Other Representations and Warranties. Each of the Issuer and HIG (in its capacity as Servicer and Operator) represents and warrants to the Indenture Trustee for the benefit of the Noteholders as of the Closing Date as follows: (a) HIG (i) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (ii) has the corporate power and authority, and the legal right, to own and operate its property, to lease the property it operates as lessee and to conduct the business in which it is currently engaged, (iii) has all licenses necessary to service the Pledged Contract Receivables pursuant to this Indenture, (iv) is duly qualified as a foreign corporation and in good standing under the laws of each jurisdiction where its ownership, lease or operation of property or the conduct of its business requires such qualification, except to the extent that the failure to be so qualified and in good standing would not have a Material Adverse Effect and (v) is in compliance with all Requirements of Law except to the extent that the failure to comply therewith would not, individually or in the aggregate, have a Material Adverse Effect; HGSC (i) is a general partnership organized and existing under the laws of the State of Delaware, (ii) has the full partnership power and authority, and the legal right, to own and operate its property, to lease the property it operates as lessee and to conduct the business in which it is currently engaged and (iii) is in compliance with all Requirements of Law except to the extent that the failure to comply therewith would not, individually or in the aggregate, have a Material Adverse Effect. (b) It (i) has the corporate or partnership power and authority to make, deliver and perform each Basic Note Document to which it is a party, (ii) has taken all necessary action to authorize the execution, delivery and performance of each Basic Note Document to which it is a party and (iii) has duly executed and delivered each Basic Note Document to which it is a party. (c) The execution, delivery and performance of each Basic Note Document to which it is a party will not violate any Requirement of Law or Contractual Obligation of it except for violations that would not have a Material Adverse Effect, and will not result in, or require, the creation or imposition of any Lien (other than Permitted Liens and Liens created by the Basic Documents) on any of its properties or revenues pursuant to any such Requirement of Law or Contractual Obligation. (d) Each Basic Note Document to which it is a party and each Contract constitutes the legal, valid and binding obligation of it enforceable against it in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights in general and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law. (e) It has good and marketable title to the Pledged Contract Receivables, free of any Lien other than the Lien pursuant to this Indenture; and, upon execution and delivery of this Indenture by the parties hereto, the Indenture Trustee shall have all of the right, title and interest of the Issuer and the Servicer, as the case may be, in, to and under, and a first priority perfected security interest in, the Trust Estate free of any Lien other than Permitted Liens and Liens created pursuant to the Basic Documents. (f) Each of the audited consolidated balance sheet, statement of operations, statement of stockholders' equity and statement of cash flows of FRGC for each of the two fiscal years ended December 31, 1993 and 1994, and the two fiscal years ended December 31, 1993 and 1992, the audited consolidated balance sheet of FRGC as of June 19, 1995, the unaudited consolidated balance sheet, statement of operations and statement of cash flows of FRGC for the three-month period ended March 31, 1995, and the unaudited consolidated balance sheet and statement of operations of FRGC for the nine-month period ended September 30, 1995, respectively, have been prepared in accordance with GAAP applied on a consistent basis throughout the periods involved (except for the unaudited financial statements which are subject to normal year-end adjustments and purchase price adjustments as a result of Crystal's acquisition of FRGC and which do not contain footnote disclosures) and each fairly presents the consolidated financial position of FRGC and its Subsidiaries at the respective dates thereof and the consolidated results of their operations and changes in cash flows for the periods indicated. (g) Since June 19, 1995, there has been no development or event which has had or could reasonably be expected to have a Material Adverse Effect. (h) No proceeds of the issuance of any Notes will be used by it to purchase or carry any margin stock (as defined in Regulations U and G of the Board of Governors of the Federal Reserve System, as in effect from time to time). It is in compliance with all applicable regulations of the Board of Governors of the Federal Reserve System (including, without limitation, Regulations U and G with respect to "margin stock"). (i) None of the FRGC Parties is an "investment company" within the meaning of, or subject to regulation under, the Investment Company Act of 1940 and the rules and regulations thereunder. (j) Each of Crystal and the FRGC Parties has filed or caused to be filed all tax returns which, to its knowledge, are required to be filed and have paid all taxes shown to be due and payable on said returns or on any assessments made against it or any of its property and all other taxes, fees or other charges imposed on it or any of its property by any Governmental Authority (other than any the amount or validity of which are currently being contested in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided on its books), except where the failure to file or to pay such taxes, fees or other charges would not, individually or in the aggregate, have a Material Adverse Effect; no tax Lien has been filed, and, to its knowledge, no claim is being asserted, with respect to any such tax, fee or other charge, except for such claims which would not, individually or in the aggregate, have a Material Adverse Effect. Except for the Federal income tax liabilities of FRGC, which have been determined through 1991, the Federal income tax liabilities of the FRGC Parties have not been finally determined by the Internal Revenue Service for any period. (k) It has good record and indefeasible title in fee simple to, or a valid leasehold interest in, or other valid right to use, all its real property, and good title to, or a valid leasehold interest in, or other valid right to use, all its other property, and none of such property is subject to any Lien other than (i) Permitted Liens and (ii) the Liens created pursuant to the Basic Documents. (l) It is not in default under or with respect to any of its Contractual Obligations except for such defaults which, individually or in the aggregate, would not have a Material Adverse Effect. (m) It has previously delivered to the Indenture Trustee true and correct copies of each Contract (including any amendments thereto); and the terms other than price, volumes and payment dates of the Contracts as they relate to the Purchased Contract Receivables are the same in all material respects as the terms set forth in the Contracts attached to the Private Placement Memorandum with respect to the offer and sale of the Investor Certificates. (n) It has not within the last twelve months made any transfer or incurred any obligation with actual intent to hinder, delay or defraud any entity to which it was or may become indebted and it has not transferred any material property without receiving reasonably equivalent value for any such transfer or obligation. Both immediately prior to and immediately after the transactions occurring on the Closing Date, (i) the fair value of its assets at a fair valuation exceeds its debts and liabilities, subordinated, contingent or otherwise; (ii) the present fair salable value of its property is greater than the amount that will be required to pay its probable liability on its debts and other liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured; (iii) it is reasonably expected to be able to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured; and (iv) it will not have unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted. For all purposes of clauses (i) through (iv) above, the amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability. (o) Except for any other FRGC Party, it has no Subsidiaries. (p) The Servicer has in place procedures pursuant to the Basic Note Documents that are either necessary or advisable to ensure the timely collection of the Pledged Contract Receivables. (q) The Servicer has in force business interruption insurance with respect to the Storage Facilities as described in Schedule 5 hereto (the "Business Interruption Insurance"). (r) The office at which it keeps its records concerning the Pledged Contract Receivables is located at 000 Xxxxx Xxxxxx, Shreveport, Louisiana 71101. Since June 19, 1995, its chief executive office has been located at 000 Xxxxx Xxxxxx, Shreveport, Louisiana 71101 and is the place where it is "located" for the purposes of Section 9-103(3)(d) of the UCC of each jurisdiction the laws of which govern the transfer of the Pledged Contract Receivable hereunder. From January 1, 1995 until June 19, 1995, its chief executive office was "located" in Dallas, Texas for the purposes of Section 9-103(3)(d) of the UCC as in effect in the State of Texas. The taxpayer identification number of HGSC is 00-0000000 and of HIG is 00-0000000. (s) Its legal name is as set forth in this Indenture. It has no trade names, fictitious names, assumed names or "doing business as" names. (t) Schedule 8 accurately sets forth the amounts scheduled to come due after the Cut-off Date with respect to the Pledged Contract Receivables. (u) No action, claim or proceeding is pending and, to its knowledge, no investigation is pending or threatened that would adversely affect the payment or enforceability of the Pledged Contract Receivables. (v) No consents or filings with any Governmental Authority or approvals by any Governmental Authority that have not been made or obtained are required for the execution, delivery and performance of the Basic Note Documents to which it is a party. (w) There are no pending or, to its knowledge, threatened actions, suits or proceedings against any FRGC Party that would adversely affect the transactions contemplated by the Basic Note Documents to which it is a party, and there is no injunction, writ, restraining order or other similar order in effect that adversely affects any of the FRGC Parties' performance of the agreements and transactions contemplated by the Basic Note Documents to which it is a party. (x) All of the FRGC Parties' pension and profit sharing plans have been fully funded in accordance with the applicable FRGC Parties' obligations. (y) Each Contract is a legal, valid and binding obligation and contract, as the case may be, of the FRGC Party thereto, enforceable against such party in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the enforcement of creditors' rights in general and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law, and except as to any material provision of any Contract the lack of enforceability of which would not affect the enforceability of the payment obligations of the Obligors thereunder in respect of any Pledged Contract Receivable. (z) Since September 30, 1995, except on the Closing Date from the net proceeds from the sale of the Notes and the Investor Certificates, none of the FRGC Parties has made a Restricted Payment. (aa) The projected distributions with respect to the Pledged Investor Certificate Rights are sufficient to pay the interest obligations with respect to the Notes through July 2000. The representations and warranties set forth in this Article III shall survive the initial issuance of the Notes.
Appears in 1 contract
Samples: Indenture (Crystal Oil Co)
Other Representations and Warranties. Each of the Issuer NUTRITIONARY represents, warrants and HIG (in its capacity as Servicer and Operator) represents and warrants covenants to the Indenture Trustee for the benefit of the Noteholders as of the Closing Date as followsSIMON that:
(a) HIG all information now and hereafter furnished to SIMON is and will be true, correct and complete in all material respects;
(b) the execution, delivery and performance by NUTRITIONARY of this Agreement and any other Transaction Document to which it is a party are within its power, have been duly authorized as may be required and, if necessary, by making appropriate filings with any governmental agency or unit and are the legal, binding, valid and enforceable obligations of NUTRITIONARY and do not (i) contravene, or constitute (with or without the giving of notice or lapse of time or both) a violation of any provision of applicable law, a violation of the organizational documents of NUTRITIONARY, or a default under any agreement, judgment, injunction, order, decree or other instrument binding upon or affecting NUTRITIONARY, (ii) result in the creation or imposition of any lien (other than the lien(s) created by the Transaction Documents) on any of NUTRITIONARY's assets, or (iii) give cause for the acceleration of any obligations of NUTRITIONARY to any other creditor;
(c) NUTRITIONARY has good and marketable title to all of the properties and assets reflected on the balance sheets and financial statements, if any, supplied to SIMON by NUTRITIONARY, and all such properties and assets are free and clear of mortgages, security deeds, pledges, liens, charges, and all other encumbrances, other than the Permitted Liens;
(d) to NUTRITIONARY's knowledge, no default has occurred under any Permitted Liens and no claims or interests adverse to NUTRITIONARY's present rights in its properties and assets have arisen;
(e) NUTRITIONARY has duly filed, paid and/or discharged all taxes or other claims which may become a lien on any of its property or assets, except to the extent that such items are being appropriately contested in good faith and an adequate reserve for the payment thereof is a corporation being maintained;
(f) NUTRITIONARY is not, and after consummation of this Agreement and after giving effect to all indebtedness incurred and liens created by NUTRITIONARY in connection with this Agreement, the Note and/or any other Transaction Document, will not be, insolvent within the meaning of 11 U.S.C. ss. 101(32);
(g) NUTRITIONARY is in compliance in all material respects with all federal, state and local laws, rules and regulations applicable to its properties, operations, business, and finances, including, without limitation, any federal or state laws relating to liquor (including 18 U.S.C. ss. 3617, et seq.) or narcotics (including 21 U.S.C. ss. 801, et seq.) and/or any commercial crimes; all applicable federal, state and local laws and regulations intended to protect the environment; and the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), if applicable;
(h) NUTRITIONARY is duly organizedcreated, validly existing and in good standing under the laws of the State state of Delaware, (ii) has the corporate power and authorityits organization, and the legal righthave all powers, governmental licenses, authorizations, consents and approvals required to own and operate its property, to lease the property it operates business as lessee and to conduct the business in which it is currently engaged, now conducted;
(iiii) has all licenses necessary to service the Pledged Contract Receivables pursuant to this Indenture, (iv) NUTRITIONARY is duly qualified as a foreign corporation qualified, licensed and in good standing under the laws of in each jurisdiction where its ownership, lease qualification or operation of property or licensing is required by the conduct nature of its business requires such qualificationor the character and location of its property, except to the extent that business or customers, and in which the failure to so qualify or be so qualified and in good standing would not have a Material Adverse Effect and (v) is in compliance with all Requirements of Law except to the extent that the failure to comply therewith would not, individually or in the aggregate, have a Material Adverse Effect; HGSC
(i) is a general partnership organized and existing under the laws of the State of Delaware, (ii) has the full partnership power and authority, and the legal right, to own and operate its property, to lease the property it operates as lessee and to conduct the business in which it is currently engaged and (iii) is in compliance with all Requirements of Law except to the extent that the failure to comply therewith would not, individually or in the aggregate, have a Material Adverse Effect.
(b) It (i) has the corporate or partnership power and authority to make, deliver and perform each Basic Note Document to which it is a party, (ii) has taken all necessary action to authorize the execution, delivery and performance of each Basic Note Document to which it is a party and (iii) has duly executed and delivered each Basic Note Document to which it is a party.
(c) The execution, delivery and performance of each Basic Note Document to which it is a party will not violate any Requirement of Law or Contractual Obligation of it except for violations that would not have a Material Adverse Effect, and will not result in, or require, the creation or imposition of any Lien (other than Permitted Liens and Liens created by the Basic Documents) on any of its properties or revenues pursuant to any such Requirement of Law or Contractual Obligation.
(d) Each Basic Note Document to which it is a party and each Contract constitutes the legal, valid and binding obligation of it enforceable against it in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights in general and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law.
(e) It has good and marketable title to the Pledged Contract Receivables, free of any Lien other than the Lien pursuant to this Indenture; and, upon execution and delivery of this Indenture by the parties hereto, the Indenture Trustee shall have all of the right, title and interest of the Issuer and the Servicerlicensed, as the case may be, inin the aggregate, to and undercould have a material adverse effect on the business, and a first priority perfected security interest infinancial position, the Trust Estate free of any Lien other than Permitted Liens and Liens created pursuant to the Basic Documents.
(f) Each of the audited consolidated balance sheet, statement results of operations, statement properties or prospects of stockholders' equity NUTRITIONARY ;
(j) there are no pending or threatened suits, claims or demands against NUTRITIONARY that have not been disclosed directly to SIMON by NUTRITIONARY in writing, and statement of cash flows of FRGC for each approved by SIMON;
(k) none of the two fiscal years ended December 31, 1993 and 1994, and the two fiscal years ended December 31, 1993 and 1992, the audited consolidated balance sheet of FRGC as of June 19, 1995, the unaudited consolidated balance sheet, statement of operations and statement of cash flows of FRGC for the three-month period ended March 31, 1995, and the unaudited consolidated balance sheet and statement of operations of FRGC for the nine-month period ended September 30, 1995, respectively, have been prepared in accordance with GAAP applied on a consistent basis throughout the periods involved (except for the unaudited financial statements which are subject to normal year-end adjustments and purchase price adjustments as a result of Crystal's acquisition of FRGC and which do not contain footnote disclosures) and each fairly presents the consolidated financial position of FRGC and its Subsidiaries at the respective dates thereof and the consolidated results of their operations and changes in cash flows for the periods indicated.
(g) Since June 19, 1995, there has been no development or event which has had or could reasonably be expected to have a Material Adverse Effect.
(h) No proceeds of the issuance of any Notes will credit extended pursuant to this Agreement shall be used by it to purchase directly or carry indirectly for the purpose of purchasing or carrying any margin stock (as defined in Regulations U and G violation of any of the Board provisions of Governors of the Federal Reserve System, as in effect from time to time). It is in compliance with all applicable regulations Regulation U of the Board of Governors of the Federal Reserve System (including, without limitation, Regulations U and G with respect to "margin stockRegulation U").
(i) None , or for the purpose of reducing or retiring any indebtedness which was originally incurred to purchase or carry margin stock or for any other purchase which might render the FRGC Parties is an Obligations a "investment companyPurpose Credit" within the meaning ofof Regulation U ;
(l) each employee pension benefit plan, or subject to regulation underas defined in ERISA, maintained by NUTRITIONARY meets, as of the date hereof, the Investment Company Act minimum funding standards of 1940 and the rules and regulations thereunder.
(j) Each of Crystal and the FRGC Parties has filed or caused to be filed all tax returns which, to its knowledge, are required to be filed and have paid all taxes shown to be due and payable on said returns or on any assessments made against it or any of its property ERISA and all other taxesapplicable regulations thereto and requirements thereof, fees and of the Internal Revenue Code of 1986, as amended. No "Prohibited Transaction" or other charges imposed on it or any of its property "Reportable Event" (as both terms are defined by any Governmental Authority (other than any the amount or validity of which are currently being contested in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided on its books), except where the failure to file or to pay such taxes, fees or other charges would not, individually or in the aggregate, have a Material Adverse Effect; no tax Lien ERISA) has been filed, and, to its knowledge, no claim is being asserted, occurred with respect to any such taxplan;
(m) the fair saleable value of NUTRITIONARY's assets exceeds its liabilities, fee or other chargeNUTRITIONARY is meeting its current liabilities as they mature, except for and NUTRITIONARY is and shall remain solvent;
(n) all financial statements of NUTRITIONARY furnished to SIMON are correct and accurately reflect the financial condition of NUTRITIONARY as of the respective dates thereof;
(o) since the date of such claims which would notfinancial statements, individually or there has not occurred a material adverse change in the aggregatefinancial condition of NUTRITIONARY; and
(p) there are not now pending any court or administrative proceedings or undischarged judgments against NUTRITIONARY, have a Material Adverse Effect. Except for the Federal income no federal or state tax liabilities of FRGC, which liens have been determined through 1991, the Federal income tax liabilities of the FRGC Parties have not been finally determined by the Internal Revenue Service for any period.
(k) It has good record and indefeasible title in fee simple to, filed or a valid leasehold interest in, or other valid right to use, all its real propertythreatened against NUTRITIONARY, and good title to, or a valid leasehold interest in, or other valid right to use, all its other property, and none of such property is subject to any Lien other than (i) Permitted Liens and (ii) the Liens created pursuant to the Basic Documents.
(l) It NUTRITIONARY is not in default or claimed default under or with respect to any of its Contractual Obligations except for such defaults which, individually or in the aggregate, would not have a Material Adverse Effectagreement.
(m) It has previously delivered to the Indenture Trustee true and correct copies of each Contract (including any amendments thereto); and the terms other than price, volumes and payment dates of the Contracts as they relate to the Purchased Contract Receivables are the same in all material respects as the terms set forth in the Contracts attached to the Private Placement Memorandum with respect to the offer and sale of the Investor Certificates.
(n) It has not within the last twelve months made any transfer or incurred any obligation with actual intent to hinder, delay or defraud any entity to which it was or may become indebted and it has not transferred any material property without receiving reasonably equivalent value for any such transfer or obligation. Both immediately prior to and immediately after the transactions occurring on the Closing Date, (i) the fair value of its assets at a fair valuation exceeds its debts and liabilities, subordinated, contingent or otherwise; (ii) the present fair salable value of its property is greater than the amount that will be required to pay its probable liability on its debts and other liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured; (iii) it is reasonably expected to be able to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured; and (iv) it will not have unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted. For all purposes of clauses (i) through (iv) above, the amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
(o) Except for any other FRGC Party, it has no Subsidiaries.
(p) The Servicer has in place procedures pursuant to the Basic Note Documents that are either necessary or advisable to ensure the timely collection of the Pledged Contract Receivables.
(q) The Servicer has in force business interruption insurance with respect to the Storage Facilities as described in Schedule 5 hereto (the "Business Interruption Insurance").
(r) The office at which it keeps its records concerning the Pledged Contract Receivables is located at 000 Xxxxx Xxxxxx, Shreveport, Louisiana 71101. Since June 19, 1995, its chief executive office has been located at 000 Xxxxx Xxxxxx, Shreveport, Louisiana 71101 and is the place where it is "located" for the purposes of Section 9-103(3)(d) of the UCC of each jurisdiction the laws of which govern the transfer of the Pledged Contract Receivable hereunder. From January 1, 1995 until June 19, 1995, its chief executive office was "located" in Dallas, Texas for the purposes of Section 9-103(3)(d) of the UCC as in effect in the State of Texas. The taxpayer identification number of HGSC is 00-0000000 and of HIG is 00-0000000.
(s) Its legal name is as set forth in this Indenture. It has no trade names, fictitious names, assumed names or "doing business as" names.
(t) Schedule 8 accurately sets forth the amounts scheduled to come due after the Cut-off Date with respect to the Pledged Contract Receivables.
(u) No action, claim or proceeding is pending and, to its knowledge, no investigation is pending or threatened that would adversely affect the payment or enforceability of the Pledged Contract Receivables.
(v) No consents or filings with any Governmental Authority or approvals by any Governmental Authority that have not been made or obtained are required for the execution, delivery and performance of the Basic Note Documents to which it is a party.
(w) There are no pending or, to its knowledge, threatened actions, suits or proceedings against any FRGC Party that would adversely affect the transactions contemplated by the Basic Note Documents to which it is a party, and there is no injunction, writ, restraining order or other similar order in effect that adversely affects any of the FRGC Parties' performance of the agreements and transactions contemplated by the Basic Note Documents to which it is a party.
(x) All of the FRGC Parties' pension and profit sharing plans have been fully funded in accordance with the applicable FRGC Parties' obligations.
(y) Each Contract is a legal, valid and binding obligation and contract, as the case may be, of the FRGC Party thereto, enforceable against such party in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the enforcement of creditors' rights in general and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law, and except as to any material provision of any Contract the lack of enforceability of which would not affect the enforceability of the payment obligations of the Obligors thereunder in respect of any Pledged Contract Receivable.
(z) Since September 30, 1995, except on the Closing Date from the net proceeds from the sale of the Notes and the Investor Certificates, none of the FRGC Parties has made a Restricted Payment. (aa) The projected distributions with respect to the Pledged Investor Certificate Rights are sufficient to pay the interest obligations with respect to the Notes through July 2000. The representations and warranties set forth in this Article III shall survive the initial issuance of the Notes.
Appears in 1 contract
Other Representations and Warranties. Each of the Issuer AHDC represents, warrants and HIG (in its capacity as Servicer and Operator) represents and warrants covenants to the Indenture Trustee for the benefit of the Noteholders as of the Closing Date as followsSIMON that:
(a) HIG all information now and hereafter furnished to SIMON is and will be true, correct and complete in all material respects;
(b) the execution, delivery and performance by AHDC of this Agreement and any other Transaction Document to which it is a party are within its power, have been duly authorized as may be required and, if necessary, by making appropriate filings with any governmental agency or unit and are the legal, binding, valid and enforceable obligations of AHDC and do not (i) contravene, or constitute (with or without the giving of notice or lapse of time or both) a violation of any provision of applicable law, a violation of the organizational documents of AHDC, or a default under any agreement, judgment, injunction, order, decree or other instrument binding upon or affecting AHDC, (ii) result in the creation or imposition of any lien (other than the lien(s) created by the Transaction Documents) on any of AHDC's assets, or (iii) give cause for the acceleration of any obligations of AHDC to any other creditor;
(c) AHDC has good and marketable title to all of the properties and assets reflected on the balance sheets and financial statements, if any, supplied to SIMON by AHDC, and all such properties and assets are free and clear of mortgages, security deeds, pledges, liens, charges, and all other encumbrances, other than the Permitted Liens;
(d) to AHDC's knowledge, no default has occurred under any Permitted Liens and no claims or interests adverse to AHDC's present rights in its properties and assets have arisen;
(e) AHDC has duly filed, paid and/or discharged all taxes or other claims which may become a lien on any of its property or assets, except to the extent that such items are being appropriately contested in good faith and an adequate reserve for the payment thereof is a corporation being maintained;
(f) AHDC is not, and after consummation of this Agreement and after giving effect to all indebtedness incurred and liens created by AHDC in connection with this Agreement, the Guaranty and/or any other Transaction Document, will not be, insolvent within the meaning of 11 U.S.C. ss. 101(32);
(g) AHDC is in compliance in all material respects with all federal, state and local laws, rules and regulations applicable to its properties, operations, business, and finances, including, without limitation, any federal or state laws relating to liquor (including 18 U.S.C. ss. 3617, et seq.) or narcotics (including 21 U.S.C. ss. 801, et seq.) and/or any commercial crimes; all applicable federal, state and local laws and regulations intended to protect the environment; and the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), if applicable;
(h) AHDC is duly organizedcreated, validly existing and in good standing under the laws of the State state of Delaware, (ii) has the corporate power and authorityits organization, and the legal righthas all powers, governmental licenses, authorizations, consents and approvals required to own and operate its property, to lease the property it operates business as lessee and to conduct the business in which it is currently engaged, now conducted;
(iiii) has all licenses necessary to service the Pledged Contract Receivables pursuant to this Indenture, (iv) AHDC is duly qualified as a foreign corporation qualified, licensed and in good standing under the laws of in each jurisdiction where its ownership, lease qualification or operation of property or licensing is required by the conduct nature of its business requires such qualificationor the character and location of its property, except to the extent that business or customers, and in which the failure to so qualify or be so qualified and in good standing would not have a Material Adverse Effect and (v) is in compliance with all Requirements of Law except to the extent that the failure to comply therewith would not, individually or in the aggregate, have a Material Adverse Effect; HGSC
(i) is a general partnership organized and existing under the laws of the State of Delaware, (ii) has the full partnership power and authority, and the legal right, to own and operate its property, to lease the property it operates as lessee and to conduct the business in which it is currently engaged and (iii) is in compliance with all Requirements of Law except to the extent that the failure to comply therewith would not, individually or in the aggregate, have a Material Adverse Effect.
(b) It (i) has the corporate or partnership power and authority to make, deliver and perform each Basic Note Document to which it is a party, (ii) has taken all necessary action to authorize the execution, delivery and performance of each Basic Note Document to which it is a party and (iii) has duly executed and delivered each Basic Note Document to which it is a party.
(c) The execution, delivery and performance of each Basic Note Document to which it is a party will not violate any Requirement of Law or Contractual Obligation of it except for violations that would not have a Material Adverse Effect, and will not result in, or require, the creation or imposition of any Lien (other than Permitted Liens and Liens created by the Basic Documents) on any of its properties or revenues pursuant to any such Requirement of Law or Contractual Obligation.
(d) Each Basic Note Document to which it is a party and each Contract constitutes the legal, valid and binding obligation of it enforceable against it in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights in general and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law.
(e) It has good and marketable title to the Pledged Contract Receivables, free of any Lien other than the Lien pursuant to this Indenture; and, upon execution and delivery of this Indenture by the parties hereto, the Indenture Trustee shall have all of the right, title and interest of the Issuer and the Servicerlicensed, as the case may be, inin the aggregate, to and undercould have a material adverse effect on the business, and a first priority perfected security interest infinancial position, the Trust Estate free of any Lien other than Permitted Liens and Liens created pursuant to the Basic Documents.
(f) Each of the audited consolidated balance sheet, statement results of operations, statement properties or prospects of stockholders' equity AHDC ;
(j) there are no pending or threatened suits, claims or demands against AHDC that have not been disclosed directly to SIMON by AHDC in writing, and statement of cash flows of FRGC for each approved by SIMON;
(k) none of the two fiscal years ended December 31, 1993 and 1994, and the two fiscal years ended December 31, 1993 and 1992, the audited consolidated balance sheet of FRGC as of June 19, 1995, the unaudited consolidated balance sheet, statement of operations and statement of cash flows of FRGC for the three-month period ended March 31, 1995, and the unaudited consolidated balance sheet and statement of operations of FRGC for the nine-month period ended September 30, 1995, respectively, have been prepared in accordance with GAAP applied on a consistent basis throughout the periods involved (except for the unaudited financial statements which are subject to normal year-end adjustments and purchase price adjustments as a result of Crystal's acquisition of FRGC and which do not contain footnote disclosures) and each fairly presents the consolidated financial position of FRGC and its Subsidiaries at the respective dates thereof and the consolidated results of their operations and changes in cash flows for the periods indicated.
(g) Since June 19, 1995, there has been no development or event which has had or could reasonably be expected to have a Material Adverse Effect.
(h) No proceeds of the issuance of any Notes will credit extended pursuant to this Agreement shall be used by it to purchase directly or carry indirectly for the purpose of purchasing or carrying any margin stock (as defined in Regulations U and G violation of any of the Board provisions of Governors of the Federal Reserve System, as in effect from time to time). It is in compliance with all applicable regulations Regulation U of the Board of Governors of the Federal Reserve System (including, without limitation, Regulations U and G with respect to "margin stockRegulation U").
(i) None , or for the purpose of reducing or retiring any indebtedness which was originally incurred to purchase or carry margin stock or for any other purchase which might render the FRGC Parties is an Obligations a "investment companyPurpose Credit" within the meaning ofof Regulation U ;
(l) each employee pension benefit plan, or subject to regulation underas defined in ERISA, maintained by AHDC meets, as of the date hereof, the Investment Company Act minimum funding standards of 1940 and the rules and regulations thereunder.
(j) Each of Crystal and the FRGC Parties has filed or caused to be filed all tax returns which, to its knowledge, are required to be filed and have paid all taxes shown to be due and payable on said returns or on any assessments made against it or any of its property ERISA and all other taxesapplicable regulations thereto and requirements thereof, fees and of the Internal Revenue Code of 1986, as amended. No "Prohibited Transaction" or other charges imposed on it or any of its property "Reportable Event" (as both terms are defined by any Governmental Authority (other than any the amount or validity of which are currently being contested in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided on its books), except where the failure to file or to pay such taxes, fees or other charges would not, individually or in the aggregate, have a Material Adverse Effect; no tax Lien ERISA) has been filed, and, to its knowledge, no claim is being asserted, occurred with respect to any such taxplan;
(m) the fair saleable value of AHDC's assets exceeds its liabilities, fee or other chargeAHDC is meeting its current liabilities as they mature, except for and AHDC is and shall remain solvent;
(n) all financial statements of AHDC furnished to SIMON are correct and accurately reflect the financial condition of AHDC as of the respective dates thereof;
(o) since the date of such claims which would notfinancial statements, individually or there has not occurred a material adverse change in the aggregatefinancial condition of AHDC; and
(p) there are not now pending any court or administrative proceedings or undischarged judgments against AHDC, have a Material Adverse Effect. Except for the Federal income no federal or state tax liabilities of FRGC, which liens have been determined through 1991, the Federal income tax liabilities of the FRGC Parties have not been finally determined by the Internal Revenue Service for any period.
(k) It has good record and indefeasible title in fee simple to, filed or a valid leasehold interest in, or other valid right to use, all its real propertythreatened against AHDC, and good title to, or a valid leasehold interest in, or other valid right to use, all its other property, and none of such property is subject to any Lien other than (i) Permitted Liens and (ii) the Liens created pursuant to the Basic Documents.
(l) It AHDC is not in default or claimed default under or with respect to any of its Contractual Obligations except for such defaults which, individually or in the aggregate, would not have a Material Adverse Effectagreement.
(m) It has previously delivered to the Indenture Trustee true and correct copies of each Contract (including any amendments thereto); and the terms other than price, volumes and payment dates of the Contracts as they relate to the Purchased Contract Receivables are the same in all material respects as the terms set forth in the Contracts attached to the Private Placement Memorandum with respect to the offer and sale of the Investor Certificates.
(n) It has not within the last twelve months made any transfer or incurred any obligation with actual intent to hinder, delay or defraud any entity to which it was or may become indebted and it has not transferred any material property without receiving reasonably equivalent value for any such transfer or obligation. Both immediately prior to and immediately after the transactions occurring on the Closing Date, (i) the fair value of its assets at a fair valuation exceeds its debts and liabilities, subordinated, contingent or otherwise; (ii) the present fair salable value of its property is greater than the amount that will be required to pay its probable liability on its debts and other liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured; (iii) it is reasonably expected to be able to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured; and (iv) it will not have unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted. For all purposes of clauses (i) through (iv) above, the amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
(o) Except for any other FRGC Party, it has no Subsidiaries.
(p) The Servicer has in place procedures pursuant to the Basic Note Documents that are either necessary or advisable to ensure the timely collection of the Pledged Contract Receivables.
(q) The Servicer has in force business interruption insurance with respect to the Storage Facilities as described in Schedule 5 hereto (the "Business Interruption Insurance").
(r) The office at which it keeps its records concerning the Pledged Contract Receivables is located at 000 Xxxxx Xxxxxx, Shreveport, Louisiana 71101. Since June 19, 1995, its chief executive office has been located at 000 Xxxxx Xxxxxx, Shreveport, Louisiana 71101 and is the place where it is "located" for the purposes of Section 9-103(3)(d) of the UCC of each jurisdiction the laws of which govern the transfer of the Pledged Contract Receivable hereunder. From January 1, 1995 until June 19, 1995, its chief executive office was "located" in Dallas, Texas for the purposes of Section 9-103(3)(d) of the UCC as in effect in the State of Texas. The taxpayer identification number of HGSC is 00-0000000 and of HIG is 00-0000000.
(s) Its legal name is as set forth in this Indenture. It has no trade names, fictitious names, assumed names or "doing business as" names.
(t) Schedule 8 accurately sets forth the amounts scheduled to come due after the Cut-off Date with respect to the Pledged Contract Receivables.
(u) No action, claim or proceeding is pending and, to its knowledge, no investigation is pending or threatened that would adversely affect the payment or enforceability of the Pledged Contract Receivables.
(v) No consents or filings with any Governmental Authority or approvals by any Governmental Authority that have not been made or obtained are required for the execution, delivery and performance of the Basic Note Documents to which it is a party.
(w) There are no pending or, to its knowledge, threatened actions, suits or proceedings against any FRGC Party that would adversely affect the transactions contemplated by the Basic Note Documents to which it is a party, and there is no injunction, writ, restraining order or other similar order in effect that adversely affects any of the FRGC Parties' performance of the agreements and transactions contemplated by the Basic Note Documents to which it is a party.
(x) All of the FRGC Parties' pension and profit sharing plans have been fully funded in accordance with the applicable FRGC Parties' obligations.
(y) Each Contract is a legal, valid and binding obligation and contract, as the case may be, of the FRGC Party thereto, enforceable against such party in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the enforcement of creditors' rights in general and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law, and except as to any material provision of any Contract the lack of enforceability of which would not affect the enforceability of the payment obligations of the Obligors thereunder in respect of any Pledged Contract Receivable.
(z) Since September 30, 1995, except on the Closing Date from the net proceeds from the sale of the Notes and the Investor Certificates, none of the FRGC Parties has made a Restricted Payment. (aa) The projected distributions with respect to the Pledged Investor Certificate Rights are sufficient to pay the interest obligations with respect to the Notes through July 2000. The representations and warranties set forth in this Article III shall survive the initial issuance of the Notes.
Appears in 1 contract
Other Representations and Warranties. Each of the Issuer Seller and HIG (in its capacity as Servicer and Operator) represents and warrants to the Indenture Trustee Trust for the benefit of the Noteholders Investor Certificateholders as of the Closing Date as follows:
(a) HIG (i) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (ii) has the corporate power and authority, and the legal right, to own and operate its property, to lease the property it operates as lessee and to conduct the business in which it is currently engaged, (iii) has all licenses necessary to service the Pledged Purchased Contract Receivables pursuant to this IndentureAgreement, (iv) is duly qualified as a foreign corporation and in good standing under the laws of each jurisdiction where its ownership, lease or operation of property or the conduct of its business requires such qualification, except to the extent that the failure to be so qualified and in good standing would not have a Material Adverse Effect and (v) is in compliance with all Requirements of Law except to the extent that the failure to comply therewith would not, individually or in the aggregate, have a Material Adverse Effect; HGSCfailure
(i) is a general partnership organized and existing under the laws of the State of Delaware, (ii) has the full partnership power and authority, and the legal right, to own and operate its property, to lease the property it operates as lessee and to conduct the business in which it is currently engaged engaged, and (iii) is in compliance with all Requirements of Law except to the extent that the failure to comply therewith would not, individually or in the aggregate, have a Material Adverse Effect.
(b) It (i) has the corporate or partnership power and authority to make, deliver and perform each Basic Note Trust Document to which it is a party, (ii) has taken all necessary action to authorize the execution, delivery and performance of each Basic Note Trust Document to which it is a party and (iii) has duly executed and delivered each Basic Note Trust Document to which it is a party.
(c) The execution, delivery and performance of each Basic Note Trust Document to which it is a party will not violate any Requirement of Law or Contractual Obligation of it except for violations that would not have a Material Adverse Effect, and will not result in, or require, the creation or imposition of any Lien (other than Permitted Liens and Liens created by the Basic Documents) on any of its properties or revenues pursuant to any such Requirement of Law or Contractual Obligation.
(d) Each Basic Note Trust Document to which it is a party and each Contract constitutes the legal, valid and binding obligation of it enforceable against it in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights in general and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law.
(e) It No Purchased Contract Receivable has been sold, transferred, assigned or pledged to any Person other than the Trust; immediately prior to the conveyance of the Purchased Contract Receivables pursuant to this Agreement, the Seller had good and marketable title to the Pledged Contract Receivablesthereto, free of any Lien other than the Lien pursuant to this IndentureLien; and, upon execution and delivery of this Indenture Agreement by the parties hereto, the Indenture Trustee Trust shall have all of the right, title and interest of the Issuer and the Servicer, as the case may be, Seller in, to and under, and a first priority perfected security interest in, under the Trust Estate Purchased Contract Receivables free of any Lien other than Permitted Liens and Liens created pursuant to the Basic Documents.
(f) Each of the audited consolidated balance sheet, statement of operations, statement of stockholders' equity and statement of cash flows of FRGC for each of the two fiscal years ended December 31, 1993 and 1994, and the two fiscal years ended December 31, 1993 and 1992, the audited consolidated balance sheet of FRGC as of June 19, 1995, the unaudited consolidated balance sheet, statement of operations and statement of cash flows of FRGC for the three-month period ended March 31, 1995, and the unaudited consolidated balance sheet and statement of operations of FRGC for the nine-month period ended September 30, 1995, respectively, have been prepared in accordance with GAAP applied on a consistent basis throughout the periods involved (except for the unaudited financial statements which are subject to normal year-end adjustments and purchase price adjustments as a result of Crystal's acquisition of FRGC and which do not contain footnote disclosures) and each fairly presents the consolidated financial position of FRGC and its Subsidiaries at the respective dates thereof and the consolidated results of their operations and changes in cash flows for the periods indicated.
(g) Since June 19, 1995, there has been no development or event which has had or could reasonably be expected to have a Material Adverse Effect.
(h) No proceeds of the issuance of any Notes Investor Certificates will be used by it to purchase or carry any margin stock (as defined in Regulations U and G of the Board of Governors of the Federal Reserve System, as in effect from time to time). It is in compliance with all applicable regulations of the Board of Governors of the Federal Reserve System (including, without limitation, Regulations U and G with respect to "margin stock").
(i) None Upon formation of the Trust, and immediately following its acquisition of the Purchased Contract Receivables pursuant to this Agreement, none of the FRGC Parties is nor the Trust will be an "investment company" within the meaning of, or subject to regulation under, the Investment Company Act of 1940 and the rules and regulations thereunder.
(j) Each of Crystal and the FRGC Parties has filed or caused to be filed all tax returns which, to its knowledge, are required to be filed and have paid all taxes shown to be due and payable on said returns or on any assessments made against it or any of its property and all other taxes, fees or other charges imposed on it or any of its property by any Governmental Authority (other than any the amount or validity of which are currently being contested in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided on its books), except where the failure to file or to pay such taxes, fees or other charges would not, individually or in the aggregate, have a Material Adverse Effect; no tax Lien has been filed, and, to its knowledge, no claim is being asserted, with respect to any such tax, fee or other charge, except for such claims which would not, individually or in the aggregate, have a Material Adverse Effect. Except for the Federal income tax liabilities of FRGC, which have been determined through 1991, the Federal income tax liabilities of the FRGC Parties have not been finally determined by the Internal Revenue Service for any period.
(k) It has good record and indefeasible title in fee simple to, or a valid leasehold interest in, or other valid right to use, all its real property, and good title to, or a valid leasehold interest in, or other valid right to use, all its other property, and none of such property is subject to any Lien other than (i) Permitted Liens and (ii) the Liens created pursuant to the Basic Documents.
(l) It is not in default under or with respect to any of its Contractual Obligations except for such defaults which, individually or in the aggregate, would not have a Material Adverse Effect.
(m) It has previously delivered to the Indenture Trustee Trust true and correct copies of each Contract (including any amendments thereto); and the terms other than price, volumes and payment dates of the Contracts as they relate to the Purchased Contract Receivables are the same in all material respects as the terms set forth in the Contracts attached to the Private Placement Memorandum with respect to the offer and sale of the Investor Certificates.
(n) It has not within the last twelve months made any transfer or incurred any obligation with actual intent to hinder, delay or defraud any entity to which it was or may become indebted and it has not transferred any material property without receiving reasonably equivalent value for any such transfer or obligation. Both immediately prior to and immediately after the transactions occurring on the Closing Date, (i) the fair value of its assets at a fair valuation exceeds its debts and liabilities, subordinated, contingent or otherwise; (ii) the present fair salable value of its property is greater than the amount that will be required to pay its probable liability on its debts and other liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured; (iii) it is reasonably expected to be able to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured; and (iv) it will not have unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted. For all purposes of clauses (i) through (iv) above, the amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
(o) Except for any other FRGC Party, it has no Subsidiaries.
(p) The Servicer has in place procedures pursuant to the Basic Note Trust Documents that are either necessary or advisable to ensure the timely collection of the Pledged Purchased Contract Receivables.
(q) The Servicer has in force business interruption insurance with respect to the Storage Facilities as described in Schedule 5 6 hereto (the "Business Interruption Insurance").
(r) The office at which it keeps its records concerning the Pledged Purchased Contract Receivables is located at 000 Xxxxx Xxxxxx, Shreveport, Louisiana 71101. Since June 19, 1995, its chief executive office has been located at 000 Xxxxx Xxxxxx, Shreveport, Louisiana 71101 and is the place where it is "located" for the purposes of Section 9-103(3)(d) of the UCC of each jurisdiction the laws of which govern the transfer of the Pledged Purchased Contract Receivable hereunder. From January 1, 1995 until June 19, 1995, its chief executive office was "located" in Dallas, Texas for the purposes of Section 9-103(3)(d) of the UCC as in effect in the State of Texas. The taxpayer identification number of HGSC is 00-0000000 and of HIG is 00-0000000.
(s) Its legal name is as set forth in this IndentureAgreement. It has no trade names, fictitious names, assumed names or "doing business as" names.
(t) Schedule 8 3 accurately sets forth the amounts Collected Amounts scheduled to come due after the Cut-off Date with respect to the Pledged Purchased Contract Receivables.
(u) No action, claim or proceeding is pending and, to its knowledge, no investigation is pending or threatened that would adversely affect the payment or enforceability of the Pledged Purchased Contract Receivables.
(v) No consents or filings with any Governmental Authority or approvals by any Governmental Authority that have not been made or obtained are required for the execution, delivery and performance of the Basic Note Trust Documents to which it is a party.
(w) There are no pending or, to its knowledge, threatened actions, suits or proceedings against any FRGC Party that would adversely affect the transactions contemplated by the Basic Note Trust Documents to which it is a party, and there is no injunction, writ, restraining order or other similar order in effect that adversely affects any of the FRGC Parties' performance of the agreements and transactions contemplated by the Basic Note Trust Documents to which it is a party.
(x) All of the FRGC Parties' pension and profit sharing plans have been fully funded in accordance with the applicable FRGC Parties' obligations.
(y) Each Contract is a legal, valid and binding obligation and contract, as the case may be, of the FRGC Party thereto, enforceable against such party in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the enforcement of creditors' rights in general and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law, and except as to any material provision of any Contract the lack of enforceability of which would not affect the enforceability of the payment obligations of the Obligors thereunder in respect of any Pledged Purchased Contract Receivable.
(z) Since September 30, 1995, except on Upon the Closing Date from the net proceeds from completion of the sale of the Notes Purchased Contract Receivables, the Trust's ownership therein will be reflected on the books and the Investor Certificates, none records of the FRGC Parties has made a Restricted Payment. (aa) The projected distributions with respect to the Pledged Investor Certificate Rights are sufficient to pay the interest obligations with respect to the Notes through July 2000Seller. The representations and warranties set forth in this Article III shall survive the initial issuance transfer and assignment of the NotesPurchased Property to the Trust.
Appears in 1 contract
Other Representations and Warranties. Each of the Issuer and HIG (in its capacity as Servicer and Operator) Borrower further represents and warrants to the Indenture Trustee for the benefit of the Noteholders as of the Closing Date as followsBank that:
(a) HIG Borrower (i) is a corporation company duly organized, validly existing and in good standing under the laws of the State of DelawareMaryland, (ii) has is subject to and duly registered as a management investment company in accordance with the corporate power and authority, and the legal right, to own and operate its property, to lease the property it operates as lessee and to conduct the business in which it is currently engaged1940 Act, (iii) has is in material compliance with the 1940 Act, including but not limited to, all licenses necessary to service leverage regulations specified in the Pledged Contract Receivables pursuant to this Indenture1940 Act, (iv) is duly qualified as a foreign corporation to do business and is in good standing under the laws of each jurisdiction where its ownership, lease or operation of property or the in all states in which qualification and good standing are necessary in order for it to conduct of its business requires such qualification, and own its property except to the extent that the where failure to be so qualified and or in good standing would could not have a Material Adverse Effect and (v) is in compliance with all Requirements of Law except reasonably be expected to the extent that the failure to comply therewith would not, individually or in the aggregate, have a Material Adverse Effect; HGSC
, and (i) is a general partnership organized and existing under the laws of the State of Delaware, (iiv) has the full partnership all requisite power and authority, and the legal rightauthority to conduct its business, to own and operate its property, to lease the property it operates as lessee execute and deliver this Agreement and to conduct the business in which it is currently engaged and (iii) is in compliance with all Requirements of Law except to the extent that the failure to comply therewith would not, individually or in the aggregate, have a Material Adverse Effect.perform its obligations hereunder;
(b) It this Agreement has been duly and validly executed and delivered by Borrower and constitutes a legal, valid and binding obligation of Borrower, enforceable against it in accordance with its terms, subject, as to enforceability of remedies, to bankruptcy, insolvency and other laws affecting creditors’ rights generally and to general principles of equity;
(ic) has the corporate or partnership power and authority to make, deliver and perform each Basic Note Document to which it is a party, (ii) Borrower has taken all necessary action to authorize the execution, delivery and performance of each Basic Note Document this Agreement, and such authorization, delivery and performance do not and will not (i) violate its corporate charter or by-laws or any law, rule, regulation, order, judgment, injunction, decree, determination or award presently in effect and applicable to it except as could not reasonably be expected to have a Material Adverse Effect, (ii) require any consent or result in a breach of or constitute a default under any agreement, lease or instrument to which it is a party and (iii) has duly executed and delivered each Basic Note Document to or by which it is a party.
(c) The execution, delivery and performance or any of each Basic Note Document its assets may be bound or affected except as could not reasonably be expected to which it is a party will not violate any Requirement of Law or Contractual Obligation of it except for violations that would not have a Material Adverse Effect, and will not or (iii) result in, in or require, require the creation or imposition of any Lien (other than Permitted Liens and Liens created by the Basic Documents) on upon or with respect to any of its the properties now owned or revenues pursuant to any such Requirement of Law or Contractual Obligation.hereafter acquired by it;
(d) Each Basic Note Document no recording, order, authorization, consent, license, registration, approval, exemption, filing, notice or other similar action by or with any governmental body, governmental official or other regulatory authority (except such as have been obtained and copies or confirmations of which have been delivered by Borrower to which it Bank) is a party and each Contract constitutes or will be necessary (i) for the legallegality, valid and validity, binding obligation effect or enforceability of it enforceable against it this Agreement, (ii) to permit the performance by Borrower of its obligations under this Agreement in accordance with the terms thereof or (iii) to enable Bank to enforce its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights in general and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at lawremedies under this Agreement.
(e) It Borrower has good and marketable title to the Pledged Contract Receivables, free of any Lien no Indebtedness other than the Lien pursuant to this Indenture; and, upon execution and delivery of this Indenture by the parties hereto, the Indenture Trustee shall have all of the right, title and interest of the Issuer and the Servicer, as the case may be, in, to and under, and a first priority perfected security interest in, the Trust Estate free of any Lien other than Permitted Liens and Liens created pursuant to the Basic Documents.Indebtedness permitted under Section 15(a) below;
(f) Each Borrower is not in default with respect to any of its Indebtedness;
(g) except as disclosed by it to Bank in writing prior to the audited consolidated balance sheetdate of this Agreement, statement there is no litigation or other proceeding pending or, to its knowledge, threatened against or affecting Borrower which, if determined adversely to it, would have a Material Adverse Effect;
(h) the Financials as of operationsNovember 30, statement 2007, a copy of stockholders' equity and statement of cash flows of FRGC for each of the two fiscal years ended December 31, 1993 and 1994which have heretofore been delivered to Bank by Borrower, and all other statements and data submitted in writing in connection with the two fiscal years ended December 31, 1993 and 1992, the audited consolidated balance sheet of FRGC as of June 19, 1995, the unaudited consolidated balance sheet, statement of operations and statement of cash flows of FRGC request for the three-month period ended March 31, 1995credit contemplated by this Agreement are true and correct, and said Financials fairly present the unaudited consolidated balance sheet financial condition of Borrower as at the date thereof and statement of operations of FRGC for the nine-month period ended September 30, 1995, respectively, have been prepared in accordance with GAAP applied on a consistent basis throughout the periods involved (except for the unaudited financial statements which are subject generally accepted accounting principles, subject, however, to normal year-end audit adjustments and purchase price adjustments as a result the absence of Crystal's acquisition of FRGC and which do not contain footnote disclosures) and each fairly presents the consolidated financial position of FRGC and its Subsidiaries at the respective dates thereof and the consolidated results of their operations and changes in cash flows for the periods indicated.footnotes; and
(gi) Since June 19since November 30, 19952007, there has been no development or event which that has had or could reasonably be expected to have a Material Adverse Effect.
(h) No proceeds of the issuance of any Notes will be used by it to purchase or carry any margin stock (as defined in Regulations U and G of the Board of Governors of the Federal Reserve System, as in effect from time to time). It is in compliance with all applicable regulations of the Board of Governors of the Federal Reserve System (including, without limitation, Regulations U and G with respect to "margin stock").
(i) None of the FRGC Parties is an "investment company" within the meaning of, or subject to regulation under, the Investment Company Act of 1940 and the rules and regulations thereunder.
(j) Each of Crystal and the FRGC Parties has filed or caused to be filed all tax returns which, to its knowledge, are required to be filed and have paid all taxes shown to be due and payable on said returns or on any assessments made against it or any of its property and all other taxes, fees or other charges imposed on it or any of its property by any Governmental Authority (other than any the amount or validity of which are currently being contested in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided on its books), except where the failure to file or to pay such taxes, fees or other charges would not, individually or in the aggregate, have a Material Adverse Effect; no tax Lien has been filed, and, to its knowledge, no claim is being asserted, with respect to any such tax, fee or other charge, except for such claims which would not, individually or in the aggregate, have a Material Adverse Effect. Except for the Federal income tax liabilities of FRGC, which have been determined through 1991, the Federal income tax liabilities of the FRGC Parties have not been finally determined by the Internal Revenue Service for any period.
(k) It has good record and indefeasible title in fee simple to, or a valid leasehold interest in, or other valid right to use, all its real property, and good title to, or a valid leasehold interest in, or other valid right to use, all its other property, and none of such property is subject to any Lien other than (i) Permitted Liens and (ii) the Liens created pursuant to the Basic Documents.
(l) It is not in default under or with respect to any of its Contractual Obligations except for such defaults which, individually or in the aggregate, would not have a Material Adverse Effect.
(m) It has previously delivered to the Indenture Trustee true and correct copies of each Contract (including any amendments thereto); and the terms other than price, volumes and payment dates of the Contracts as they relate to the Purchased Contract Receivables are the same in all material respects as the terms set forth in the Contracts attached to the Private Placement Memorandum with respect to the offer and sale of the Investor Certificates.
(n) It has not within the last twelve months made any transfer or incurred any obligation with actual intent to hinder, delay or defraud any entity to which it was or may become indebted and it has not transferred any material property without receiving reasonably equivalent value for any such transfer or obligation. Both immediately prior to and immediately after the transactions occurring on the Closing Date, (i) the fair value of its assets at a fair valuation exceeds its debts and liabilities, subordinated, contingent or otherwise; (ii) the present fair salable value of its property is greater than the amount that will be required to pay its probable liability on its debts and other liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured; (iii) it is reasonably expected to be able to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured; and (iv) it will not have unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted. For all purposes of clauses (i) through (iv) above, the amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
(o) Except for any other FRGC Party, it has no Subsidiaries.
(p) The Servicer has in place procedures pursuant to the Basic Note Documents that are either necessary or advisable to ensure the timely collection of the Pledged Contract Receivables.
(q) The Servicer has in force business interruption insurance with respect to the Storage Facilities as described in Schedule 5 hereto (the "Business Interruption Insurance").
(r) The office at which it keeps its records concerning the Pledged Contract Receivables is located at 000 Xxxxx Xxxxxx, Shreveport, Louisiana 71101. Since June 19, 1995, its chief executive office has been located at 000 Xxxxx Xxxxxx, Shreveport, Louisiana 71101 and is the place where it is "located" for the purposes of Section 9-103(3)(d) of the UCC of each jurisdiction the laws of which govern the transfer of the Pledged Contract Receivable hereunder. From January 1, 1995 until June 19, 1995, its chief executive office was "located" in Dallas, Texas for the purposes of Section 9-103(3)(d) of the UCC as in effect in the State of Texas. The taxpayer identification number of HGSC is 00-0000000 and of HIG is 00-0000000.
(s) Its legal name is as set forth in this Indenture. It has no trade names, fictitious names, assumed names or "doing business as" names.
(t) Schedule 8 accurately sets forth the amounts scheduled to come due after the Cut-off Date with respect to the Pledged Contract Receivables.
(u) No action, claim or proceeding is pending and, to its knowledge, no investigation is pending or threatened that would adversely affect the payment or enforceability of the Pledged Contract Receivables.
(v) No consents or filings with any Governmental Authority or approvals by any Governmental Authority that have not been made or obtained are required for the execution, delivery and performance of the Basic Note Documents to which it is a party.
(w) There are no pending or, to its knowledge, threatened actions, suits or proceedings against any FRGC Party that would adversely affect the transactions contemplated by the Basic Note Documents to which it is a party, and there is no injunction, writ, restraining order or other similar order in effect that adversely affects any of the FRGC Parties' performance of the agreements and transactions contemplated by the Basic Note Documents to which it is a party.
(x) All of the FRGC Parties' pension and profit sharing plans have been fully funded in accordance with the applicable FRGC Parties' obligations.
(y) Each Contract is a legal, valid and binding obligation and contract, as the case may be, of the FRGC Party thereto, enforceable against such party in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the enforcement of creditors' rights in general and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law, and except as to any material provision of any Contract the lack of enforceability of which would not affect the enforceability of the payment obligations of the Obligors thereunder in respect of any Pledged Contract Receivable.
(z) Since September 30, 1995, except on the Closing Date from the net proceeds from the sale of the Notes and the Investor Certificates, none of the FRGC Parties has made a Restricted Payment. (aa) The projected distributions with respect to the Pledged Investor Certificate Rights are sufficient to pay the interest obligations with respect to the Notes through July 2000. The representations and warranties set forth in this Article III shall survive the initial issuance of the Notes.
Appears in 1 contract
Other Representations and Warranties. Each of the Issuer AHDC represents, warrants and HIG (in its capacity as Servicer and Operator) represents and warrants covenants to the Indenture Trustee for the benefit of the Noteholders as of the Closing Date as followsFRANKEL that:
(a) HIG all infxxxxxxxn now and hereafter furnished to FRANKEL is and will be true, corxxxx xxd complete in all material respects;
(b) the execution, delivery and performance by AHDC of this Agreement and any other Transaction Document to which it is a party are within its power, have been duly authorized as may be required and, if necessary, by making appropriate filings with any governmental agency or unit and are the legal, binding, valid and enforceable obligations of AHDC and do not (i) contravene, or constitute (with or without the giving of notice or lapse of time or both) a violation of any provision of applicable law, a violation of the organizational documents of AHDC, or a default under any agreement, judgment, injunction, order, decree or other instrument binding upon or affecting AHDC, (ii) result in the creation or imposition of any lien (other than the lien(s) created by the Transaction Documents) on any of AHDC's assets, or (iii) give cause for the acceleration of any obligations of AHDC to any other creditor;
(c) AHDC has good and marketable title to all of the properties and assets reflected on the balance sheets and financial statements, if any, supplied to FRANKEL by AHDC, and all such xxxxxxties and assets are free and clear of mortgages, security deeds, pledges, liens, charges, and all other encumbrances, other than the Permitted Liens;
(d) to AHDC's knowledge, no default has occurred under any Permitted Liens and no claims or interests adverse to AHDC's present rights in its properties and assets have arisen;
(e) AHDC has duly filed, paid and/or discharged all taxes or other claims which may become a lien on any of its property or assets, except to the extent that such items are being appropriately contested in good faith and an adequate reserve for the payment thereof is a corporation being maintained;
(f) AHDC is not, and after consummation of this Agreement and after giving effect to all indebtedness incurred and liens created by AHDC in connection with this Agreement, the Guaranty and/or any other Transaction Document, will not be, insolvent within the meaning of 11 U.S.C. ss. 101(32);
(g) AHDC is in compliance in all material respects with all federal, state and local laws, rules and regulations applicable to its properties, operations, business, and finances, including, without limitation, any federal or state laws relating to liquor (including 18 U.S.C. ss. 3617, et seq.) or narcotics (including 21 U.S.C. ss. 801, et seq.) and/or any commercial crimes; all applicable federal, state and local laws and regulations intended to protect the environment; and the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), if applicable;
(h) AHDC is duly organizedcreated, validly existing and in good standing under the laws of the State state of Delaware, (ii) has the corporate power and authorityits organization, and the legal righthas all powers, governmental licenses, authorizations, consents and approvals required to own and operate its property, to lease the property it operates business as lessee and to conduct the business in which it is currently engaged, now conducted;
(iiii) has all licenses necessary to service the Pledged Contract Receivables pursuant to this Indenture, (iv) AHDC is duly qualified as a foreign corporation qualified, licensed and in good standing under the laws of in each jurisdiction where its ownership, lease qualification or operation of property or licensing is required by the conduct nature of its business requires such qualificationor the character and location of its property, except to the extent that business or customers, and in which the failure to so qualify or be so qualified and in good standing would not have a Material Adverse Effect and (v) is in compliance with all Requirements of Law except to the extent that the failure to comply therewith would not, individually or in the aggregate, have a Material Adverse Effect; HGSC
(i) is a general partnership organized and existing under the laws of the State of Delaware, (ii) has the full partnership power and authority, and the legal right, to own and operate its property, to lease the property it operates as lessee and to conduct the business in which it is currently engaged and (iii) is in compliance with all Requirements of Law except to the extent that the failure to comply therewith would not, individually or in the aggregate, have a Material Adverse Effect.
(b) It (i) has the corporate or partnership power and authority to make, deliver and perform each Basic Note Document to which it is a party, (ii) has taken all necessary action to authorize the execution, delivery and performance of each Basic Note Document to which it is a party and (iii) has duly executed and delivered each Basic Note Document to which it is a party.
(c) The execution, delivery and performance of each Basic Note Document to which it is a party will not violate any Requirement of Law or Contractual Obligation of it except for violations that would not have a Material Adverse Effect, and will not result in, or require, the creation or imposition of any Lien (other than Permitted Liens and Liens created by the Basic Documents) on any of its properties or revenues pursuant to any such Requirement of Law or Contractual Obligation.
(d) Each Basic Note Document to which it is a party and each Contract constitutes the legal, valid and binding obligation of it enforceable against it in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights in general and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law.
(e) It has good and marketable title to the Pledged Contract Receivables, free of any Lien other than the Lien pursuant to this Indenture; and, upon execution and delivery of this Indenture by the parties hereto, the Indenture Trustee shall have all of the right, title and interest of the Issuer and the Servicerlicensed, as the case may be, inin the aggregate, to and undercould have a material adverse effect on the business, and a first priority perfected security interest infinancial position, the Trust Estate free of any Lien other than Permitted Liens and Liens created pursuant to the Basic Documents.
(f) Each of the audited consolidated balance sheet, statement results of operations, statement properties or prospects of stockholders' equity AHDC ;
(j) there are no pending or threatened suits, claims or demands against AHDC that have not been disclosed directly to FRANKEL by AHDC in writing, and statement of cash flows of FRGC for each xxxxxxed by FRANKEL;
(k) none of the two fiscal years ended December 31, 1993 and 1994, and xxxxxxxs of the two fiscal years ended December 31, 1993 and 1992, the audited consolidated balance sheet of FRGC as of June 19, 1995, the unaudited consolidated balance sheet, statement of operations and statement of cash flows of FRGC credit extended pursuant to this Agreement shall be used directly or indirectly for the three-month period ended March 31, 1995, and the unaudited consolidated balance sheet and statement purpose of operations of FRGC for the nine-month period ended September 30, 1995, respectively, have been prepared in accordance with GAAP applied on a consistent basis throughout the periods involved (except for the unaudited financial statements which are subject to normal year-end adjustments and purchase price adjustments as a result of Crystal's acquisition of FRGC and which do not contain footnote disclosures) and each fairly presents the consolidated financial position of FRGC and its Subsidiaries at the respective dates thereof and the consolidated results of their operations and changes in cash flows for the periods indicated.
(g) Since June 19, 1995, there has been no development purchasing or event which has had or could reasonably be expected to have a Material Adverse Effect.
(h) No proceeds of the issuance of any Notes will be used by it to purchase or carry carrying any margin stock (as defined in Regulations U and G violation of any of the Board provisions of Governors of the Federal Reserve System, as in effect from time to time). It is in compliance with all applicable regulations Regulation U of the Board of Governors of the Federal Reserve System (including, without limitation, Regulations U and G with respect to "margin stockRegulation U").
(i) None , or for the purpose of reducing or retiring any indebtedness which was originally incurred to purchase or carry margin stock or for any other purchase which might render the FRGC Parties is an Obligations a "investment companyPurpose Credit" within the meaning ofof Regulation U;
(l) each employee pension benefit plan, or subject to regulation underas defined in ERISA, maintained by AHDC meets, as of the date hereof, the Investment Company Act minimum funding standards of 1940 and the rules and regulations thereunder.
(j) Each of Crystal and the FRGC Parties has filed or caused to be filed all tax returns which, to its knowledge, are required to be filed and have paid all taxes shown to be due and payable on said returns or on any assessments made against it or any of its property ERISA and all other taxesapplicable regulations thereto and requirements thereof, fees and of the Internal Revenue Code of 1986, as amended. No "Prohibited Transaction" or other charges imposed on it or any of its property "Reportable Event" (as both terms are defined by any Governmental Authority (other than any the amount or validity of which are currently being contested in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided on its books), except where the failure to file or to pay such taxes, fees or other charges would not, individually or in the aggregate, have a Material Adverse Effect; no tax Lien ERISA) has been filed, and, to its knowledge, no claim is being asserted, occurred with respect to any such taxplan;
(m) the fair saleable value of AHDC's assets exceeds its liabilities, fee or other chargeAHDC is meeting its current liabilities as they mature, except for and AHDC is and shall remain solvent;
(n) all financial statements of AHDC furnished to FRANKEL are correct and accuratexx xxxlect the financial condition of AHDC as of the respective dates thereof;
(o) since the date of such claims which would notfinancial statements, individually or there has not occurred a material adverse change in the aggregatefinancial condition of AHDC; and
(p) there are not now pending any court or administrative proceedings or undischarged judgments against AHDC, have a Material Adverse Effect. Except for the Federal income no federal or state tax liabilities of FRGC, which liens have been determined through 1991, the Federal income tax liabilities of the FRGC Parties have not been finally determined by the Internal Revenue Service for any period.
(k) It has good record and indefeasible title in fee simple to, filed or a valid leasehold interest in, or other valid right to use, all its real propertythreatened against AHDC, and good title to, or a valid leasehold interest in, or other valid right to use, all its other property, and none of such property is subject to any Lien other than (i) Permitted Liens and (ii) the Liens created pursuant to the Basic Documents.
(l) It AHDC is not in default or claimed default under or with respect to any of its Contractual Obligations except for such defaults which, individually or in the aggregate, would not have a Material Adverse Effectagreement.
(m) It has previously delivered to the Indenture Trustee true and correct copies of each Contract (including any amendments thereto); and the terms other than price, volumes and payment dates of the Contracts as they relate to the Purchased Contract Receivables are the same in all material respects as the terms set forth in the Contracts attached to the Private Placement Memorandum with respect to the offer and sale of the Investor Certificates.
(n) It has not within the last twelve months made any transfer or incurred any obligation with actual intent to hinder, delay or defraud any entity to which it was or may become indebted and it has not transferred any material property without receiving reasonably equivalent value for any such transfer or obligation. Both immediately prior to and immediately after the transactions occurring on the Closing Date, (i) the fair value of its assets at a fair valuation exceeds its debts and liabilities, subordinated, contingent or otherwise; (ii) the present fair salable value of its property is greater than the amount that will be required to pay its probable liability on its debts and other liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured; (iii) it is reasonably expected to be able to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured; and (iv) it will not have unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted. For all purposes of clauses (i) through (iv) above, the amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
(o) Except for any other FRGC Party, it has no Subsidiaries.
(p) The Servicer has in place procedures pursuant to the Basic Note Documents that are either necessary or advisable to ensure the timely collection of the Pledged Contract Receivables.
(q) The Servicer has in force business interruption insurance with respect to the Storage Facilities as described in Schedule 5 hereto (the "Business Interruption Insurance").
(r) The office at which it keeps its records concerning the Pledged Contract Receivables is located at 000 Xxxxx Xxxxxx, Shreveport, Louisiana 71101. Since June 19, 1995, its chief executive office has been located at 000 Xxxxx Xxxxxx, Shreveport, Louisiana 71101 and is the place where it is "located" for the purposes of Section 9-103(3)(d) of the UCC of each jurisdiction the laws of which govern the transfer of the Pledged Contract Receivable hereunder. From January 1, 1995 until June 19, 1995, its chief executive office was "located" in Dallas, Texas for the purposes of Section 9-103(3)(d) of the UCC as in effect in the State of Texas. The taxpayer identification number of HGSC is 00-0000000 and of HIG is 00-0000000.
(s) Its legal name is as set forth in this Indenture. It has no trade names, fictitious names, assumed names or "doing business as" names.
(t) Schedule 8 accurately sets forth the amounts scheduled to come due after the Cut-off Date with respect to the Pledged Contract Receivables.
(u) No action, claim or proceeding is pending and, to its knowledge, no investigation is pending or threatened that would adversely affect the payment or enforceability of the Pledged Contract Receivables.
(v) No consents or filings with any Governmental Authority or approvals by any Governmental Authority that have not been made or obtained are required for the execution, delivery and performance of the Basic Note Documents to which it is a party.
(w) There are no pending or, to its knowledge, threatened actions, suits or proceedings against any FRGC Party that would adversely affect the transactions contemplated by the Basic Note Documents to which it is a party, and there is no injunction, writ, restraining order or other similar order in effect that adversely affects any of the FRGC Parties' performance of the agreements and transactions contemplated by the Basic Note Documents to which it is a party.
(x) All of the FRGC Parties' pension and profit sharing plans have been fully funded in accordance with the applicable FRGC Parties' obligations.
(y) Each Contract is a legal, valid and binding obligation and contract, as the case may be, of the FRGC Party thereto, enforceable against such party in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the enforcement of creditors' rights in general and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law, and except as to any material provision of any Contract the lack of enforceability of which would not affect the enforceability of the payment obligations of the Obligors thereunder in respect of any Pledged Contract Receivable.
(z) Since September 30, 1995, except on the Closing Date from the net proceeds from the sale of the Notes and the Investor Certificates, none of the FRGC Parties has made a Restricted Payment. (aa) The projected distributions with respect to the Pledged Investor Certificate Rights are sufficient to pay the interest obligations with respect to the Notes through July 2000. The representations and warranties set forth in this Article III shall survive the initial issuance of the Notes.
Appears in 1 contract
Other Representations and Warranties. Each of the Issuer INFOTOPIA represents, warrants and HIG (in its capacity as Servicer and Operator) represents and warrants covenants to the Indenture Trustee for the benefit of the Noteholders as of the Closing Date as followsVITAQUEST that:
(a) HIG all information now and hereafter furnished to VITAQUEST is and will be true, correct and complete in all material respects;
(b) the execution, delivery and performance by INFOTOPIA of this Agreement and any other Loan Document to which it is a party are within its power, have been duly authorized as may be required and, if necessary, by making appropriate filings with any governmental agency or unit and are the legal, binding, valid and enforceable obligations of INFOTOPIA and do not (i) contravene, or constitute (with or without the giving of notice or lapse of time or both) a violation of any provision of applicable law, a violation of the organizational documents of INFOTOPIA, or a default under any agreement, judgment, injunction, order, decree or other instrument binding upon or affecting INFOTOPIA, (ii) result in the creation or imposition of any lien (other than the lien(s) created by the Loan Documents) on any of INFOTOPIA's assets, or (iii) give cause for the acceleration of any obligations of INFOTOPIA to any other creditor;
(c) INFOTOPIA has good and marketable title to all of the properties and assets reflected on the balance sheets and financial statements, if any, supplied to VITAQUEST by INFOTOPIA, and all such properties and assets are free and clear of mortgages, security deeds, pledges, liens, charges, and all other encumbrances, except as those liens existing as of the date hereof that were disclosed to VITAQUEST by INFOTOPIA in writing and approved by VITAQUEST as set forth in Schedule "B" annexed hereto ("Permitted Liens");
(d) to INFOTOPIA's knowledge, no default has occurred under any Permitted Liens and no claims or interests adverse to INFOTOPIA's present rights in its properties and assets have arisen;
(e) INFOTOPIA has duly filed, paid and/or discharged all taxes or other claims which may become a lien on any of its property or assets, except to the extent that such items are being appropriately contested in good faith and an adequate reserve for the payment thereof is a corporation being maintained;
(f) INFOTOPIA is not, and after consummation of this Agreement and after giving effect to all indebtedness incurred and liens created by INFOTOPIA in connection with this Agreement, the Guaranty, and/or any other Loan Document, will not be, insolvent within the meaning of 11 U.S.C. Section 101(32);
(g) INFOTOPIA is in compliance in all material respects with all federal, state and local laws, rules and regulations applicable to its properties, operations, business, and finances, including, without limitation, any federal or state laws relating to liquor (including 18 U.S.C. Section 3617, et seq.) or narcotics (including 21 U.S.C. Section 801, et seq.) and/or any commercial crimes; all applicable federal, state and local laws and regulations intended to protect the environment; and the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), if applicable;
(h) INFOTOPIA is duly organizedcreated, validly existing and in good standing under the laws of the State state of Delaware, (ii) has the corporate power and authorityits organization, and the legal righthave all powers, governmental licenses, authorizations, consents and approvals required to own and operate its property, to lease the property it operates business as lessee and to conduct the business in which it is currently engaged, now conducted;
(iiii) has all licenses necessary to service the Pledged Contract Receivables pursuant to this Indenture, (iv) INFOTOPIA is duly qualified as a foreign corporation qualified, licensed and in good standing under the laws of in each jurisdiction where its ownership, lease qualification or operation of property or licensing is required by the conduct nature of its business requires such qualificationor the character and location of its property, except to the extent that business or customers, and in which the failure to so qualify or be so qualified and in good standing would not have a Material Adverse Effect and (v) is in compliance with all Requirements of Law except to the extent that the failure to comply therewith would not, individually or in the aggregate, have a Material Adverse Effect; HGSC
(i) is a general partnership organized and existing under the laws of the State of Delaware, (ii) has the full partnership power and authority, and the legal right, to own and operate its property, to lease the property it operates as lessee and to conduct the business in which it is currently engaged and (iii) is in compliance with all Requirements of Law except to the extent that the failure to comply therewith would not, individually or in the aggregate, have a Material Adverse Effect.
(b) It (i) has the corporate or partnership power and authority to make, deliver and perform each Basic Note Document to which it is a party, (ii) has taken all necessary action to authorize the execution, delivery and performance of each Basic Note Document to which it is a party and (iii) has duly executed and delivered each Basic Note Document to which it is a party.
(c) The execution, delivery and performance of each Basic Note Document to which it is a party will not violate any Requirement of Law or Contractual Obligation of it except for violations that would not have a Material Adverse Effect, and will not result in, or require, the creation or imposition of any Lien (other than Permitted Liens and Liens created by the Basic Documents) on any of its properties or revenues pursuant to any such Requirement of Law or Contractual Obligation.
(d) Each Basic Note Document to which it is a party and each Contract constitutes the legal, valid and binding obligation of it enforceable against it in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights in general and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law.
(e) It has good and marketable title to the Pledged Contract Receivables, free of any Lien other than the Lien pursuant to this Indenture; and, upon execution and delivery of this Indenture by the parties hereto, the Indenture Trustee shall have all of the right, title and interest of the Issuer and the Servicerlicensed, as the case may be, inin the aggregate, to and undercould have a material adverse effect on the business, and a first priority perfected security interest infinancial position, the Trust Estate free of any Lien other than Permitted Liens and Liens created pursuant to the Basic Documents.
(f) Each of the audited consolidated balance sheet, statement results of operations, statement properties or prospects of stockholders' equity INFOTOPIA;
(j) there are no pending or threatened suits, claims or demands against INFOTOPIA that have not been disclosed directly to VITAQUEST by INFOTOPIA in writing, and statement of cash flows of FRGC for each approved by VITAQUEST;
(k) none of the two fiscal years ended December 31, 1993 and 1994, and the two fiscal years ended December 31, 1993 and 1992, the audited consolidated balance sheet of FRGC as of June 19, 1995, the unaudited consolidated balance sheet, statement of operations and statement of cash flows of FRGC for the three-month period ended March 31, 1995, and the unaudited consolidated balance sheet and statement of operations of FRGC for the nine-month period ended September 30, 1995, respectively, have been prepared in accordance with GAAP applied on a consistent basis throughout the periods involved (except for the unaudited financial statements which are subject to normal year-end adjustments and purchase price adjustments as a result of Crystal's acquisition of FRGC and which do not contain footnote disclosures) and each fairly presents the consolidated financial position of FRGC and its Subsidiaries at the respective dates thereof and the consolidated results of their operations and changes in cash flows for the periods indicated.
(g) Since June 19, 1995, there has been no development or event which has had or could reasonably be expected to have a Material Adverse Effect.
(h) No proceeds of the issuance of any Notes will credit extended pursuant to this Agreement shall be used by it to purchase directly or carry indirectly for the purpose of purchasing or carrying any margin stock (as defined in Regulations U and G violation of any of the Board provisions of Governors of the Federal Reserve System, as in effect from time to time). It is in compliance with all applicable regulations Regulation U of the Board of Governors of the Federal Reserve System (including, without limitation, Regulations U and G with respect to "margin stockRegulation U").
(i) None , or for the purpose of reducing or retiring any indebtedness which was originally incurred to purchase or carry margin stock or for any other purchase which might render the FRGC Parties is an Loan a "investment companyPurpose Credit" within the meaning ofof Regulation U;
(l) each employee pension benefit plan, or subject to regulation underas defined in ERISA, maintained by INFOTOPIA meets, as of the date hereof, the Investment Company Act minimum funding standards of 1940 and the rules and regulations thereunder.
(j) Each of Crystal and the FRGC Parties has filed or caused to be filed all tax returns which, to its knowledge, are required to be filed and have paid all taxes shown to be due and payable on said returns or on any assessments made against it or any of its property ERISA and all other taxesapplicable regulations thereto and requirements thereof, fees and of the Internal Revenue Code of 1986, as amended. No "Prohibited Transaction" or other charges imposed on it or any of its property "Reportable Event" (as both terms are defined by any Governmental Authority (other than any the amount or validity of which are currently being contested in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided on its books), except where the failure to file or to pay such taxes, fees or other charges would not, individually or in the aggregate, have a Material Adverse Effect; no tax Lien ERISA) has been filed, and, to its knowledge, no claim is being asserted, occurred with respect to any such taxplan;
(m) the fair saleable value of Infotopia's assets exceeds its liabilities, fee or other chargeINFOTOPIA is meeting its current liabilities as they mature, except for and INFOTOPIA is and shall remain solvent;
(n) all financial statements of INFOTOPIA furnished to VITAQUEST are correct and accurately reflect the financial condition of INFOTOPIA as of the respective dates thereof;
(o) since the date of such claims which would notfinancial statements, individually or there has not occurred a material adverse change in the aggregatefinancial condition of INFOTOPIA; and
(p) there are not now pending any court or administrative proceedings or undischarged judgments against INFOTOPIA, have a Material Adverse Effect. Except for the Federal income no federal or state tax liabilities of FRGC, which liens have been determined through 1991, the Federal income tax liabilities of the FRGC Parties have not been finally determined by the Internal Revenue Service for any period.
(k) It has good record and indefeasible title in fee simple to, filed or a valid leasehold interest in, or other valid right to use, all its real propertythreatened against INFOTOPIA, and good title to, or a valid leasehold interest in, or other valid right to use, all its other property, and none of such property is subject to any Lien other than (i) Permitted Liens and (ii) the Liens created pursuant to the Basic Documents.
(l) It INFOTOPIA is not in default or claimed default under or with respect to any of its Contractual Obligations except for such defaults which, individually or in the aggregate, would not have a Material Adverse Effectagreement.
(m) It has previously delivered to the Indenture Trustee true and correct copies of each Contract (including any amendments thereto); and the terms other than price, volumes and payment dates of the Contracts as they relate to the Purchased Contract Receivables are the same in all material respects as the terms set forth in the Contracts attached to the Private Placement Memorandum with respect to the offer and sale of the Investor Certificates.
(n) It has not within the last twelve months made any transfer or incurred any obligation with actual intent to hinder, delay or defraud any entity to which it was or may become indebted and it has not transferred any material property without receiving reasonably equivalent value for any such transfer or obligation. Both immediately prior to and immediately after the transactions occurring on the Closing Date, (i) the fair value of its assets at a fair valuation exceeds its debts and liabilities, subordinated, contingent or otherwise; (ii) the present fair salable value of its property is greater than the amount that will be required to pay its probable liability on its debts and other liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured; (iii) it is reasonably expected to be able to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured; and (iv) it will not have unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted. For all purposes of clauses (i) through (iv) above, the amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
(o) Except for any other FRGC Party, it has no Subsidiaries.
(p) The Servicer has in place procedures pursuant to the Basic Note Documents that are either necessary or advisable to ensure the timely collection of the Pledged Contract Receivables.
(q) The Servicer has in force business interruption insurance with respect to the Storage Facilities as described in Schedule 5 hereto (the "Business Interruption Insurance").
(r) The office at which it keeps its records concerning the Pledged Contract Receivables is located at 000 Xxxxx Xxxxxx, Shreveport, Louisiana 71101. Since June 19, 1995, its chief executive office has been located at 000 Xxxxx Xxxxxx, Shreveport, Louisiana 71101 and is the place where it is "located" for the purposes of Section 9-103(3)(d) of the UCC of each jurisdiction the laws of which govern the transfer of the Pledged Contract Receivable hereunder. From January 1, 1995 until June 19, 1995, its chief executive office was "located" in Dallas, Texas for the purposes of Section 9-103(3)(d) of the UCC as in effect in the State of Texas. The taxpayer identification number of HGSC is 00-0000000 and of HIG is 00-0000000.
(s) Its legal name is as set forth in this Indenture. It has no trade names, fictitious names, assumed names or "doing business as" names.
(t) Schedule 8 accurately sets forth the amounts scheduled to come due after the Cut-off Date with respect to the Pledged Contract Receivables.
(u) No action, claim or proceeding is pending and, to its knowledge, no investigation is pending or threatened that would adversely affect the payment or enforceability of the Pledged Contract Receivables.
(v) No consents or filings with any Governmental Authority or approvals by any Governmental Authority that have not been made or obtained are required for the execution, delivery and performance of the Basic Note Documents to which it is a party.
(w) There are no pending or, to its knowledge, threatened actions, suits or proceedings against any FRGC Party that would adversely affect the transactions contemplated by the Basic Note Documents to which it is a party, and there is no injunction, writ, restraining order or other similar order in effect that adversely affects any of the FRGC Parties' performance of the agreements and transactions contemplated by the Basic Note Documents to which it is a party.
(x) All of the FRGC Parties' pension and profit sharing plans have been fully funded in accordance with the applicable FRGC Parties' obligations.
(y) Each Contract is a legal, valid and binding obligation and contract, as the case may be, of the FRGC Party thereto, enforceable against such party in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the enforcement of creditors' rights in general and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law, and except as to any material provision of any Contract the lack of enforceability of which would not affect the enforceability of the payment obligations of the Obligors thereunder in respect of any Pledged Contract Receivable.
(z) Since September 30, 1995, except on the Closing Date from the net proceeds from the sale of the Notes and the Investor Certificates, none of the FRGC Parties has made a Restricted Payment. (aa) The projected distributions with respect to the Pledged Investor Certificate Rights are sufficient to pay the interest obligations with respect to the Notes through July 2000. The representations and warranties set forth in this Article III shall survive the initial issuance of the Notes.
Appears in 1 contract
Samples: Security Agreement (Infotopia Inc)
Other Representations and Warranties. Each of the Issuer TRENDIRECT represents, warrants and HIG (in its capacity as Servicer and Operator) represents and warrants covenants to the Indenture Trustee for the benefit of the Noteholders as of the Closing Date as followsVITAQUEST that:
(a) HIG all information now and hereafter furnished to VITAQUEST is and will be true, correct and complete in all material respects;
(b) the execution, delivery and performance by TRENDIRECT of this Agreement and any other Loan Document to which it is a party are within its power, have been duly authorized as may be required and, if necessary, by making appropriate filings with any governmental agency or unit and are the legal, binding, valid and enforceable obligations of TRENDIRECT and do not (i) contravene, or constitute (with or without the giving of notice or lapse of time or both) a violation of any provision of applicable law, a violation of the organizational documents of TRENDIRECT, or a default under any agreement, judgment, injunction, order, decree or other instrument binding upon or affecting TRENDIRECT, (ii) result in the creation or imposition of any lien (other than the lien(s) created by the Loan Documents) on any of TRENDIRECT's assets, or (iii) give cause for the acceleration of any obligations of TRENDIRECT to any other creditor;
(c) TRENDIRECT has good and marketable title to all of the properties and assets reflected on the balance sheets and financial statements, if any, supplied to VITAQUEST by TRENDIRECT, and all such properties and assets are free and clear of mortgages, security deeds, pledges, liens, charges, and all other encumbrances, except for the lien in favor of the third party investor in TRENDIRECT previously disclosed to VITAQUEST by TRENDIRECT in writing and approved by VITAQUEST, which lien shall not exceed $500,000.00 as set forth on Schedule "B" annexed hereto ("Permitted Liens");
(d) to TRENDIRECT's knowledge, no default has occurred under any Permitted Liens and no claims or interests adverse to TRENDIRECT's present rights in its properties and assets have arisen;
(e) TRENDIRECT has duly filed, paid and/or discharged all taxes or other claims which may become a lien on any of its property or assets, except to the extent that such items are being appropriately contested in good faith and an adequate reserve for the payment thereof is a corporation being maintained;
(f) TRENDIRECT is not, and after consummation of this Agreement and after giving effect to all indebtedness incurred and liens created by TRENDIRECT in connection with this Agreement, the Note and/or any other Loan Document, will not be, insolvent within the meaning of 11 U.S.C. Section 101(32);
(g) TRENDIRECT is in compliance in all material respects with all federal, state and local laws, rules and regulations applicable to its properties, operations, business, and finances, including, without limitation, any federal or state laws relating to liquor (including 18 U.S.C. Section 3617, et seq.) or narcotics (including 21 U.S.C. Section 801, et seq.) and/or any commercial crimes; all applicable federal, state and local laws and regulations intended to protect the environment; and the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), if applicable;
(h) TRENDIRECT is duly organizedcreated, validly existing and in good standing under the laws of the State state of Delaware, (ii) has the corporate power and authorityits organization, and the legal righthave all powers, governmental licenses, authorizations, consents and approvals required to own and operate its property, to lease the property it operates business as lessee and to conduct the business in which it is currently engaged, now conducted;
(iiii) has all licenses necessary to service the Pledged Contract Receivables pursuant to this Indenture, (iv) TRENDIRECT is duly qualified as a foreign corporation qualified, licensed and in good standing under the laws of in each jurisdiction where its ownership, lease qualification or operation of property or licensing is required by the conduct nature of its business requires such qualificationor the character and location of its property, except to the extent that business or customers, and in which the failure to so qualify or be so qualified and in good standing would not have a Material Adverse Effect and (v) is in compliance with all Requirements of Law except to the extent that the failure to comply therewith would not, individually or in the aggregate, have a Material Adverse Effect; HGSC
(i) is a general partnership organized and existing under the laws of the State of Delaware, (ii) has the full partnership power and authority, and the legal right, to own and operate its property, to lease the property it operates as lessee and to conduct the business in which it is currently engaged and (iii) is in compliance with all Requirements of Law except to the extent that the failure to comply therewith would not, individually or in the aggregate, have a Material Adverse Effect.
(b) It (i) has the corporate or partnership power and authority to make, deliver and perform each Basic Note Document to which it is a party, (ii) has taken all necessary action to authorize the execution, delivery and performance of each Basic Note Document to which it is a party and (iii) has duly executed and delivered each Basic Note Document to which it is a party.
(c) The execution, delivery and performance of each Basic Note Document to which it is a party will not violate any Requirement of Law or Contractual Obligation of it except for violations that would not have a Material Adverse Effect, and will not result in, or require, the creation or imposition of any Lien (other than Permitted Liens and Liens created by the Basic Documents) on any of its properties or revenues pursuant to any such Requirement of Law or Contractual Obligation.
(d) Each Basic Note Document to which it is a party and each Contract constitutes the legal, valid and binding obligation of it enforceable against it in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights in general and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law.
(e) It has good and marketable title to the Pledged Contract Receivables, free of any Lien other than the Lien pursuant to this Indenture; and, upon execution and delivery of this Indenture by the parties hereto, the Indenture Trustee shall have all of the right, title and interest of the Issuer and the Servicerlicensed, as the case may be, inin the aggregate, to and undercould have a material adverse effect on the business, and a first priority perfected security interest infinancial position, the Trust Estate free of any Lien other than Permitted Liens and Liens created pursuant to the Basic Documents.
(f) Each of the audited consolidated balance sheet, statement results of operations, statement properties or prospects of stockholders' equity TRENDIRECT;
(j) there are no pending or threatened suits, claims or demands against TRENDIRECT that have not been disclosed directly to VITAQUEST by TRENDIRECT in writing, and statement of cash flows of FRGC for each approved by VITAQUEST;
(k) none of the two fiscal years ended December 31, 1993 and 1994, and the two fiscal years ended December 31, 1993 and 1992, the audited consolidated balance sheet of FRGC as of June 19, 1995, the unaudited consolidated balance sheet, statement of operations and statement of cash flows of FRGC for the three-month period ended March 31, 1995, and the unaudited consolidated balance sheet and statement of operations of FRGC for the nine-month period ended September 30, 1995, respectively, have been prepared in accordance with GAAP applied on a consistent basis throughout the periods involved (except for the unaudited financial statements which are subject to normal year-end adjustments and purchase price adjustments as a result of Crystal's acquisition of FRGC and which do not contain footnote disclosures) and each fairly presents the consolidated financial position of FRGC and its Subsidiaries at the respective dates thereof and the consolidated results of their operations and changes in cash flows for the periods indicated.
(g) Since June 19, 1995, there has been no development or event which has had or could reasonably be expected to have a Material Adverse Effect.
(h) No proceeds of the issuance of any Notes will credit extended pursuant to this Agreement shall be used by it to purchase directly or carry indirectly for the purpose of purchasing or carrying any margin stock (as defined in Regulations U and G violation of any of the Board provisions of Governors of the Federal Reserve System, as in effect from time to time). It is in compliance with all applicable regulations Regulation U of the Board of Governors of the Federal Reserve System (including, without limitation, Regulations U and G with respect to "margin stockRegulation U").
(i) None , or for the purpose of reducing or retiring any indebtedness which was originally incurred to purchase or carry margin stock or for any other purchase which might render the FRGC Parties is an Loan a "investment companyPurpose Credit" within the meaning ofof Regulation U;
(l) each employee pension benefit plan, or subject to regulation underas defined in ERISA, maintained by TRENDIRECT meets, as of the date hereof, the Investment Company Act minimum funding standards of 1940 and the rules and regulations thereunder.
(j) Each of Crystal and the FRGC Parties has filed or caused to be filed all tax returns which, to its knowledge, are required to be filed and have paid all taxes shown to be due and payable on said returns or on any assessments made against it or any of its property ERISA and all other taxesapplicable regulations thereto and requirements thereof, fees and of the Internal Revenue Code of 1986, as amended. No "Prohibited Transaction" or other charges imposed on it or any of its property "Reportable Event" (as both terms are defined by any Governmental Authority (other than any the amount or validity of which are currently being contested in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided on its books), except where the failure to file or to pay such taxes, fees or other charges would not, individually or in the aggregate, have a Material Adverse Effect; no tax Lien ERISA) has been filed, and, to its knowledge, no claim is being asserted, occurred with respect to any such taxplan;
(m) the fair saleable value of TRENDIRECT's assets exceeds its liabilities, fee or other chargeTRENDIRECT is meeting its current liabilities as they mature, except for and TRENDIRECT is and shall remain solvent;
(n) all financial statements of TRENDIRECT furnished to VITAQUEST are correct and accurately reflect the financial condition of TRENDIRECT as of the respective dates thereof;
(o) since the date of such claims which would notfinancial statements, individually or there has not occurred a material adverse change in the aggregatefinancial condition of TRENDIRECT; and
(p) there are not now pending any court or administrative proceedings or undischarged judgments against TRENDIRECT, have a Material Adverse Effect. Except for the Federal income no federal or state tax liabilities of FRGC, which liens have been determined through 1991, the Federal income tax liabilities of the FRGC Parties have not been finally determined by the Internal Revenue Service for any period.
(k) It has good record and indefeasible title in fee simple to, filed or a valid leasehold interest in, or other valid right to use, all its real propertythreatened against TRENDIRECT, and good title to, or a valid leasehold interest in, or other valid right to use, all its other property, and none of such property is subject to any Lien other than (i) Permitted Liens and (ii) the Liens created pursuant to the Basic Documents.
(l) It TRENDIRECT is not in default or claimed default under or with respect to any of its Contractual Obligations except for such defaults which, individually or in the aggregate, would not have a Material Adverse Effectagreement.
(m) It has previously delivered to the Indenture Trustee true and correct copies of each Contract (including any amendments thereto); and the terms other than price, volumes and payment dates of the Contracts as they relate to the Purchased Contract Receivables are the same in all material respects as the terms set forth in the Contracts attached to the Private Placement Memorandum with respect to the offer and sale of the Investor Certificates.
(n) It has not within the last twelve months made any transfer or incurred any obligation with actual intent to hinder, delay or defraud any entity to which it was or may become indebted and it has not transferred any material property without receiving reasonably equivalent value for any such transfer or obligation. Both immediately prior to and immediately after the transactions occurring on the Closing Date, (i) the fair value of its assets at a fair valuation exceeds its debts and liabilities, subordinated, contingent or otherwise; (ii) the present fair salable value of its property is greater than the amount that will be required to pay its probable liability on its debts and other liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured; (iii) it is reasonably expected to be able to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured; and (iv) it will not have unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted. For all purposes of clauses (i) through (iv) above, the amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
(o) Except for any other FRGC Party, it has no Subsidiaries.
(p) The Servicer has in place procedures pursuant to the Basic Note Documents that are either necessary or advisable to ensure the timely collection of the Pledged Contract Receivables.
(q) The Servicer has in force business interruption insurance with respect to the Storage Facilities as described in Schedule 5 hereto (the "Business Interruption Insurance").
(r) The office at which it keeps its records concerning the Pledged Contract Receivables is located at 000 Xxxxx Xxxxxx, Shreveport, Louisiana 71101. Since June 19, 1995, its chief executive office has been located at 000 Xxxxx Xxxxxx, Shreveport, Louisiana 71101 and is the place where it is "located" for the purposes of Section 9-103(3)(d) of the UCC of each jurisdiction the laws of which govern the transfer of the Pledged Contract Receivable hereunder. From January 1, 1995 until June 19, 1995, its chief executive office was "located" in Dallas, Texas for the purposes of Section 9-103(3)(d) of the UCC as in effect in the State of Texas. The taxpayer identification number of HGSC is 00-0000000 and of HIG is 00-0000000.
(s) Its legal name is as set forth in this Indenture. It has no trade names, fictitious names, assumed names or "doing business as" names.
(t) Schedule 8 accurately sets forth the amounts scheduled to come due after the Cut-off Date with respect to the Pledged Contract Receivables.
(u) No action, claim or proceeding is pending and, to its knowledge, no investigation is pending or threatened that would adversely affect the payment or enforceability of the Pledged Contract Receivables.
(v) No consents or filings with any Governmental Authority or approvals by any Governmental Authority that have not been made or obtained are required for the execution, delivery and performance of the Basic Note Documents to which it is a party.
(w) There are no pending or, to its knowledge, threatened actions, suits or proceedings against any FRGC Party that would adversely affect the transactions contemplated by the Basic Note Documents to which it is a party, and there is no injunction, writ, restraining order or other similar order in effect that adversely affects any of the FRGC Parties' performance of the agreements and transactions contemplated by the Basic Note Documents to which it is a party.
(x) All of the FRGC Parties' pension and profit sharing plans have been fully funded in accordance with the applicable FRGC Parties' obligations.
(y) Each Contract is a legal, valid and binding obligation and contract, as the case may be, of the FRGC Party thereto, enforceable against such party in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the enforcement of creditors' rights in general and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law, and except as to any material provision of any Contract the lack of enforceability of which would not affect the enforceability of the payment obligations of the Obligors thereunder in respect of any Pledged Contract Receivable.
(z) Since September 30, 1995, except on the Closing Date from the net proceeds from the sale of the Notes and the Investor Certificates, none of the FRGC Parties has made a Restricted Payment. (aa) The projected distributions with respect to the Pledged Investor Certificate Rights are sufficient to pay the interest obligations with respect to the Notes through July 2000. The representations and warranties set forth in this Article III shall survive the initial issuance of the Notes.
Appears in 1 contract
Samples: Security Agreement (Infotopia Inc)
Other Representations and Warranties. Each of the Issuer NUTRITIONARY represents, warrants and HIG (in its capacity as Servicer and Operator) represents and warrants covenants to the Indenture Trustee for the benefit of the Noteholders as of the Closing Date as followsFRANKEL that:
(a) HIG all infxxxxxxxn now and hereafter furnished to FRANKEL is and will be true, corxxxx xxd complete in all material respects;
(b) the execution, delivery and performance by NUTRITIONARY of this Agreement and any other Transaction Document to which it is a party are within its power, have been duly authorized as may be required and, if necessary, by making appropriate filings with any governmental agency or unit and are the legal, binding, valid and enforceable obligations of NUTRITIONARY and do not (i) contravene, or constitute (with or without the giving of notice or lapse of time or both) a violation of any provision of applicable law, a violation of the organizational documents of NUTRITIONARY, or a default under any agreement, judgment, injunction, order, decree or other instrument binding upon or affecting NUTRITIONARY, (ii) result in the creation or imposition of any lien (other than the lien(s) created by the Transaction Documents) on any of NUTRITIONARY's assets, or (iii) give cause for the acceleration of any obligations of NUTRITIONARY to any other creditor;
(c) NUTRITIONARY has good and marketable title to all of the properties and assets reflected on the balance sheets and financial statements, if any, supplied to FRANKEL by NUTRITIONARY, and all xxxx xroperties and assets are free and clear of mortgages, security deeds, pledges, liens, charges, and all other encumbrances, other than the Permitted Liens;
(d) to NUTRITIONARY's knowledge, no default has occurred under any Permitted Liens and no claims or interests adverse to NUTRITIONARY's present rights in its properties and assets have arisen;
(e) NUTRITIONARY has duly filed, paid and/or discharged all taxes or other claims which may become a lien on any of its property or assets, except to the extent that such items are being appropriately contested in good faith and an adequate reserve for the payment thereof is a corporation being maintained;
(f) NUTRITIONARY is not, and after consummation of this Agreement and after giving effect to all indebtedness incurred and liens created by NUTRITIONARY in connection with this Agreement, the Note and/or any other Transaction Document, will not be, insolvent within the meaning of 11 U.S.C. ss. 101(32);
(g) NUTRITIONARY is in compliance in all material respects with all federal, state and local laws, rules and regulations applicable to its properties, operations, business, and finances, including, without limitation, any federal or state laws relating to liquor (including 18 U.S.C. ss. 3617, et seq.) or narcotics (including 21 U.S.C. ss. 801, et seq.) and/or any commercial crimes; all applicable federal, state and local laws and regulations intended to protect the environment; and the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), if applicable;
(h) NUTRITIONARY is duly organizedcreated, validly existing and in good standing under the laws of the State state of Delaware, (ii) has the corporate power and authorityits organization, and the legal righthas all powers, governmental licenses, authorizations, consents and approvals required to own and operate its property, to lease the property it operates business as lessee and to conduct the business in which it is currently engaged, now conducted;
(iiii) has all licenses necessary to service the Pledged Contract Receivables pursuant to this Indenture, (iv) NUTRITIONARY is duly qualified as a foreign corporation qualified, licensed and in good standing under the laws of in each jurisdiction where its ownership, lease qualification or operation of property or licensing is required by the conduct nature of its business requires such qualificationor the character and location of its property, except to the extent that business or customers, and in which the failure to so qualify or be so qualified and in good standing would not have a Material Adverse Effect and (v) is in compliance with all Requirements of Law except to the extent that the failure to comply therewith would not, individually or in the aggregate, have a Material Adverse Effect; HGSC
(i) is a general partnership organized and existing under the laws of the State of Delaware, (ii) has the full partnership power and authority, and the legal right, to own and operate its property, to lease the property it operates as lessee and to conduct the business in which it is currently engaged and (iii) is in compliance with all Requirements of Law except to the extent that the failure to comply therewith would not, individually or in the aggregate, have a Material Adverse Effect.
(b) It (i) has the corporate or partnership power and authority to make, deliver and perform each Basic Note Document to which it is a party, (ii) has taken all necessary action to authorize the execution, delivery and performance of each Basic Note Document to which it is a party and (iii) has duly executed and delivered each Basic Note Document to which it is a party.
(c) The execution, delivery and performance of each Basic Note Document to which it is a party will not violate any Requirement of Law or Contractual Obligation of it except for violations that would not have a Material Adverse Effect, and will not result in, or require, the creation or imposition of any Lien (other than Permitted Liens and Liens created by the Basic Documents) on any of its properties or revenues pursuant to any such Requirement of Law or Contractual Obligation.
(d) Each Basic Note Document to which it is a party and each Contract constitutes the legal, valid and binding obligation of it enforceable against it in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights in general and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law.
(e) It has good and marketable title to the Pledged Contract Receivables, free of any Lien other than the Lien pursuant to this Indenture; and, upon execution and delivery of this Indenture by the parties hereto, the Indenture Trustee shall have all of the right, title and interest of the Issuer and the Servicerlicensed, as the case may be, inin the aggregate, to and undercould have a material adverse effect on the business, and a first priority perfected security interest infinancial position, the Trust Estate free of any Lien other than Permitted Liens and Liens created pursuant to the Basic Documents.
(f) Each of the audited consolidated balance sheet, statement results of operations, statement properties or prospects of stockholders' equity and statement of cash flows of FRGC for each NUTRITIONARY ;
(j) there are no pending or threatened suits, claims or demands against NUTRITIONARY that have not been disclosed directly to FRANKEL by NUTRITIONARY in writixx, xxx approved by FRANKEL;
(k) none of the two fiscal years ended December 31, 1993 and 1994, and xxxxxxxs of the two fiscal years ended December 31, 1993 and 1992, the audited consolidated balance sheet of FRGC as of June 19, 1995, the unaudited consolidated balance sheet, statement of operations and statement of cash flows of FRGC credit extended pursuant to this Agreement shall be used directly or indirectly for the three-month period ended March 31, 1995, and the unaudited consolidated balance sheet and statement purpose of operations of FRGC for the nine-month period ended September 30, 1995, respectively, have been prepared in accordance with GAAP applied on a consistent basis throughout the periods involved (except for the unaudited financial statements which are subject to normal year-end adjustments and purchase price adjustments as a result of Crystal's acquisition of FRGC and which do not contain footnote disclosures) and each fairly presents the consolidated financial position of FRGC and its Subsidiaries at the respective dates thereof and the consolidated results of their operations and changes in cash flows for the periods indicated.
(g) Since June 19, 1995, there has been no development purchasing or event which has had or could reasonably be expected to have a Material Adverse Effect.
(h) No proceeds of the issuance of any Notes will be used by it to purchase or carry carrying any margin stock (as defined in Regulations U and G violation of any of the Board provisions of Governors of the Federal Reserve System, as in effect from time to time). It is in compliance with all applicable regulations Regulation U of the Board of Governors of the Federal Reserve System (including, without limitation, Regulations U and G with respect to "margin stockRegulation U").
(i) None , or for the purpose of reducing or retiring any indebtedness which was originally incurred to purchase or carry margin stock or for any other purchase which might render the FRGC Parties is an Obligations a "investment companyPurpose Credit" within the meaning ofof Regulation U ;
(l) each employee pension benefit plan, or subject to regulation underas defined in ERISA, maintained by NUTRITIONARY meets, as of the date hereof, the Investment Company Act minimum funding standards of 1940 and the rules and regulations thereunder.
(j) Each of Crystal and the FRGC Parties has filed or caused to be filed all tax returns which, to its knowledge, are required to be filed and have paid all taxes shown to be due and payable on said returns or on any assessments made against it or any of its property ERISA and all other taxesapplicable regulations thereto and requirements thereof, fees and of the Internal Revenue Code of 1986, as amended. No "Prohibited Transaction" or other charges imposed on it or any of its property "Reportable Event" (as both terms are defined by any Governmental Authority (other than any the amount or validity of which are currently being contested in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided on its books), except where the failure to file or to pay such taxes, fees or other charges would not, individually or in the aggregate, have a Material Adverse Effect; no tax Lien ERISA) has been filed, and, to its knowledge, no claim is being asserted, occurred with respect to any such taxplan;
(m) the fair saleable value of NUTRITIONARY's assets exceeds its liabilities, fee or other chargeNUTRITIONARY is meeting its current liabilities as they mature, except for and NUTRITIONARY is and shall remain solvent;
(n) all financial statements of NUTRITIONARY furnished to FRANKEL are correct and accuratexx xxxxect the financial condition of NUTRITIONARY as of the respective dates thereof;
(o) since the date of such claims which would notfinancial statements, individually or there has not occurred a material adverse change in the aggregatefinancial condition of NUTRITIONARY; and
(p) there are not now pending any court or administrative proceedings or undischarged judgments against NUTRITIONARY, have a Material Adverse Effect. Except for the Federal income no federal or state tax liabilities of FRGC, which liens have been determined through 1991, the Federal income tax liabilities of the FRGC Parties have not been finally determined by the Internal Revenue Service for any period.
(k) It has good record and indefeasible title in fee simple to, filed or a valid leasehold interest in, or other valid right to use, all its real propertythreatened against NUTRITIONARY, and good title to, or a valid leasehold interest in, or other valid right to use, all its other property, and none of such property is subject to any Lien other than (i) Permitted Liens and (ii) the Liens created pursuant to the Basic Documents.
(l) It NUTRITIONARY is not in default or claimed default under or with respect to any of its Contractual Obligations except for such defaults which, individually or in the aggregate, would not have a Material Adverse Effectagreement.
(m) It has previously delivered to the Indenture Trustee true and correct copies of each Contract (including any amendments thereto); and the terms other than price, volumes and payment dates of the Contracts as they relate to the Purchased Contract Receivables are the same in all material respects as the terms set forth in the Contracts attached to the Private Placement Memorandum with respect to the offer and sale of the Investor Certificates.
(n) It has not within the last twelve months made any transfer or incurred any obligation with actual intent to hinder, delay or defraud any entity to which it was or may become indebted and it has not transferred any material property without receiving reasonably equivalent value for any such transfer or obligation. Both immediately prior to and immediately after the transactions occurring on the Closing Date, (i) the fair value of its assets at a fair valuation exceeds its debts and liabilities, subordinated, contingent or otherwise; (ii) the present fair salable value of its property is greater than the amount that will be required to pay its probable liability on its debts and other liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured; (iii) it is reasonably expected to be able to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured; and (iv) it will not have unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted. For all purposes of clauses (i) through (iv) above, the amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
(o) Except for any other FRGC Party, it has no Subsidiaries.
(p) The Servicer has in place procedures pursuant to the Basic Note Documents that are either necessary or advisable to ensure the timely collection of the Pledged Contract Receivables.
(q) The Servicer has in force business interruption insurance with respect to the Storage Facilities as described in Schedule 5 hereto (the "Business Interruption Insurance").
(r) The office at which it keeps its records concerning the Pledged Contract Receivables is located at 000 Xxxxx Xxxxxx, Shreveport, Louisiana 71101. Since June 19, 1995, its chief executive office has been located at 000 Xxxxx Xxxxxx, Shreveport, Louisiana 71101 and is the place where it is "located" for the purposes of Section 9-103(3)(d) of the UCC of each jurisdiction the laws of which govern the transfer of the Pledged Contract Receivable hereunder. From January 1, 1995 until June 19, 1995, its chief executive office was "located" in Dallas, Texas for the purposes of Section 9-103(3)(d) of the UCC as in effect in the State of Texas. The taxpayer identification number of HGSC is 00-0000000 and of HIG is 00-0000000.
(s) Its legal name is as set forth in this Indenture. It has no trade names, fictitious names, assumed names or "doing business as" names.
(t) Schedule 8 accurately sets forth the amounts scheduled to come due after the Cut-off Date with respect to the Pledged Contract Receivables.
(u) No action, claim or proceeding is pending and, to its knowledge, no investigation is pending or threatened that would adversely affect the payment or enforceability of the Pledged Contract Receivables.
(v) No consents or filings with any Governmental Authority or approvals by any Governmental Authority that have not been made or obtained are required for the execution, delivery and performance of the Basic Note Documents to which it is a party.
(w) There are no pending or, to its knowledge, threatened actions, suits or proceedings against any FRGC Party that would adversely affect the transactions contemplated by the Basic Note Documents to which it is a party, and there is no injunction, writ, restraining order or other similar order in effect that adversely affects any of the FRGC Parties' performance of the agreements and transactions contemplated by the Basic Note Documents to which it is a party.
(x) All of the FRGC Parties' pension and profit sharing plans have been fully funded in accordance with the applicable FRGC Parties' obligations.
(y) Each Contract is a legal, valid and binding obligation and contract, as the case may be, of the FRGC Party thereto, enforceable against such party in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the enforcement of creditors' rights in general and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law, and except as to any material provision of any Contract the lack of enforceability of which would not affect the enforceability of the payment obligations of the Obligors thereunder in respect of any Pledged Contract Receivable.
(z) Since September 30, 1995, except on the Closing Date from the net proceeds from the sale of the Notes and the Investor Certificates, none of the FRGC Parties has made a Restricted Payment. (aa) The projected distributions with respect to the Pledged Investor Certificate Rights are sufficient to pay the interest obligations with respect to the Notes through July 2000. The representations and warranties set forth in this Article III shall survive the initial issuance of the Notes.
Appears in 1 contract
