly present in all material respects the assets, liabilities and financial condition and results of operations of such Borrower Borrowers and such other Persons as are described therein as of the stated datesdates thereof; there are no omissions or other facts or circumstances which are or may be material and there (i) has been no material and adverse change in the assets, liabilities or financial or other condition of such Borrower or any such Person Borrowers since the date of the Financials and (ii) exists Financials; there exist no equity or long term investments in or outstanding advances to any Person not reflected in the Financials; there are no actions or proceedings which are pending or, to the best of such Borrower's knowledge, threatened against such Borrower or any other Person where such actions or proceedings would reasonably be expected to have, individually or in the aggregate, a material adverse change in such Borrower's financial condition or materially and adversely affect such Borrower's operations, its assets or the Collateral;
(Oo) No Except as disclosed on Exhibit G attached hereto and made a part hereof, such Borrower has received a no notice to the effect that it is not in full compliance with any of the requirements of ERISA the Employee Retirement Income Security Action of 1974, as amended, ("ERISA") and the regulations promulgated thereunder and, to the best of its knowledge, knowledge there exists no event described in Section 4043 of ERISA, excluding subsections 4043(b)(2) and 4043(b)(3) thereof (a “"Reportable Event”");
(Pp) Such Borrower has filed all federal, state and local tax returns and other reports (taking into account any extension of time to file granted to or obtained on behalf of Borrower)reports, or has been included in consolidated returns or reports filed by an Affiliate, which such Borrower is required by law, rule or regulation to file and all Charges that are due and payable have been paid, except for Charges being contested in good faith and for which adequate reserves are being maintained;
(Qq) Such Borrower’s 's execution and delivery of this Agreement and or any of the Ancillary Agreements do does not directly or indirectly violate or result in any a violation of the Securities Exchange Act of 1934, as amended, or any regulations issued pursuant thereto, including without limitation, Regulation U, T or X of the Board of Governors of the Federal Reserve System (12 CFR 221, 207, 220 and 224, respectively) and such Borrower does not own or intend to purchase or carry any “"margin security,” " as defined in such said Regulations;; and
(Rr) Except as set forth disclosed on Schedule 6.1(R)Exhibit I attached hereto and made a part hereof, as (i) to such Borrower's knowledge, the operations of the date of this Agreement such Borrower are in material compliance with all applicable Environmental Laws; (ii) to such Borrower's knowledge, such Borrower has no Subsidiaries obtained all environmental, health and does not own an equity interest safety permits required under applicable Environmental Laws for such operations, and all such permits are in good standing and such Borrower is in material compliance with all terms and conditions of such permits; (iii) neither such Borrower nor any other Person;
(S) Such Borrower has no knowledge of any fact or circumstance which would impair the validity or collectibility of any material amount of its Accounts present Property or General Intangibles;
operations, and, to such Borrower's knowledge (T"Borrower's knowledge") None means the knowledge of such Borrower’s Collateral has been pledged 's officers, directors, employees and shareholders), neither such Borrower's past Property or sold operations, are subject to any other Person (A) order from or otherwise encumbered, such Borrower is the owner of its Collateral free of all Liens and encumbrances except those of Agent and except for the Permitted Liens and no financing statement has been filed concerning the Collateral, except agreement with any filed on behalf of Agent and those relating to Permitted Liens;
(U) To the best of such Borrower’s knowledge, each property (including underlying ground water), operation and facility that such Borrower operates Governmental Authority or controls is in compliance with all statutes, any judicial or administrative orders, licenses, permits and governmental rules and regulations proceeding or investigations respecting any applicable to them, including, without limitation, Environmental Laws, any remedial action or any Liabilities arising from the noncompliance Release or threatened Release of a Hazardous Material into the environment or (B) agreement with which a private party expressly providing for any investigation or remediation resulting from a known Release or threatened Release of a Hazardous Material into the environment; (iv) such Borrower has not filed any notice under any applicable Environmental Laws indicating that past or present "treatment," "storage" or "disposal" of a "hazardous waste," as such terms are defined under RCRA, or any state equivalent on any Property presently or heretofore owned, used, or operated by Borrower has occurred; (v) Borrower has not filed any notice under any applicable Environmental Law reporting a Release of 500 gallons or more of a Hazardous Material into the environment from any past or present Property or operations of Borrower; (vi) there is reasonably likely not now on or in the Property of such Borrower (A) any "treatment", "storage" or "disposal" of any "hazardous waste," as such terms are defined under the RCRA, as amended, or any state equivalent; (B) more than one (1) underground storage tank or (C) any surface impoundments, or (D) any polychlorinated biphenyls (PCB's) used in hydraulic oils, electrical transformers or other equipment; and (vii) Borrower has not received any notice or claim to have the effect that it is or may be liable to any Person as a result of the Release or threatened Release of a Hazardous Material Adverse Effect on into the financial condition, continued operations or environment; and (viii) no Environmental Lien has attached to any Property of such Borrower;
(V) Such Borrower possesses adequate copyrights, patents, trademarks, trade secrets and computer software to conduct its business and all such intellectual property (other than computer software and trade secrets) in the possession of such Borrower as of the date of this Agreement is listed on Schedule 6.1(V); and
(W) Neither such Borrower nor any Affiliate of such Borrower is in any way associated with or related to The Lake Group, Inc., d/b/a Pacific Direct, Lake Graphics and Elan Resources, which filed bankruptcy in the Northern District of California Case No. 93-30351.
Appears in 1 contract
GENERAL WARRANTIES AND REPRESENTATIONS. Each Borrower warrants and represents to Agent and Lenders Lender that:
(A) (i) ModusLink 4.1.1 Borrower is a corporation duly organized, organized and validly existing and in good standing under the laws of the State of Delaware and its state issued organizational identification number is 2831732, (ii) SalesLink is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware and its state issued organizational identification number is 2721217 and (iii) SalesLink Mexico is a corporation duly organized, existing and in good standing under the laws of the state of Delaware its incorporation, as represented at the beginning of this Agreement, and its state issued organizational number is 3111152. Each Borrower is qualified or licensed as a foreign corporation to do business in all other countries, states in which and provinces where the laws thereof require such Borrower failure to be so qualified or and/or licensed except where a lack of such qualification or licensing will not would have a Material Adverse Effect material adverse effect on the business, operations or financial condition of such Borrower;
(B) Such 4.1.2 Borrower has not used, during the five (5) year period preceding the date of this Agreement, and on the date hereof does not intend to use, use any other corporate or fictitious name, except as disclosed in Schedule 6.1(B);
(C) Such 4.1.3 Borrower has the right and power and is duly authorized and empowered to enter into, execute, deliver and perform this Agreement and the Ancillary Agreements;
(D) 4.1.4 The execution, delivery and performance by such Borrower of this Agreement and the Ancillary Agreements shall not, by its their execution or performance, the lapse of time, the giving of notice or otherwise, constitute a violation of any applicable law, rule, regulation, judgment, order rule or decree applicable to such Borrower regulation or its assets or constitute a breach of any provision contained in such any Borrower’s charter 's Certificate of Incorporation or byBy-laws Laws or contained in any material agreement, instrument, indenture or other document to which such any Borrower is now a party or by which it or any of its property is bound;
(E) Such 4.1.5 Borrower’s use 's uses of the proceeds of any advances and readvances made by each Lender hereunder to Borrower pursuant to this Agreement are, and will continue to be, legal and proper corporate uses (duly authorized by its board Board of directorsDirectors, in accordance with any if necessary pursuant to applicable corporate law, rule or regulation) and such uses are consistent with all applicable laws, rules laws and regulationsstatutes, as in effect as of the date hereof;
(F) Such 4.1.6 To the best of Borrower's knowledge, Borrower has, and is current and in good standing with respect to, all material governmental approvals, permits, certificates, inspections, consents and franchises necessary to conduct and or to continue to conduct its business and its present or intended business as heretofore conducted by it or in a manner similar to that of the previous owner of the business or of other Persons engaged in the same or similar businesses and to own or lease and operate its properties as now owned or leased and operated by itit or by the previous owner of those properties;
(G) None 4.1.7 To the best of such Borrower's knowledge, none of said approvals, permits, certificates, consents or franchises contains contain any term, provision, condition or limitation more burdensome than such as are generally applicable to Persons engaged in the same or similar business as such Borrower;
(H) Such 4.1.8 Borrower now has capital sufficient to carry on its business and transactions and all businesses and transactions in which it is about to engage and is now solvent and able to pay its debts as they mature mature, and such Borrower now owns property the fair saleable value of which is greater than the amount required to pay such Borrower’s 's debts;
(I) 4.1.9 Except as disclosed in the Financialsset forth on SCHEDULE I, (i) there is no litigation, suit, action, proceeding, inquiry or investigation pending or, to the best of such Borrower’s knowledge, threatened against such Borrower which if unfavorably determined would materially adversely affect the transactions contemplated hereby, or such Borrower’s property, assets, operations or condition (financial or otherwise) (except as shown on Financials and on Schedule 6.1(I)) and (ii) such Borrower has no litigation pending and no Indebtedness and has not guaranteed the obligations of any other Person (except for Permitted Debt);
(i) There are no strikes, work stoppages, labor disputes decertification petitions, union organizing efforts, grievances or other claims pending or, to such Borrower’s knowledge, threatened in writing, between such Borrower and any of its employees, other than employee grievances trade payables arising in the ordinary course of business which, in the aggregate, would not have a Material Adverse Effect on such Borrower and (ii) to the best of such Borrower’s knowledge, such Borrower has no obligation under any collective bargaining agreement or any material employment agreement. To such Borrower’s knowledge, there is no organizing activity pending or threatened in writing by any labor union or group of employees. There are no representation proceedings pending or threatened with the National Labor Relations Board or other applicable governmental authority, and no labor organization or group of employees has made a pending demand for recognition. There are no material complaints or charges pending or, to such Borrower’s knowledge, threatened to be filed with any governmental authority or arbitrator based on, arising out of, in connection with or otherwise relating to the employment or termination of employment by such Borrower of any individual or group of individuals which, if decided adversely to such Borrower, would have a Material Adverse Effect on such Borrower;
(K) Such Borrower has good, indefeasible and merchantable title to and ownership of its Collateral, free and clear of all Liens, claims, security interests and other encumbrances, except those of Agent and Permitted Liens;
(L) Such Borrower is not in violation of any applicable statute, rule, regulation or ordinance of any governmental entity, including, without limitation, the Xxxxxx Xxxxxx xx Xxxxxxx, any state, city, town, municipality, county or of any other jurisdiction, or of any agency thereof, in any respect materially and adversely affecting the Collateral or such Borrower’s business, property, assets, operations or condition, financial or other;
(M) Such Borrower is not in default under any indenture, loan agreement, mortgage, material lease, trust deed, deed of trust or other similar agreement relating to the borrowing of monies to which it is a party or by which it or any of its Property is bound;
(N) The Financials fairly present in all material respects the assets, liabilities and financial condition and results of operations of such Borrower and such other Persons as are described therein as of the stated dates; there are no omissions or other facts or circumstances which are or may be material and there (i) has been no material and adverse change in the assets, liabilities or financial or other condition of such Borrower or any such Person since the date of the Financials and (ii) exists no equity or long term investments in or outstanding advances to any Person not reflected in the Financials;
(O) No Borrower has received a notice to the effect that it is not in full compliance with any of the requirements of ERISA and the regulations promulgated thereunder and, to the best of its knowledge, there exists no event described in Section 4043 of ERISA, excluding subsections 4043(b)(2) and 4043(b)(3) (a “Reportable Event”);
(P) Such Borrower has filed all federal, state and local tax returns and other reports (taking into account any extension of time to file granted to or obtained on behalf of Borrower), or has been included in consolidated returns or reports filed by an Affiliate, which such Borrower is required by law, rule or regulation to file and all Charges that are due and payable have been paid, except for Charges being contested in good faith and for which adequate reserves are being maintained;
(Q) Such Borrower’s execution and delivery of this Agreement and the Ancillary Agreements do not directly or indirectly violate or result in any violation of the Securities Exchange Act of 1934, as amended, or any regulations issued pursuant thereto, including without limitation, Regulation U, T or X of the Board of Governors of the Federal Reserve System (12 CFR 221, 207, 220 and 224, respectively) and Borrower does not own or intend to purchase or carry any “margin security,” as defined in such Regulations;
(R) Except as set forth on Schedule 6.1(R), as of the date of this Agreement such Borrower has no Subsidiaries and does not own an equity interest in any other Person;
(S) Such Borrower has no knowledge of any fact or circumstance which would impair the validity or collectibility of any material amount of its Accounts or General Intangibles;
(T) None of such Borrower’s Collateral has been pledged or sold to any other Person or otherwise encumbered, such Borrower is the owner of its Collateral free of all Liens and encumbrances except those of Agent and except for the Permitted Liens and no financing statement has been filed concerning the Collateral, except any filed on behalf of Agent and those relating to Permitted Liens;
(U) To the best of such Borrower’s knowledge, each property (including underlying ground water), operation and facility that such Borrower operates or controls is in compliance with all statutes, judicial or administrative orders, licenses, permits and governmental rules and regulations applicable to them, including, without limitation, Environmental Laws, the noncompliance with which is reasonably likely to have a Material Adverse Effect on the financial condition, continued operations or Property of such Borrower;
(V) Such Borrower possesses adequate copyrights, patents, trademarks, trade secrets and computer software to conduct its business and all such intellectual property (other than computer software and trade secrets) in the possession of such Borrower as of the date of this Agreement is listed on Schedule 6.1(V); and
(W) Neither such Borrower nor any Affiliate of such Borrower is in any way associated with or related to The Lake Group, Inc., d/b/a Pacific Direct, Lake Graphics and Elan Resources, which filed bankruptcy in the Northern District of California Case No. 93-30351.
Appears in 1 contract
Samples: Credit Agreement (Sabratek Corp)
GENERAL WARRANTIES AND REPRESENTATIONS. Each Borrower warrants and represents to Agent and Lenders that:
(Aa) (i) ModusLink Borrower is a corporation which is duly organized, validly existing and in good standing under the laws of the State of Delaware Florida and its state issued organizational identification number is 2831732, (ii) SalesLink qualified to do business and is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware and its state issued organizational identification number is 2721217 and (iii) SalesLink Mexico is a corporation duly organized, existing and in good standing under the laws of the state of Delaware and its state issued organizational number is 3111152. Each Borrower is qualified or licensed as a foreign corporation to do business in all other states in which the laws thereof require such Borrower places where it is required to be so qualified or licensed except where a lack of such qualification or licensing will its failure to qualify would not have a Material Adverse Effect material, adverse affect on the Borrower or its ability to conduct its business as currently conducted;
(b) Borrower is not a party to any contract or agreement or subject to any charge, corporate restriction, judgment, decree or order having a material adverse effect, taken as a whole, on its business, property, assets, operations or condition, financial or otherwise, or is a party to any labor dispute which would have a material adverse effect on the financial condition of such Borrower;
(Bc) Such Borrower is not in violation of any applicable statute, regulation or ordinance of any governmental authorities or of any applicable order, writ, injunction or decree or any court or any Federal, state, municipal or other governmental authority, which would in any respect adversely affect its business;
(d) Borrower has not used, during received notice to the five (5) year period preceding effect that it is not in full compliance with any of the date requirements of this AgreementERISA, and on the date hereof does not intend regulations promulgated thereunder and, to usethe best of its knowledge, any other corporate or fictitious name, except as disclosed there exists no event described in Schedule 6.1(BSection 4043(3) thereof (“Reportable Event”);
(Ce) Such Borrower’s books and records, including, without limitation, computer programs, printouts and other computer materials and records are at the locations identified on Schedule 2 attached hereto and hereby made a part hereof:
(f) the address specified in Section 6.1(e) is Borrower’s chief executive office and principal place of business;
(g) Borrower has the right and power and is duly authorized and empowered to enter into, execute, deliver and perform this Agreement and the Ancillary AgreementsOther Agreements to which it is a party, and the officers executing and delivering this Agreement and such Other Agreements on behalf of Borrower are duly authorized and empowered to do so;
(Dh) The the execution, delivery and performance by such Borrower of this Agreement and the Ancillary Other Agreements shall not, by its execution or performance, the lapse of time, the giving of notice or otherwise, will not constitute a violation of any applicable law, rule, regulation, judgment, order law or decree applicable to such Borrower or its assets or constitute a breach of any provision contained in such Borrower’s charter Articles of Incorporation or byBy-laws Laws or contained in any material agreement, instrument, indenture instrument or other document to which such Borrower is now a party or by which it or any of its property Borrower is bound;
(Ei) Such this Agreement and the Other Agreements are legal, valid and binding obligations of Borrower’s use of the proceeds of any advances made by each Lender hereunder are, and will continue to be, legal and proper corporate uses (duly authorized by its board of directors, enforceable in accordance with any applicable law, rule or regulation) and such uses are consistent with all applicable laws, rules and regulations, as in effect as of the date hereoftheir respective terms;
(Fj) Such Borrower has, and is current and in good standing with respect to, all material governmental approvals, permits, certificates, inspections, consents and franchises necessary to conduct and to continue to conduct its business and its intended business as heretofore conducted and to own or lease and operate its properties as the assets now owned or leased and operated by it;
(G) None of such approvals; and no authorization, permits, certificates, consents consent or franchises contains any term, provision, condition or limitation more burdensome than such as are generally applicable to Persons engaged in the same or similar business as such Borrower;
(H) Such Borrower now has capital sufficient to carry on its business and transactions and all businesses and transactions in which it is about to engage and is now able to pay its debts as they mature and such Borrower now owns property the fair saleable value of which is greater than the amount required to pay such Borrower’s debts;
(I) Except as disclosed in the Financials, (i) there is no litigation, suit, action, proceeding, inquiry or investigation pending or, to the best of such Borrower’s knowledge, threatened against such Borrower which if unfavorably determined would materially adversely affect the transactions contemplated hereby, or such Borrower’s property, assets, operations or condition (financial or otherwise) (except as shown on Financials and on Schedule 6.1(I)) and (ii) such Borrower has no Indebtedness and has not guaranteed the obligations approval of any other Person (except for Permitted Debt);
(i) There are no strikesfederal, work stoppagesstate, labor disputes decertification petitions, union organizing efforts, grievances municipal or other claims pending or, to such Borrower’s knowledge, threatened in writing, between such Borrower and any of its employees, other than employee grievances arising in the ordinary course of business which, in the aggregate, would not have a Material Adverse Effect on such Borrower and (ii) to the best of such Borrower’s knowledge, such Borrower has no obligation under any collective bargaining agreement or any material employment agreement. To such Borrower’s knowledge, there governmental regulatory authority is no organizing activity pending or threatened in writing by any labor union or group of employees. There are no representation proceedings pending or threatened with the National Labor Relations Board or other applicable governmental authority, and no labor organization or group of employees has made a pending demand for recognition. There are no material complaints or charges pending or, to such Borrower’s knowledge, threatened to be filed with any governmental authority or arbitrator based on, arising out of, required in connection with or otherwise relating to either the employment or termination of employment execution and delivery by such Borrower of any individual this Agreement, the Notes or group the Other Agreements to which Borrower is a party, or the performance of individuals which, if decided adversely to such Borrower, would have a Material Adverse Effect on such Borrower;its obligations thereunder; and
(Kk) Such Borrower has good, indefeasible the Financials were prepared in accordance with generally accepted accounting principles and merchantable title to and ownership of its Collateral, free and clear of all Liens, claims, security interests and other encumbrances, except those of Agent and Permitted Liens;
(L) Such Borrower is not in violation of any applicable statute, rule, regulation or ordinance of any governmental entity, including, without limitation, the Xxxxxx Xxxxxx xx Xxxxxxx, any state, city, town, municipality, county or of any other jurisdiction, or of any agency thereof, in any respect materially and adversely affecting the Collateral or such Borrower’s business, property, assets, operations or condition, financial or other;
(M) Such Borrower is not in default under any indenture, loan agreement, mortgage, material lease, trust deed, deed of trust or other similar agreement relating to the borrowing of monies to which it is a party or by which it or any of its Property is bound;
(N) The Financials present fairly present in all material respects the assets, liabilities and financial condition and results of operations of such Borrower at, and such other Persons as are described therein as of of, the stated datesdate thereof; there are no omissions or other facts or circumstances which are or may be material and there (i) has been no material and adverse change in the assets, liabilities or financial or other condition of such Borrower or any such Person since the date of the Financials Financials; and (ii) exists there is no equity material litigation or long term investments in bankruptcy or outstanding advances to any Person not reflected in the Financials;
(O) No Borrower has received a notice to the effect that it is not in full compliance with any of the requirements of ERISA and the regulations promulgated thereunder andgovernmental actions or proceedings which are pending, or to the best of its knowledge, there exists no event described in Section 4043 of ERISA, excluding subsections 4043(b)(2) and 4043(b)(3) (a “Reportable Event”);
(P) Such Borrower has filed all federal, state and local tax returns and other reports (taking into account any extension of time to file granted to or obtained on behalf of Borrower), or has been included in consolidated returns or reports filed by an Affiliate, which such Borrower is required by law, rule or regulation to file and all Charges that are due and payable have been paid, except for Charges being contested in good faith and for which adequate reserves are being maintained;
(Q) Such Borrower’s execution and delivery of this Agreement and the Ancillary Agreements do not directly or indirectly violate or result in any violation of the Securities Exchange Act of 1934, as amended, or any regulations issued pursuant thereto, including without limitation, Regulation U, T or X of the Board of Governors of the Federal Reserve System (12 CFR 221, 207, 220 and 224, respectively) and Borrower does not own or intend to purchase or carry any “margin security,” as defined in such Regulations;
(R) Except as set forth on Schedule 6.1(R), as of the date of this Agreement such Borrower has no Subsidiaries and does not own an equity interest in any other Person;
(S) Such Borrower has no knowledge of any fact or circumstance which would impair the validity or collectibility of any material amount of its Accounts or General Intangibles;
(T) None of such Borrower’s Collateral has been pledged or sold to any other Person or otherwise encumbered, such Borrower is the owner of its Collateral free of all Liens and encumbrances except those of Agent and except for the Permitted Liens and no financing statement has been filed concerning the Collateral, except any filed on behalf of Agent and those relating to Permitted Liens;
(U) To the best of such Borrower’s knowledge, each property (including underlying ground water)threatened, operation and facility that such against Borrower operates or controls is which might result in compliance with all statutesany material, judicial or administrative orders, licenses, permits and governmental rules and regulations applicable to them, including, without limitation, Environmental Laws, the noncompliance with which is reasonably likely to have a Material Adverse Effect on the adverse change in Borrower’s financial condition, continued operations or Property of such Borrower;
(V) Such Borrower possesses adequate copyrights, patents, trademarks, trade secrets and computer software to conduct its business and all such intellectual property (other than computer software and trade secrets) in the possession of such Borrower as of the date of this Agreement is listed on Schedule 6.1(V); and
(W) Neither such Borrower nor any Affiliate of such Borrower is in any way associated with or related to The Lake Group, Inc., d/b/a Pacific Direct, Lake Graphics and Elan Resources, which filed bankruptcy in the Northern District of California Case No. 93-30351.
Appears in 1 contract
GENERAL WARRANTIES AND REPRESENTATIONS. Each of the Borrower and Parent, jointly and severally, warrants and represents to the Agent and the Lenders thatthat except as hereafter disclosed to and accepted by the Agent and the Majority Lenders in writing:
(A) (i) ModusLink is a corporation duly organized8.1 Authorization, validly existing Validity, and in good standing under Enforceability of this Agreement and the laws Other Transaction Documents. Each of the State of Delaware Borrower and its state issued organizational identification number is 2831732, (ii) SalesLink is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware and its state issued organizational identification number is 2721217 and (iii) SalesLink Mexico is a corporation duly organized, existing and in good standing under the laws of the state of Delaware and its state issued organizational number is 3111152. Each Borrower is qualified or licensed as a foreign corporation to do business in all other states in which the laws thereof require such Borrower to be so qualified or licensed except where a lack of such qualification or licensing will not have a Material Adverse Effect on the business, operations or financial condition of such Borrower;
(B) Such Borrower has not used, during the five (5) year period preceding the date of this Agreement, and on the date hereof does not intend to use, any other corporate or fictitious name, except as disclosed in Schedule 6.1(B);
(C) Such Borrower Parent has the right and corporate power and is duly authorized and empowered authority to enter into, execute, deliver and perform this Agreement and the Ancillary Agreements;
other Transaction Documents to which it is a party, to incur the Obligations, and to grant to the Agent Liens upon and security interests in the Collateral. Each of the Borrower and Parent has taken all necessary corporate action (Dincluding without limitation, obtaining approval of its stockholders if necessary) The to authorize its execution, delivery delivery, and performance by such Borrower of this Agreement and the Ancillary Agreements shall not, by its execution or performance, the lapse of time, the giving of notice or otherwise, constitute a violation of any applicable law, rule, regulation, judgment, order or decree applicable other Transaction Documents to such Borrower or its assets or constitute a breach of any provision contained in such Borrower’s charter or by-laws or contained in any material agreement, instrument, indenture or other document to which such Borrower is now a party or by which it or any of its property is bound;
(E) Such Borrower’s use of the proceeds of any advances made by each Lender hereunder are, and will continue to be, legal and proper corporate uses (duly authorized by its board of directors, in accordance with any applicable law, rule or regulation) and such uses are consistent with all applicable laws, rules and regulations, as in effect as of the date hereof;
(F) Such Borrower has, and is current and in good standing with respect to, all material governmental approvals, permits, certificates, inspections, consents and franchises necessary to conduct and to continue to conduct its business and its intended business and to own or lease and operate its properties as now owned or leased and operated by it;
(G) None of such approvals, permits, certificates, consents or franchises contains any term, provision, condition or limitation more burdensome than such as are generally applicable to Persons engaged in the same or similar business as such Borrower;
(H) Such Borrower now has capital sufficient to carry on its business and transactions and all businesses and transactions in which it is about to engage a party. No consent, approval, exemption or authorization or other action of, or notice to, or declaration or filing with, any Governmental Authority, and no consent of any other Person, is now able to pay its debts as they mature required in connection with the execution, delivery or performance by, or enforcement against, the Borrower or Parent of this Agreement and such Borrower now owns property the fair saleable value other Transaction Documents, except for those already duly obtained or made and except for the filing of which is greater than the amount required to pay such Borrower’s debts;
(I) Except as disclosed in the Financials, (i) there is no litigationUniform Commercial Code financing statements, suitMortgages and security documents relating to Proprietary Rights in the appropriate governmental filing offices in order to perfect the Agent's Liens in certain of the Collateral, action, proceeding, inquiry or investigation pending or, to the best of such Borrower’s knowledge, threatened against such Borrower which if unfavorably determined would materially adversely affect the transactions contemplated hereby, or such Borrower’s property, assets, operations or condition (financial or otherwise) (except as shown on Financials and on Schedule 6.1(I)) and (ii) such Borrower has no Indebtedness Uniform Commercial Code financing statements, mortgages and has not guaranteed the obligations of any other Person (except for Permitted Debt);
(i) There are no strikes, work stoppages, labor disputes decertification petitions, union organizing efforts, grievances or other claims pending or, to such Borrower’s knowledge, threatened in writing, between such Borrower and any of its employees, other than employee grievances arising security documents in the ordinary course of business which, appropriate governmental filing offices in order to perfect the aggregate, would not have a Material Adverse Effect on such Borrower Liens granted 85 under the Secured Sale/Leaseback Documents and (iiiii) to the best of such Borrower’s knowledge, such Borrower has no obligation under any collective bargaining agreement or any material employment agreement. To such Borrower’s knowledge, there is no organizing activity pending or threatened in writing by any labor union or group of employees. There are no representation proceedings pending or threatened Xxxxx/Cup Merger Documents with the National Labor Relations Board or Secretary of State for the State of Delaware in order to effectuate the Xxxxx/Cup Merger. This Agreement and the other applicable governmental authority, and no labor organization or group of employees has made a pending demand for recognition. There are no material complaints or charges pending or, to such Borrower’s knowledge, threatened to be filed with any governmental authority or arbitrator based on, arising out of, in connection with or otherwise relating to the employment or termination of employment by such Borrower of any individual or group of individuals which, if decided adversely to such Borrower, would have a Material Adverse Effect on such Borrower;
(K) Such Borrower has good, indefeasible and merchantable title to and ownership of its Collateral, free and clear of all Liens, claims, security interests and other encumbrances, except those of Agent and Permitted Liens;
(L) Such Borrower is not in violation of any applicable statute, rule, regulation or ordinance of any governmental entity, including, without limitation, the Xxxxxx Xxxxxx xx Xxxxxxx, any state, city, town, municipality, county or of any other jurisdiction, or of any agency thereof, in any respect materially and adversely affecting the Collateral or such Borrower’s business, property, assets, operations or condition, financial or other;
(M) Such Borrower is not in default under any indenture, loan agreement, mortgage, material lease, trust deed, deed of trust or other similar agreement relating to the borrowing of monies Transaction Documents to which it is a party or have been duly executed and delivered by which it or any of its Property is bound;
(N) The Financials fairly present in all material respects the assets, liabilities and financial condition and results of operations of such Borrower and such other Persons as are described therein as Parent, and constitute the legal, valid and binding obligations of the stated dates; there are no omissions or other facts or circumstances which are or may be material Borrower and there (i) has been no material and adverse change in the assetsParent, liabilities or financial or other condition of such Borrower or any such Person since the date enforceable against each of the Financials Borrower and (ii) exists no equity Parent in accordance with their respective terms without defense, setoff or long term investments in or outstanding advances to any Person not reflected in the Financials;
(O) No Borrower has received a notice to the effect that it is not in full compliance with any of the requirements of ERISA counterclaim. The Borrower's and the regulations promulgated thereunder andParent's execution, to the best of its knowledgedelivery, there exists no event described in Section 4043 of ERISA, excluding subsections 4043(b)(2) and 4043(b)(3) (a “Reportable Event”);
(P) Such Borrower has filed all federal, state and local tax returns and other reports (taking into account any extension of time to file granted to or obtained on behalf of Borrower), or has been included in consolidated returns or reports filed by an Affiliate, which such Borrower is required by law, rule or regulation to file and all Charges that are due and payable have been paid, except for Charges being contested in good faith and for which adequate reserves are being maintained;
(Q) Such Borrower’s execution and delivery performance of this Agreement and the Ancillary Agreements other Transaction Documents to which it is a party do not directly and will not conflict with, or indirectly violate constitute a violation or breach of, or constitute a default under, or result in the creation or imposition of any violation Lien upon the property of Parent or any of its Subsidiaries by reason of the Securities Exchange Act terms of 1934(a) any contract, as amendedmortgage, Lien, lease, agreement, indenture, or instrument to which Parent or any regulations issued pursuant theretoof its Subsidiaries is a party or which is binding upon it (except to the extent with respect to the foregoing such conflicts, including without limitationviolations, Regulation Ubreaches or defaults could not individually or in the aggregate reasonably be expected to have a Material Adverse Effect), T (b) any material Requirement of Law applicable to Parent or X any of its Domestic Subsidiaries, or (c) the Board certificate or articles of Governors incorporation or bylaws of Parent or any of its Domestic Subsidiaries. Each borrowing of a Loan and issuance of a Letter of Credit or Credit Support and each delivery by the Federal Reserve System (12 CFR 221, 207, 220 Borrower of a Borrowing Base Certificate constitutes a representation and 224, respectively) warranty by the Borrower and Borrower does not own or intend to purchase or carry any “margin security,” as defined in such Regulations;
(R) Except as set forth on Schedule 6.1(R)Parent that, as of the date of such borrowing, issuance or delivery, as the case may be, the financial accommodations provided to the Borrower under this Agreement such Borrower has no Subsidiaries and does do not own an equity interest in any other Person;
(S) Such Borrower has no knowledge of any fact or circumstance which would impair the validity or collectibility of any material amount of its Accounts or General Intangibles;
(T) None as of such Borrower’s Collateral has been pledged or sold date violate the borrowing limits set forth in (i) with respect to any other Person such borrowing, issuance or otherwise encumbereddelivery made on or prior to the payment or redemption in full of the Senior Subordinated Notes, such Borrower is the owner of its Collateral free of all Liens and encumbrances except those of Agent and except for the Permitted Liens and no financing statement has been filed concerning the Collateral, except any filed on behalf of Agent and those indenture relating to Permitted Liens;
the Senior Subordinated Notes (U) To the best of such Borrower’s knowledge, each property (including underlying ground water), operation and facility that such Borrower operates or controls is in compliance with all statutes, judicial or administrative orders, licenses, permits and governmental rules and regulations applicable to them, including, without limitation, Environmental Laws, the noncompliance with which is reasonably likely to have a Material Adverse Effect on the financial condition, continued operations or Property of such Borrower;
(V) Such Borrower possesses adequate copyrights, patents, trademarks, trade secrets and computer software to conduct its business and all such intellectual property (other than computer software and trade secrets) in the possession of such Borrower as of the date Closing Date is, with respect to the revolving line of this Agreement is listed on Schedule 6.1(V); and
credit portion of the Total Facility, 80% of the Borrower's accounts not more than 60 days past due plus 50% of the Borrower's inventory, each calculated in accordance with GAAP, (Was provided in clause (a) Neither such Borrower nor any Affiliate of the second paragraph of Section 4.09 of such Borrower is indenture) and, with respect to the Term Loans, $25,000,000 (as provided in clauses (c) and (e) of the second paragraph of Section 4.09 of such indenture), (ii) with respect to any way associated such borrowing, issuance or delivery made on or after the consummation of the Xxxxx/Cup Merger and prior to the payment or redemption in full of the Xxxxx Senior Subordinated Notes, the indenture relating to the Xxxxx Senior Subordinated Notes and (iii) with respect to any such borrowing, issuance or related delivery made on or after the issuance of the Senior Replacement Notes (if issued), the indenture relating to The Lake Group, Inc., d/b/a Pacific Direct, Lake Graphics and Elan Resources, which filed bankruptcy in the Northern District of California Case No. 93-30351Senior Replacement Notes.
Appears in 1 contract
Samples: Loan and Security Agreement (Sweetheart Holdings Inc \De\)
GENERAL WARRANTIES AND REPRESENTATIONS. Each Borrower warrants We warrant and represents to Agent and Lenders represent that:
(A) (i) ModusLink is a corporation We are duly organized, validly organized and existing and in good standing under the laws of the Formation State of Delaware set forth on the Term Sheet, are qualified to do business and its state issued organizational identification number is 2831732, (ii) SalesLink is a limited liability company duly organized, validly existing and are in good standing under the laws of the State of Delaware and its state issued organizational identification number is 2721217 and (iii) SalesLink Mexico is a corporation duly organized, existing and in good standing under the laws of the state of Delaware and its state issued organizational number is 3111152. Each Borrower is qualified or licensed as a foreign corporation to do business in all other states in which the laws thereof require such Borrower qualification and good standing are necessary in order for us to be so qualified or licensed except where a lack of such qualification or licensing will not conduct our business and own our property and have a Material Adverse Effect on the all requisite power and authority to conduct our business, operations or financial condition to own our property and to execute, deliver and perform all of such Borrowerour Obligations;
(B) Such Borrower has not usedWe have not, during the preceding five (5) year period preceding the date of this Agreementyears, and been known by or used any other Assumed Names or Trade Names other than as set forth on the date hereof does not intend to use, any other corporate or fictitious name, except as disclosed in Schedule 6.1(B)Term Sheet;
(C) Such Borrower has the right and power and is duly authorized and empowered to enter into, execute, deliver and perform this Agreement and the Ancillary Agreements;
(D) The execution, delivery and performance by such Borrower us of this Agreement and the Ancillary Agreements shall not, by its execution or performance, the lapse of time, the giving of notice or otherwise, will not constitute a violation of any applicable lawlaw or of our Articles or Certificate of Incorporation, rule, regulation, judgment, order By-Laws or decree applicable to such Borrower or its assets or constitute a breach of any provision contained in such Borrower’s charter or by-laws or contained in any material agreement, instrument, indenture or other document to which such Borrower is now we are a party or by which it or any bound;
(D) We possess adequate assets, licenses, patents, patent applications, copyrights, trademarks, trademark applications, and tradenames for the conduct of its property is boundour business;
(E) Such Borrower’s use of the proceeds of any advances made by each Lender hereunder areExcept as previously disclosed to you, and will continue to be, legal and proper corporate uses (duly authorized by its board of directors, in accordance with any applicable law, rule or regulation) and such uses are consistent with all applicable laws, rules and regulations, as in effect as of the date hereof;
(F) Such Borrower has, and is current and in good standing with respect to, all material governmental approvals, permits, certificates, inspections, consents and franchises necessary to conduct and to continue to conduct its business and its intended business and to own or lease and operate its properties as now owned or leased and operated by it;
(G) None of such approvals, permits, certificates, consents or franchises contains any term, provision, condition or limitation more burdensome than such as are generally applicable to Persons engaged in the same or similar business as such Borrower;
(H) Such Borrower now has we have capital sufficient to carry on its business conduct our business, are solvent and transactions and all businesses and transactions in which it is about to engage and is now able to pay its our debts as they mature and such Borrower now owns own property the having a fair saleable value of which is greater than the amount required to pay such Borrower’s our debts;
(IF) Except as disclosed in the Financials, (i) there is no litigation, suit, action, proceeding, inquiry or investigation pending or, to the best of such Borrower’s knowledge, threatened against such Borrower which if unfavorably determined would materially adversely affect the transactions contemplated hereby, or such Borrower’s property, assets, operations or condition (financial or otherwise) (except as shown on Financials and on Schedule 6.1(I)) and (ii) such Borrower has no Indebtedness and has not guaranteed the obligations of any other Person (except for Permitted Debt);
(i) There are no strikes, work stoppages, labor disputes decertification petitions, union organizing efforts, grievances or other claims pending or, to such Borrower’s knowledge, threatened in writing, between such Borrower and any of its employees, other than employee grievances trade payables arising in the ordinary course of our business whichand except as heretofore disclosed to you in writing, in we have (i) no pending or threatened litigation, actions or proceedings which would materially and adversely affect our business assets, operations or condition, financial or otherwise, or the aggregate, would not have a Material Adverse Effect on such Borrower Collateral and (ii) to the best of such Borrower’s knowledge, such Borrower has no obligation under any collective bargaining agreement or any material employment agreement. To such Borrower’s knowledge, there is no organizing activity pending or threatened in writing by any labor union or group of employees. There are no representation proceedings pending or threatened with the National Labor Relations Board or other applicable governmental authority, and no labor organization or group of employees has made a pending demand for recognition. There are no material complaints or charges pending or, to such Borrower’s knowledge, threatened to be filed with any governmental authority or arbitrator based on, arising out of, in connection with or otherwise relating to the employment or termination of employment by such Borrower of any individual or group of individuals which, if decided adversely to such Borrower, would have a Material Adverse Effect on such BorrowerIndebtedness;
(KG) Such Borrower has We have good, indefeasible indefeasible, and merchantable title to and ownership of its the Collateral, free and clear of all Liens, claims, there is no lien or encumbrance thereon other than the security interests and other encumbrances, except those of Agent interest granted to you and Permitted LiensLiens as set forth on the Term Sheet;
(LH) Such Borrower We are not a party to any contract, or subject to any charge, corporate restriction, judgment, decree or order materially and adversely affecting our business, assets, operations or condition, financial or otherwise, and are not subject to any labor dispute; and, no labor contract is scheduled to expire during the term of this Agreement, except as heretofore disclosed to you in writing;
(I) We are not in violation of any applicable statute, rule, regulation or ordinance of any governmental entity, including, without limitation, the Xxxxxx Xxxxxx xx Xxxxxxx, any state, city, town, municipality, county or of any other jurisdiction, or of any agency thereofordinance, in any respect materially and adversely affecting the Collateral or such Borrower’s our business, property, assets, operations or condition, financial or otherotherwise;
(MJ) Such Borrower is Except for the indebtedness which has been previously disclosed to you, we are not in default under with respect to any note, indenture, loan agreement, mortgage, material lease, trust deed, deed of trust or other similar agreement relating to the borrowing of monies to which it is we are a party or by which it or any of its Property is bound;
(NK) The Financials financial statements delivered to you fairly present in all material respects the assets, liabilities and our financial condition and results of operations and those of such Borrower and such other Persons as are described therein as of the stated datesdate thereof; there are no omissions or other facts or circumstances which are or may be material and there (i) has been no material and adverse change in the assets, liabilities such financial condition or financial or other condition of such Borrower or any such Person operations since the date of the Financials and (ii) exists no equity or long term investments in or outstanding advances to any Person not reflected in the Financialsstatements;
(OL) No Borrower has We have received a no notice to the effect that it is we are not in full compliance with any of the requirements of ERISA the Employee Retirement Income Security Act of 1974, as amended, ("ERISA") and the its regulations promulgated thereunder and, to the best of its our knowledge, there exists no event described in Section 4043 of ERISA, excluding subsections 4043(b)(2) and 4043(b)(3) thereof, with respect to us;
(a “Reportable Event”)M) We have filed all tax returns and other reports we are required by law to file and have paid all taxes and similar charges that are due and payable;
(N) Our Chief Executive Office, Principal Place of Business and the Location of Collateral Records is at the location set forth on the Term Sheet;
(O) We have not received any notice alleging and are not aware of any facts indicating any material noncompliance with any State or Federal law governing the use, generation, storage or release of any hazardous waste or substance;
(P) Such Borrower has filed all federalWe have no Subsidiaries or Affiliates other than as set forth on the Term Sheet. To the extent any subsidiary or affiliate is shown on the Term Sheet, state and local tax returns and other reports (taking into account any extension neither the assets or chief executive office of time to file granted to such subsidiary or obtained on behalf affiliate is located at one or more of Borrower), or has been included our locations specified in consolidated returns or reports filed by an Affiliate, which such Borrower is required by law, rule or regulation to file and all Charges that are due and payable have been paid, except for Charges being contested in good faith and for which adequate reserves are being maintainedParagraph 7(N) hereof;
(Q) Such Borrower’s execution and delivery of this Agreement and the Ancillary Agreements We do not directly or indirectly violate or result in own any violation of the Securities Exchange Act of 1934, as amended, or any regulations issued pursuant thereto, including without limitation, Regulation U, T or X of the Board of Governors of the Federal Reserve System (12 CFR 221, 207, 220 and 224, respectively) and Borrower does not own or intend to purchase or carry any “margin security,” as defined in such Regulations;properties on which Collateral is located; and
(R) Except as All Collateral which is tangible personal property is kept only at the Collateral Locations set forth on Schedule 6.1(R), as of the date of this Agreement such Borrower has no Subsidiaries and does not own an equity interest in any other Person;
(S) Such Borrower has no knowledge of any fact or circumstance which would impair the validity or collectibility of any material amount of its Accounts or General Intangibles;
(T) None of such Borrower’s Collateral has been pledged or sold to any other Person or otherwise encumbered, such Borrower is the owner of its Collateral free of all Liens and encumbrances except those of Agent and except for the Permitted Liens and no financing statement has been filed concerning the Collateral, except any filed on behalf of Agent and those relating to Permitted Liens;
(U) To the best of such Borrower’s knowledge, each property (including underlying ground water), operation and facility that such Borrower operates or controls is in compliance with all statutes, judicial or administrative orders, licenses, permits and governmental rules and regulations applicable to them, including, without limitation, Environmental Laws, the noncompliance with which is reasonably likely to have a Material Adverse Effect on the financial condition, continued operations or Property of such Borrower;
(V) Such Borrower possesses adequate copyrights, patents, trademarks, trade secrets and computer software to conduct its business and all such intellectual property (other than computer software and trade secrets) in the possession of such Borrower as of the date of this Agreement is listed on Schedule 6.1(V); and
(W) Neither such Borrower nor any Affiliate of such Borrower is in any way associated with or related to The Lake Group, Inc., d/b/a Pacific Direct, Lake Graphics and Elan Resources, which filed bankruptcy in the Northern District of California Case No. 93-30351Term Sheet.
Appears in 1 contract
GENERAL WARRANTIES AND REPRESENTATIONS. Each Borrower warrants and represents to Agent and Lenders that:
(A) (i) ModusLink is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and its state issued organizational identification number is 2831732, (ii) SalesLink is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware and its state issued organizational identification number is 2721217 and (iii) SalesLink Mexico is a corporation duly organized, existing and in good standing under the laws of the state of Delaware and its state issued organizational number is 3111152. Each Borrower is qualified or licensed as a foreign corporation to do business in all other states in which the laws thereof require such Borrower to be so qualified or licensed except where a lack of such qualification or licensing will not have a Material Adverse Effect material adverse effect on the business, operations or financial condition of such Borrower;
(B) Such Borrower has not used, during the five (5) year period preceding the date of this Agreement, and on the date hereof does not intend to use, any other corporate or fictitious name, except as disclosed in Schedule 6.1(B);
(C) Such Borrower has the right and power and is duly authorized and empowered to enter into, execute, deliver and perform this Agreement and the Ancillary Agreements;
(D) The execution, delivery and performance by such Borrower of this Agreement and the Ancillary Agreements shall not, by its execution or performance, the lapse of time, the giving of notice or otherwise, constitute a violation of any applicable law, rule, regulation, judgment, order or decree applicable to such Borrower or its assets or constitute a breach of any provision contained in such Borrower’s charter or by-laws or contained in any material agreement, instrument, indenture or other document to which such Borrower is now a party or by which it or any of its property is bound;
(E) Such Borrower’s use of the proceeds of any advances made by each Lender hereunder are, and will continue to be, legal and proper corporate uses (duly authorized by its board of directors, in accordance with any applicable law, rule or regulation) and such uses are consistent with all applicable laws, rules and regulations, as in effect as of the date hereof;
(F) Such Borrower has, and is current and in good standing with respect to, all material governmental approvals, permits, certificates, inspections, consents and franchises necessary to conduct and to continue to conduct its business and its intended business and to own or lease and operate its properties as now owned or leased and operated by it;
(G) None of such approvals, permits, certificates, consents or franchises contains any term, provision, condition or limitation more burdensome than such as are generally applicable to Persons engaged in the same or similar business as such Borrower;
(H) Such Borrower now has capital sufficient to carry on its business and transactions and all businesses and transactions in which it is about to engage and is now able to pay its debts as they mature and such Borrower now owns property the fair saleable value of which is greater than the amount required to pay such Borrower’s debts;
(I) Except as disclosed in the Financials, (i) there is no litigation, suit, action, proceeding, inquiry or investigation pending or, to the best of such Borrower’s knowledge, threatened against such Borrower which if unfavorably determined would materially adversely affect the transactions contemplated hereby, or such Borrower’s property, assets, operations or condition (financial or otherwise) (except as shown on Financials and on Schedule 6.1(I)) and (ii) such Borrower has no Indebtedness and has not guaranteed the obligations of any other Person (except for Permitted Debt);
(i) There are no strikes, work stoppages, labor disputes decertification petitions, union organizing efforts, grievances or other claims pending or, to such Borrower’s knowledge, threatened in writing, between such Borrower and any of its employees, other than employee grievances arising in the ordinary course of business which, in the aggregate, would not have a Material Adverse Effect material adverse effect on such Borrower and (ii) to the best of such Borrower’s knowledge, such Borrower has no obligation under any collective bargaining agreement or any material employment agreement. To such Borrower’s knowledge, there is no organizing activity pending or threatened in writing by any labor union or group of employees. There are no representation proceedings pending or threatened with the National Labor Relations Board or other applicable governmental authority, and no labor organization or group of employees has made a pending demand for recognition. There are no material complaints or charges pending or, to such Borrower’s knowledge, threatened to be filed with any governmental authority or arbitrator based on, arising out of, in connection with or otherwise relating to the employment or termination of employment by such Borrower of any individual or group of individuals which, if decided adversely to such Borrower, would have a Material Adverse Effect material adverse effect on such Borrower;
(K) Such Borrower has good, indefeasible and merchantable title to and ownership of its Collateral, free and clear of all Liens, claims, security interests and other encumbrances, except those of Agent and Permitted Liens;
(L) Such Borrower is not in violation of any applicable statute, rule, regulation or ordinance of any governmental entity, including, without limitation, the Xxxxxx Xxxxxx xx XxxxxxxUnited States of America, any state, city, town, municipality, county or of any other jurisdiction, or of any agency thereof, in any respect materially and adversely affecting the Collateral or such Borrower’s business, property, assets, operations or condition, financial or other;
(M) Such Borrower is not in default under any indenture, loan agreement, mortgage, material lease, trust deed, deed of trust or other similar agreement relating to the borrowing of monies to which it is a party or by which it or any of its Property is bound;
(N) The Financials fairly present in all material respects the assets, liabilities and financial condition and results of operations of such Borrower and such other Persons as are described therein as of the stated dates; there are no omissions or other facts or circumstances which are or may be material and there (i) has been no material and adverse change in the assets, liabilities or financial or other condition of such Borrower or any such Person since the date of the Financials and (ii) exists no equity or long term investments in or outstanding advances to any Person not reflected in the Financials;
(O) No Borrower has received a notice to the effect that it is not in full compliance with any of the requirements of ERISA and the regulations promulgated thereunder and, to the best of its knowledge, there exists no event described in Section 4043 of ERISA, excluding subsections 4043(b)(2) and 4043(b)(3) (a “Reportable Event”);
(P) Such Borrower has filed all federal, state and local tax returns and other reports (taking into account any extension of time to file granted to or obtained on behalf of Borrower), or has been included in consolidated returns or reports filed by an Affiliate, which such Borrower is required by law, rule or regulation to file and all Charges that are due and payable have been paid, except for Charges being contested in good faith and for which adequate reserves are being maintained;
(Q) Such Borrower’s execution and delivery of this Agreement and the Ancillary Agreements do not directly or indirectly violate or result in any violation of the Securities Exchange Act of 1934, as amended, or any regulations issued pursuant thereto, including without limitation, Regulation U, T or X of the Board of Governors of the Federal Reserve System (12 CFR 221, 207, 220 and 224, respectively) and Borrower does not own or intend to purchase or carry any “margin security,” as defined in such Regulations;
(R) Except as set forth on Schedule 6.1(R), as of the date of this Agreement such Borrower has no Subsidiaries and does not own an equity interest in any other Person;
(S) Such Borrower has no knowledge of any fact or circumstance which would impair the validity or collectibility of any material amount of its Accounts or General Intangibles;
(T) None of such Borrower’s Collateral has been pledged or sold to any other Person or otherwise encumbered, such Borrower is the owner of its Collateral free of all Liens and encumbrances except those of Agent and except for the Permitted Liens and no financing statement has been filed concerning the Collateral, except any filed on behalf of Agent and those relating to Permitted Liens;
(U) To the best of such Borrower’s knowledge, each property (including underlying ground water), operation and facility that such Borrower operates or controls is in compliance with all statutes, judicial or administrative orders, licenses, permits and governmental rules and regulations applicable to them, including, without limitation, Environmental Laws, the noncompliance with which is reasonably likely to have a Material Adverse Effect material adverse effect on the financial condition, continued operations or Property of such Borrower;
(V) Such Borrower possesses adequate copyrights, patents, trademarks, trade secrets and computer software to conduct its business and all such intellectual property (other than computer software and trade secrets) in the possession of such Borrower as of the date of this Agreement is listed on Schedule 6.1(V); and
(W) Neither such Borrower nor any Affiliate of such Borrower is in any way associated with or related to The Lake Group, Inc., d/b/a Pacific Direct, Lake Graphics and Elan Resources, which filed bankruptcy in the Northern District of California Case No. 93-30351.
Appears in 1 contract
GENERAL WARRANTIES AND REPRESENTATIONS. Each Borrower warrants Borrowers, jointly and represents severally, warrant and represent to Agent and Lenders each Lender that:
(A) (i) ModusLink is a corporation Borrowers and each of their respective Subsidiaries are corporations duly organized, organized and validly existing and in good standing under the laws of the State of Delaware and its state issued organizational identification number is 2831732, (ii) SalesLink is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware and its state issued organizational identification number is 2721217 and (iii) SalesLink Mexico is a corporation duly organized, existing and in good standing under the laws of the state of Delaware their respective incorporation and its state issued organizational number is 3111152. Each Borrower is are qualified or licensed as a foreign corporation to do business in all other states in which any state where the laws thereof require such Borrower failure to be so qualified or licensed except where a lack of such qualification or licensing will not could reasonably be expected to have a Material Adverse Effect on the business, operations or financial condition of such BorrowerEffect;
(B) Such Borrower has not used, during the five (5) year period preceding the date of this Agreement, and on the date hereof does not intend to use, any other corporate or fictitious name, except as disclosed in Schedule 6.1(B);
(C) Such Borrower has Borrowers have the right and power and is are duly authorized and empowered to enter into, execute, deliver and perform this Agreement and the Ancillary AgreementsAgreements and this Agreement and the Ancillary Agreements when duly executed and delivered will be legal, valid and binding obligations of Borrowers enforceable in accordance with their terms except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or the application of general equitable principles;
(DC) The execution, delivery and performance by such Borrower Borrowers of this Agreement and the Ancillary Agreements shall not, by its their execution or performance, the lapse passing of time, the giving of notice or otherwise, constitute a violation of any applicable law, rule, regulation, judgment, order or decree applicable to such Borrower or its assets enforceable against Borrowers or constitute a breach of any provision contained in such Borrower’s charter Borrowers’ certificate of incorporation or by-laws bylaws or contained in any material agreement, instrument, indenture or other document to which such Borrower is Borrowers are now a party or by which it or any of its their property is bound;
(ED) Such Borrower’s Borrowers’ use of the proceeds of any advances made by each such Lender hereunder are, and will continue to be, legal and proper corporate uses (duly authorized by its board of directors, in accordance with any applicable law, rule or regulation) and such uses are consistent with all applicable laws, rules and regulations, as in effect as of the date hereof;
(FE) Such Borrower has, Borrowers and is current and in good standing with respect to, all material governmental approvals, permits, certificates, inspections, consents and franchises necessary to conduct and to continue to conduct its business and its intended business and to own or lease and operate its properties as now owned or leased and operated by it;
each of their respective Subsidiaries upon Closing has (Gi) None of such approvals, permits, certificates, consents or franchises contains any term, provision, condition or limitation more burdensome than such as are generally applicable to Persons engaged in the same or similar business as such Borrower;
(H) Such Borrower now has capital sufficient to carry on its business and transactions and all businesses and transactions in which it is about to engage and is now solvent and able to pay its debts as they mature and such Borrower now owns property Borrowers and each of their respective Subsidiaries own property, the fair saleable value of which is greater than the amount required to pay Borrowers’ or such Borrowerother Person’s debtsdebts and (ii) good, indefeasible and merchantable title to and ownership of its assets free and clear of all Liens, other than Permitted Liens;
(IF) (i) Except as disclosed in the Financialson Schedule 5.1(F), (i) there is no litigation, suit, action, proceeding, inquiry or investigation pending or, to the best of such Borrower’s knowledgeBorrowers’ Knowledge, threatened against such Borrower Borrowers or any of their respective Subsidiaries which if unfavorably determined would materially adversely affect the transactions contemplated hereby, or such BorrowerPerson’s property, prospects, assets, operations or condition (financial or otherwise) (except as shown on Financials and on Schedule 6.1(I)) and (ii) such Borrower has no neither Borrowers nor any of their respective Subsidiaries have any Indebtedness and has have not guaranteed the obligations of any other Person (except for other than Permitted Debt);
(iG) There Borrowers and each of their respective Subsidiaries are no strikes, work stoppages, labor disputes decertification petitions, union organizing efforts, grievances or other claims pending ornot, to such Borrower’s knowledgeBorrowers’ Knowledge, threatened in writing, between such Borrower and any of its employees, other than employee grievances arising in the ordinary course of business which, in the aggregate, would not have a Material Adverse Effect on such Borrower and (ii) to the best of such Borrower’s knowledge, such Borrower has no obligation under any collective bargaining agreement or any material employment agreement. To such Borrower’s knowledge, there is no organizing activity pending or threatened in writing by any labor union or group of employees. There are no representation proceedings pending or threatened with the National Labor Relations Board or other applicable governmental authority, and no labor organization or group of employees has made a pending demand for recognition. There are no material complaints or charges pending or, to such Borrower’s knowledge, threatened to be filed with any governmental authority or arbitrator based on, arising out of, in connection with or otherwise relating to the employment or termination of employment by such Borrower of any individual or group of individuals which, if decided adversely to such Borrower, would have a Material Adverse Effect on such Borrower;
(K) Such Borrower has good, indefeasible and merchantable title to and ownership of its Collateral, free and clear of all Liens, claims, security interests and other encumbrances, except those of Agent and Permitted Liens;
(L) Such Borrower is not in violation of any applicable statute, rule, regulation or ordinance of any governmental entity, including, without limitation, the Xxxxxx Xxxxxx xx XxxxxxxUnited States of America, any state, city, town, municipality, county or of any other jurisdiction, or of any agency thereof, in any respect materially and adversely affecting the Collateral or such Borrower’s business, property, assets, operations or condition, financial or otherwhich violation would reasonably be expected to have a Material Adverse Effect;
(MH) Such Borrower is Except as disclosed on Schedule 5.1(H), Borrowers and each of their respective Subsidiaries are not in default under any indenture, loan agreement, mortgage, material lease, trust deed, deed of trust or other similar agreement relating to the borrowing of monies to which it is they are a party or by which it they or any of its Property their property is bound;
(NI) The Financials fairly present Borrowers and each of their respective Subsidiaries are in compliance in all material respects the assets, liabilities and financial condition and results of operations of such Borrower and such other Persons as are described therein as of the stated dates; there are no omissions or other facts or circumstances which are or may be material and there (i) has been no material and adverse change in the assets, liabilities or financial or other condition of such Borrower or any such Person since the date of the Financials and (ii) exists no equity or long term investments in or outstanding advances to any Person not reflected in the Financials;
(O) No Borrower has received a notice to the effect that it is not in full compliance with any of the requirements of ERISA and the regulations promulgated thereunder and, to the best of its knowledgetheir Knowledge, there exists no event described in Section 4043 of ERISA, excluding subsections 4043(b)(2) and 4043(b)(3) (a “Reportable Event”);
(PJ) Such Borrower has Borrowers and each of their respective Subsidiaries have filed all federal, state and local tax returns and other reports (taking into account any extension of time to file granted to or obtained on behalf of Borrower)reports, or has been included in consolidated returns or reports filed by an Affiliate, which such Borrower Person is required by law, rule or regulation to file and all material Charges that are due and payable have been paid, except for Charges being contested in good faith and for which adequate reserves are being maintainedany failures that would not reasonably be expected to have a Material Adverse Effect;
(QK) Such Borrower’s Borrowers’ execution and delivery of this Agreement and the Ancillary Agreements do not directly or indirectly violate or result in any violation by Borrowers of the Securities Exchange Act of 1934, as amended, amended or any regulations issued pursuant theretothereto (the “Exchange Act”), including without limitation, Regulation U, T or X of the Board of Governors of the Federal Reserve System (12 CFR 221, 207, 220 and 224, respectively) and Borrower does Borrowers do not own or intend to purchase or carry any “margin security,” as defined in such Regulationsregulations;
(RL) Except as set forth on Schedule 6.1(R5.1(L), as of the date of this Agreement such Borrower has Borrowers have no Subsidiaries and does do not own an equity interest in any other Person;
(S) Such Borrower has no knowledge of any fact or circumstance which would impair the validity or collectibility of any material amount of its Accounts or General Intangibles;
(T) None of such Borrower’s Collateral has been pledged or sold to any other Person or otherwise encumbered, such Borrower is the owner of its Collateral free of all Liens and encumbrances except those of Agent and except for the Permitted Liens and no financing statement has been filed concerning the Collateral, except any filed on behalf of Agent and those relating to Permitted Liens;
(UM) To the best Borrowers’ Knowledge, Borrowers, each of such Borrower’s knowledge, their respective Subsidiaries and each property (including underlying ground water), operation and facility that such Borrower Borrowers or any of their respective Subsidiaries operates or controls is are in compliance with all statutes, judicial or administrative orders, licenses, permits and governmental rules and regulations applicable to them, including, without limitation, Environmental Laws, the noncompliance with which is would be reasonably likely to have a Material Adverse Effect on the financial condition, continued operations or Property of such BorrowerEffect;
(VN) Such Borrower possesses Borrowers possess adequate copyrights, patents, trademarks, trade secrets and computer software to conduct its business their businesses as currently conducted and all such intellectual property (other than computer software and trade secrets) in the possession of such Borrower Borrowers as of the date of this Agreement is are listed on Schedule 6.1(V5.1(N);
(O) Borrowers do not currently have any “rights plan” or other similar poison pill agreement that would in any way restrict any Lender or affiliate of any Lender from purchasing or owning shares of Borrowers’ capital stock; and
(WP) Neither Each of the documents filed by any Borrower with the U.S. Securities and Exchange Commission (“SEC”) complied when filed with all of the requirements of the Securities Act of 1933, as amended, and the Exchange Act, as applicable, and did not contain any untrue statement of a material fact or omit to state any material fact required to be contained therein or necessary in order to make the statements therein not misleading. The pro forma financial statements and projections delivered to Lenders were prepared in good faith and were based upon assumptions made in good faith with reasonable basis therefor. Notwithstanding the foregoing, Borrowers make no representations and warranties as to the accuracy of the projections stated therein except as expressly set forth herein.
(Q) The Form 10-KSB filed by i2 Telecom(WA) on March 31, 2005 and the Form 10-KSB/A filed by i2 Telecom(WA) on July 13, 2005 contains consolidated balance sheets of i2 Telecom(WA) and its consolidated Subsidiaries, and the consolidated statements of income, stockholders’ equity, and cash flows of i2 Telecom(WA) and its consolidated Subsidiaries for each of the two years ended December 31, 2003 and December 31, 2004, including notes thereto, and the opinion of Xxxxxxxx & Xxxxxxxx, independent certified public accountants, with respect to such Borrower nor any Affiliate financial statements. The quarterly report on Form 10-QSB filed by i2 Telecom(WA) on August 15, 2005 contains the unaudited consolidated balance sheet of i2 Telecom(WA) and its consolidated Subsidiaries at, and the unaudited consolidated statements of income, stockholders’ equity, and cash flows of i2 Telecom(WA) and its consolidated Subsidiaries for the period ended, June 30, 2005. All of the foregoing financial statements are complete and correct in all material respects and fairly present in all material respects the consolidated financial condition of i2 Telecom(WA) and its consolidated Subsidiaries at the respective dates of said balance sheets and the consolidated results of operations of i2 Telecom(WA) and its consolidated Subsidiaries for the respective periods covered thereby. Such financial statements have been prepared in accordance with Regulation S-X promulgated by the SEC in all material respects applied on a consistent basis throughout the periods involved (except as otherwise noted therein). There were no material liabilities, direct or indirect, fixed or contingent, of i2 Telecom(WA) and its consolidated Subsidiaries as of the respective dates of such Borrower is in any way associated with balance sheets that are not reflected therein or related to The Lake Group, Inc., d/b/a Pacific Direct, Lake Graphics and Elan Resources, which filed bankruptcy in the Northern District of California Case No. 93-30351notes thereto.
Appears in 1 contract
Samples: Loan and Security Agreement (I2 Telecom International Inc)
GENERAL WARRANTIES AND REPRESENTATIONS. Each Borrower warrants and represents to Agent and Lenders that:
(A) (i) ModusLink Borrower is a corporation duly organized, organized and validly existing and in good standing under the laws of the State of Delaware and its state issued organizational identification number is 2831732, (ii) SalesLink is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware and its state issued organizational identification number is 2721217 and (iii) SalesLink Mexico is a corporation duly organized, existing and in good standing under the laws of the state of Delaware its incorporation, and its state issued organizational number is 3111152. Each Borrower is qualified or licensed as a foreign corporation to do business in all other countries, states and provinces in which the laws thereof require such Borrower to be so qualified or licensed except and where a lack of such qualification or licensing will not failure to qualify would have a Material Adverse Effect material adverse affect on Borrower's business or the business, operations or financial condition of such BorrowerCollateral;
(B) Such Borrower has not used, during the five (5) year period preceding the date of this Agreement, and on the date hereof does not intend to use, any other corporate or fictitious name, except as disclosed in Schedule 6.1(B)Exhibit D attached hereto or as hereinafter disclosed in writing;
(C) Such Borrower has the right and power and is duly authorized and empowered to enter into, execute, deliver and perform this Agreement and the Ancillary Agreements;
(D) The execution, delivery and performance by such Borrower of this Agreement and the Ancillary Agreements shall not, by its their execution or performance, the lapse of time, the giving of notice or otherwise, constitute a violation of any applicable law, rule, regulation, judgment, order or decree applicable to such Borrower or its assets or constitute a breach of any provision contained in such Borrower’s 's charter documents or by-laws or contained in any material agreement, instrument, indenture or other document to which such Borrower is now a party or by which it or any of its property is bound, except where such breach will not have a material adverse effect on Borrower's business or the Collateral;
(E) Such Borrower’s 's use of the proceeds of any advances made by each Lender hereunder are, and will continue to be, legal and proper corporate uses (duly authorized by its board of directors, in accordance with any applicable law, rule or regulation) and such uses are consistent with all applicable laws, rules and regulations, as in effect as of the date hereof;; 24
(F) Such Borrower has, and is current and in good standing with respect to, all material governmental approvals, permits, certificates, inspections, consents and franchises necessary to conduct and to continue to conduct its business present and its intended business as heretofore conducted by it and to own or lease and operate its properties as now owned or leased and operated by it;
(G) None of such said approvals, permits, certificates, consents or franchises contains any term, provision, condition or limitation more burdensome than such as are generally applicable to Persons engaged in the same or similar business as such Borrower;
(H) Such Borrower now has capital sufficient to carry on its business and transactions and all businesses and transactions in which it is about to engage and is now solvent and able to pay its debts as they mature and such Borrower now owns property the fair saleable value of which is greater than the amount required to pay such Borrower’s 's debts;
(I) Except as disclosed on Exhibit E attached hereto and in the FinancialsFinancials or as hereinafter disclosed in writing, (i) there is Borrower has no litigationlitigation pending, suit, action, proceeding, inquiry or investigation pending or, to the best of such Borrower’s its knowledge, threatened against such Borrower which if unfavorably determined would materially adversely affect the transactions contemplated herebythreatened, or such Borrower’s property, assets, operations or condition (financial or otherwise) and no Indebtedness (except as for the Indebtedness shown on Financials Exhibit I or as hereinafter disclosed in writing and on Schedule 6.1(I)trade payable arising in the ordinary course of its business since the dates reflected in the Financials) and (ii) such Borrower has no Indebtedness and has not guaranteed the obligations of any other Person (except for Permitted Debt)Person;
(J) Borrower (i) There are no strikesis not a party to any contract or agreement or subject to any charge, work stoppagesrestriction, judgment, decree or order materially and adversely affecting its business, property, assets, operations or condition, financial or other, and is not a party to any labor disputes decertification petitions, union organizing efforts, grievances or other claims pending or, to such Borrower’s knowledge, threatened in writing, between such Borrower and any of its employees, other than employee grievances arising in the ordinary course of business which, in the aggregate, would not have a Material Adverse Effect on such Borrower dispute; and (ii) there are no lockouts, strikes or walkouts relating to the best of such Borrower’s knowledge, such Borrower has no obligation under any collective bargaining agreement or any material employment agreement. To such Borrower’s knowledge, there is no organizing activity pending or threatened in writing by any labor union or group of employees. There are no representation proceedings pending or threatened with the National Labor Relations Board or other applicable governmental authority, contracts and no labor organization such contract is scheduled to expire during the Term; except as to (i) and (ii) as are disclosed on Exhibit F attached hereto or group of employees has made a pending demand for recognition. There are no material complaints or charges pending or, as hereinafter disclosed to such Borrower’s knowledge, threatened to be filed with any governmental authority or arbitrator based on, arising out of, Lender in connection with or otherwise relating to the employment or termination of employment by such Borrower of any individual or group of individuals which, if decided adversely to such Borrower, would have a Material Adverse Effect on such Borrowerwriting;
(K) Such Borrower has good, indefeasible and merchantable title to and ownership of its Collateral, free and clear of all Liensliens, claims, security interests and other encumbrances, except those of Agent Lender and Permitted Liensthose, if any, described on Exhibit G attached hereto;
(L) Such To the best of its knowledge, Borrower is not in violation of any applicable statute, rule, regulation or ordinance of any governmental entity, including, without limitation, the Xxxxxx Xxxxxx xx XxxxxxxUnited States of America, any state, city, town, municipality, county or of any other jurisdiction, or of any agency thereof, in any respect materially and adversely affecting the Collateral or such Borrower’s 's business, property, assets, operations or condition, financial or other;
(M) Such Borrower is not in default under any indenture, loan agreement, mortgage, material lease, trust deed, deed of trust or other similar agreement relating to the borrowing of monies to which it is a party or by which it or any of its Property is bound;
(N) The Financials fairly present in all material respects the assets, liabilities and financial condition and results of operations of such Borrower and such other Persons as are described therein as of the stated datesdates thereof; there are no omissions or other facts or circumstances which are or may be material and there (i) has been no material and adverse change in the assets, liabilities or financial or other condition of such Borrower or any such Person since the date of the Financials and (ii) exists Financials; there exist no equity or long term investments in or outstanding advances to any Person not reflected in the Financials; there are no actions or proceedings which are pending or, to the best of Borrower's knowledge, threatened, against Borrower or any other Person which might result in any material adverse change in Borrower's financial condition or materially and adversely affect Borrower's operations, its assets or the Collateral;
(O) No Borrower has not received a any notice to the effect that it is not in full compliance with any of the requirements of ERISA and the regulations promulgated thereunder and, to the best of its Borrower's knowledge, there exists no event described in Section 4043 of ERISA, excluding subsections 4043(b)(2) and 4043(b)(3) thereof (a “"Reportable Event”");
(P) Such Borrower has filed all federal, state and local tax returns and other reports (taking into account any extension of time to file granted to or obtained on behalf of Borrower)reports, or has been included in consolidated returns or reports filed by an Affiliate, which such Borrower is required by law, rule or regulation to file and all Charges that are due and payable have been paid, except for Charges being contested in good faith and for which adequate reserves are being maintained;
; (Q) Such Borrower’s The execution and delivery of this Agreement and or any of the Ancillary Agreements by Borrower does do not directly or indirectly violate or result in any violation of the Securities Exchange Act of 1934, as amended, or any regulations issued pursuant thereto, including without limitation, Regulation U, G, T or X of the Board of Governors of the Federal Reserve System (12 CFR 221, 207, 220 and 224, respectively) and Borrower does not own or intend to purchase or carry any “"margin security,” " as defined in such Regulations;
(R) Except as set forth on Schedule 6.1(R)Exhibit J contains a true and complete list of all trademarks, as brand-names, copyrights, patents, patent application in which Borrower has an interest; and
(i) the operations of Borrower, any other obligor and each of Borrower's subsidiaries, if any, comply in all material respects with all applicable Environmental Laws; (ii) none of the date operations of this Agreement such Borrower has no Subsidiaries and does not own an equity interest in Borrower, any other Person;
(S) Such Borrower has no knowledge of obligor or any fact or circumstance which would impair the validity or collectibility of any material amount of its Accounts or General Intangibles;
(T) None of such Borrower’s Collateral has been pledged or sold Subsidiary are subject to any other Person or otherwise encumbered, such Borrower is the owner of its Collateral free of all Liens and encumbrances except those of Agent and except for the Permitted Liens and no financing statement has been filed concerning the Collateral, except any filed on behalf of Agent and those relating to Permitted Liens;
(U) To the best of such Borrower’s knowledge, each property (including underlying ground water), operation and facility that such Borrower operates or controls is in compliance with all statutes, judicial or administrative ordersproceeding alleging the violation of any Environmental laws; (iii) none of the operations of Borrower, licensesany other obligor or any subsidiary are the subject of any federal or state investigation evaluating whether any remedial action is needed to respond to a release of any Hazardous Material into the environment; (iv) none of Borrower, permits any other obligor or any Subsidiary has filed any notice under any federal or state law indicating past or present treatment, storage or disposal of a Hazardous Material or reporting a spill or release of a Hazardous Material into the environment; and governmental rules (v) none of Borrower, any other obligor or any Subsidiary has any known material contingent liability in connection with any release of any Hazardous Material into the environment. The materiality standard used in this Section 9.1(S) shall be exceeded if the facts giving rise to a breach or breaches of the representations or warranties contained herein might result in liability in excess of $50,000 in the aggregate. Borrower hereby indemnifies Lender, its successors and regulations applicable assignees, and agrees to themhold Lender harmless from and against any and all losses, liabilities, damages, injuries, costs, expenses and claims of any and every kind whatsoever (including, without limitation, court costs and attorneys' fees) which at any time or from time to time may be paid, incurred or suffered by, or asserted against, Lender for, with respect to, or as a direct or indirect result of the violation by Borrower, of the Environmental Laws or any laws or regulations relating to Hazardous Material, treatment, storage, disposal, generation and transportation, air, water and noise pollution, soil or ground or water contamination, the handling, storage or release into the environmental of Hazardous Materials; or with respect to, or as a direct or indirect result of the presence on or under, or the escape, seepage, leakage, spillage, discharge, emission or release from, properties utilized by Borrower, any other obligor or any of Borrower's subsidiaries in the conduct of their respective business into or upon any land, the atmosphere, or any watercourse, body of water or wetlands, of any Hazardous Material (including, without limitation, any losses, liabilities, damages, injuries, costs, expenses or claims asserted or arising under the Environmental Laws, ); and the noncompliance with which is reasonably likely to have a Material Adverse Effect on provisions of and undertakings and indemnification set out in this Section 9.1(S) shall survive the financial condition, continued operations or Property of such Borrower;
(V) Such Borrower possesses adequate copyrights, patents, trademarks, trade secrets satisfaction and computer software to conduct its business and all such intellectual property (other than computer software and trade secrets) in the possession of such Borrower as payment of the date Liabilities and the termination of this Agreement is listed on Schedule 6.1(V); and
(W) Neither such Borrower nor any Affiliate of such Borrower is in any way associated with or related to The Lake Group, Inc., d/b/a Pacific Direct, Lake Graphics and Elan Resources, which filed bankruptcy in the Northern District of California Case No. 93-30351Agreement.
Appears in 1 contract
GENERAL WARRANTIES AND REPRESENTATIONS. Each Borrower hereby warrants and represents to Agent Lender that, as of the date of this Agreement and Lenders thatcontinuing as long as any Liabilities remain outstanding (other than contingent indemnification obligations to the extent no unsatisfied claim giving rise thereto has been asserted) and this Agreement remains in effect:
(A) (i) ModusLink 4.1.1 Borrower is a corporation duly organized, organized and validly existing and in good standing under the laws of the State of Delaware and its state issued organizational identification number is 2831732, (ii) SalesLink is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware and its state issued organizational identification number is 2721217 and (iii) SalesLink Mexico is a corporation duly organized, existing and in good standing under the laws of the state of Delaware its incorporation, as represented at the beginning of this Agreement, and its state issued organizational number is 3111152. Each Borrower is qualified or licensed as a foreign corporation to do business in all other countries, states in which and provinces where the laws thereof require such Borrower failure to be so qualified or and/or licensed except where a lack of such qualification or licensing will not would have a Material Adverse Effect material adverse effect on the business, operations or financial condition of such Borrower;
(B) Such 4.1.2 Borrower has not used, during the five (5) year period preceding the date of this Agreement, and on the date hereof does not intend to use, use any other corporate or fictitious namename (other than "Electric City Corp.," "Electric City, except as disclosed in Schedule 6.1(BLLC," "Pice Products Corporation" and "Marino Electric, Inc.");
(C) Such 4.1.3 Borrower has the right and power and is duly authorized and empowered to enter into, execute, deliver and perform this Agreement and the Ancillary Agreements;
(D) 4.1.4 The execution, delivery and performance by such Borrower of this Agreement and the Ancillary Agreements shall not, by its their execution or performance, the lapse of time, the giving of notice or otherwise, constitute a violation of any applicable law, rule, regulation, judgment, order rule or decree applicable to such Borrower regulation or its assets or constitute a breach of any provision contained in such Borrower’s charter 's Articles of Incorporation or by-laws Bylaws or contained in any material agreement, instrument, indenture or other document to which such Borrower is now a party or by which it or any of its property is bound;
(E) Such 4.1.5 Borrower’s use 's uses of the proceeds of any advances and readvances made by each Lender hereunder to Borrower pursuant to this Agreement are, and will continue to be, legal and proper corporate uses (duly authorized by its board Board of directorsDirectors, in accordance with any if necessary pursuant to applicable corporate law, rule or regulation) and such uses are consistent with all applicable laws, rules laws and regulationsstatutes, as in effect as of the date hereof;
(F) Such 4.1.6 To the best of the Borrower's knowledge, Borrower has, and is current and in good standing with respect to, all material governmental approvals, permits, certificates, inspections, consents and franchises necessary to conduct and or to continue to conduct its business and its present or intended business as heretofore conducted by it or in a manner similar to that of the previous owner of the business or of other Persons engaged in the same or similar businesses and to own or lease and operate its properties as now owned or leased and operated by itit or by the previous owner of those properties;
(G) None 4.1.7 To the best of such the Borrower's knowledge, none of said approvals, permits, certificates, consents or franchises contains contain any term, provision, condition or limitation more burdensome than such as are generally applicable to Persons engaged in the same or similar business as such of Borrower;
(H) Such 4.1.8 Borrower now is, and after consummation of the transactions contemplated hereunder shall continue to be, solvent, is and shall continue to be able to pay its debts as they become due and has capital sufficient to carry on its business and transactions and all businesses and transactions in which it is about to engage engage, and is now able to pay its debts as they mature and such Borrower now owns property the having a value both at fair valuation and at present fair saleable value of which is greater than the amount required to pay such Borrower’s its debts, including, without limitation, its Liabilities. Borrower will not be rendered insolvent by the execution and delivery of this Agreement or any Ancillary Agreement, or by completion of the transactions contemplated hereunder or thereunder;
(I) Except 4.1.9 As of the date hereof, except as disclosed in the Financialsset forth on Schedule 4.1.9 hereto, (i) no judgments are outstanding against Borrower, nor is there is no litigation, suit, action, proceeding, inquiry or investigation now pending or, to the best of such Borrower’s knowledge's knowledge after reasonable inquiry, threatened against such Borrower which if unfavorably determined would materially adversely affect the transactions contemplated herebythreatened, any material litigation, contested claim, or such federal, state or municipal governmental proceeding by or against Borrower’s , nor does Borrower, as of the date hereof, have any Indebtedness (except trade payables arising in the ordinary course of its business, the CIB Indebtedness, Ford Indebtedness and Marino Indebtedness) nor has Borrower guaranteed the obligations of any other Person, other than those of a Subsidiary of Borrower;
4.1.10 Borrower is not a party to any contract or agreement or subject to any charge, corporate restrictions, judgment, decree or order materially and adversely affecting its business, property, assets, operations or condition (condition, financial or otherwise) (except as shown on Financials , and on Schedule 6.1(I)) Borrower is not a party to any labor dispute; there are no strikes or walkouts relating to any labor contracts and (ii) no such Borrower has no Indebtedness and has not guaranteed contract is scheduled to expire prior to the obligations maturity of any other Person (portion of the Total Facility, except for Permitted Debt)the labor contract with the International Brotherhood of Electrical Workers which expires in December of 2000;
(i) There are no strikes, work stoppages, labor disputes decertification petitions, union organizing efforts, grievances or other claims pending or, to such Borrower’s knowledge, threatened in writing, between such Borrower and any of its employees, other than employee grievances arising in the ordinary course of business which, in the aggregate, would not have a Material Adverse Effect on such Borrower and (ii) to the best of such Borrower’s knowledge, such Borrower has no obligation under any collective bargaining agreement or any material employment agreement. To such Borrower’s knowledge, there is no organizing activity pending or threatened in writing by any labor union or group of employees. There are no representation proceedings pending or threatened with the National Labor Relations Board or other applicable governmental authority, and no labor organization or group of employees has made a pending demand for recognition. There are no material complaints or charges pending or, to such Borrower’s knowledge, threatened to be filed with any governmental authority or arbitrator based on, arising out of, in connection with or otherwise relating to the employment or termination of employment by such Borrower of any individual or group of individuals which, if decided adversely to such Borrower, would have a Material Adverse Effect on such Borrower;
(K) Such 4.1.11 Borrower has good, indefeasible and merchantable title to and ownership of its Collateral, property free and clear of all Liensliens, claims, security interests and other encumbrancesencumbrances other than the security interest granted to Lender pursuant to the Security Agreement, except those of Agent and the Mortgage and Permitted LiensEncumbrances;
(L) Such 4.1.12 Borrower is not in violation of any applicable statute, rule, regulation or ordinance ordinance, including those pertaining to environmental pollution or disposal or OSHA standards, of any governmental entity, including, without limitation, the Xxxxxx Xxxxxx xx XxxxxxxUnited States of America, any state, city, town, municipality, county or of any other jurisdiction, or of any agency thereof, in any respect materially and adversely affecting the Collateral or such Borrower’s 's business, property, assets, operations or condition, financial or otherotherwise;
(M) Such 4.1.13 Borrower is not in default under any indenture, loan agreement, mortgage, material lease, trust deed, deed of trust or other similar agreement relating to the borrowing of monies to which it is a party or by which it or any of its Property is bound;
(N) 4.1.14 The Financials financial statements which Borrower has supplied Lender prior to execution of this Agreement, fairly present in all material respects the assets, liabilities and financial condition and results of operations of such Borrower and such other Persons as are described therein as of the stated datesdates thereof; there are no omissions or other facts or circumstances which are or may be material to a complete and correct understanding of the information set forth therein; and there (i) has been no material and adverse change in the assets, liabilities or financial or other condition of such Borrower or any such Person since the date dates of the Financials and (ii) exists such documents; there exist no equity or long term investments in or outstanding advances to any Person (except contractual deposits and expense advances in each case made in the ordinary course of business) not reflected in such documents; except as set forth in Schedule 4.1.9, there are no actions or proceeding which are pending or, to the Financialsbest of Borrower's knowledge, threatened against Borrower which might result in any material adverse change in Borrower's financial condition or materially and adversely affect Borrower's existing operations, or its existing assets;
(O) No 4.1.15 Borrower has received a no notice to the effect that it is not in full compliance with any of the requirements of ERISA and the regulations promulgated thereunder and, to the best of its knowledge, there exists no event described in Section 4043 of ERISA, excluding subsections 4043(b)(2) and 4043(b)(3) (a “Reportable Event”);
(P) Such 4.1.16 Borrower has filed all federal, state and local tax returns (including, but not limited to, income and payroll tax returns) and other reports (taking into account any extension of time to file granted to or obtained on behalf of Borrower)reports, or has been included including in consolidated returns or reports filed by an Affiliate, which such Borrower is required by law, rule or regulation to file, except Borrower did not file its tax returns for the fiscal year ended April 30, 1999 (Borrower has subsequently changed its fiscal year end to December 31st) and all Charges that are due and payable have been paid;
4.1.17 This Agreement and all of the other Ancillary Agreements to which Borrower is a party are the legal, valid and binding obligations of Borrower and are enforceable against Borrower in accordance with their terms, except to the effect of any applicable bankruptcy, insolvency or similar law affecting the rights of creditors generally or of general principles of equity.
4.1.18 Borrower owns, licenses or otherwise possesses all patents, patent applications, copyrights, trademarks, trademark applications, trade names, service marks and other intellectual property that are necessary for Charges being contested the proper operation and conduct of its business. No claim has been asserted and is pending by any Person challenging or questioning the use of any such intellectual property or rights associated therewith or the validity or effectiveness of any such intellectual property or rights associated therewith. The use of such intellectual property by Borrower does not, to Borrower's knowledge, infringe on the rights of any Person, and to Borrower's knowledge, no Person is infringing the rights of Borrower in good faith and for which adequate reserves are being maintained;such intellectual property.
(Q) Such 4.1.19 No information provided or statements made by Borrower or of Borrower’s execution and delivery of 's representatives to the Lender in this Agreement and the Agreement, any Ancillary Agreements do not directly or indirectly violate or result in any violation of the Securities Exchange Act of 1934, as amendedAgreement, or any regulations issued pursuant theretodocument, including without limitationagreement, Regulation Ucertificate or instrument delivered in connection herewith or therewith contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, T or X in light of the Board of Governors of the Federal Reserve System (12 CFR 221circumstances under which they were made, 207, 220 and 224, respectively) and Borrower does not own or intend to purchase or carry any “margin security,” as defined in such Regulations;
(R) Except as set forth on Schedule 6.1(R), as of the date of this Agreement such Borrower has no Subsidiaries and does not own an equity interest in any other Person;
(S) Such Borrower has no knowledge of any fact or circumstance which would impair the validity or collectibility of any material amount of its Accounts or General Intangibles;
(T) None of such Borrower’s Collateral has been pledged or sold to any other Person or otherwise encumbered, such Borrower is the owner of its Collateral free of all Liens and encumbrances except those of Agent and except for the Permitted Liens and no financing statement has been filed concerning the Collateral, except any filed on behalf of Agent and those relating to Permitted Liens;
(U) To the best of such Borrower’s knowledge, each property (including underlying ground water), operation and facility that such Borrower operates or controls is in compliance with all statutes, judicial or administrative orders, licenses, permits and governmental rules and regulations applicable to them, including, without limitation, Environmental Laws, the noncompliance with which is reasonably likely to have a Material Adverse Effect on the financial condition, continued operations or Property of such Borrower;
(V) Such Borrower possesses adequate copyrights, patents, trademarks, trade secrets and computer software to conduct its business and all such intellectual property (other than computer software and trade secrets) in the possession of such Borrower as of the date of this Agreement is listed on Schedule 6.1(V); and
(W) Neither such Borrower nor any Affiliate of such Borrower is in any way associated with or related to The Lake Group, Inc., d/b/a Pacific Direct, Lake Graphics and Elan Resources, which filed bankruptcy in the Northern District of California Case No. 93-30351misleading.
Appears in 1 contract
Samples: Loan Agreement (Electric City Corp)
GENERAL WARRANTIES AND REPRESENTATIONS. Each Borrower warrants We warrant and represents to Agent and Lenders represent that:
(A) (i) ModusLink is a corporation We are each duly organized, validly organized and existing and in good standing under the laws of the State our respective states of Delaware incorporation set forth on Schedule 8(A), are qualified to do business and its state issued organizational identification number is 2831732, (ii) SalesLink is a limited liability company duly organized, validly existing and are in good standing under the laws of the State of Delaware and its state issued organizational identification number is 2721217 and (iii) SalesLink Mexico is a corporation duly organized, existing and in good standing under the laws of the state of Delaware and its state issued organizational number is 3111152. Each Borrower is qualified or licensed as a foreign corporation to do business in all other states in which the laws thereof require such Borrower qualification and good standing are necessary in order for us to be so qualified or licensed except where a lack of such qualification or licensing will not conduct our business and own our property and have a Material Adverse Effect on the all requisite power and authority to conduct our business, operations or financial condition to own our property and to execute, deliver and perform all of such Borrowerour Obligations;
(B) Such Borrower has not usedWe have not, during the preceding five (5) year period preceding the date of this Agreementyears, and on the date hereof does not intend to use, been known by or used any other corporate Assumed Names or fictitious name, except Trade Names other than as disclosed in set forth on Schedule 6.1(B8(B);
(C) Such Borrower has the right and power and is duly authorized and empowered to enter into, execute, deliver and perform this Agreement and the Ancillary Agreements;
(D) The execution, delivery and performance by such Borrower us of this Agreement and the Ancillary Agreements shall not, by its execution or performance, the lapse of time, the giving of notice or otherwise, will not constitute a violation of any applicable lawlaw or of our Articles or Certificate of Incorporation, ruleBy-Laws or Code of Regulations, regulation, judgment, order or decree applicable to such Borrower any agreement or its assets or constitute a breach of any provision contained in such Borrower’s charter or by-laws or contained in any material agreement, instrument, indenture or other document to which such Borrower is now we are a party or by which it or any bound;
(D) We possess adequate assets, licenses, patents, patent applications, copyrights, trademarks, trademark applications, and tradenarnes for the conduct of its property is boundour business;
(E) Such Borrower’s use of Except as heretofore disclosed to you in writing or herein, we have (i) no pending or threatened litigation, actions or proceedings which would materially and adversely affect our business assets, operations or condition, financial or otherwise, or the proceeds of any advances made by each Lender hereunder areCollateral and (ii) no Indebtedness, other than the Obligations and will continue Indebtedness to be, legal and proper corporate uses (duly authorized by its board of directors, in accordance with any applicable law, rule or regulation) and such uses are consistent with all applicable laws, rules and regulations, as in effect as of the date hereofLiberty Bidco;
(F) Such Borrower hasWe have good, indefeasible, and merchantable title to the Collateral, and there is current no lien or encumbrance thereon other than the security interests granted to you and in good standing with respect toLiberty Bidco, all material governmental approvals, permits, certificates, inspections, consents and franchises necessary to conduct and to continue to conduct its business and its intended business and to own or lease and operate its properties except as now owned or leased and operated by itset forth on Schedule 8(F) attached;
(G) None We are not a party to any contract, or subject to any charge, corporate restriction, judgment, decree or order materially and adversely affecting our business, assets, operations or condition, financial or otherwise, and are not subject to any labor dispute; and, no labor contract is scheduled to expire during the term of such approvalsthis Agreement, permits, certificates, consents or franchises contains any term, provision, condition or limitation more burdensome than such except as are generally applicable heretofore disclosed to Persons engaged you in the same or similar business as such Borrowerwriting;
(H) Such Borrower now has capital sufficient to carry on its business and transactions and all businesses and transactions in which it is about to engage and is now able to pay its debts as they mature and such Borrower now owns property the fair saleable value of which is greater than the amount required to pay such Borrower’s debts;
(I) Except as disclosed in the Financials, (i) there is no litigation, suit, action, proceeding, inquiry or investigation pending or, to the best of such Borrower’s knowledge, threatened against such Borrower which if unfavorably determined would materially adversely affect the transactions contemplated hereby, or such Borrower’s property, assets, operations or condition (financial or otherwise) (except as shown on Financials and on Schedule 6.1(I)) and (ii) such Borrower has no Indebtedness and has not guaranteed the obligations of any other Person (except for Permitted Debt);
(i) There We are no strikes, work stoppages, labor disputes decertification petitions, union organizing efforts, grievances or other claims pending or, to such Borrower’s knowledge, threatened in writing, between such Borrower and any of its employees, other than employee grievances arising in the ordinary course of business which, in the aggregate, would not have a Material Adverse Effect on such Borrower and (ii) to the best of such Borrower’s knowledge, such Borrower has no obligation under any collective bargaining agreement or any material employment agreement. To such Borrower’s knowledge, there is no organizing activity pending or threatened in writing by any labor union or group of employees. There are no representation proceedings pending or threatened with the National Labor Relations Board or other applicable governmental authority, and no labor organization or group of employees has made a pending demand for recognition. There are no material complaints or charges pending or, to such Borrower’s knowledge, threatened to be filed with any governmental authority or arbitrator based on, arising out of, in connection with or otherwise relating to the employment or termination of employment by such Borrower of any individual or group of individuals which, if decided adversely to such Borrower, would have a Material Adverse Effect on such Borrower;
(K) Such Borrower has good, indefeasible and merchantable title to and ownership of its Collateral, free and clear of all Liens, claims, security interests and other encumbrances, except those of Agent and Permitted Liens;
(L) Such Borrower is not in violation of any applicable statute, rule, regulation or ordinance of any governmental entity, including, without limitation, the Xxxxxx Xxxxxx xx Xxxxxxx, any state, city, town, municipality, county or of any other jurisdiction, or of any agency thereofordinance, in any respect materially and adversely affecting the Collateral or such Borrower’s our business, property, assets, operations or condition, financial or otherotherwise, except for the reports required to be filed with the SEC as set forth on Schedule 8(H) (the "SEC Reports");
(MI) Such Borrower is We are not in default under beyond any applicable grace period with respect to any note, indenture, loan agreement, mortgage, material lease, trust deed, deed of trust or other similar agreement relating to the borrowing of monies to which it is we are a party or by which it or any of its Property is bound;
(NJ) The Financials financial statements delivered to you fairly present in all material respects the assets, liabilities and our financial condition and results of operations and those of such Borrower and such other Persons as are described therein as of the stated datesdate thereof; there are no omissions or other facts or circumstances which are or may be material and there (i) has been no material and adverse change in the assets, liabilities such financial condition or financial or other condition of such Borrower or any such Person operations since the date of the Financials and (ii) exists no equity or long term investments in or outstanding advances to any Person not reflected in the Financialsstatements;
(OK) No Borrower has We have received a no notice to the effect that it is we are not in full compliance with any of the requirements of ERISA the Employee Retirement Income Security Act of 1974, as amended, ("ERISA") and the its regulations promulgated thereunder and, to the best of its our knowledge, there exists no event described in Section 4043 of ERISA, excluding subsections 4043(b)(2) and 4043(b)(3) thereof, with respect to us;
(a “Reportable Event”L) We have filed all tax returns and other reports we are required by law to file and have paid all taxes and similar charges that are due and payable;
(M) Our Chief Executive Offices, Principal Places of Business and the Locations of Collateral Records are as set forth on Schedule 8(M);
(N) We have not received any notice alleging and are not aware of any facts indicating noncompliance with any State or Federal law governing the use, generation, storage or release of any hazardous waste or substance;
(O) We have no Subsidiaries or Affiliates other than as set forth on Schedule 8(A). For each subsidiary or affiliate shown on Schedule 8(A), the Location of Collateral and chief executive officer of each such subsidiary or affiliate are as set forth on Schedule 8(O);
(P) Such Borrower has filed all federal, state and local tax returns and other reports (taking into account any extension of time to file granted to or obtained All properties on behalf of Borrower), or has been included in consolidated returns or reports filed by an Affiliate, which such Borrower Collateral is required by law, rule or regulation to file and all Charges that located are due and payable have been paidleased properties, except for Charges being contested in good faith and for which adequate reserves are being maintainedas set forth on Schedule 8(O);
(Q) Such Borrower’s execution All Collateral which is tangible personal property is kept only at the locations set forth on Schedule 8(O);
(R) Schedule 8(A) hereto correctly sets forth the corporate name and delivery jurisdiction of this Agreement incorporation of Borrower and each Guarantor ("Subsidiary"). Each such Subsidiary and each corporation becoming a Subsidiary of Borrower or any Guarantor after the Ancillary Agreements date hereof is and will be a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation and is and will be duly qualified to do not directly business in each additional jurisdiction where such qualification is or indirectly violate may be necessary under applicable law. Each Subsidiary of Borrower and each Guarantor has and will have all requisite corporate power to own or result lease the properties used in its business and to carry on its business as now being conducted and as proposed to be conducted. All outstanding shares of capital stock of each class of each Subsidiary of Borrower and each Guarantor have been and will be validly issued and are and will be fully paid and nonassessable and are and will be owned, beneficially and of record, by Borrower or such Guarantor, or another Subsidiary of Borrower or such Guarantor, free and clear of any violation Liens;
(S) Borrower and Guarantors will use the proceeds of the Securities Exchange Act Loans for their general corporate purposes, to purchase the stock of 1934Aropi, as amendedInc., and to repay in full at closing all certain Indebtedness. Neither Borrower nor any Guarantor nor any of their respective Subsidiaries extends or maintains, in the ordinary course of business, credit for the purpose, whether immediate, incidental, or any regulations issued pursuant theretoultimate, including without limitation, of buying or carrying margin stock (within the meaning of Regulation U, T or X U of the Board of Governors of the Federal Reserve System System), and no part of the proceeds of any Advance will be used for the purpose, whether immediate, incidental, or ultimate, of buying or carrying any such margin stock or maintaining or extending credit to others for such purpose. After applying the proceeds of each Advance, such margin stock will not constitute more than 25% of the value of the assets (12 CFR 221, 207, 220 either of Borrower or any Guarantor alone or of Borrower and 224, respectivelythe Guarantors and their respective Subsidiaries on a consolidated basis) and Borrower does not own that are subject to any provisions of this Agreement or intend to purchase or carry any “margin security,” security document (as defined in such Regulations;
(RSection 9(A)(v) Except as set forth on Schedule 6.1(R)below) that may cause the Advances to be deemed secured, as of the date of this Agreement such Borrower has no Subsidiaries and does not own an equity interest in any other Person;
(S) Such Borrower has no knowledge of any fact directly or circumstance which would impair the validity or collectibility of any material amount of its Accounts or General Intangiblesindirectly, by margin stock;
(T) None of such Borrower’s Collateral has been pledged No report or sold to any other Person information furnished in writing by or otherwise encumbered, such Borrower is the owner of its Collateral free of all Liens and encumbrances except those of Agent and except for the Permitted Liens and no financing statement has been filed concerning the Collateral, except any filed on behalf of Agent Borrower or any Guarantor to Lender in connection with the negotiation or administration of this Agreement contains any material misstatement of fact or, when considered together with Borrower's filings with the SEC and those relating all other information so furnished to Permitted LiensLender, omits to state any material fact or any fact necessary to make the statements contained therein not misleading in light of the circumstances in which they were made. Neither this Agreement, the Notes, the Security Documents nor any other document, certificate, or report or statement or other information furnished to Lender by or on behalf of Borrower or any Guarantor in connection with the transactions contemplated hereby contains any untrue statement of a material fact or, when considered together with Borrower's filings with the SEC and all other information so furnished to Lender, omits to state a material fact necessary in order to make the statements contained herein and therein not misleading in light of the circumstances in which they were made. There is no fact known to Borrower or any Guarantor which materially and adversely affects, or which in the future may (so far as Borrower or any Guarantor can now foresee) materially and adversely affect, the business, properties, operations or condition, financial or otherwise, of Borrower, any Guarantor or any of their respective Subsidiaries, which has not been set forth in this Agreement or in the other documents, certificates, statements, reports and other information furnished in writing, including Borrower's 1997 Form 10-K filing with the SEC, to Lender by or on behalf of Borrower or the Guarantors in connection with the transactions contemplated hereby;
(U) To Borrower and the best Guarantors are engaged as an integrated group in the sale of cookware through various retail stores located in shopping malls in the states set forth on Schedule 8(O). The integrated operation requires financing on such Borrower’s knowledgea basis that credit supplied can be made available from time to time to Borrower and the Guarantors, as required for the continued successful operation of Borrower and the Guarantors and the integrated operation as a whole, and Borrower and the Guarantors have requested Lender to make credit available to Borrower primarily for the purpose of financing the integrated operation of Borrower and Guarantors, with each property (including underlying ground water)of Borrower and Guarantors expecting to derive benefit, directly or indirectly, from the credit extended by Lender, both in its separate capacity and as a member of the integrated group, inasmuch as the successful operation and facility that such condition of each of Borrower operates or controls and the Guarantors is in compliance with all statutes, judicial or administrative orders, licenses, permits and governmental rules and regulations applicable to them, including, without limitation, Environmental Laws, dependent upon the noncompliance with which is reasonably likely to have continued successful performance of the functions of the integrated group as a Material Adverse Effect on the financial condition, continued operations or Property of such Borrowerwhole;
(V) Such Each of Borrower possesses adequate copyrightsand the Guarantors is solvent, patentsable to pay its Indebtedness as it matures, trademarks, trade secrets and computer software has capital sufficient to conduct carry on its business and all such intellectual property (other than computer software businesses in which it is about to engage, and trade secrets) in the possession of such Borrower as present fair saleable value of the date assets of this Agreement each of Borrower and each such Guarantor is listed greater than the amount of Borrower's or such Guarantor's, as the case may be, Indebtedness. Borrower and the Guarantors on Schedule 6.1(V)a consolidated basis are solvent, able to pay their Indebtedness as it matures, and have capital sufficient to carry on their business and all businesses in which they are about to engage, and the present fair saleable value of their assets on a consolidated basis is greater than the amount of their Indebtedness on a consolidated basis; and
(W) Neither such Borrower nor any Affiliate We have no Indebtedness other than as set forth on Schedule 11(E).
(X) We have no contracts or agreements with Cambridge Holdings, L.L.C. ("Cambridge"), other than as set forth on Schedule 8(X) (the "Contracts").
(Y) The proceeds of such Borrower is in any way associated with or related the $1,300,000 loan disbursed by Liberty Bidco Investment Corporation ("Liberty Bidco") to The Lake Groupus (except Aropi, Inc.Incorporated) on August 12, d/b/a Pacific Direct1998, Lake Graphics were expended by us as set forth on Schedule 8(Y).
(Z) All representations and Elan Resources, which filed bankruptcy warranties of Aropi Incorporated and Xxxxx Xxxx as set forth in the Northern District Stock Purchase Agreement of California Case No. 93-30351even date (as identified below) are incorporated herein by this reference as representations and warranties of Borrower and Guarantor Aropi, Incorporated.
Appears in 1 contract
Samples: Loan and Security Agreement (Rolling Pin Kitchen Emporium Inc)
GENERAL WARRANTIES AND REPRESENTATIONS. Each Borrower warrants and represents to Agent and Lenders that:
(A) (i) ModusLink Borrower is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware Minnesota, and its state issued organizational identification number is 2831732, (ii) SalesLink is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware and its state issued organizational identification number is 2721217 and (iii) SalesLink Mexico is a corporation duly organized, existing and in good standing under the laws of the state of Delaware and its state issued organizational number is 3111152. Each Borrower is qualified or licensed as a foreign corporation entity to do business in all other countries, states and provinces in which the laws thereof require such Borrower to be so qualified or licensed except where a lack of such qualification or licensing will not have a Material Adverse Effect on the business, operations or financial condition of such Borrowerlicensed;
(B) Such Borrower has not used, during the five (5) year period preceding the date of this Agreement, and on the date hereof does not intend to use, any other corporate or fictitious name, except as disclosed in Schedule 6.1(B);
(C) Such Borrower has the right and power and is duly authorized and empowered to enter into, execute, deliver and perform this Agreement and the Ancillary Agreements;
(DC) The execution, delivery and performance by such Borrower of this Agreement and the Ancillary Agreements shall not, by its their execution or performance, the lapse of time, the giving of notice or otherwise, constitute a violation of any applicable law, rule, regulation, judgment, order or decree applicable to such Borrower or its assets or constitute a breach of any provision contained in such Borrower’s charter 's articles of incorporation or by-laws laws, or contained in any material agreement, instrument, indenture or other document to which such Borrower is now a party or by which it is bound which violation would have a material adverse affect on Borrower;
(D) This Agreement and the Ancillary Agreements are and will be the legal, valid and binding agreements of Borrower enforceable in accordance with their terms, except as enforcement thereof may be subject to the effect of applicable bankruptcy, insolvency, reorganization, moratorium or any similar laws affecting creditors' rights generally and to general principles of its property equity (regardless of whether such enforcement is boundsought in a proceeding in equity or at law);
(E) Such Borrower’s 's use of the proceeds of any advances made by each Lender hereunder are, and will continue to be, legal and proper corporate uses (duly authorized by its board of directors), in accordance with any applicable law, rule or regulation) and such uses are consistent with all applicable laws, rules and regulations, as in effect as of the date hereof;
(F) Such Borrower has, and is current and in good standing with respect to, all material governmental approvals, permits, certificates, inspections, consents and franchises necessary to conduct and to continue to conduct its business present and its intended business and to own or lease and operate its properties as now owned or leased and operated heretofore conducted by it;
(G) None of such approvals, permits, certificates, consents or franchises contains any term, provision, condition or limitation more burdensome than such as are generally applicable to Persons engaged in the same or similar business as such Borrower;
(H) Such Borrower now has capital sufficient to carry on its business and transactions and all businesses and transactions in which it is about to engage and is now able to pay its debts as they mature and such Borrower now owns property the fair saleable value of which is greater than the amount required to pay such Borrower’s debts;
(I) Except as disclosed on Exhibit 9.1(G) attached hereto or in the Financials, (i) there is Borrower has no litigationlitigation pending, suit, action, proceeding, inquiry or investigation pending or, to the best of such Borrower’s its knowledge, threatened against such Borrower which if unfavorably determined would materially adversely affect the transactions contemplated herebythreatened, or such Borrower’s property, assets, operations or condition (financial or otherwise) and no Indebtedness (except as shown on Financials and on Schedule 6.1(I)for trade payables arising in the ordinary course of its business since the dates reflected in the Financials) and (ii) such Borrower has no Indebtedness and has not guaranteed the obligations of any other Person (except for Permitted Debt)Person;
(iH) There Borrower is not a party to any contract or agreement or subject to any charge, restriction, judgment, decree or order materially and adversely affecting its business, property, assets, operations or condition, financial or other, and is not a party to any labor dispute; there are no strikeslockouts, work stoppages, labor disputes decertification petitions, union organizing efforts, grievances strikes or other claims pending or, walkouts relating to such Borrower’s knowledge, threatened in writing, between such Borrower and any of its employees, other than employee grievances arising in the ordinary course of business which, in the aggregate, would not have a Material Adverse Effect on such Borrower and (ii) to the best of such Borrower’s knowledge, such Borrower has no obligation under any collective bargaining agreement or any material employment agreement. To such Borrower’s knowledge, there is no organizing activity pending or threatened in writing by any labor union or group of employees. There are no representation proceedings pending or threatened with the National Labor Relations Board or other applicable governmental authority, contracts and no labor organization or group of employees has made a pending demand for recognition. There are no material complaints or charges pending or, such contract is scheduled to such Borrower’s knowledge, threatened to be filed with any governmental authority or arbitrator based on, arising out of, in connection with or otherwise relating to expire during the employment or termination of employment by such Borrower of any individual or group of individuals which, if decided adversely to such Borrower, would have a Material Adverse Effect on such BorrowerTerm;
(KI) Such Borrower has good, indefeasible and merchantable title to and ownership of its the Collateral, free and clear of all Liensliens, claims, security interests and other encumbrances, except those of Agent CIT, Lender and Permitted Liensthose, if any, described on Exhibit 9.1(I) attached hereto and those described on Exhibit B to Borrower's Mortgage of even date herewith in favor of Lender;
(LJ) Such Except as set forth on Exhibit 9.1(J) attached hereto, Borrower is not in violation of any applicable statute, rule, regulation or ordinance of any governmental entity, including, without limitation, the Xxxxxx Xxxxxx xx XxxxxxxUnited States of America, any state, city, town, municipality, county or of any other jurisdiction, or of any agency thereof, in any respect materially and adversely affecting the Collateral or such Borrower’s 's business, property, assets, operations or condition, financial or other;
(MK) Such Except as set forth on Exhibit 9.1(K) attached hereto, Borrower is not in default under any indenture, loan agreement, mortgage, material lease, trust deed, deed of trust or other similar agreement relating to the borrowing of monies to which it is a party or by which it or any of its Property is bound;
(NL) The Financials fairly present in all material respects the assets, liabilities and financial condition and results of operations of such Borrower and such other Persons as are described therein as of the stated datesdates thereof; there are no omissions or other facts or circumstances which are or may be material and there (i) has been no material and adverse change in the assets, liabilities or financial or other condition of such Borrower or any such Person since the date of the Financials and (ii) exists Financials; there exist no equity or long term investments in or outstanding advances to any Person not reflected in the Financials;
(O) No Borrower has received a notice to the effect that it is not in full compliance with any of the requirements of ERISA and the regulations promulgated thereunder and; there are no actions or proceedings which are pending or, to the best of its Borrower's knowledge, there exists no event described threatened, against Borrower or any other Person which might result in Section 4043 of ERISAany material adverse change in Borrower's financial condition or materially and adversely affect Borrower's operations, excluding subsections 4043(b)(2) and 4043(b)(3) (a “Reportable Event”)its assets or the Collateral;
(PM) Such Borrower has filed all federal, state and local tax returns and other reports (taking into account any extension of time to file granted to or obtained on behalf of Borrower)reports, or has been included in consolidated returns or reports filed by an Affiliate, which such Borrower is required by law, rule or regulation to file and all Charges that are due and payable have been paid, except for Charges being contested in good faith and for which adequate reserves are being maintained;
(QN) Such Borrower’s 's execution and delivery of this Agreement and of the Ancillary Agreements do does not directly or indirectly violate or result in any a violation of the Securities Exchange Act of 1934any applicable laws, as amended, rules or any regulations issued pursuant thereto, including without limitation, Regulation U, T or X of the Board of Governors of the Federal Reserve System (12 CFR 221, 207, 220 and 224, respectively) and Borrower does not own or intend to purchase or carry any “margin security,” as defined in such Regulationsregulations;
(RO) Borrower's deconsolidation of its Florida subsidiary will have no impact on Borrower's profit and loss statement for calendar year 1995 and thereafter as computed under generally accepted accounting principles; and
(P) Except as set forth on Schedule 6.1(R)Exhibit 9.1(P) attached hereto, as (i) the operations of Borrower comply in all material respects with all applicable Environmental Laws; (ii) none of the operations of Borrower are subject to any judicial or administrative proceeding alleging the violation of any Environmental laws; (iii) none of the operations of Borrower are the subject of any federal or state investigation evaluating whether any remedial action is needed to respond to a release of any Hazardous Material into the environment; (iv) Borrower has not filed any notice under any federal or state law indicating past or present treatment, storage or disposal of a Hazardous Material or reporting a spill or release of a Hazardous Material into the environment; and (v) Borrower does not have any known material contingent liability in connection with any release of any Hazardous Material into the environment. The materiality standard used in this Section 9.1(N) shall be exceeded if the facts giving rise to a breach or breaches of the representations or warranties contained herein might result in liability in excess of $50,000 in the aggregate. For purposes of this Section, "Borrower" shall mean Borrower and any subsidiary or affiliate of Borrower acquired or created after the date of this Agreement such Agreement. Borrower has no Subsidiaries hereby indemnifies Lender, its successors and does not own an equity interest in assignees, and agrees to hold Lender harmless from and against any other Person;
(S) Such Borrower has no knowledge and all losses, liabilities, damages, injuries, costs, expenses and claims of any fact or circumstance which would impair the validity or collectibility of any material amount of its Accounts or General Intangibles;
and every kind whatsoever (T) None of such Borrower’s Collateral has been pledged or sold to any other Person or otherwise encumbered, such Borrower is the owner of its Collateral free of all Liens and encumbrances except those of Agent and except for the Permitted Liens and no financing statement has been filed concerning the Collateral, except any filed on behalf of Agent and those relating to Permitted Liens;
(U) To the best of such Borrower’s knowledge, each property (including underlying ground water), operation and facility that such Borrower operates or controls is in compliance with all statutes, judicial or administrative orders, licenses, permits and governmental rules and regulations applicable to them, including, without limitation, court costs and attorneys' fees) which at any time or from time to time may be paid, incurred or suffered by, or asserted against, Lender for, with respect to, or as a direct or indirect result of the violation by Borrower, any other obligor or any of Borrower's subsidiaries, of any laws, including but not limited to, the Environmental Laws or any laws or regulations relating to Hazardous Material, treatment, storage, disposal, generation and transportation, air, water and noise pollution, soil or ground or water contamination, the handling, storage or release into the environmental of Hazardous Materials; or with respect to, or as a direct or indirect result of the presence on or under, or the escape, seepage, leakage, spillage, discharge, emission or release from, properties utilized by Borrower, any other obligor or any of Borrower's subsidiaries in the conduct of their respective business into or upon any land, the atmosphere, or any watercourse, body of water or wetlands, of any Hazardous Material (including, without limitation, any losses, liabilities, damages, injuries, costs, expenses or claims asserted or arising under the Environmental Laws, ); and the noncompliance with which is reasonably likely to have a Material Adverse Effect on provisions of and undertakings and indemnification set out in this Section 9.1 shall survive the financial condition, continued operations or Property of such Borrower;
(V) Such Borrower possesses adequate copyrights, patents, trademarks, trade secrets satisfaction and computer software to conduct its business and all such intellectual property (other than computer software and trade secrets) in the possession of such Borrower as payment of the date Liabilities and the termination of this Agreement is listed on Schedule 6.1(V); and
(W) Neither such Borrower nor any Affiliate of such Borrower is in any way associated with or related to The Lake Group, Inc., d/b/a Pacific Direct, Lake Graphics and Elan Resources, which filed bankruptcy in the Northern District of California Case No. 93-30351Agreement.
Appears in 1 contract
Samples: Loan and Security Agreement (Reuter Manufacturing Inc)
GENERAL WARRANTIES AND REPRESENTATIONS. Each Borrower warrants and represents to Agent and Lenders represents, that:
(Aa) (i) ModusLink Borrower is a corporation duly organized, organized and validly existing and in good standing under the laws of the State of Delaware and its state issued organizational identification number is 2831732, (ii) SalesLink is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware and its state issued organizational identification number is 2721217 and (iii) SalesLink Mexico is a corporation duly organized, existing and in good standing under the laws of the state of Delaware its incorporation, and its state issued organizational number is 3111152. Each Borrower is qualified or licensed as a foreign corporation to do business in all other countries, states and provinces in which the laws thereof require such Borrower to be so qualified or licensed except where a lack of such qualification or licensing will not have a Material Adverse Effect on the business, operations or financial condition of such Borrowerlicensed;
(Bb) Such Borrower has not used, during the five (5) year period preceding the date of this Agreement, and on the date hereof does not intend to use, any other corporate or fictitious name, except as disclosed in Schedule 6.1(B)Exhibit E attached hereto;
(Cc) Such Borrower has the right and power and is duly authorized and empowered to enter into, execute, deliver and perform this Agreement and the Ancillary Agreements;
(Dd) The execution, delivery and performance by such Borrower of this Agreement and the Ancillary Agreements shall not, by its such execution or performance, the lapse of time, the giving of notice or otherwise, constitute a violation of any applicable law, rule, regulation, judgment, order or decree applicable to such Borrower or its assets or constitute a breach of any provision contained in such Borrower’s 's charter documents or by-laws or contained in any material agreement, instrument, indenture or other document to which such Borrower is now a party or by which it or any of its property Borrower is bound;
(Ee) Such Borrower’s 's use of the proceeds of any advances made by each Lender hereunder are, and will continue to be, legal and proper corporate uses (duly authorized by its board of directors, in accordance with any applicable law, rule or regulation) and such uses are consistent with all applicable laws, rules and regulations, as in effect as of the date hereof;
(Ff) Such Borrower has, and is current and in good standing with respect to, all material governmental approvals, permits, certificates, inspections, consents and franchises necessary to conduct and to continue to conduct its present business and its intended business as heretofore conducted by it and to own or lease and operate its properties as now owned or leased and operated by it;
(Gg) None of such said approvals, permits, certificates, consents or franchises contains contain any term, provision, condition or limitation more burdensome than such as are generally applicable to Persons engaged in the same or similar business as such Borrower;
(Hh) Such Borrower now has capital sufficient to carry on its business and transactions and all businesses and transactions in which it is about to engage and is now solvent and able to pay its debts as they mature and such Borrower now owns property the fair saleable value of which is greater than the amount required to pay such Borrower’s 's debts;
(Ii) Except as disclosed on Exhibit F attached hereto and in the Financials, (i) there is Borrower has no litigationlitigation pending, suit, action, proceeding, inquiry or investigation pending or, to the best of such Borrower’s its knowledge, threatened against such Borrower which if unfavorably determined would materially adversely affect the transactions contemplated herebythreatened, or such Borrower’s property, assets, operations or condition (financial or otherwise) and no Indebtedness (except as shown on Financials and on Schedule 6.1(I)for trade payables arising in the ordinary course of its business since the dates reflected in the Financials) and (ii) such Borrower has no Indebtedness and has not guaranteed the obligations of any other Person (except for Permitted Debt)Person;
(ij) There Borrower is not a party to any contract or agreement or subject to any charge, restriction, judgment, decree or order materially and adversely affecting its business, property, assets, operations or condition, financial or other, and is not a party to any labor dispute; there are no strikeslockouts, work stoppages, labor disputes decertification petitions, union organizing efforts, grievances strikes or other claims pending or, walkouts relating to such Borrower’s knowledge, threatened in writing, between such Borrower and any of its employees, other than employee grievances arising in the ordinary course of business which, in the aggregate, would not have a Material Adverse Effect on such Borrower and (ii) to the best of such Borrower’s knowledge, such Borrower has no obligation under any collective bargaining agreement or any material employment agreement. To such Borrower’s knowledge, there is no organizing activity pending or threatened in writing by any labor union or group of employees. There are no representation proceedings pending or threatened with the National Labor Relations Board or other applicable governmental authority, contracts and no labor organization or group of employees has made a pending demand for recognition. There are no material complaints or charges pending orsuch contract is scheduled to expire during the Initial Term, to such Borrower’s knowledge, threatened to be filed with any governmental authority or arbitrator based on, arising out of, in connection with or otherwise relating to the employment or termination of employment by such Borrower of any individual or group of individuals which, if decided adversely to such Borrower, would have a Material Adverse Effect except as disclosed on such BorrowerExhibit F attached hereto;
(Kk) Such Borrower has good, indefeasible and merchantable title to and ownership of its the Collateral, free and clear of all Liensliens, claims, security interests and other encumbrances, except those of Agent Lender and Permitted Liensthose, if any, described on Exhibit G attached hereto;
(Ll) Such Borrower is not in violation of any applicable statute, rule, regulation or ordinance including, without limitation, OSHA and all Environmental Laws, of any governmental entity, including, without limitation, the Xxxxxx Xxxxxx xx XxxxxxxUnited States of America, any state, city, town, municipality, county or of any other jurisdiction, or of any agency thereof, in any respect materially and adversely affecting the Collateral or such Borrower’s 's business, property, assets, operations or condition, financial or other;
(Mm) Such Borrower is not in default under any indenture, loan agreement, mortgage, material lease, trust deed, deed of trust or other similar agreement relating to the borrowing of monies to which it is a party or by which it or any of its Property is bound;
(Nn) The Financials fairly present in all material respects the assets, liabilities and financial condition and results of operations of such Borrower and such other Persons as are described therein as of the stated datesdates thereof; there are no omissions or other facts or circumstances which are or may be material and there (i) has been no material and adverse change in the assets, liabilities or financial or other condition of such Borrower or any such Person since the date of the Financials and (ii) exists Financials; there exist no equity or long term investments in or outstanding advances to any Person not reflected in the Financials; there are no actions or proceedings which are pending or, to the best of Borrower's knowledge, threatened, against Borrower or any other Person which might result in any material adverse change in Borrower's financial condition or materially and adversely affect Borrower's operations, its assets or the Collateral; except for Borrower's investment in Fieldstone Meats of Alabama, Borrower does not have subsidiaries or divisions that Borrower reports for separately;
(Oo) No Borrower has not received a any notice to the effect that it is not in full compliance with any of the requirements of ERISA and the regulations promulgated thereunder and, to the best of its knowledge, knowledge there exists no event described in Section 4043 of ERISA, excluding subsections 4043(b)(2) and 4043(b)(3) (a “Reportable Event”4043(b);
(P) Such Borrower has filed all federal, state and local tax returns and other reports (taking into account any extension of time to file granted to or obtained on behalf of Borrower), or has been included in consolidated returns or reports filed by an Affiliate, which such Borrower is required by law, rule or regulation to file and all Charges that are due and payable have been paid, except for Charges being contested in good faith and for which adequate reserves are being maintained;
(Q) Such Borrower’s execution and delivery of this Agreement and the Ancillary Agreements do not directly or indirectly violate or result in any violation of the Securities Exchange Act of 1934, as amended, or any regulations issued pursuant thereto, including without limitation, Regulation U, T or X of the Board of Governors of the Federal Reserve System (12 CFR 221, 207, 220 and 224, respectively) and Borrower does not own or intend to purchase or carry any “margin security,” as defined in such Regulations;
(R) Except as set forth on Schedule 6.1(R), as of the date of this Agreement such Borrower has no Subsidiaries and does not own an equity interest in any other Person;
(S) Such Borrower has no knowledge of any fact or circumstance which would impair the validity or collectibility of any material amount of its Accounts or General Intangibles;
(T) None of such Borrower’s Collateral has been pledged or sold to any other Person or otherwise encumbered, such Borrower is the owner of its Collateral free of all Liens and encumbrances except those of Agent and except for the Permitted Liens and no financing statement has been filed concerning the Collateral, except any filed on behalf of Agent and those relating to Permitted Liens;
(U) To the best of such Borrower’s knowledge, each property (including underlying ground water), operation and facility that such Borrower operates or controls is in compliance with all statutes, judicial or administrative orders, licenses, permits and governmental rules and regulations applicable to them, including, without limitation, Environmental Laws, the noncompliance with which is reasonably likely to have a Material Adverse Effect on the financial condition, continued operations or Property of such Borrower;
(V) Such Borrower possesses adequate copyrights, patents, trademarks, trade secrets and computer software to conduct its business and all such intellectual property (other than computer software and trade secrets) in the possession of such Borrower as of the date of this Agreement is listed on Schedule 6.1(V); and
(W) Neither such Borrower nor any Affiliate of such Borrower is in any way associated with or related to The Lake Group, Inc., d/b/a Pacific Direct, Lake Graphics and Elan Resources, which filed bankruptcy in the Northern District of California Case No. 93-30351.
Appears in 1 contract
