REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER. Borrower represents, warrants and covenants for the benefit of Lender, as follows: (a) Borrower is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization. Borrower is in good standing and is duly licensed or qualified to transact business in each jurisdiction where the nature of its business requires such qualification, except for those jurisdictions in which the failure to qualify could not reasonably be expected to have a Material Adverse Effect. Borrower’s exact legal name is as set forth on the execution page hereof. (b) Borrower has full power and authority and holds all requisite governmental licenses, permits and other approvals to (i) enter into and perform its obligations under this Agreement, the Note and each other Loan Document to which it is a party and to own its property, (ii) use the Collateral and (iii) conduct its business substantially as currently conducted by it, except as to clause (iii) where the failure to hold such licenses, permits and approvals could not reasonably be expected to have a Material Adverse Effect. (c) This Agreement, the Note and the other Loan Documents to which it is a party have been duly authorized, executed and delivered by Borrower and constitute legal, valid and binding obligations of Borrower, enforceable against Borrower in accordance with their respective terms, except to the extent limited by bankruptcy, reorganization or other laws of general application relating to or effecting the enforcement of creditors’ rights. (d) The execution and delivery of this Agreement, the Note and the other Loan Documents, the consummation of the transactions contemplated hereby and thereby and the fulfillment of the terms and conditions hereof and thereof do not and will not violate any law, rule, regulation or order, conflict with or result in a breach of any of the terms or conditions of any Organizational Document of Borrower or of any corporate restriction or of any agreement or instrument to which Borrower is now a party and do not and will not constitute a default under any of the foregoing or result in the creation or imposition of any liens, charges or encumbrances of any nature upon any of the property or assets of Borrower other than Liens in favor of Lender. (e) The authorization, execution, delivery and performance of this Agreement, the Note and the other Loan Documents by Borrower do not require submission to, approval of, or other action by any governmental authority or agency, except for such action that has been duly obtained or taken and is in full force and effect. (f) Each of the Loan Documents that purports to create a security interest creates a valid first priority Lien on the Collateral subject only to Permitted Liens, securing the payment and performance of the Obligations. (g) Except as disclosed on Schedule IV, there is no action, suit, proceeding, claim, inquiry or investigation, at law or in equity, before or by any court, regulatory agency, public board or body pending or, to the best of Borrower’s knowledge, threatened against or affecting Borrower, any Guarantor or any of their Subsidiaries, challenging Borrower’s or any Guarantor’s authority to enter into this Agreement, the Note or any of the other Loan Documents or any other action wherein an unfavorable ruling or finding would adversely affect the enforceability of this Agreement, the Note or any of the other Loan Documents, or could reasonably be expected to have a Material Adverse Effect. (h) Borrower has good, marketable and insurable title in fee simple to all Collateral that is real property, and good title to all other Collateral, in each case free and clear of all Liens except for Permitted Liens. With respect to Collateral that is personal property, Borrower owns/leases the real property where the Collateral will be located, subject to no Liens of any kind except for Permitted Liens, and has provided a complete and accurate legal description and the exact name of the fee simple owner of record of such real property, and no person other than Borrower is in occupancy or possession of any portion of such real property. (i) Borrower is in compliance with all laws, rules, regulations and orders of governmental authorities applicable to it and its properties except to the extent the non-compliance with which could not reasonably be expected to have a Material Adverse Effect. (j) Borrower has heretofore furnished to Lender the Financial Statements and those statements fairly present the financial condition of Borrower and such Guarantor, if any, on the dates thereof and the results of its operations and cash flows for the periods then ended and were prepared in accordance with GAAP. Since the date of the most recent financial statements, there has been no material adverse change in the business, properties or condition (financial or otherwise) of Borrower or any Guarantor. Except as disclosed in the Financial Statements or the notes thereto and for the items disclosed on Schedule IV, neither Borrower nor any Guarantor, as of each Closing Date, has or will have any liabilities, contingent or otherwise, that could reasonably be expected to have a Material Adverse Effect. (k) Borrower has paid or caused to be paid, and will pay, to the proper authorities when due all federal, state and local taxes required to be withheld by it. Borrower has filed, and will pay, all federal, state and local tax returns which are required to be filed, and Borrower has paid or caused to be paid to the respective taxing authorities all taxes as shown on said returns or on any assessment received by it to the extent such taxes have become due, except any such taxes or charges which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP have been set aside on its books. (l) For purposes of Section 9-307 of the UCC, Borrower is and will remain located in the Borrower’s State. Borrower’s residence for federal income tax purposes is located at its Notice Address specified in Schedule I. Borrower has authorized Lender to file financing statements that are sufficient when filed to perfect the security interests created pursuant to this Agreement and the other Loan Documents. When such financing statements are filed in the offices noted therein, Lender will have a valid and perfected security interest in the Collateral that constitutes personal property, subject to no other Lien other than Permitted Liens. (m) None of the Collateral constitutes a replacement of, substitution for or accessory to any property of Borrower subject to a lien of any kind. (n) No ERISA Event has occurred or is reasonably likely to occur with respect to any Plan, and each Plan is in compliance in all material respects with the applicable provisions of ERISA. (o) Borrower has obtained all permits, licenses and other authorizations which are required under all Environmental Laws at Borrower’s facilities or in connection with the operation of its business. Except as disclosed on Schedule IV, Borrower and all activities of Borrower at its facilities comply with all Environmental Laws and with all terms and conditions of any required permits, licenses and authorizations applicable to Borrower with respect thereto. Except as disclosed on Schedule IV, Borrower is also in compliance with all limitations, restrictions, conditions, standards, prohibitions, requirements, obligations, schedules and timetables contained in Environmental Laws or contained in any plan, order, decree, judgment or notice of which Borrower is aware. Except as disclosed on Schedule IV, Borrower is not aware of, nor has Borrower received notice of, any events, conditions, circumstances, activities, practices, incidents, actions or plans which may interfere with or prevent continued compliance with, or which may give rise to any liability under, any Environmental Laws. (p) All factual information heretofor or contemporaneously furnished by or on behalf of Borrower or any Guarantor in writing to Lender for purposes of or in connection with this Agreement or any transaction contemplated hereby is, and all other such factual information hereafter furnished by or on behalf of Borrower or any Guarantor to Lender will be, true and correct in every material respect on the date as of which such information is dated or certified, and such information is not, or shall not be, as the case may be, incomplete by omitting to state any material fact necessary to make such information not misleading. (q) None of Borrower, any Guarantor or any of their Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying “margin stock.” None of the proceeds of any Loan will be used for the purpose of, or be made available by Borrower, any Guarantor or any of their Subsidiaries in any manner to any other Person to enable or assist such Person in, directly or indirectly purchasing or carrying “margin stock”. Terms for which meanings are provided in F.R.S. Board Regulation T, U or X or any regulations substituted therefor, as from time to time in effect, are used in this Section with such meanings. (r) None of Borrower, any Guarantor or any of their Subsidiaries is an “investment company” nor a “company controlled by an investment company” within the meaning of the Investment Company Act of 1940, as amended, or a “holding company,” or a “subsidiary company” of a “holding company,” or an “affiliate” of a “holding company” or of a “subsidiary company” of a “holding company,” within the meaning of the Public Utility Holding Company Act of 1935, as amended. (s) Schedule V is an accurate and complete list of all Subsidiaries of Borrower and each Corporate Guarantor and the respective ownership interests therein. (t) Borrower and each Guarantor are solvent and will not be rendered insolvent by the Loan Documents or the transactions contemplated thereby and, after giving effect to such transactions, neither Borrower nor any Guarantor will be left with an unreasonably small amount of capital with which to engage in its business, nor does Borrower or any Guarantor intend to incur, or believe that it has incurred, debts beyond its ability to pay as they mature. Neither Borrower nor any Guarantor contemplates the commencement of insolvency, bankruptcy, liquidation or consolidation proceedings or the appointment of a receiver, liquidator, conservator, trustee or similar official in respect of Borrower or any Guarantor or any of their assets. Neither Borrower nor any Guarantor are entering into the transactions contemplated by the Loan Documents with any intent to hinder, delay or defraud any of Borrower’s or any Guarantor’s creditors.
Appears in 3 contracts
Samples: Loan Agreement (Primoris Services Corp), Loan Agreement (Primoris Services Corp), Loan Agreement (Primoris Services CORP)
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER. Borrower hereby represents, warrants warrants, and covenants for the benefit of Lender, to Lender as follows:
(a) : Borrower is a corporation duly organized, validly existing existing, and in good standing under the laws of the jurisdiction State of its organization. Borrower is in good standing and is duly licensed or qualified to transact business in each jurisdiction where the nature of its business requires such qualification, except for those jurisdictions in which the failure to qualify could not reasonably be expected to have a Material Adverse Effect. Borrower’s exact legal name is as set forth on the execution page hereofNevada.
(b) A. Borrower has full all requisite power and authority and holds all requisite governmental licenses, permits and other approvals to (i) enter into and perform its obligations under this Agreement, the Note and each other Loan Document to which it is a party and to own its property, (ii) use the Collateral and (iii) conduct its business substantially as currently conducted by it, except as to clause (iii) where the failure to hold such licenses, permits and approvals could not reasonably be expected to have a Material Adverse Effect.
(c) This Agreement, the Note and the other Loan Documents to which it is a party have been duly authorized, executed and delivered by Borrower and constitute legal, valid and binding obligations of Borrower, enforceable against Borrower in accordance with their respective terms, except to the extent limited by bankruptcy, reorganization or other laws of general application relating to or effecting the enforcement of creditors’ rights.
(d) The execution and delivery of this Agreement, the Note and the other Loan Documents, the consummation of the transactions contemplated hereby and thereby and the fulfillment of the terms and conditions hereof and thereof do not and will not violate any law, rule, regulation or order, conflict with or result in a breach of any of the terms or conditions of any Organizational Document of Borrower or of any corporate restriction or of any agreement or instrument to which Borrower is now a party and do not and will not constitute a default under any of the foregoing or result in the creation or imposition of any liens, charges or encumbrances of any nature upon any of the property or assets of Borrower other than Liens in favor of Lender.
(e) The authorization, execution, delivery and performance of this Agreement, the Note and the other Loan Documents by Borrower do not require submission to, approval of, or other action by any governmental authority or agency, except for such action that has been duly obtained or taken and is in full force and effect.
(f) Each of the Loan Documents that purports to create a security interest creates a valid first priority Lien on the Collateral subject only to Permitted Liens, securing the payment and performance of the Obligations.
(g) Except as disclosed on Schedule IV, there is no action, suit, proceeding, claim, inquiry or investigation, at law or in equity, before or by any court, regulatory agency, public board or body pending or, to the best of Borrower’s knowledge, threatened against or affecting Borrower, any Guarantor or any of their Subsidiaries, challenging Borrower’s or any Guarantor’s authority to enter into this Agreement, to carry out its obligations hereunder, and to consummate the Note or any of the other Loan Documents or any other action wherein an unfavorable ruling or finding would adversely affect the enforceability transactions contemplated hereby. The execution and delivery by Borrower of this Agreement, the Note or any performance by Borrower of its obligations hereunder, and the consummation by Borrower of the other Loan Documentstransactions contemplated hereby have been duly authorized by all corporate action on the part of Borrower. This Agreement has been duly executed and delivered by Borrower, or could reasonably be expected to have and (assuming due authorization, execution, and delivery by Lender) this Agreement constitutes a Material Adverse Effectlegal, valid, and binding obligation of Borrower enforceable against Borrower in accordance with its terms.
(h) Borrower has goodB. The Nexeon Shares have been duly authorized, marketable and insurable title in fee simple to all Collateral that is real property, and good title to all other Collateral, in each case free and clear of all Liens except for Permitted liens, pledges, security interests, charges, claims, encumbrances, agreements, options, voting trusts, proxies, and other arrangements or restrictions of any kind (“Liens. With respect ”), including but not limited to Collateral that is personal property, Borrower owns/leases the real property where the Collateral will be located, subject to no Liens of any kind except for Permitted applicable taxing authority. Upon consummation of the transactions contemplated by this Agreement, Lender shall own the Nexeon Shares free and clear of any and all Liens.
C. The execution, delivery, and has provided performance by Borrower of this Agreement do not conflict with, violate or result in the breach of, or create any Lien on the Nexeon Shares pursuant to any agreement, instrument, order, judgment, decree, law, or governmental regulation to which Borrower is a complete and accurate legal description and party or is subject or by which the exact name of the fee simple owner of record of such real propertyNexeon Shares are bound, and no person other than Borrower is in occupancy or possession of any portion of such real property.
(i) Borrower is in compliance with all State and Federal Securities laws, rules, regulations and orders of governmental authorities applicable to it and its properties except regulations.
D. No governmental, administrative, or other third-party consents or approvals are required by or with respect to the extent Borrower in connection with the non-compliance with which could not reasonably be expected to have a Material Adverse Effect.
(j) Borrower has heretofore furnished to Lender the Financial Statements execution and those statements fairly present the financial condition delivery of Borrower and such Guarantor, if any, on the dates thereof and the results of its operations and cash flows for the periods then ended and were prepared in accordance with GAAP. Since the date of the most recent financial statements, there has been no material adverse change in the business, properties or condition (financial or otherwise) of Borrower or any Guarantor. Except as disclosed in the Financial Statements or the notes thereto and for the items disclosed on Schedule IV, neither Borrower nor any Guarantor, as of each Closing Date, has or will have any liabilities, contingent or otherwise, that could reasonably be expected to have a Material Adverse Effect.
(k) Borrower has paid or caused to be paid, and will pay, to the proper authorities when due all federal, state and local taxes required to be withheld by it. Borrower has filed, and will pay, all federal, state and local tax returns which are required to be filed, and Borrower has paid or caused to be paid to the respective taxing authorities all taxes as shown on said returns or on any assessment received by it to the extent such taxes have become due, except any such taxes or charges which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP have been set aside on its books.
(l) For purposes of Section 9-307 of the UCC, Borrower is and will remain located in the Borrower’s State. Borrower’s residence for federal income tax purposes is located at its Notice Address specified in Schedule I. Borrower has authorized Lender to file financing statements that are sufficient when filed to perfect the security interests created pursuant to this Agreement and the other Loan Documents. When such financing statements are filed in consummation of the offices noted therein, Lender will have a valid and perfected security interest in the Collateral that constitutes personal property, subject to no other Lien other than Permitted Lienstransactions contemplated hereby.
(m) None E. There are no actions, suits, claims, investigations, or other legal proceedings pending or, to the knowledge of Borrower, threatened against or by Borrower that challenge or seek to prevent, enjoin, or otherwise delay the Collateral constitutes a replacement oftransactions contemplated by this Agreement.
F. No broker, substitution for finder, or accessory investment banker is entitled to any property of Borrower subject to a lien of any kind.
(n) No ERISA Event has occurred brokerage, finder, or is reasonably likely to occur with respect to any Plan, and each Plan is in compliance in all material respects with the applicable provisions of ERISA.
(o) Borrower has obtained all permits, licenses and other authorizations which are required under all Environmental Laws at Borrower’s facilities fee or commission in connection with the operation of its business. Except as disclosed on Schedule IV, Borrower and all activities of Borrower at its facilities comply with all Environmental Laws and with all terms and conditions of any required permits, licenses and authorizations applicable to Borrower with respect thereto. Except as disclosed on Schedule IV, Borrower is also in compliance with all limitations, restrictions, conditions, standards, prohibitions, requirements, obligations, schedules and timetables contained in Environmental Laws or contained in any plan, order, decree, judgment or notice of which Borrower is aware. Except as disclosed on Schedule IV, Borrower is not aware of, nor has Borrower received notice of, any events, conditions, circumstances, activities, practices, incidents, actions or plans which may interfere with or prevent continued compliance with, or which may give rise to any liability under, any Environmental Laws.
(p) All factual information heretofor or contemporaneously furnished transactions contemplated hereby based upon arrangements made by or on behalf of Borrower or any Guarantor in writing to Lender for purposes of or in connection with this Agreement or any transaction contemplated hereby is, and all other such factual information hereafter furnished by or on behalf of Borrower or any Guarantor to Lender will be, true and correct in every material respect on the date as of which such information is dated or certified, and such information is not, or shall not be, as the case may be, incomplete by omitting to state any material fact necessary to make such information not misleadingBorrower.
(q) None of Borrower, any Guarantor or any of their Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying “margin stock.” None of the proceeds of any Loan will be used for the purpose of, or be made available by Borrower, any Guarantor or any of their Subsidiaries in any manner to any other Person to enable or assist such Person in, directly or indirectly purchasing or carrying “margin stock”. Terms for which meanings are provided in F.R.S. Board Regulation T, U or X or any regulations substituted therefor, as from time to time in effect, are used in this Section with such meanings.
(r) None of Borrower, any Guarantor or any of their Subsidiaries is an “investment company” nor a “company controlled by an investment company” within the meaning of the Investment Company Act of 1940, as amended, or a “holding company,” or a “subsidiary company” of a “holding company,” or an “affiliate” of a “holding company” or of a “subsidiary company” of a “holding company,” within the meaning of the Public Utility Holding Company Act of 1935, as amended.
(s) Schedule V is an accurate and complete list of all Subsidiaries of Borrower and each Corporate Guarantor and the respective ownership interests therein.
(t) Borrower and each Guarantor are solvent and will not be rendered insolvent by the Loan Documents or the transactions contemplated thereby and, after giving effect to such transactions, neither Borrower nor any Guarantor will be left with an unreasonably small amount of capital with which to engage in its business, nor does Borrower or any Guarantor intend to incur, or believe that it has incurred, debts beyond its ability to pay as they mature. Neither Borrower nor any Guarantor contemplates the commencement of insolvency, bankruptcy, liquidation or consolidation proceedings or the appointment of a receiver, liquidator, conservator, trustee or similar official in respect of Borrower or any Guarantor or any of their assets. Neither Borrower nor any Guarantor are entering into the transactions contemplated by the Loan Documents with any intent to hinder, delay or defraud any of Borrower’s or any Guarantor’s creditors.
Appears in 2 contracts
Samples: Share Loan Agreement, Share Loan Agreement (Nexeon Medsystems Inc)
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER. Borrower hereby re-makes each and every representation and warranty of Borrower to Lender contained in the Note and the Mortgage and the other Original Loan Documents, except for the representations in Section 3.3(a), Section 3.3(b), Section 3.3(c), Section 3.3(d) and Section 3.3(e) of the Mortgage, and Borrower further represents, warrants and covenants for the benefit of Lender, to Lender as follows:
(a) Borrower is a corporation duly organized, validly existing and in good standing under the laws All of the jurisdiction representations and warranties (i) added to Section 3.3 of its organization. Borrower is the Mortgage pursuant to Section 4 of this Agreement and (ii) contained in good standing that certain Organizational Certificate (as defined on Exhibit B) are true, complete and is duly licensed or qualified to transact business in each jurisdiction where correct as of the nature date of its business requires such qualification, except for those jurisdictions in which the failure to qualify could not reasonably be expected to have a Material Adverse Effect. Borrower’s exact legal name is as set forth on the execution page hereofthis Agreement.
(b) The consummation of the Transfer and the Assumption, and the execution, delivery, and/or performance by Borrower has full power and authority and holds all requisite governmental licenses, permits and other approvals to (i) enter into and perform its obligations under of this Agreement, the Note and each other Loan Document to which it is a party and to own its property, (ii) use the Collateral and (iii) conduct its business substantially as currently conducted by it, except as to clause (iii) where the failure to hold such licenses, permits and approvals could not reasonably be expected to have a Material Adverse Effect.
(c) This Agreement, the Note Modification Documents and the other Loan Documents to which it the Borrower is a party, and the effectiveness of any assignment of any of Borrower’s rights and interests of any kind to Lender: (i) shall not result in any breach of, or constitute a default under, any mortgage, agreement, or other instrument to which Borrower is a party or by which Borrower may be bound or affected, or Borrower’s certificate of formation or limited liability agreement; (ii) do not contravene any applicable law, regulation or order; (iii) require no authorization, approval, consent or other action by, and no notice to or filing with, any court, any governmental authority or regulatory body; (iv) are within the power and authority of Borrower and have been duly authorizedauthorized by all necessary action and will not violate any provision of the certificate of formation, executed operating agreement or other organizational documents of Borrower; (v) shall not contravene any contractual or other restriction binding on or affecting Borrower, and delivered by (vi) shall not result in or require the creation of any lien, security interest, other charge or encumbrance (other than pursuant hereto) upon or with respect to any of the properties of Borrower.
(c) This Agreement and the other Loan Documents to which Borrower and constitute legalis a party shall, when delivered, be valid and binding obligations of Borrower, Borrower enforceable against Borrower in accordance with their respective terms, except to the extent as limited by equitable principles and bankruptcy, reorganization or other insolvency and similar laws of general application relating to or effecting the enforcement of affecting creditors’ rights.
(d) This Agreement and the other Loan Documents collectively grant to Lender a valid and enforceable first priority security conveyance of and security interest in the Property, subject only to the Permitted Exceptions. Without limiting the foregoing provisions of this Section 3(d), the Mortgage, as modified by this Agreement, is a valid and enforceable first lien and security interest on the Property, subject only to the Permitted Exceptions.
(e) Borrower is, and notwithstanding the Transfer and the Assumption, shall at all times continue to be, a “non-foreign person” within the meaning of Sections 1445 and 7701 of the United States Internal Revenue Code of 1986, as amended, and the regulations issued thereunder.
(f) Borrower has no set-offs, offsets, counterclaims, defenses or other causes of action against Lender or any of Lender’s officers, agents or employees arising out of the indebtedness evidenced by the Note, any action taken or not taken by Lender or any of Lender’s officers, agents or employees with respect to the Loan or the Loan Documents, the Transfer, the Assumption, or any modification of the Original Loan Documents, and, to the extent any such set-offs, counterclaims, defenses or other causes of action may exist, whether known or unknown, such items are waived by Borrower. Borrower expressly disclaims any reliance on any oral representation made or allegedly made by Lender or any of its officers, agents or employees with respect to the Loan, this Agreement or any of the other Loan Documents.
(g) There are no pending or, to Borrower’s knowledge, threatened litigation, investigations, actions, suits or proceedings (including, without limitation, condemnation proceedings) at law, in equity or before or by any court, governmental or quasi-governmental authorities, arbitrator or other authority that, if determined adversely, could affect Borrower, the Property, the validity or enforceability of the Note (as modified by this Agreement), the Mortgage (as modified by this Agreement) or any of the other Loan Documents or the priority of the lien thereof. Borrower is not in default with respect to any order, writ, injunction, decree or demand of any court or governmental authorities.
(h) Any brokerage commissions and fees due in connection with the Transfer and/or the Assumption have been paid in full, and any such commissions and fees coming due in the future will be promptly paid or caused to be paid by Borrower. Borrower hereby agrees to indemnify, defend and hold harmless Lender from any and all liability, claims, demands, actions and causes of action whatsoever arising out of or relating to the claim of any Person for any brokerage commissions and fees, including, without limitation, Lender’s attorneys’ fees and expenses, and costs and expenses incurred by Lender in investigating, preparing or defending against any litigation or claim, action, suit, proceeding or demand of any kind or character regarding any brokerage commissions and fees due and payable by reason of the Transfer and/or the Assumption.
(i) All state or local mortgage taxes, intangible taxes, stamp taxes and other fees or taxes (including customary per-page or document filing and recording fees imposed by law) required to be paid in the State of Connecticut (including, without limitation, the Town of Orange, Connecticut, County of New Haven, Connecticut and any other political subdivision of the State of Connecticut) in connection with the Transfer, the Assumption, or the execution, delivery, filing, or recording of this Agreement or any other Loan Document have been or will be paid by Borrower upon the recording of this Agreement. Borrower hereby agrees to indemnify, defend and hold harmless Lender from any and all liability, claims, demands, actions and causes of action whatsoever arising out of or relating to the claim of any Person for any such tax or fee, including, without limitation, Lender’s attorneys’ fees and expenses, and costs and expenses incurred by Lender in investigating, preparing or defending against any litigation or claim, action, suit, proceeding or demand of any kind or character related thereto.
(j) No Default or Event of Default exists under any of the Loan Documents.
(k) The Transfer, the Assumption and the execution of this Agreement and the other Loan Modification Documents have been duly authorized by all necessary corporate, partnership, limited liability company or other action on the part of Borrower, the other Borrowers, Guarantor and the other entities set forth on the organizational chart of Borrower attached to the Organizational Certificate, and the individuals who executed this Agreement have been authorized to execute this Agreement on behalf of Borrower and Guarantor. Borrower has obtained all consents and approvals required in connection with the Transfer, the Assumption and the execution and delivery of this Agreement, the Note Agreement and the other Loan Documents, Modification Documents and the consummation performance of the transactions contemplated hereby Note and thereby and the fulfillment of the terms and conditions hereof and thereof do not and will not violate any lawMortgage, rule, regulation or order, conflict with or result in a breach of any of the terms or conditions of any Organizational Document of Borrower or of any corporate restriction or of any agreement or instrument to which Borrower is now a party and do not and will not constitute a default under any of the foregoing or result in the creation or imposition of any liens, charges or encumbrances of any nature upon any of the property or assets of Borrower other than Liens in favor of Lender.
(e) The authorization, execution, delivery and performance of as modified by this Agreement, the Note and the other Loan Documents by Borrower do not require submission toModification Documents.
(l) No portion of the Property is subject to any liens, approval ofencumbrances, security interests, or other action by any governmental authority or agencyclaims whatsoever, except for such action the lien of the Loan Documents and except insofar as the Property may be encumbered by the Permitted Exceptions, any rights of tenants under their respective Leases or any municipal tax liens not yet due and payable.
(m) Borrower currently complies with ERISA. Neither the Transfer nor the Assumption, nor the exercise by Lender of any of Lender’s rights under the Loan Documents constitutes, or will constitute, a non-exempt, prohibited transaction under ERISA as with respect to Borrower.
(n) Borrower and each of the other Borrowers, as applicable, is in compliance with all of the covenants, obligations, representations and warranties set forth in that has been duly obtained or taken certain (i) Reserve Agreement (Initial TI/LC Reserve), dated as of March 8, 2011, among M. Xxxxxx Xxxxxxx & Company, Inc., a Delaware corporation (“Servicer”), 15 Executive Borrower, 470 Bridgeport Borrower, 950 Bridgeport Borrower, 8 Xxxxxx Borrower and is Lender (the “Initial TI Reserve Agreement”), (ii) Reserve Agreement (Ongoing Reserve), dated as of March 8, 2011, among Borrowers, Lender and Servicer (the “Ongoing Reserve Agreement”), and (iii) Reserve Agreement (Earnout Reserve), dated as of March 8, 2011, among Borrowers, Lender and Servicer (the “Earnout Reserve Agreement”; collectively with the Initial TI Reserve Agreement and the Ongoing Reserve Agreement, the “Reserve Agreements”), and all of the covenants, obligations, representations and warranties set forth in the Reserve Agreements are in full force and effect.
(f) Each of the Loan Documents that purports to create a security interest creates a valid first priority Lien on the Collateral subject only to Permitted Liens, securing the payment and performance of the Obligations.
(g) Except as disclosed on Schedule IV, there is no action, suit, proceeding, claim, inquiry or investigation, at law or in equity, before or by any court, regulatory agency, public board or body pending or, to the best of Borrower’s knowledge, threatened against or affecting Borrower, any Guarantor or any of their Subsidiaries, challenging Borrower’s or any Guarantor’s authority to enter into this Agreement, the Note or any of the other Loan Documents or any other action wherein an unfavorable ruling or finding would adversely affect the enforceability of this Agreement, the Note or any of the other Loan Documents, or could reasonably be expected to have a Material Adverse Effect.
(h) Borrower has good, marketable and insurable title in fee simple to all Collateral that is real property, and good title to all other Collateral, in each case free and clear of all Liens except for Permitted Liens. With respect to Collateral that is personal property, Borrower owns/leases the real property where the Collateral will be located, subject to no Liens of any kind except for Permitted Liens, and has provided a complete and accurate legal description and the exact name of the fee simple owner of record of such real property, and no person other than Borrower is in occupancy or possession of any portion of such real property.
(i) Borrower is in compliance with all laws, rules, regulations and orders of governmental authorities applicable to it and its properties except to the extent the non-compliance with which could not reasonably be expected to have a Material Adverse Effect.
(j) Borrower has heretofore furnished to Lender the Financial Statements and those statements fairly present the financial condition of Borrower and such Guarantor, if any, on the dates thereof and the results of its operations and cash flows for the periods then ended and were prepared in accordance with GAAP. Since the date of the most recent financial statements, there has been no material adverse change in the business, properties or condition (financial or otherwise) of Borrower or any Guarantor. Except as disclosed in the Financial Statements or the notes thereto and for the items disclosed on Schedule IV, neither Borrower nor any Guarantor, as of each Closing Date, has or will have any liabilities, contingent or otherwise, that could reasonably be expected to have a Material Adverse Effect.
(k) Borrower has paid or caused to be paid, and will pay, to the proper authorities when due all federal, state and local taxes required to be withheld by it. Borrower has filed, and will pay, all federal, state and local tax returns which are required to be filed, and Borrower has paid or caused to be paid to the respective taxing authorities all taxes as shown on said returns or on any assessment received by it to the extent such taxes have become due, except any such taxes or charges which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP have been set aside on its books.
(l) For purposes of Section 9-307 of the UCC, Borrower is and will remain located in the Borrower’s State. Borrower’s residence for federal income tax purposes is located at its Notice Address specified in Schedule I. Borrower has authorized Lender to file financing statements that are sufficient when filed to perfect the security interests created pursuant to this Agreement and the other Loan Documents. When such financing statements are filed in the offices noted therein, Lender will have a valid and perfected security interest in the Collateral that constitutes personal property, subject to no other Lien other than Permitted Liens.
(m) None of the Collateral constitutes a replacement of, substitution for or accessory to any property of Borrower subject to a lien of any kind.
(n) No ERISA Event has occurred or is reasonably likely to occur with respect to any Plan, and each Plan is in compliance in all material respects with the applicable provisions of ERISA.
(o) Borrower has obtained all permits, licenses and other authorizations which are required under all Environmental Laws at Borrower’s facilities or in connection with the operation of its business. Except as disclosed on Schedule IV, Borrower and all activities of Borrower at its facilities comply with all Environmental Laws and with all terms and conditions of any required permits, licenses and authorizations applicable to Borrower with respect thereto. Except as disclosed on Schedule IV, Borrower is also in compliance with all limitations, restrictions, conditions, standards, prohibitions, requirements, obligations, schedules and timetables contained in Environmental Laws or contained in any plan, order, decree, judgment or notice of which Borrower is aware. Except as disclosed on Schedule IV, Borrower is not aware of, nor has Borrower received notice of, any events, conditions, circumstances, activities, practices, incidents, actions or plans which may interfere with or prevent continued compliance with, or which may give rise to any liability under, any Environmental Laws.
(p) All factual information heretofor or contemporaneously furnished by or on behalf of Borrower or any Guarantor in writing to Lender for purposes of or in connection with this Agreement or any transaction contemplated hereby is, and all other such factual information hereafter furnished by or on behalf of Borrower or any Guarantor to Lender will be, true and correct in every material respect on the date as of which such information is dated or certified, and such information is not, or shall not be, as the case may be, incomplete by omitting to state any material fact necessary to make such information not misleading.
(q) None of Borrower, any Guarantor or any of their Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying “margin stock.” None of the proceeds of any Loan will be used for the purpose of, or be made available by Borrower, any Guarantor or any of their Subsidiaries in any manner to any other Person to enable or assist such Person in, directly or indirectly purchasing or carrying “margin stock”. Terms for which meanings are provided in F.R.S. Board Regulation T, U or X or any regulations substituted therefor, as from time to time in effect, are used in this Section with such meanings.
(r) None of Borrower, any Guarantor or any of their Subsidiaries is an “investment company” nor a “company controlled by an investment company” within the meaning of the Investment Company Act of 1940, as amended, or a “holding company,” or a “subsidiary company” of a “holding company,” or an “affiliate” of a “holding company” or of a “subsidiary company” of a “holding company,” within the meaning of the Public Utility Holding Company Act of 1935, as amended.
(s) Schedule V is an accurate and complete list of all Subsidiaries of Borrower and each Corporate Guarantor and the respective ownership interests therein.
(t) Borrower and each Guarantor are solvent and will not be rendered insolvent of the other Borrowers, as applicable, has satisfied its obligations under that certain Post-Closing Side Letter, dated as of March 8, 2011, by Borrowers to Lender (the Loan Documents or the transactions contemplated thereby and, after giving effect to such transactions, neither Borrower nor any Guarantor will be left with an unreasonably small amount of capital with which to engage in its business, nor does Borrower or any Guarantor intend to incur, or believe that it has incurred, debts beyond its ability to pay as they mature. Neither Borrower nor any Guarantor contemplates the commencement of insolvency, bankruptcy, liquidation or consolidation proceedings or the appointment of a receiver, liquidator, conservator, trustee or similar official in respect of Borrower or any Guarantor or any of their assets. Neither Borrower nor any Guarantor are entering into the transactions contemplated by the Loan Documents with any intent to hinder, delay or defraud any of Borrower’s or any Guarantor’s creditors“Side Letter”).
Appears in 2 contracts
Samples: Assumption, Consent and Modification Agreement (GTJ REIT, Inc.), Assumption, Consent and Modification Agreement (GTJ REIT, Inc.)
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER. Borrower representshereby acknowledges and affirms the Indebtedness (as defined in the Mortgage) and all of the other obligations set forth in the Note, warrants the Mortgage and covenants for the benefit of Lenderother Loan Documents in accordance with their respective terms and conditions, as follows:
the same may be modified by this Agreement. Borrower further acknowledges that it is bound by all of the terms of the Loan Documents, including but not limited to, the representations, warranties, covenants, assurances and indemnifications therein, all as though each of the Loan Documents had been made, executed, and delivered by Borrower on the date hereof. Borrower agrees to pay, perform, and discharge each and every obligation of payment and performance under, pursuant to and as set forth in the Note, the Mortgage and the other Loan Documents at the time, in the manner and otherwise in all respects as therein provided. Borrower hereby acknowledges, agrees and warrants that (ai) Borrower it is a corporation duly organized, organized and validly existing and in good standing limited liability company under the laws of the jurisdiction State of its organization. Borrower Delaware and is qualified to do business and is in good standing and is duly licensed in the State of Indiana; (ii) there are no rights of set-off or qualified counterclaim, nor any defenses of any kind, whether legal, equitable or otherwise, which would enable Borrower to transact business in each jurisdiction where the nature avoid or delay timely performance of its business requires such qualification, except for those jurisdictions in which the failure to qualify could not reasonably be expected to have a Material Adverse Effect. Borrower’s exact legal name is as set forth on the execution page hereof.
(b) Borrower has full power and authority and holds all requisite governmental licenses, permits and other approvals to (i) enter into and perform its obligations under this Agreementthe Note, the Note and each other Mortgage or any of the Loan Document to which it is a party and to own its propertyDocuments, (ii) use the Collateral as applicable; and (iii) conduct its business substantially as currently conducted by it, except as to clause (iii) where the failure to hold such licenses, permits and approvals could not reasonably be expected to have a Material Adverse Effect.
(c) This Agreement, the Note and the other Loan Documents to which it is a party have been duly authorized, executed and delivered by Borrower and constitute legal, valid and binding obligations of Borrower, enforceable against Borrower in accordance with their respective terms, except to the extent limited by bankruptcy, reorganization or other laws of general application relating to or effecting the enforcement of creditors’ rights.
(d) The execution and delivery of this Agreement, the Note and the other Loan Documents, the consummation of the transactions contemplated hereby and thereby and the fulfillment of the terms and conditions hereof and thereof do not and will not violate any law, rule, regulation or order, conflict with or result in a breach of any of the terms or conditions of any Organizational Document of Borrower or of any corporate restriction or of any agreement or instrument to which Borrower is now a party and do not and will not constitute a default under any of the foregoing or result in the creation or imposition of any liens, charges or encumbrances of any nature upon any of the property or assets of Borrower other than Liens in favor of Lender.
(e) The authorization, execution, delivery and performance of this Agreement, the Note and the other Loan Documents by Borrower do not require submission to, approval of, or other action by any governmental authority or agency, except for such action that has been duly obtained or taken and is in full force and effect.
(f) Each of the Loan Documents that purports to create a security interest creates a valid first priority Lien on the Collateral subject only to Permitted Liens, securing the payment and performance of the Obligations.
(g) Except as disclosed on Schedule IV, there is no action, suit, proceeding, claim, inquiry or investigation, at law or in equity, before or by any court, regulatory agency, public board or body pending or, to the best of Borrower’s knowledge, threatened there are no monetary encumbrances or liens of any kind or nature against or affecting Borrower, any Guarantor or any of their Subsidiaries, challenging Borrower’s or any Guarantor’s authority to enter into this Agreement, the Note or any of Property except those created by the other Loan Documents or any other action wherein an unfavorable ruling or finding would adversely affect the enforceability of this Agreement, the Note or any of the other Loan Documents, or could reasonably be expected and all rights, priorities, titles, liens and equities securing the payment of the Note are expressly recognized as valid and are in all things renewed, continued and preserved in force to have a Material Adverse Effect.
(h) Borrower has goodsecure payment of the Note, marketable and insurable title in fee simple to all Collateral that is real property, and good title to all other Collateral, in each case free and clear except as amended herein. Without limiting the generality of all Liens except for Permitted Liens. With respect to Collateral that is personal propertythe foregoing, Borrower owns/leases hereby specifically remakes and reaffirms the real property where the Collateral will be locatedrepresentations, subject to no Liens of any kind except for Permitted Liens, warranties and has provided a complete covenants set forth in Article 17 and accurate legal description and the exact name Article 31 of the fee simple owner of record of such real property, Mortgage. Borrower understands and no person other than Borrower is in occupancy or possession of any portion of such real property.
(i) Borrower is in compliance with all laws, rules, regulations and orders of governmental authorities applicable to it and its properties except to the extent the non-compliance with which could not reasonably be expected to have a Material Adverse Effect.
(j) Borrower has heretofore furnished to intends that Lender the Financial Statements and those statements fairly present the financial condition of Borrower and such Guarantor, if any, shall rely on the dates thereof representations, warranties and the results of its operations and cash flows for the periods then ended and were prepared in accordance with GAAP. Since the date of the most recent financial statements, there has been no material adverse change in the business, properties or condition (financial or otherwise) of Borrower or any Guarantor. Except as disclosed in the Financial Statements or the notes thereto and for the items disclosed on Schedule IV, neither Borrower nor any Guarantor, as of each Closing Date, has or will have any liabilities, contingent or otherwise, that could reasonably be expected to have a Material Adverse Effectcovenants contained herein.
(k) Borrower has paid or caused to be paid, and will pay, to the proper authorities when due all federal, state and local taxes required to be withheld by it. Borrower has filed, and will pay, all federal, state and local tax returns which are required to be filed, and Borrower has paid or caused to be paid to the respective taxing authorities all taxes as shown on said returns or on any assessment received by it to the extent such taxes have become due, except any such taxes or charges which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP have been set aside on its books.
(l) For purposes of Section 9-307 of the UCC, Borrower is and will remain located in the Borrower’s State. Borrower’s residence for federal income tax purposes is located at its Notice Address specified in Schedule I. Borrower has authorized Lender to file financing statements that are sufficient when filed to perfect the security interests created pursuant to this Agreement and the other Loan Documents. When such financing statements are filed in the offices noted therein, Lender will have a valid and perfected security interest in the Collateral that constitutes personal property, subject to no other Lien other than Permitted Liens.
(m) None of the Collateral constitutes a replacement of, substitution for or accessory to any property of Borrower subject to a lien of any kind.
(n) No ERISA Event has occurred or is reasonably likely to occur with respect to any Plan, and each Plan is in compliance in all material respects with the applicable provisions of ERISA.
(o) Borrower has obtained all permits, licenses and other authorizations which are required under all Environmental Laws at Borrower’s facilities or in connection with the operation of its business. Except as disclosed on Schedule IV, Borrower and all activities of Borrower at its facilities comply with all Environmental Laws and with all terms and conditions of any required permits, licenses and authorizations applicable to Borrower with respect thereto. Except as disclosed on Schedule IV, Borrower is also in compliance with all limitations, restrictions, conditions, standards, prohibitions, requirements, obligations, schedules and timetables contained in Environmental Laws or contained in any plan, order, decree, judgment or notice of which Borrower is aware. Except as disclosed on Schedule IV, Borrower is not aware of, nor has Borrower received notice of, any events, conditions, circumstances, activities, practices, incidents, actions or plans which may interfere with or prevent continued compliance with, or which may give rise to any liability under, any Environmental Laws.
(p) All factual information heretofor or contemporaneously furnished by or on behalf of Borrower or any Guarantor in writing to Lender for purposes of or in connection with this Agreement or any transaction contemplated hereby is, and all other such factual information hereafter furnished by or on behalf of Borrower or any Guarantor to Lender will be, true and correct in every material respect on the date as of which such information is dated or certified, and such information is not, or shall not be, as the case may be, incomplete by omitting to state any material fact necessary to make such information not misleading.
(q) None of Borrower, any Guarantor or any of their Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying “margin stock.” None of the proceeds of any Loan will be used for the purpose of, or be made available by Borrower, any Guarantor or any of their Subsidiaries in any manner to any other Person to enable or assist such Person in, directly or indirectly purchasing or carrying “margin stock”. Terms for which meanings are provided in F.R.S. Board Regulation T, U or X or any regulations substituted therefor, as from time to time in effect, are used in this Section with such meanings.
(r) None of Borrower, any Guarantor or any of their Subsidiaries is an “investment company” nor a “company controlled by an investment company” within the meaning of the Investment Company Act of 1940, as amended, or a “holding company,” or a “subsidiary company” of a “holding company,” or an “affiliate” of a “holding company” or of a “subsidiary company” of a “holding company,” within the meaning of the Public Utility Holding Company Act of 1935, as amended.
(s) Schedule V is an accurate and complete list of all Subsidiaries of Borrower and each Corporate Guarantor and the respective ownership interests therein.
(t) Borrower and each Guarantor are solvent and will not be rendered insolvent by the Loan Documents or the transactions contemplated thereby and, after giving effect to such transactions, neither Borrower nor any Guarantor will be left with an unreasonably small amount of capital with which to engage in its business, nor does Borrower or any Guarantor intend to incur, or believe that it has incurred, debts beyond its ability to pay as they mature. Neither Borrower nor any Guarantor contemplates the commencement of insolvency, bankruptcy, liquidation or consolidation proceedings or the appointment of a receiver, liquidator, conservator, trustee or similar official in respect of Borrower or any Guarantor or any of their assets. Neither Borrower nor any Guarantor are entering into the transactions contemplated by the Loan Documents with any intent to hinder, delay or defraud any of Borrower’s or any Guarantor’s creditors.
Appears in 2 contracts
Samples: Consent to Transfer Agreement (NNN Healthcare/Office REIT, Inc.), Consent to Transfer Agreement (NNN Healthcare/Office REIT, Inc.)
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER. Borrower represents, hereby represents and warrants and covenants for the benefit of Lender, to Lender as follows:
(a) Borrower’s place of business shall be located at the address shown at the beginning of this Agreement. All the Collateral and records relating thereto shall be kept at Borrower’s place of business. Borrower is a corporation duly organized, validly existing and in good standing under the laws will not remove any of the jurisdiction Collateral and will not change its place of its organization. Borrower is in good standing business, without giving prior written notice to Lender and is duly licensed or qualified prior to transact business in each jurisdiction where the nature of its business requires such qualification, except for those jurisdictions in which the failure to qualify could not reasonably be expected to have a Material Adverse Effect. Borrower’s exact legal name is as set forth on the execution page hereofand delivery to Lender of new financing statements, in form satisfactory to Lender, reflecting such new address.
(b) Borrower has full power and authority and holds all requisite governmental licenses, permits and other approvals to (i) enter into and perform its obligations under this Agreement, is the Note and each other Loan Document to which it is a party and to own its property, (ii) use owner of the Collateral free from any adverse lien, security interest or encumbrance and (iii) conduct its business substantially as currently conducted by it, except as to clause (iii) where Borrower will defend the failure to hold such licenses, permits Collateral against all claims and approvals could not reasonably be expected to have a Material Adverse Effectdemands of all persons at any time claiming the same or any interest therein.
(c) This AgreementBorrower will at all reasonable times and from time to time allow Lender or any of Lender’s agents, employees, attorneys or accountants, to examine and inspect and make extracts from the Note books and the other Loan Documents to which it is a party have been duly authorized, executed and delivered by records of Borrower and constitute legal, valid and binding obligations of Borrower, enforceable against Borrower in accordance with their respective terms, except relating to the extent limited by bankruptcy, reorganization or other laws of general application relating to or effecting the enforcement of creditors’ rightsCollateral.
(d) The execution Borrower shall execute and delivery deliver to Lender such financing statements and amendments thereto or other instruments, all in form satisfactory to Lender, as Lender may from time to time require to comply with the provisions of the Uniform Commercial Code or other applicable laws relating to security interests, and in order to perfect and maintain the priority of the interest of Lender. Lender may file, as a financing statement, a photographic or other reproduction of this Agreement, the Note and the other Loan Documents, the consummation of the transactions contemplated hereby and thereby and the fulfillment of the terms and conditions hereof and thereof do not and will not violate any law, rule, regulation or order, conflict with or result in a breach of any of the terms or conditions of any Organizational Document of Borrower or of any corporate restriction or of any agreement or instrument to which Borrower is now a party and do not and will not constitute a default under any of the foregoing or result in the creation or imposition of any liens, charges or encumbrances of any nature upon any of the property or assets of Borrower other than Liens in favor of Lender.
(e) The authorizationBorrower will not create, executiongrant or suffer to exist any pledge, delivery and performance mortgage, other security interest, lien or encumbrance upon or in respect of this Agreementany of the Collateral except in favor of Lender. Except in connection with such purchase money security interests, the Note and the other Loan Documents by Borrower do will not require submission to, approval of, join in any financing statement or other action by any governmental authority or agency, notice filing except for such action that has been duly obtained or taken and is in full force and effectwith Lender.
(f) Each Lender shall be under no obligation to take steps necessary to preserve rights in any Collateral against prior parties but may do so at its option. After the occurrence and during the continuance of the Loan Documents that purports any Event of Default (as defined in Section 5), Lender may at any time take control of any proceeds of Collateral to create a security interest creates a valid first priority Lien on the Collateral subject only to Permitted Liens, securing the payment and performance of the Obligationswhich Lender is entitled hereunder or under applicable law.
(g) Except as disclosed on Schedule IVBorrower will not sell, there is no actionlease, suitassign, proceeding, claim, inquiry transfer or investigation, at law or in equity, before or by otherwise dispose of any court, regulatory agency, public board or body pending or, to the best of Borrower’s knowledge, threatened against or affecting Borrower, any Guarantor or any of their Subsidiaries, challenging Borrower’s or any Guarantor’s authority to enter into this Agreement, the Note or any portion of the other Loan Documents or any other action wherein an unfavorable ruling or finding would adversely affect Collateral except in transactions in the enforceability ordinary course of this Agreement, the Note or any of the other Loan Documents, or could reasonably be expected to have a Material Adverse Effectbusiness.
(h) So long as Borrower has good, marketable and insurable title in fee simple shall be indebted to all Collateral that is real property, and good title to all other Collateral, in each case free and clear of all Liens except for Permitted Liens. With respect to Collateral that is personal propertyLender, Borrower owns/leases the real property where shall keep the Collateral will be locatedinsured by reputable insurance companies authorized to transact business in Massachusetts covering such risks and in such amounts as is customarily carried by companies engaged in similar businesses and owning similar properties in the same general areas in which Borrower operates and, subject to no Liens upon the request of any kind except for Permitted LiensLender, and has provided a complete and accurate legal description and the exact name shall provide Lender with copies of the fee simple owner of record of such real property, and no person other than Borrower is in occupancy applicable insurance policies or possession of any portion of such real propertycertificates thereof.
(i) Borrower is in compliance with all laws, rules, regulations and orders of governmental authorities applicable to it and its properties except to will keep the extent the non-compliance with which could not reasonably be expected to have a Material Adverse Effect.
(j) Borrower has heretofore furnished to Lender the Financial Statements and those statements fairly present the financial condition of Borrower and such Guarantor, if any, on the dates thereof and the results of its operations and cash flows for the periods then ended and were prepared in accordance with GAAP. Since the date of the most recent financial statements, there has been no material adverse change in the business, properties or condition (financial or otherwise) of Borrower or any Guarantor. Except as disclosed in the Financial Statements or the notes thereto and for the items disclosed on Schedule IV, neither Borrower nor any Guarantor, as of each Closing Date, has or will have any liabilities, contingent or otherwise, that could reasonably be expected to have a Material Adverse Effect.
(k) Borrower has paid or caused to be paid, and will pay, to the proper authorities when due all federal, state and local taxes required to be withheld by it. Borrower has filed, and will pay, all federal, state and local tax returns which are required to be filed, and Borrower has paid or caused to be paid to the respective taxing authorities all taxes as shown on said returns or on any assessment received by it to the extent such taxes have become due, except any such taxes or charges which are being diligently contested Collateral in good faith by appropriate proceedings order and for which adequate reserves in accordance with GAAP have been set aside on its books.
(l) For purposes of Section 9-307 of the UCC, Borrower is and will remain located in the Borrower’s State. Borrower’s residence for federal income tax purposes is located at its Notice Address specified in Schedule I. Borrower has authorized Lender to file financing statements that are sufficient when filed to perfect the security interests created pursuant to this Agreement and the other Loan Documents. When such financing statements are filed in the offices noted therein, Lender will have a valid and perfected security interest in the Collateral that constitutes personal property, subject to no other Lien other than Permitted Liens.
(m) None of the Collateral constitutes a replacement of, substitution for or accessory to any property of Borrower subject to a lien of any kind.
(n) No ERISA Event has occurred or is reasonably likely to occur with respect to any Plan, and each Plan is in compliance in all material respects with the applicable provisions of ERISA.
(o) Borrower has obtained all permits, licenses and other authorizations which are required under all Environmental Laws at Borrower’s facilities or in connection with the operation of its business. Except as disclosed on Schedule IV, Borrower and all activities of Borrower at its facilities comply with all Environmental Laws and with all terms and conditions of any required permits, licenses and authorizations applicable to Borrower with respect thereto. Except as disclosed on Schedule IV, Borrower is also in compliance with all limitations, restrictions, conditions, standards, prohibitions, requirements, obligations, schedules and timetables contained in Environmental Laws or contained in any plan, order, decree, judgment or notice of which Borrower is aware. Except as disclosed on Schedule IV, Borrower is not aware of, nor has Borrower received notice of, any events, conditions, circumstances, activities, practices, incidents, actions or plans which may interfere with or prevent continued compliance with, or which may give rise to any liability under, any Environmental Laws.
(p) All factual information heretofor or contemporaneously furnished by or on behalf of Borrower or any Guarantor in writing to Lender for purposes of or in connection with this Agreement or any transaction contemplated hereby is, and all other such factual information hereafter furnished by or on behalf of Borrower or any Guarantor to Lender will be, true and correct in every material respect on the date as of which such information is dated or certified, and such information is not, or shall not be, as the case may be, incomplete by omitting to state any material fact necessary to make such information not misleading.
(q) None of Borrower, any Guarantor or any of their Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying “margin stock.” None of the proceeds of any Loan will be used for the purpose of, or be made available by Borrower, any Guarantor or any of their Subsidiaries in any manner to any other Person to enable or assist such Person in, directly or indirectly purchasing or carrying “margin stock”. Terms for which meanings are provided in F.R.S. Board Regulation T, U or X or any regulations substituted therefor, as from time to time in effect, are used in this Section with such meanings.
(r) None of Borrower, any Guarantor or any of their Subsidiaries is an “investment company” nor a “company controlled by an investment company” within the meaning of the Investment Company Act of 1940, as amended, or a “holding company,” or a “subsidiary company” of a “holding company,” or an “affiliate” of a “holding company” or of a “subsidiary company” of a “holding company,” within the meaning of the Public Utility Holding Company Act of 1935, as amended.
(s) Schedule V is an accurate and complete list of all Subsidiaries of Borrower and each Corporate Guarantor and the respective ownership interests therein.
(t) Borrower and each Guarantor are solvent repair and will not be rendered insolvent by use the Loan Documents or the transactions contemplated thereby and, after giving effect to such transactions, neither Borrower nor any Guarantor will be left with an unreasonably small amount same in violation of capital with which to engage in its business, nor does Borrower law or any Guarantor intend to incur, or believe that it has incurred, debts beyond its ability to pay as they mature. Neither Borrower nor any Guarantor contemplates the commencement policy of insolvency, bankruptcy, liquidation or consolidation proceedings or the appointment of a receiver, liquidator, conservator, trustee or similar official in respect of Borrower or any Guarantor or any of their assets. Neither Borrower nor any Guarantor are entering into the transactions contemplated by the Loan Documents with any intent to hinder, delay or defraud any of Borrower’s or any Guarantor’s creditorsinsurance thereon.
Appears in 2 contracts
Samples: Security Agreement (SPIRE Corp), Security Agreement (SPIRE Corp)
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER. Borrower hereby re-makes each and every representation and warranty of Borrower to Lender contained in the Note and the Mortgage and the other Original Loan Documents, except for the representations in Section 3.3(a), Section 3.3(b), Section 3.3(c), Section 3.3(d) and Section 3.3(e) of the Mortgage, and Borrower further represents, warrants and covenants for the benefit of Lender, to Lender as follows:
(a) Borrower is a corporation duly organized, validly existing and in good standing under the laws All of the jurisdiction representations and warranties (i) added to Section 3.3 of its organization. Borrower is the Mortgage pursuant to Section 4 of this Agreement and (ii) contained in good standing that certain Organizational Certificate (as defined on Exhibit B) are true, complete and is duly licensed or qualified to transact business in each jurisdiction where correct as of the nature date of its business requires such qualification, except for those jurisdictions in which the failure to qualify could not reasonably be expected to have a Material Adverse Effect. Borrower’s exact legal name is as set forth on the execution page hereofthis Agreement.
(b) The consummation of the Transfer and the Assumption, and the execution, delivery, and/or performance by Borrower has full power and authority and holds all requisite governmental licenses, permits and other approvals to (i) enter into and perform its obligations under of this Agreement, the Note and each other Loan Document to which it is a party and to own its property, (ii) use the Collateral and (iii) conduct its business substantially as currently conducted by it, except as to clause (iii) where the failure to hold such licenses, permits and approvals could not reasonably be expected to have a Material Adverse Effect.
(c) This Agreement, the Note Modification Documents and the other Loan Documents to which it the Borrower is a party, and the effectiveness of any assignment of any of Borrower’s rights and interests of any kind to Lender: (i) shall not result in any breach of, or constitute a default under, any mortgage, agreement, or other instrument to which Borrower is a party or by which Borrower may be bound or affected, or Borrower’s certificate of formation or limited liability agreement; (ii) do not contravene any applicable law, regulation or order; (iii) require no authorization, approval, consent or other action by, and no notice to or filing with, any court, any governmental authority or regulatory body; (iv) are within the power and authority of Borrower and have been duly authorizedauthorized by all necessary action and will not violate any provision of the certificate of formation, executed operating agreement or other organizational documents of Borrower; (v) shall not contravene any contractual or other restriction binding on or affecting Borrower, and delivered by (vi) shall not result in or require the creation of any lien, security interest, other charge or encumbrance (other than pursuant hereto) upon or with respect to any of the properties of Borrower.
(c) This Agreement and the other Loan Documents to which Borrower and constitute legalis a party shall, when delivered, be valid and binding obligations of Borrower, Borrower enforceable against Borrower in accordance with their respective terms, except to the extent as limited by equitable principles and bankruptcy, reorganization or other insolvency and similar laws of general application relating to or effecting the enforcement of affecting creditors’ rights.
(d) This Agreement and the other Loan Documents collectively grant to Lender a valid and enforceable first priority security conveyance of and security interest in the Property, subject only to the Permitted Exceptions. Without limiting the foregoing provisions of this Section 3(d), the Mortgage, as modified by this Agreement, is a valid and enforceable first lien and security interest on the Property, subject only to the Permitted Exceptions.
(e) Borrower is, and notwithstanding the Transfer and the Assumption, shall at all times continue to be, a “non-foreign person” within the meaning of Sections 1445 and 7701 of the United States Internal Revenue Code of 1986, as amended, and the regulations issued thereunder.
(f) Borrower has no set-offs, offsets, counterclaims, defenses or other causes of action against Lender or any of Lender’s officers, agents or employees arising out of the indebtedness evidenced by the Note, any action taken or not taken by Lender or any of Lender’s officers, agents or employees with respect to the Loan or the Loan Documents, the Transfer, the Assumption, or any modification of the Original Loan Documents, and, to the extent any such set-offs, counterclaims, defenses or other causes of action may exist, whether known or unknown, such items are waived by Borrower. Borrower expressly disclaims any reliance on any oral representation made or allegedly made by Lender or any of its officers, agents or employees with respect to the Loan, this Agreement or any of the other Loan Documents.
(g) There are no pending or, to Borrower’s knowledge, threatened litigation, investigations, actions, suits or proceedings (including, without limitation, condemnation proceedings) at law, in equity or before or by any court, governmental or quasi-governmental authorities, arbitrator or other authority that, if determined adversely, could affect Borrower, the Property, the validity or enforceability of the Note (as modified by this Agreement), the Mortgage (as modified by this Agreement) or any of the other Loan Documents or the priority of the lien thereof. Borrower is not in default with respect to any order, writ, injunction, decree or demand of any court or governmental authorities.
(h) Any brokerage commissions and fees due in connection with the Transfer and/or the Assumption have been paid in full, and any such commissions and fees coming due in the future will be promptly paid or caused to be paid by Borrower. Borrower hereby agrees to indemnify, defend and hold harmless Lender from any and all liability, claims, demands, actions and causes of action whatsoever arising out of or relating to the claim of any Person for any brokerage commissions and fees, including, without limitation, Lender’s attorneys’ fees and expenses, and costs and expenses incurred by Lender in investigating, preparing or defending against any litigation or claim, action, suit, proceeding or demand of any kind or character regarding any brokerage commissions and fees due and payable by reason of the Transfer and/or the Assumption.
(i) All state or local mortgage taxes, intangible taxes, stamp taxes and other fees or taxes (including customary per-page or document filing and recording fees imposed by law) required to be paid in the State of Connecticut (including, without limitation, the Town of Shelton, Connecticut, County of Fairfield, Connecticut and any other political subdivision of the State of Connecticut) in connection with the Transfer, the Assumption, or the execution, delivery, filing, or recording of this Agreement or any other Loan Document have been or will be paid by Borrower upon the recording of this Agreement. Borrower hereby agrees to indemnify, defend and hold harmless Lender from any and all liability, claims, demands, actions and causes of action whatsoever arising out of or relating to the claim of any Person for any such tax or fee, including, without limitation, Lender’s attorneys’ fees and expenses, and costs and expenses incurred by Lender in investigating, preparing or defending against any litigation or claim, action, suit, proceeding or demand of any kind or character related thereto.
(j) No Default or Event of Default exists under any of the Loan Documents.
(k) The Transfer, the Assumption and the execution of this Agreement and the other Loan Modification Documents have been duly authorized by all necessary corporate, partnership, limited liability company or other action on the part of Borrower, the other Borrowers, Guarantor and the other entities set forth on the organizational chart of Borrower attached to the Organizational Certificate, and the individuals who executed this Agreement have been authorized to execute this Agreement on behalf of Borrower and Guarantor. Borrower has obtained all consents and approvals required in connection with the Transfer, the Assumption and the execution and delivery of this Agreement, the Note Agreement and the other Loan Documents, Modification Documents and the consummation performance of the transactions contemplated hereby Note and thereby and the fulfillment of the terms and conditions hereof and thereof do not and will not violate any lawMortgage, rule, regulation or order, conflict with or result in a breach of any of the terms or conditions of any Organizational Document of Borrower or of any corporate restriction or of any agreement or instrument to which Borrower is now a party and do not and will not constitute a default under any of the foregoing or result in the creation or imposition of any liens, charges or encumbrances of any nature upon any of the property or assets of Borrower other than Liens in favor of Lender.
(e) The authorization, execution, delivery and performance of as modified by this Agreement, the Note and the other Loan Documents by Borrower do not require submission toModification Documents.
(l) No portion of the Property is subject to any liens, approval ofencumbrances, security interests, or other action by any governmental authority or agencyclaims whatsoever, except for such action the lien of the Loan Documents and except insofar as the Property may be encumbered by the Permitted Exceptions, any rights of tenants under their respective Leases or any municipal tax liens not yet due and payable.
(m) Borrower currently complies with ERISA. Neither the Transfer nor the Assumption, nor the exercise by Lender of any of Lender’s rights under the Loan Documents constitutes, or will constitute, a non-exempt, prohibited transaction under ERISA as with respect to Borrower.
(n) Borrower and each of the other Borrowers, as applicable, is in compliance with all of the covenants, obligations, representations and warranties set forth in that has been duly obtained or taken certain (i) Reserve Agreement (Initial TI/LC Reserve), dated as of March 8, 2011, among M. Xxxxxx Xxxxxxx & Company, Inc., a Delaware corporation (“Servicer”), Borrower, 15 Executive Borrower, 950 Bridgeport Borrower, 8 Xxxxxx Borrower and is Lender (the “Initial TI Reserve Agreement”), (ii) Reserve Agreement (Ongoing Reserve), dated as of March 8, 2011, among Borrowers, Lender and Servicer (the “Ongoing Reserve Agreement”), and (iii) Reserve Agreement (Earnout Reserve), dated as of March 8, 2011, among Borrowers, Lender and Servicer (the “Earnout Reserve Agreement”; collectively with the Initial TI Reserve Agreement and the Ongoing Reserve Agreement, the “Reserve Agreements”), and all of the covenants, obligations, representations and warranties set forth in the Reserve Agreements are in full force and effect.
(f) Each of the Loan Documents that purports to create a security interest creates a valid first priority Lien on the Collateral subject only to Permitted Liens, securing the payment and performance of the Obligations.
(g) Except as disclosed on Schedule IV, there is no action, suit, proceeding, claim, inquiry or investigation, at law or in equity, before or by any court, regulatory agency, public board or body pending or, to the best of Borrower’s knowledge, threatened against or affecting Borrower, any Guarantor or any of their Subsidiaries, challenging Borrower’s or any Guarantor’s authority to enter into this Agreement, the Note or any of the other Loan Documents or any other action wherein an unfavorable ruling or finding would adversely affect the enforceability of this Agreement, the Note or any of the other Loan Documents, or could reasonably be expected to have a Material Adverse Effect.
(h) Borrower has good, marketable and insurable title in fee simple to all Collateral that is real property, and good title to all other Collateral, in each case free and clear of all Liens except for Permitted Liens. With respect to Collateral that is personal property, Borrower owns/leases the real property where the Collateral will be located, subject to no Liens of any kind except for Permitted Liens, and has provided a complete and accurate legal description and the exact name of the fee simple owner of record of such real property, and no person other than Borrower is in occupancy or possession of any portion of such real property.
(i) Borrower is in compliance with all laws, rules, regulations and orders of governmental authorities applicable to it and its properties except to the extent the non-compliance with which could not reasonably be expected to have a Material Adverse Effect.
(j) Borrower has heretofore furnished to Lender the Financial Statements and those statements fairly present the financial condition of Borrower and such Guarantor, if any, on the dates thereof and the results of its operations and cash flows for the periods then ended and were prepared in accordance with GAAP. Since the date of the most recent financial statements, there has been no material adverse change in the business, properties or condition (financial or otherwise) of Borrower or any Guarantor. Except as disclosed in the Financial Statements or the notes thereto and for the items disclosed on Schedule IV, neither Borrower nor any Guarantor, as of each Closing Date, has or will have any liabilities, contingent or otherwise, that could reasonably be expected to have a Material Adverse Effect.
(k) Borrower has paid or caused to be paid, and will pay, to the proper authorities when due all federal, state and local taxes required to be withheld by it. Borrower has filed, and will pay, all federal, state and local tax returns which are required to be filed, and Borrower has paid or caused to be paid to the respective taxing authorities all taxes as shown on said returns or on any assessment received by it to the extent such taxes have become due, except any such taxes or charges which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP have been set aside on its books.
(l) For purposes of Section 9-307 of the UCC, Borrower is and will remain located in the Borrower’s State. Borrower’s residence for federal income tax purposes is located at its Notice Address specified in Schedule I. Borrower has authorized Lender to file financing statements that are sufficient when filed to perfect the security interests created pursuant to this Agreement and the other Loan Documents. When such financing statements are filed in the offices noted therein, Lender will have a valid and perfected security interest in the Collateral that constitutes personal property, subject to no other Lien other than Permitted Liens.
(m) None of the Collateral constitutes a replacement of, substitution for or accessory to any property of Borrower subject to a lien of any kind.
(n) No ERISA Event has occurred or is reasonably likely to occur with respect to any Plan, and each Plan is in compliance in all material respects with the applicable provisions of ERISA.
(o) Borrower has obtained all permits, licenses and other authorizations which are required under all Environmental Laws at Borrower’s facilities or in connection with the operation of its business. Except as disclosed on Schedule IV, Borrower and all activities of Borrower at its facilities comply with all Environmental Laws and with all terms and conditions of any required permits, licenses and authorizations applicable to Borrower with respect thereto. Except as disclosed on Schedule IV, Borrower is also in compliance with all limitations, restrictions, conditions, standards, prohibitions, requirements, obligations, schedules and timetables contained in Environmental Laws or contained in any plan, order, decree, judgment or notice of which Borrower is aware. Except as disclosed on Schedule IV, Borrower is not aware of, nor has Borrower received notice of, any events, conditions, circumstances, activities, practices, incidents, actions or plans which may interfere with or prevent continued compliance with, or which may give rise to any liability under, any Environmental Laws.
(p) All factual information heretofor or contemporaneously furnished by or on behalf of Borrower or any Guarantor in writing to Lender for purposes of or in connection with this Agreement or any transaction contemplated hereby is, and all other such factual information hereafter furnished by or on behalf of Borrower or any Guarantor to Lender will be, true and correct in every material respect on the date as of which such information is dated or certified, and such information is not, or shall not be, as the case may be, incomplete by omitting to state any material fact necessary to make such information not misleading.
(q) None of Borrower, any Guarantor or any of their Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying “margin stock.” None of the proceeds of any Loan will be used for the purpose of, or be made available by Borrower, any Guarantor or any of their Subsidiaries in any manner to any other Person to enable or assist such Person in, directly or indirectly purchasing or carrying “margin stock”. Terms for which meanings are provided in F.R.S. Board Regulation T, U or X or any regulations substituted therefor, as from time to time in effect, are used in this Section with such meanings.
(r) None of Borrower, any Guarantor or any of their Subsidiaries is an “investment company” nor a “company controlled by an investment company” within the meaning of the Investment Company Act of 1940, as amended, or a “holding company,” or a “subsidiary company” of a “holding company,” or an “affiliate” of a “holding company” or of a “subsidiary company” of a “holding company,” within the meaning of the Public Utility Holding Company Act of 1935, as amended.
(s) Schedule V is an accurate and complete list of all Subsidiaries of Borrower and each Corporate Guarantor and the respective ownership interests therein.
(t) Borrower and each Guarantor are solvent and will not be rendered insolvent of the other Borrowers, as applicable, has satisfied its obligations under that certain Post-Closing Side Letter, dated as of March 8, 2011, by Borrowers to Lender (the Loan Documents or the transactions contemplated thereby and, after giving effect to such transactions, neither Borrower nor any Guarantor will be left with an unreasonably small amount of capital with which to engage in its business, nor does Borrower or any Guarantor intend to incur, or believe that it has incurred, debts beyond its ability to pay as they mature. Neither Borrower nor any Guarantor contemplates the commencement of insolvency, bankruptcy, liquidation or consolidation proceedings or the appointment of a receiver, liquidator, conservator, trustee or similar official in respect of Borrower or any Guarantor or any of their assets. Neither Borrower nor any Guarantor are entering into the transactions contemplated by the Loan Documents with any intent to hinder, delay or defraud any of Borrower’s or any Guarantor’s creditors“Side Letter”).
Appears in 1 contract
Samples: Assumption, Consent and Modification Agreement (GTJ REIT, Inc.)
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER. In order to induce Lender to enter into this Agreement and to make the Advances, Borrower represents, represents and warrants and covenants for the benefit of Lender, to Lender as follows, and Borrower covenants that the following representations will continue to be true, and that Borrower will at all times comply with all of the following covenants:
7.1 State of Organization, Existence and Authority.
(a) Borrower is a corporation and will continue to be, duly organized, validly existing and in good standing under the laws of the jurisdiction State of Delaware. Borrower has all requisite corporate power and authority to own and operate its organizationproperties and to carry on its business as now conducted and as presently planned to be conducted. Borrower is in good standing and is duly will continue to be qualified and licensed or qualified to transact do business in each jurisdiction where the nature of its business requires such qualification, except for those California and all jurisdictions in which the any failure to qualify could not reasonably be expected to have a Material Adverse Effect. Borrower’s exact legal name is as set forth on the execution page hereof.
(b) Borrower has full power and authority and holds all requisite governmental licenses, permits and other approvals to (i) enter into and perform its obligations under this Agreement, the Note and each other Loan Document to which it is a party and to own its property, (ii) use the Collateral and (iii) conduct its business substantially as currently conducted by it, except as to clause (iii) where the failure to hold such licenses, permits and approvals could not reasonably be expected to do so would have a Material Adverse Effect.
(cb) This AgreementBorrower is not in violation of any term of any of its organizational documents, the Note and the other Loan Documents agreement or instrument to which it Borrower is a party or by which it or any of its properties (now or hereafter acquired) may be bound (except for violations which in the aggregate do not have a Material Adverse Effect).
(c) The execution, delivery and performance by Borrower of this Agreement, and all other documents contemplated hereby, and the creation of the lien granted under this Agreement: (i) have been duly and validly authorized, executed and delivered by Borrower and constitute (ii) create legal, valid and binding obligations of Borrower, Borrower enforceable against Borrower in accordance with their respective terms, terms (except to the extent as enforcement may be limited by equitable principles and by bankruptcy, reorganization insolvency, reorganization, moratorium or other similar laws of general application relating to or effecting the enforcement of creditors’ rights.
rights generally), (diii) The execution and delivery of this Agreement, the Note and the other Loan Documents, the consummation of the transactions contemplated hereby and thereby and the fulfillment of the terms and conditions hereof and thereof do not and will violate Borrower’s articles or certificate of incorporation, or Borrower’s by-laws, or any law which is binding upon Borrower or its property, (iv) do not violate any law, rule, regulation or order, conflict with or result in constitute a breach of of, or grounds for acceleration of, any of the terms material indebtedness or conditions of obligation under any Organizational Document of Borrower or of any corporate restriction or of any material agreement or instrument to which is binding upon Borrower is now a party or its property and do not and will not constitute a default under any of the foregoing or result in the creation or imposition of any liens, charges or encumbrances of any nature upon any of the property or assets of Borrower other than Liens in favor of Lender.
(ev) The authorization, execution, delivery and performance of this Agreement, the Note and the other Loan Documents by Borrower do not require submission toany consent, approval ofapproval, license exemption or other action by any governmental authority or agency, except for such action that has been duly obtained or taken and is in full force and effect.
(f) Each of the Loan Documents that purports to create a security interest creates a valid first priority Lien on the Collateral subject only to Permitted Liens, securing the payment and performance of the Obligations.
(g) Except as disclosed on Schedule IV, there is no action, suit, proceeding, claim, inquiry or investigation, at law or in equity, before or by any court, regulatory agency, public board or body pending or, to the best of Borrower’s knowledge, threatened against or affecting Borrower, any Guarantor or any of their Subsidiaries, challenging Borrower’s or any Guarantor’s authority to enter into this Agreement, the Note or any of the other Loan Documents Official Body or any other action wherein an unfavorable ruling person or finding would adversely affect entity except such as have already been given or shall be obtained on or before the enforceability of this Agreement, the Note or any of the other Loan Documents, or could reasonably be expected to have a Material Adverse Effect.
(h) Borrower has good, marketable and insurable title in fee simple to all Collateral that is real property, and good title to all other Collateral, in each case free and clear of all Liens except for Permitted Liens. With respect to Collateral that is personal property, Borrower owns/leases the real property where the Collateral will be located, subject to no Liens of any kind except for Permitted Liens, and has provided a complete and accurate legal description and the exact name of the fee simple owner of record of such real property, and no person other than Borrower is in occupancy or possession of any portion of such real property.
(i) Borrower is in compliance with all laws, rules, regulations and orders of governmental authorities applicable to it and its properties except to the extent the non-compliance with which could not reasonably be expected to have a Material Adverse Effect.
(j) Borrower has heretofore furnished to Lender the Financial Statements and those statements fairly present the financial condition of Borrower and such Guarantor, if any, on the dates thereof and the results of its operations and cash flows for the periods then ended and were prepared in accordance with GAAP. Since the date of the most recent financial statements, there has been no material adverse change in the business, properties or condition (financial or otherwise) of Borrower or any Guarantor. Except as disclosed in the Financial Statements or the notes thereto and for the items disclosed on Schedule IV, neither Borrower nor any Guarantor, as of each Closing Date, has or will have any liabilities, contingent or otherwise, that could reasonably be expected to have a Material Adverse Effect.
(k) Borrower has paid or caused to be paid, and will pay, to the proper authorities when due all federal, state and local taxes required to be withheld by it. Borrower has filed, and will pay, all federal, state and local tax returns which are required to be filed, and Borrower has paid or caused to be paid to the respective taxing authorities all taxes as shown on said returns or on any assessment received by it to the extent such taxes have become due, except any such taxes or charges which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP have been set aside on its books.
(l) For purposes of Section 9-307 of the UCC, Borrower is and will remain located in the Borrower’s State. Borrower’s residence for federal income tax purposes is located at its Notice Address specified in Schedule I. Borrower has authorized Lender to file financing statements that are sufficient when filed to perfect the security interests created pursuant to this Agreement and the other Loan Documents. When such financing statements are filed in the offices noted therein, Lender will have a valid and perfected security interest in the Collateral that constitutes personal property, subject to no other Lien other than Permitted Liens.
(m) None of the Collateral constitutes a replacement of, substitution for or accessory to any property of Borrower subject to a lien of any kind.
(n) No ERISA Event has occurred or is reasonably likely to occur with respect to any Plan, and each Plan is in compliance in all material respects with the applicable provisions of ERISA.
(o) Borrower has obtained all permits, licenses and other authorizations which are required under all Environmental Laws at Borrower’s facilities or in connection with the operation of its business. Except as disclosed on Schedule IV, Borrower and all activities of Borrower at its facilities comply with all Environmental Laws and with all terms and conditions of any required permits, licenses and authorizations applicable to Borrower with respect thereto. Except as disclosed on Schedule IV, Borrower is also in compliance with all limitations, restrictions, conditions, standards, prohibitions, requirements, obligations, schedules and timetables contained in Environmental Laws or contained in any plan, order, decree, judgment or notice of which Borrower is aware. Except as disclosed on Schedule IV, Borrower is not aware of, nor has Borrower received notice of, any events, conditions, circumstances, activities, practices, incidents, actions or plans which may interfere with or prevent continued compliance with, or which may give rise to any liability under, any Environmental Laws.
(p) All factual information heretofor or contemporaneously furnished by or on behalf of Borrower or any Guarantor in writing to Lender for purposes of or in connection with this Agreement or any transaction contemplated hereby is, and all other such factual information hereafter furnished by or on behalf of Borrower or any Guarantor to Lender will be, true and correct in every material respect on the date as of which such information is dated or certified, and such information is not, or shall not be, as the case may be, incomplete by omitting to state any material fact necessary to make such information not misleading.
(q) None of Borrower, any Guarantor or any of their Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying “margin stock.” None of the proceeds of any Loan will be used for the purpose of, or be made available by Borrower, any Guarantor or any of their Subsidiaries in any manner to any other Person to enable or assist such Person in, directly or indirectly purchasing or carrying “margin stock”. Terms for which meanings are provided in F.R.S. Board Regulation T, U or X or any regulations substituted therefor, as from time to time in effect, are used in this Section with such meanings.
(r) None of Borrower, any Guarantor or any of their Subsidiaries is an “investment company” nor a “company controlled by an investment company” within the meaning of the Investment Company Act of 1940, as amended, or a “holding company,” or a “subsidiary company” of a “holding company,” or an “affiliate” of a “holding company” or of a “subsidiary company” of a “holding company,” within the meaning of the Public Utility Holding Company Act of 1935, as amended.
(s) Schedule V is an accurate and complete list of all Subsidiaries of Borrower and each Corporate Guarantor and the respective ownership interests therein.
(t) Borrower and each Guarantor are solvent and will not be rendered insolvent by the Loan Documents or the transactions contemplated thereby and, after giving effect to such transactions, neither Borrower nor any Guarantor will be left with an unreasonably small amount of capital with which to engage in its business, nor does Borrower or any Guarantor intend to incur, or believe that it has incurred, debts beyond its ability to pay as they mature. Neither Borrower nor any Guarantor contemplates the commencement of insolvency, bankruptcy, liquidation or consolidation proceedings or the appointment of a receiver, liquidator, conservator, trustee or similar official in respect of Borrower or any Guarantor or any of their assets. Neither Borrower nor any Guarantor are entering into the transactions contemplated by the Loan Documents with any intent to hinder, delay or defraud any of Borrower’s or any Guarantor’s creditors.
Appears in 1 contract
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER. (a) The Borrower represents, warrants and covenants covenants: The Borrower has the legal right and authority to execute, deliver and perform this Agreement, and no disability or contractual obligation exists which would prohibit the Borrower from so doing; the Borrower has obtained all necessary approvals or authorizations from all regulatory bodies for the benefit transactions contemplated hereby; the execution and delivery of Lenderthis Agreement complies, as follows:
(a) Borrower is a corporation duly organizedand all transactions contemplated hereby will comply, validly existing with all applicable laws and in good standing under the laws regulations, including without limitation, all applicable rules and regulations of the jurisdiction Securities and Exchange Commission and the National Association of its organization. Borrower is in good standing Securities Dealers, Inc. ("NASD"), any applicable provisions of Regulation of the Board of Governors of the Federal Reserve System and is duly licensed or qualified all applicable requirements of the New York Stock Exchange, Inc. and of any other stock exchange to transact business in each jurisdiction where the nature requirements of its business requires such qualification, except for those jurisdictions in which the failure to qualify could not reasonably Borrower may be expected to have a Material Adverse Effect. Borrower’s exact legal name is as set forth on the execution page hereof.subject;
(b) The Borrower has full power and authority and holds all requisite governmental licenses, permits and other approvals to (i) enter into and perform its obligations under this Agreement, is borrowing the Note and each other Loan Document to which it is a party and to own its property, (ii) use Loaned Securities only for the Collateral and (iii) conduct its business substantially as currently conducted by it, except as to clause (iii) where purpose of making delivery of such securities in the case of short sales or failure to hold such licensesreceive securities which the Borrower is required to deliver, permits and approvals could not reasonably be expected in connection with specific transactions which have already occurred or are in immediate prospect, or as otherwise permitted pursuant to have a Material Adverse Effect.Regulation T;
(c) This AgreementExcept with respect to any transfers made by the Borrower to other persons for the purposes specified in clause (b) hereof, the Note Borrower shall, at all times, hold the Loaned Securities in its possession, shall keep the Loaned Securities specifically and physically set aside as identifiable property of the Lender and shall at no time commingle the Loaned Securities with any other Loan Documents to which it is a party have been duly authorizedproperty of the Borrower or any other person; provided, executed that the Loaned Securities may be held in the manner provided in Rule 15c3-3(c)(1) of the General Rules and delivered by Regulations of the Securities and Exchange Commission under the Securities Exchange Act of 1934, if the books or records of the Borrower and constitute legal, valid and binding obligations of Borrower, enforceable against Borrower in accordance with their respective terms, except to the extent limited by bankruptcy, reorganization or other laws of general application relating to or effecting the enforcement of creditors’ rights.identify such securities;
(d) The execution and delivery Borrower will give prompt notice to the Lender of this Agreement, (i) the Note and the other Loan Documents, the consummation of the transactions contemplated hereby and thereby and the fulfillment of the terms and conditions hereof and thereof do not and will not violate any law, rule, regulation or order, conflict with or result in a breach commencement of any of investigation or proceedings which the terms or conditions of any Organizational Document of Borrower or of any corporate restriction or of any agreement or instrument has reason to which Borrower is now a party and do not and will not constitute a default under any of the foregoing or believe may result in the creation suspension or expulsion of the Borrower from any stock exchange or from the NASD or the suspension of the Borrower's power under Federal or State law to transact business as a broker or dealer in securities, and of any such suspension or expulsion; (ii) any violation by the Borrower of any rule limiting its aggregate indebtedness or requiring a minimum net capital imposed under the Securities Exchange Act of 1934 or the rules and regulations thereunder or by any stock exchange or, under any such rule, the imposition of any liensa prohibition against expansion, charges or encumbrances of a requirement of any nature upon any reduction, of the property business of the Borrower; (iii) any communication to the Borrower from the Securities and Exchange Commission or assets any exchange constituting notice to the Borrower of any violation of the rules referred to in item (ii) above or a warning to the Borrower other than Liens in favor of Lender.a threatened violation of any such rules; (iv) any information that the Borrower is under special surveillance by any stock exchange; and (v) any information that the Securities and Exchange Commission or any self-regulatory organization has notified the Securities Investor Protection Corporation, pursuant to Section 5(a)(1) of the Securities Investor Protection Act of 1970, of facts which indicate that the Borrower is in, or is approaching, financial difficulty;
(e) The authorizationBorrower has furnished the Lender with either (i) a complete list of those employee benefit plans subject to the Employee Retirement Income Security Act of 1974, executionas amended ("ERISA"), delivery for which Borrower or any affiliates of Borrower have discretionary authority or control or render investment advice (within the meaning of 29 CFR 2510.3-21(c)) with respect to any assets in such plans, or (ii) a complete list of Borrower and performance any affiliates of this Agreementthe Borrower which have discretionary authority or control or render investment advice (within the meaning of 29 CFR 2510.3-21(c)) with respect to any assets held in any ERISA plans. On a continuing basis, the Note and Borrower shall immediately advise the other Loan Documents by Borrower do not require submission to, approval of, or other action by Lender of any governmental authority or agency, except for such action that has been duly obtained or taken and is in full force and effect.changes to the list provided to Lender pursuant to this Section 8(e);
(f) Each The Borrower has furnished the Lender with (i) the most recent available audited statement of its financial condition, and (ii) the Loan Documents that purports to create a security interest creates a valid first priority Lien on the Collateral subject only to Permitted Liens, securing the payment and performance most recent available unaudited statement of the Obligations.its financial condition (if more recent than such audited statement);
(g) Except as disclosed on Schedule IV, there Each Loan that is no action, suit, proceeding, claim, inquiry or investigationnegotiated constitutes a representation that, at law or in equity, before or by any court, regulatory agency, public board or body pending or, to the best of Borrower’s knowledge, threatened against or affecting Borrower, any Guarantor or any of their Subsidiaries, challenging Borrower’s or any Guarantor’s authority to enter into this Agreementtime the Loan is made, the Note or any of the other Loan Documents or any other action wherein an unfavorable ruling or finding would adversely affect the enforceability of this Agreementfinancial statements referenced in clause (f) above are true, the Note or any of the other Loan Documents, or could reasonably be expected to have a Material Adverse Effect.
(h) Borrower has good, marketable and insurable title in fee simple to all Collateral that is real property, and good title to all other Collateral, in each case free and clear of all Liens except for Permitted Liens. With respect to Collateral that is personal property, Borrower owns/leases the real property where the Collateral will be located, subject to no Liens of any kind except for Permitted Liens, and has provided a complete and accurate legal description correct and the exact name of the fee simple owner of record of such real property, and no person other than Borrower is in occupancy or possession of any portion of such real property.
(i) Borrower is in compliance with all laws, rules, regulations and orders of governmental authorities applicable to it and its properties except to the extent the non-compliance with which could not reasonably be expected to have a Material Adverse Effect.
(j) Borrower has heretofore furnished to Lender the Financial Statements and those statements present fairly present the financial condition of the Borrower and as of the date of such Guarantor, if any, on the dates thereof statements and the results of its operations and cash flows for the periods then ended and were prepared in accordance with GAAP. Since the date of the most recent financial period covered by such statements, and that there has been no material adverse change in its financial condition since the business, properties or condition (date of the most recent financial or otherwise) of Borrower or any Guarantor. Except as statement furnished to the Lender that has not been disclosed in to the Financial Statements or the notes thereto and for the items disclosed on Schedule IV, neither Borrower nor any Guarantor, as of each Closing Date, has or will have any liabilities, contingent or otherwise, that could reasonably be expected to have a Material Adverse Effect.Lender;
(kh) The Borrower has paid or caused to be paid, and will pay, to the proper authorities when due all federal, state and local taxes required to be withheld by it. Borrower has filed, and will pay, all federal, state and local tax returns which are required to be filed, and Borrower has paid or caused to be paid to the respective taxing authorities all taxes as shown on said returns or on any assessment received by it to the extent such taxes have become due, except any such taxes or charges which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP have been set aside on its books.
(l) For purposes of Section 9-307 of the UCC, Borrower is and will remain located in the Borrower’s State. Borrower’s residence for federal income tax purposes is located at its Notice Address specified in Schedule I. Borrower has authorized Lender to file financing statements agrees that are sufficient when filed to perfect the security interests created pursuant to this Agreement and the other Loan Documents. When such financing statements are filed in the offices noted therein, Lender will have a valid and perfected security interest in the Collateral that constitutes personal property, subject to no other Lien other than Permitted Liens.
(m) None of the Collateral constitutes a replacement of, substitution for or accessory to any property of Borrower subject to a lien of any kind.
(n) No ERISA Event has occurred or is reasonably likely to occur with respect to any Plan, and each Plan is in compliance in all material respects with the applicable provisions of ERISA.
(o) Borrower has obtained all permits, licenses and other authorizations which are required under all Environmental Laws at Borrower’s facilities or in connection with the operation of its business. Except as disclosed on Schedule IV, Borrower and all activities of Borrower at its facilities comply with all Environmental Laws and with all terms and conditions of any required permits, licenses and authorizations applicable to Borrower with respect thereto. Except as disclosed on Schedule IV, Borrower is also in compliance with all limitations, restrictions, conditions, standards, prohibitions, requirements, obligations, schedules and timetables contained in Environmental Laws or contained in any plan, order, decree, judgment or notice of which Borrower is aware. Except as disclosed on Schedule IV, Borrower is not aware of, nor has Borrower received notice of, any events, conditions, circumstances, activities, practices, incidents, actions or plans which may interfere with or prevent continued compliance with, or which may give rise to any liability under, any Environmental Laws.
(p) All factual information heretofor or contemporaneously furnished by or on behalf of Borrower or any Guarantor in writing to Lender Loans made hereunder shall be "securities contracts" for purposes of or in connection with this Agreement or the Bankruptcy Code and any transaction contemplated hereby is, and all other such factual information hereafter furnished by or on behalf of Borrower or any Guarantor to Lender will be, true and correct in every material respect on the date as of which such information is dated or certified, and such information is not, or shall not be, as the case may be, incomplete by omitting to state any material fact necessary to make such information not misleadingbankruptcy proceedings thereunder.
(q) None of Borrower, any Guarantor or any of their Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying “margin stock.” None of the proceeds of any Loan will be used for the purpose of, or be made available by Borrower, any Guarantor or any of their Subsidiaries in any manner to any other Person to enable or assist such Person in, directly or indirectly purchasing or carrying “margin stock”. Terms for which meanings are provided in F.R.S. Board Regulation T, U or X or any regulations substituted therefor, as from time to time in effect, are used in this Section with such meanings.
(r) None of Borrower, any Guarantor or any of their Subsidiaries is an “investment company” nor a “company controlled by an investment company” within the meaning of the Investment Company Act of 1940, as amended, or a “holding company,” or a “subsidiary company” of a “holding company,” or an “affiliate” of a “holding company” or of a “subsidiary company” of a “holding company,” within the meaning of the Public Utility Holding Company Act of 1935, as amended.
(s) Schedule V is an accurate and complete list of all Subsidiaries of Borrower and each Corporate Guarantor and the respective ownership interests therein.
(t) Borrower and each Guarantor are solvent and will not be rendered insolvent by the Loan Documents or the transactions contemplated thereby and, after giving effect to such transactions, neither Borrower nor any Guarantor will be left with an unreasonably small amount of capital with which to engage in its business, nor does Borrower or any Guarantor intend to incur, or believe that it has incurred, debts beyond its ability to pay as they mature. Neither Borrower nor any Guarantor contemplates the commencement of insolvency, bankruptcy, liquidation or consolidation proceedings or the appointment of a receiver, liquidator, conservator, trustee or similar official in respect of Borrower or any Guarantor or any of their assets. Neither Borrower nor any Guarantor are entering into the transactions contemplated by the Loan Documents with any intent to hinder, delay or defraud any of Borrower’s or any Guarantor’s creditors.
Appears in 1 contract
Samples: Securities Lending Agreement (Portico Funds Inc /Mn/)
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER. Borrower hereby represents, warrants warrants, covenants as of the date hereof and covenants for as of the benefit date of Lender, as followseach Loan Funding:
(a) Borrower is a corporation duly organizedhas adequate power and capacity to enter into each Demand Note, validly existing this Agreement, the Lease, the Purchase Agreements, the Assignment and Consents, and any other documents or certificates required to be delivered in good standing under the laws connection with any of the jurisdiction of its organization. Borrower is in good standing foregoing (the Demand Notes, this Agreement, the Lease, the Purchase Agreements, the Assignment and is duly licensed or qualified to transact business in each jurisdiction where Consents, all other Debt Documents, and all such other documents being hereinafter collectively called the nature of its business requires such qualification, except for those jurisdictions in which the failure to qualify could not reasonably be expected to have a Material Adverse Effect. Borrower’s exact legal name is as set forth on the execution page hereof"Documents").
(b) Borrower has full power and authority and holds all requisite governmental licenses, permits and other approvals to (i) enter into and perform its obligations under this Agreement, the Note and each other Loan Document to which it is a party and to own its property, (ii) use the Collateral and (iii) conduct its business substantially as currently conducted by it, except as to clause (iii) where the failure to hold such licenses, permits and approvals could not reasonably be expected to have a Material Adverse Effect.
(c) This Agreement, the Note and the other Loan The Documents to which it is a party have been duly authorized, executed and delivered by Borrower and constitute legalvalid, valid legal and binding obligations of Borroweragreements, enforceable against Borrower in accordance with their respective terms, except to the extent limited by bankruptcy, reorganization or other laws of general application relating to or effecting that the enforcement of creditors’ rightsremedies therein provided may be limited under applicable bankruptcy and insolvency laws and by general principles of equity, and the persons executing any of the Documents are acting with the full authority of the Board of Directors or similar governing body of Borrower and hold the offices indicated in the Documents below their signatures which signatures Borrower hereby acknowledges to be genuine.
(c) No approval, consent or withholding of objections is required from, and no notice is required to be given to, any federal, state, local or municipal governmental authority or instrumentality, or any other person or entity, with respect to the entry into or performance by Borrower of the Documents except such as have already been obtained.
(d) The execution entry into and delivery of this Agreement, the Note and the other Loan Documents, the consummation performance by Borrower of the transactions contemplated hereby and thereby and the fulfillment of the terms and conditions hereof and thereof do not and Documents will not not: (i) violate any law, rule, regulation or order, conflict with or result in a breach of any of the terms or conditions of any Organizational Document organizational documents of Borrower or of judgment, order, law or regulation applicable to Borrower; or (ii) result in any corporate restriction or of any agreement or instrument to which Borrower is now a party and do not and will not breach of, constitute a default under any of the foregoing contract to which Borrower is a party, or result in the creation or imposition of any liens, charges or encumbrances of any nature Lien upon any unit of the property Equipment or assets other Collateral pursuant to any indenture, mortgage, deed of Borrower trust, bank loan or credit agreements or other instrument (other than Liens in favor of Lenderthis Agreement, the Lease or any purchase money security interest retained by any Supplier) to which Borrower is a party.
(e) The authorizationThere are no suits or proceedings pending or threatened in court or before any regulatory commission, execution, delivery and performance of this Agreement, the Note and the other Loan Documents by Borrower do not require submission to, approval of, board or other action by administrative governmental agency against or affecting Borrower, which will have an adverse effect on the ability of Borrower to fulfill its obligations under the Documents, nor does Borrower have reason to believe that any governmental authority such suits or agency, except for such action that has been duly obtained or taken and is in full force and effectproceedings are threatened.
(f) Each Borrower's exact legal name is as set forth in the preamble of this Agreement and Borrower is, and will remain during the term hereof, organized, validly existing and in good standing, under the laws of the Loan Documents that purports to create a security interest creates a valid first priority Lien on state of its formation (specified in the Collateral subject only to Permitted Liens, securing the payment and performance preamble of the Obligations.
(g) Except as disclosed on Schedule IV, there is no action, suit, proceeding, claim, inquiry or investigation, at law or in equity, before or by any court, regulatory agency, public board or body pending or, to the best of Borrower’s knowledge, threatened against or affecting Borrower, any Guarantor or any of their Subsidiaries, challenging Borrower’s or any Guarantor’s authority to enter into this Agreement). Borrower has, and will maintain, its chief executive office at the Note or any of location specified in the other Loan Documents or any other action wherein an unfavorable ruling or finding would adversely affect the enforceability preamble of this Agreement, the Note or any of the other Loan Documents, or could reasonably be expected to have a Material Adverse Effect.
(h) Borrower has good, marketable and insurable title in fee simple to all Collateral that is real property, and good title to all other Collateral, in each case free and clear of all Liens except for Permitted Liens. With respect to Collateral that is personal property, Borrower owns/leases the real property where the Collateral will be located, subject to no Liens of any kind except for Permitted Liens, and has provided a complete and accurate legal description and the exact name of the fee simple owner of record of such real property, and no person other than Borrower is in occupancy or possession of any portion of such real property.
(i) Borrower is in compliance with all laws, rules, regulations and orders of governmental authorities applicable to it and its properties except to the extent the non-compliance with which could not reasonably be expected to have a Material Adverse Effect.
(j) Borrower has heretofore furnished to Lender the Financial Statements and those statements fairly present the financial condition of Borrower and such Guarantor, if any, on the dates thereof and the results of its operations and cash flows for the periods then ended and were prepared in accordance with GAAP. Since the date of the most recent financial statements, there has been no material adverse change in the business, properties or condition (financial or otherwise) of Borrower or any Guarantor. Except as disclosed in the Financial Statements or the notes thereto and for the items disclosed on Schedule IV, neither Borrower nor any Guarantor, as of each Closing Date, has or will have any liabilities, contingent or otherwise, that could reasonably be expected to have a Material Adverse Effect.
(k) Borrower has paid or caused to be paidis, and will payremain, duly qualified and licensed in every jurisdiction wherever necessary to carry on its business and operations, including the proper authorities when due all federal, state and local taxes required jurisdiction(s) where the Equipment is or is to be withheld by itlocated. Borrower has filedwill not change its state of incorporation or organization or its name as it appears in official filings in the state of its incorporation or organization without giving Lender at least sixty (60) days' prior written notice, and will pay, all federal, state and local tax returns which are required to be filed, and Borrower has paid or caused to be paid to the respective taxing authorities all taxes as shown on said returns or on any assessment received by it to the extent such taxes have become due, except any such taxes or charges which are being diligently contested in good faith by appropriate proceedings and Borrower’s "location" for which adequate reserves in accordance with GAAP have been set aside on its books.
(l) For purposes of Section 9-307 of the UCC, Uniform Commercial Code is the State set forth in the preamble of this Agreement.
(g) Borrower is and will remain located in the Borrower’s State. Borrower’s residence for federal income tax purposes is located at its Notice Address specified in Schedule I. Borrower has authorized Lender to file financing statements that are sufficient when filed to perfect the security interests created pursuant to this Agreement and the other Loan Documents. When such financing statements are filed in the offices noted therein, Lender will have a valid and perfected security interest in the Collateral that constitutes personal property, subject to no other Lien other than Permitted Liens.
(m) None of the Collateral constitutes a replacement of, substitution for or accessory to any property of Borrower subject to a lien of any kind.
(n) No ERISA Event has occurred or is reasonably likely to occur with respect to any Plan, and each Plan is in full compliance in all material respects with all laws and regulations applicable to it including, without limitation, (i) ensuring that no person who owns a controlling interest in or otherwise controls Borrower is or shall be (Y) listed on the Specially Designated Nationals and Blocked Person List maintained by the Office of Foreign Assets Control ("OFAC"), Department of the Treasury, and/or any other similar lists maintained by OFAC pursuant to any authorizing statute, Executive Order or regulation or (Z) a person designated under Section 1(b), (c) or (d) of Executive Order No. 13224 (September 23, 2001), any related enabling legislation or any other similar Executive Orders, and (ii) complying with all applicable provisions Bank Secrecy Act ("BSA") laws, regulations and government guidance on BSA compliance and on the prevention and detection of ERISAmoney laundering violations.
(oh) Borrower has obtained all permitsAll financial statements of Borrower, licenses and other authorizations which are required under all Environmental Laws at Borrower’s facilities or in connection with the operation of its business. Except as disclosed on Schedule IV, Borrower and all activities of Borrower at its facilities comply with all Environmental Laws and with all terms and conditions of any required permits, licenses and authorizations applicable to Borrower with respect thereto. Except as disclosed on Schedule IV, Borrower is also in compliance with all limitations, restrictions, conditions, standards, prohibitions, requirements, obligations, schedules and timetables contained in Environmental Laws or contained in any plan, order, decree, judgment or notice consolidated group of companies of which Borrower is aware. Except as disclosed on Schedule IVa member, heretofore delivered to Lender have been prepared in accordance with generally accepted accounting principles and fairly present the financial position of Borrower, or of any consolidated group of companies of which Borrower is not aware ofa member, nor on and as of the date thereof and the results of its or their operations for the period or periods covered thereby. Since the date of the latest of such financial statement there has Borrower received notice ofbeen no adverse change in the business prospects or projections, any eventsoperations, conditionsmanagement, circumstances, activities, practices, incidents, actions financial or plans which may interfere with or prevent continued compliance withother conditions of the Borrower, or of any consolidated group of companies of which may give rise to any liability under, any Environmental LawsBorrower is a member.
(pi) All factual information heretofor or contemporaneously furnished by or on behalf of Borrower agrees to furnish its or any Guarantor Guarantor's (as such term is defined in writing Section 9) annual financial statements and such interim statements as Lender may require in form reasonably satisfactory to Lender. Any and all financial statements submitted and to be submitted to Lender for purposes have and will have been prepared on a basis of or in connection with this Agreement or any transaction contemplated hereby isgenerally accepted accounting principles, consistently applied, and all other such factual information hereafter furnished by or on behalf of Borrower or any Guarantor to Lender are and will be, true be complete and correct in every material respect on and fairly present Borrower's financial condition as at the date as of which such information is dated or certified, thereof. Lender may at any reasonable time examine the books and such information is not, or shall not be, as the case may be, incomplete by omitting to state any material fact necessary to make such information not misleading.
(q) None of Borrower, any Guarantor or any of their Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying “margin stock.” None of the proceeds of any Loan will be used for the purpose of, or be made available by Borrower, any Guarantor or any of their Subsidiaries in any manner to any other Person to enable or assist such Person in, directly or indirectly purchasing or carrying “margin stock”. Terms for which meanings are provided in F.R.S. Board Regulation T, U or X or any regulations substituted therefor, as from time to time in effect, are used in this Section with such meanings.
(r) None of Borrower, any Guarantor or any of their Subsidiaries is an “investment company” nor a “company controlled by an investment company” within the meaning of the Investment Company Act of 1940, as amended, or a “holding company,” or a “subsidiary company” of a “holding company,” or an “affiliate” of a “holding company” or of a “subsidiary company” of a “holding company,” within the meaning of the Public Utility Holding Company Act of 1935, as amended.
(s) Schedule V is an accurate and complete list of all Subsidiaries records of Borrower and each Corporate Guarantor and the respective ownership interests thereinmake copies thereof.
(t) Borrower and each Guarantor are solvent and will not be rendered insolvent by the Loan Documents or the transactions contemplated thereby and, after giving effect to such transactions, neither Borrower nor any Guarantor will be left with an unreasonably small amount of capital with which to engage in its business, nor does Borrower or any Guarantor intend to incur, or believe that it has incurred, debts beyond its ability to pay as they mature. Neither Borrower nor any Guarantor contemplates the commencement of insolvency, bankruptcy, liquidation or consolidation proceedings or the appointment of a receiver, liquidator, conservator, trustee or similar official in respect of Borrower or any Guarantor or any of their assets. Neither Borrower nor any Guarantor are entering into the transactions contemplated by the Loan Documents with any intent to hinder, delay or defraud any of Borrower’s or any Guarantor’s creditors.
Appears in 1 contract
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER. Borrower (a) Maker hereby represents, warrants and covenants for to Lender that: (i) the benefit of LenderMortgage, as follows:
(a) Borrower is amended by this Modification, constitutes a corporation duly organizedvalid first lien on the Property, validly existing free and in good standing under clear of all encumbrances and liens having priority over the laws lien of the jurisdiction of its organization. Borrower is in good standing and is duly licensed or qualified to transact business in each jurisdiction where the nature of its business requires such qualificationMortgage, as amended by this Modification, except for those jurisdictions the items set forth in which the failure title insurance policy insuring the lien of this Mortgage, as amended by this Modification, as amended by the endorsement to qualify could not reasonably be expected such title policy issued substantially of even date herewith; (ii) there are no defenses, set-offs or rights of defense, set-off or counterclaim, whether legal, equitable or otherwise, to have a Material Adverse Effect. Borrower’s exact legal name is the obligations evidenced by or set forth in the Loan Documents, as modified hereby; (iii) except as set forth in Exhibit C to be approved by Lender in its reasonable discretion, all provisions of the Loan Documents, as modified hereby, are in full force and effect and are hereby ratified and confirmed as true and complete in all material respects as of today's date; (iv) after giving effect to the modifications set forth herein, no Event of Default (as defined in the Mortgage) has occurred or is continuing under any of the Loan Documents; (v) the modifications set forth herein and all transactions contemplated by this Modification shall be completed in accordance with all applicable law; (vi) this Modification and all other Loan Documents are each the legal, valid and binding obligation of Maker, enforceable against Maker in accordance with its terms, except as such enforcement may be stayed or limited by bankruptcy laws, creditors rights laws and equitable principles and such ratification and enforceability shall not be affected in any manner by Lender's consent to this Modification; and (vii) there is no pending, or to the best of Maker's knowledge, threatened condemnation proceedings, lawsuits, claims or criminal proceedings against Property Owner or applicable to the Property which could have a material adverse effect on the execution page hereofProperty or Property Owner's ability to perform its respective obligations under the Loan Documents.
(b) Borrower has full power Maker hereby ratifies, affirms and authority acknowledges the following covenants and holds all requisite governmental licenses, permits and other approvals to agreements: (i) enter into to pay when and perform its obligations as due all sums due under this Agreement, the Note as modified by the Amended and each other Loan Document to which it is a party and to own its property, (ii) use the Collateral and (iii) conduct its business substantially as currently conducted by it, except as to clause (iii) where the failure to hold such licenses, permits and approvals could not reasonably be expected to have a Material Adverse Effect.
(c) This Agreement, the Note and the other Loan Documents to which it is a party have been duly authorized, executed and delivered by Borrower and constitute legal, valid and binding obligations of Borrower, enforceable against Borrower in accordance with their respective terms, except to the extent limited by bankruptcy, reorganization or other laws of general application relating to or effecting the enforcement of creditors’ rights.
(d) The execution and delivery of this Agreement, the Restated Note and the other Loan Documents; and (ii) to perform and discharge all obligations imposed under the Note as modified by the Amended and Restated Note, the consummation Mortgage as amended by this Modification, and all other Loan Documents, at the time, in the manner and otherwise in all respects as therein provided.
(c) Without limiting the generality of the transactions contemplated foregoing, Maker hereby represents, warrants and thereby covenants to Lender that in addition to the Mortgage, this Modification, the Amended and Restated Note, the documents referenced on the attached Exhibit A are a complete and accurate list of all of the Loan Documents with respect to the Property, and each are in full force and effect and there is no Default or Event of Default existing thereunder by any party thereto and no event which, with the passage of time or the giving of notice, or both and the fulfillment expiration of any grace or cure period, would constitute a Default or Event of Default and such ratification and enforceability shall not be affected in any manner by Lender's consent to this Modification.
(d) Without limiting the generality of the terms foregoing, Maker hereby represents, warrants and conditions hereof and thereof do not and will not violate any law, rule, regulation covenants to Lender that the consent or order, conflict with or result in a breach of any approval of the terms other partners of Property Owner or conditions any other third party is either (i) not required for the execution or delivery by Property Owner of this Modification or any Organizational Document of Borrower or of any corporate restriction or of any agreement other document or instrument required to which Borrower is now a party and do not and will not constitute a default under any of the foregoing consummate this Modification, or result in the creation or imposition of any liens, charges or encumbrances of any nature upon any of the property or assets of Borrower other than Liens in favor of Lender(ii) has been obtained.
(e) The authorizationWithout limiting the generality of the foregoing, executionMaker hereby represents, delivery warrants and performance covenants to Lender that the execution of this Agreement, Modification by Property Owner will not result in the Note and breach or violation of the other Loan Documents by Borrower do not require submission to, approval of, or other action by terms of its organizational documents nor any governmental authority or agency, except for such action that has been duly obtained or taken and agreement to which Property Owner is in full force and effecta party.
(f) Each Maker hereby covenants and agrees to pay Lender an amendment fee in connection with this Modification ("Amendment Fee") in the aggregate amount of SEVEN HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($750,000.00) payable as follows: (i) FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($500,000.00) due and payable on or before January 11, 2003; and (ii) TWO HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($250,000.00) due and payable on or before February 11, 2003; provided, however, in no event shall Maker pay any portion of the Loan Documents that purports Amendment Fee prior to create a security interest creates a valid first priority Lien January 1, 2003. Maker's failure to pay such Amendment Fee on the Collateral subject only to Permitted Liensdates herein provided shall constitute a Default under the Mortgage, securing the payment and performance of the Obligationsas hereby amended.
(g) Except as disclosed on Schedule IV, there is no action, suit, proceeding, claim, inquiry No representation or investigation, at law warranty of Maker made in this Modification contains any untrue statement of material fact or omits to state a material fact necessary in equity, before or by any court, regulatory agency, public board or body pending or, order to the best of Borrower’s knowledge, threatened against or affecting Borrower, any Guarantor or any of their Subsidiaries, challenging Borrower’s or any Guarantor’s authority to enter into this Agreement, the Note or any make such representations and warranties not misleading in light of the other Loan Documents or any other action wherein an unfavorable ruling or finding would adversely affect the enforceability of this Agreement, the Note or any of the other Loan Documents, or could reasonably be expected to have a Material Adverse Effectcircumstances under which they are made.
(h) Borrower has good, marketable Maker understands and insurable title in fee simple to all Collateral intends that is real property, and good title to all other Collateral, in each case free and clear of all Liens except for Permitted Liens. With respect to Collateral that is personal property, Borrower owns/leases the real property where the Collateral will be located, subject to no Liens of any kind except for Permitted Liens, and has provided a complete and accurate legal description and the exact name of the fee simple owner of record of such real property, and no person other than Borrower is in occupancy or possession of any portion of such real property.
(i) Borrower is in compliance with all laws, rules, regulations and orders of governmental authorities applicable to it and its properties except to the extent the non-compliance with which could not reasonably be expected to have a Material Adverse Effect.
(j) Borrower has heretofore furnished to Lender the Financial Statements and those statements fairly present the financial condition of Borrower and such Guarantor, if any, shall rely on the dates thereof representations, warranties, affirmations, qualifications and the results of its operations and cash flows for the periods then ended and were prepared in accordance with GAAPcovenants contained herein. Since the date of the most recent financial statements, there has been no material adverse change in the business, properties or condition (financial or otherwise) of Borrower or any Guarantor. Except as disclosed in the Financial Statements or the notes thereto and for the items disclosed on Schedule IV, neither Borrower nor any Guarantor, as of each Closing Date, has or will have any liabilities, contingent or otherwise, that could reasonably be expected to have a Material Adverse Effect.
(k) Borrower has paid or caused to be paid, and will pay, to the proper authorities when due all federal, state and local taxes required to be withheld by it. Borrower has filed, and will pay, all federal, state and local tax returns which are required to be filed, and Borrower has paid or caused to be paid to the respective taxing authorities all taxes as shown on said returns or on any assessment received by it to the extent such taxes have become due, except any such taxes or charges which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP have been set aside on its books.
(l) For purposes of Section 9-307 of the UCC, Borrower is and will remain located in the Borrower’s State. Borrower’s residence for federal income tax purposes is located at its Notice Address specified in Schedule I. Borrower has authorized Lender to file financing statements that are sufficient when filed to perfect the security interests created pursuant to this Agreement and the other Loan Documents. When such financing statements are filed in the offices noted therein, Lender will have a valid and perfected security interest in the Collateral that constitutes personal property, subject to no other Lien other than Permitted Liens.
(m) None of the Collateral constitutes a replacement ofrepresentations, substitution for warranties, covenants, affirmations, qualifications or accessory to agreements contained herein shall limit any property representations, warranties, covenants, or obligations of Borrower subject to a lien of any kind.
(n) No ERISA Event has occurred or is reasonably likely to occur with respect to any Plan, and each Plan is in compliance in all material respects with the applicable provisions of ERISA.
(o) Borrower has obtained all permits, licenses and other authorizations which are required under all Environmental Laws at Borrower’s facilities or in connection with the operation of its business. Except as disclosed on Schedule IV, Borrower and all activities of Borrower at its facilities comply with all Environmental Laws and with all terms and conditions of any required permits, licenses and authorizations applicable to Borrower with respect thereto. Except as disclosed on Schedule IV, Borrower is also in compliance with all limitations, restrictions, conditions, standards, prohibitions, requirements, obligations, schedules and timetables contained in Environmental Laws or contained Maker in any plan, order, decree, judgment or notice of which Borrower is aware. Except as disclosed on Schedule IV, Borrower is not aware of, nor has Borrower received notice of, any events, conditions, circumstances, activities, practices, incidents, actions or plans which may interfere with or prevent continued compliance with, or which may give rise to any liability under, any Environmental Lawsother Loan Document.
(p) All factual information heretofor or contemporaneously furnished by or on behalf of Borrower or any Guarantor in writing to Lender for purposes of or in connection with this Agreement or any transaction contemplated hereby is, and all other such factual information hereafter furnished by or on behalf of Borrower or any Guarantor to Lender will be, true and correct in every material respect on the date as of which such information is dated or certified, and such information is not, or shall not be, as the case may be, incomplete by omitting to state any material fact necessary to make such information not misleading.
(q) None of Borrower, any Guarantor or any of their Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying “margin stock.” None of the proceeds of any Loan will be used for the purpose of, or be made available by Borrower, any Guarantor or any of their Subsidiaries in any manner to any other Person to enable or assist such Person in, directly or indirectly purchasing or carrying “margin stock”. Terms for which meanings are provided in F.R.S. Board Regulation T, U or X or any regulations substituted therefor, as from time to time in effect, are used in this Section with such meanings.
(r) None of Borrower, any Guarantor or any of their Subsidiaries is an “investment company” nor a “company controlled by an investment company” within the meaning of the Investment Company Act of 1940, as amended, or a “holding company,” or a “subsidiary company” of a “holding company,” or an “affiliate” of a “holding company” or of a “subsidiary company” of a “holding company,” within the meaning of the Public Utility Holding Company Act of 1935, as amended.
(s) Schedule V is an accurate and complete list of all Subsidiaries of Borrower and each Corporate Guarantor and the respective ownership interests therein.
(t) Borrower and each Guarantor are solvent and will not be rendered insolvent by the Loan Documents or the transactions contemplated thereby and, after giving effect to such transactions, neither Borrower nor any Guarantor will be left with an unreasonably small amount of capital with which to engage in its business, nor does Borrower or any Guarantor intend to incur, or believe that it has incurred, debts beyond its ability to pay as they mature. Neither Borrower nor any Guarantor contemplates the commencement of insolvency, bankruptcy, liquidation or consolidation proceedings or the appointment of a receiver, liquidator, conservator, trustee or similar official in respect of Borrower or any Guarantor or any of their assets. Neither Borrower nor any Guarantor are entering into the transactions contemplated by the Loan Documents with any intent to hinder, delay or defraud any of Borrower’s or any Guarantor’s creditors.
Appears in 1 contract
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER. The Borrower representsrepresents and warrants to, warrants and covenants for and agrees with the benefit Authority as of Lender, the date of any disbursement hereunder as follows:
(a) The Borrower is a corporation duly formed under the laws of the State of Delaware and is validly organized, validly existing and in good standing under said laws and is duly qualified to do business under the laws of the jurisdiction State of its organization. Borrower is in good standing and is duly licensed or qualified to transact business in each jurisdiction where the nature of its business requires such qualification, except for those jurisdictions in which the failure to qualify could not reasonably be expected to have a Material Adverse Effect. Borrower’s exact legal name is as set forth on the execution page hereofColorado.
(b) The Borrower has full power and authority and holds all requisite governmental licenses, permits and other approvals to (i) enter into and perform its obligations under this Agreement, the Note and each other Loan Document to which it is a party and to own its propertyNote, (ii) use the Collateral and (iii) conduct its business substantially as currently conducted by it, except as to clause (iii) where the failure to hold such licenses, permits and approvals could not reasonably be expected to have a Material Adverse Effect.
(c) This Agreement, the Note and the other Loan Documents to which it is a party have been duly authorized, executed and delivered by Borrower and constitute legal, valid and binding obligations of Borrower, enforceable against Borrower in accordance with their respective terms, except to the extent limited by bankruptcy, reorganization or other laws of general application relating to or effecting the enforcement of creditors’ rights.
(d) Documents. The execution and delivery of this Agreement, the Note Note, and the other Loan DocumentsDocuments and the performance and observance of their terms, conditions and obligations have been duly authorized by all necessary action on the part of the Borrower. This Agreement, the consummation Note, and the Loan Documents constitute, and any other agreement required hereby will constitute, when executed and delivered by the Borrower, to the Authority, valid and binding obligations of the transactions contemplated hereby and thereby and the fulfillment Borrower enforceable in accordance with their terms.
(c) The financial statements of the terms and conditions hereof and thereof do not and will not violate any law, rule, regulation or order, conflict with or result in a breach of any Borrower delivered to the Authority continue to fairly represent the financial condition of the terms Borrower and no material adverse change has occurred in the conditions reflected therein since its date. No additional material obligations have been entered into by the Borrower since the date of its financial statements other than as disclosed to the Authority in writing.
(d) There is no default on the part of the Borrower under this Agreement or conditions any Loan Document and no event has occurred that with notice or the passage of any Organizational Document of Borrower time or of any corporate restriction or of any agreement or instrument to which Borrower is now a party and do not and will not both would constitute a default hereunder or under any of the foregoing or result in the creation or imposition of any liens, charges or encumbrances of any nature upon any of the property or assets of Borrower other than Liens in favor of Lendersuch document.
(e) The authorization, execution, delivery and performance construction of this Agreement, the Note Renovations and the other Loan Documents proposed use thereof, comply with all applicable zoning, environmental protection, use and building codes, laws, regulations and ordinances. The Plans have been approved by all applicable governmental authorities and/or architectural control committees, and with respect to the Property and Improvements, Borrower do not require submission tohas no knowledge of any violations of any laws, approval ofordinances, codes, requirements, orders or other action by covenants of any governmental authority or entity, agency, except for such action that has been duly obtained instrumentality or taken and is in full force and effectassociation having jurisdiction over the Property.
(f) Each All utility services and facilities necessary for the construction of the Loan Documents that purports to create a security interest creates a valid first priority Lien on renovations in the Collateral subject only to Permitted Liens, securing Improvements and the payment and performance full enjoyment thereof are available at the boundaries of the ObligationsProperty. All utility companies and governmental authorities have agreed to serve the Property with utility services and facilities, and any required utility taps have been issued by the appropriate governmental authority and/or utility companies. All roads necessary for the full utilization of the Property and Improvements for their intended purposes have been completed and the necessary rights of way therefor have been dedicated for public use and accepted by the appropriate governmental authority.
(g) Except as disclosed on Schedule IVAll the necessary licenses, there is no actionauthorizations, suitconsents, proceeding, claim, inquiry or investigation, at law or in equity, before or by any court, regulatory agency, public board or body pending or, to approvals and permits required for the best of Borrower’s knowledge, threatened against or affecting Borrower, any Guarantor or any of their Subsidiaries, challenging Borrower’s or any Guarantor’s authority to enter into this Agreement, the Note or any development of the other Loan Documents Property and construction or any other action wherein an unfavorable ruling or finding would adversely affect the enforceability of this Agreement, the Note or any rehabilitation of the other Loan Documents, or could reasonably be expected to Improvements thereon have a Material Adverse Effectbeen obtained.
(h) Borrower has good, marketable shall expend the Loan proceeds received hereunder solely for the purpose of paying costs identified in the Budget and insurable title shall in fee simple to all Collateral that is real property, and good title to all no event use the Loan proceeds for any other Collateral, in each case free and clear of all Liens except for Permitted Liens. With respect to Collateral that is personal property, Borrower owns/leases the real property where the Collateral will be located, subject to no Liens of any kind except for Permitted Liens, and has provided a complete and accurate legal description and the exact name of the fee simple owner of record of such real property, and no person other than Borrower is in occupancy or possession of any portion of such real propertypurpose.
(i) Borrower is shall correct any defect in the Renovations and Improvements or any deviation from the Plans not approved by the Authority. The advance of any Loan proceeds shall not constitute a waiver of the right of the Authority to require compliance with all laws, rules, regulations and orders of governmental authorities applicable this covenant with respect to it and its properties except to any such defects or deviations from the extent Plans not theretofore discovered by the non-compliance with which could not reasonably be expected to have a Material Adverse EffectAuthority.
(j) Borrower has heretofore furnished to Lender the Financial Statements The Improvements do not, and those statements fairly present the financial condition of Borrower when renovated will not, encroach upon or overhang any easement or right-of-way, or adjoining land, and such Guarantor, if any, on the dates thereof and the results of its operations and cash flows for the periods then ended and were prepared in accordance with GAAP. Since the date of the most recent financial statements, there has been no material adverse change in the business, properties or condition (financial or otherwise) of Borrower or any Guarantor. Except as disclosed in the Financial Statements or the notes thereto and for the items disclosed on Schedule IV, neither Borrower nor any Guarantor, as of each Closing Date, has are or will have be wholly within any liabilities, contingent or otherwise, that could reasonably be expected to have a Material Adverse Effectbuilding restriction and/or set back lines.
(k) Borrower has paid or caused to be paidshall, at the completion of the Renovations, provide the Authority with a certification of actual costs, executed by the Borrower and will pay, to the proper authorities when due all federal, state and local taxes required to be withheld by it. Borrower has filed, and will pay, all federal, state and local tax returns which are required to be filed, and Borrower has paid or caused to be paid to the respective taxing authorities all taxes as shown on said returns or on any assessment received by it to the extent such taxes have become due, except any such taxes or charges which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP have been set aside on its booksArchitect.
(l) For purposes of Section 9-307 Borrower shall not amend the Construction Contract, any principal subcontract, or the contract with Borrower’s Architect, without the prior written consent of the UCC, Borrower is and will remain located in the Borrower’s State. Borrower’s residence for federal income tax purposes is located at its Notice Address specified in Schedule I. Borrower has authorized Lender to file financing statements that are sufficient when filed to perfect the security interests created pursuant to this Agreement and the other Loan Documents. When such financing statements are filed in the offices noted therein, Lender will have a valid and perfected security interest in the Collateral that constitutes personal property, subject to no other Lien other than Permitted LiensAuthority.
(m) None At all times, the outstanding balance on the Loan shall be no more than eighty-five percent (85%) of the Collateral constitutes a replacement of, substitution for lesser of the cost of the Property plus the Renovations or accessory to any property the “as completed” appraised value of Borrower subject to a lien of any kind.
(n) No ERISA Event has occurred or is reasonably likely to occur with respect to any Plan, and each Plan is in compliance in all material respects with the applicable provisions of ERISA.
(o) Borrower has obtained all permits, licenses and other authorizations which are required under all Environmental Laws at Borrower’s facilities or in connection with the operation of its business. Except as disclosed on Schedule IV, Borrower and all activities of Borrower at its facilities comply with all Environmental Laws and with all terms and conditions of any required permits, licenses and authorizations applicable to Borrower with respect thereto. Except as disclosed on Schedule IV, Borrower is also in compliance with all limitations, restrictions, conditions, standards, prohibitions, requirements, obligations, schedules and timetables contained in Environmental Laws or contained in any plan, order, decree, judgment or notice of which Borrower is aware. Except as disclosed on Schedule IV, Borrower is not aware of, nor has Borrower received notice of, any events, conditions, circumstances, activities, practices, incidents, actions or plans which may interfere with or prevent continued compliance with, or which may give rise to any liability under, any Environmental Laws.
(p) All factual information heretofor or contemporaneously furnished by or on behalf of Borrower or any Guarantor in writing to Lender for purposes of or in connection with this Agreement or any transaction contemplated hereby is, and all other such factual information hereafter furnished by or on behalf of Borrower or any Guarantor to Lender will be, true and correct in every material respect on the date as of which such information is dated or certified, and such information is not, or shall not beProperty, as the case may be, incomplete by omitting to state any material fact necessary to make such information not misleadingrenovated.
(q) None of Borrower, any Guarantor or any of their Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying “margin stock.” None of the proceeds of any Loan will be used for the purpose of, or be made available by Borrower, any Guarantor or any of their Subsidiaries in any manner to any other Person to enable or assist such Person in, directly or indirectly purchasing or carrying “margin stock”. Terms for which meanings are provided in F.R.S. Board Regulation T, U or X or any regulations substituted therefor, as from time to time in effect, are used in this Section with such meanings.
(r) None of Borrower, any Guarantor or any of their Subsidiaries is an “investment company” nor a “company controlled by an investment company” within the meaning of the Investment Company Act of 1940, as amended, or a “holding company,” or a “subsidiary company” of a “holding company,” or an “affiliate” of a “holding company” or of a “subsidiary company” of a “holding company,” within the meaning of the Public Utility Holding Company Act of 1935, as amended.
(s) Schedule V is an accurate and complete list of all Subsidiaries of Borrower and each Corporate Guarantor and the respective ownership interests therein.
(t) Borrower and each Guarantor are solvent and will not be rendered insolvent by the Loan Documents or the transactions contemplated thereby and, after giving effect to such transactions, neither Borrower nor any Guarantor will be left with an unreasonably small amount of capital with which to engage in its business, nor does Borrower or any Guarantor intend to incur, or believe that it has incurred, debts beyond its ability to pay as they mature. Neither Borrower nor any Guarantor contemplates the commencement of insolvency, bankruptcy, liquidation or consolidation proceedings or the appointment of a receiver, liquidator, conservator, trustee or similar official in respect of Borrower or any Guarantor or any of their assets. Neither Borrower nor any Guarantor are entering into the transactions contemplated by the Loan Documents with any intent to hinder, delay or defraud any of Borrower’s or any Guarantor’s creditors.
Appears in 1 contract
Samples: Construction Loan Agreement (Ascent Solar Technologies, Inc.)
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER. Borrower represents, represents and warrants and covenants for the benefit of to Lender, as followsand agrees that:
(a) Borrower is the representations and warranties contained in the Loan Agreement (as amended hereby) and the other outstanding Loan Documents are true and correct in all material respects at and as of the date hereof as though made on and as of the date hereof, except (i) to the extent specifically made with regard to a corporation duly organized, validly existing particular date and in good standing (ii) for such changes as are a result of any act or omission specifically permitted under the laws of the jurisdiction of its organization. Borrower is in good standing and is duly licensed Loan Agreement (or qualified to transact business in each jurisdiction where the nature of its business requires such qualificationunder any Loan Document), except for those jurisdictions in which the failure to qualify could not reasonably be expected to have a Material Adverse Effect. Borrower’s exact legal name is or as set forth on the execution page hereof.otherwise specifically permitted by Lender;
(b) Borrower has full power on the First Amendment Effective Date, after giving effect to this Amendment, no Default or Event of Default will have occurred and authority and holds all requisite governmental licenses, permits and other approvals to (i) enter into and perform its obligations under this Agreement, the Note and each other Loan Document to which it is a party and to own its property, (ii) use the Collateral and (iii) conduct its business substantially as currently conducted by it, except as to clause (iii) where the failure to hold such licenses, permits and approvals could not reasonably be expected to have a Material Adverse Effect.continuing;
(c) This Agreementthe execution, the Note delivery and the other Loan Documents to which it is a party performance of this Amendment have been duly authorizedauthorized by all necessary action on the part of, and duly executed and delivered by Borrower by, Borrower, and constitute this Amendment is a legal, valid and binding obligations obligation of Borrower, Borrower enforceable against Borrower in accordance with their respective its terms, except as the enforcement thereof may be subject to the extent limited by effect of any applicable bankruptcy, reorganization insolvency, reorganization, moratorium, or other similar laws affecting creditors' rights generally and general principles of general application relating to equity (regardless of whether such enforcement is sought in a proceeding in equity or effecting the enforcement of creditors’ rights.at law); and
(d) The execution the execution, delivery and delivery performance of this Agreement, the Note and the other Loan Documents, the consummation of the transactions contemplated hereby and thereby and the fulfillment of the terms and conditions hereof and thereof Amendment do not and will not violate any law, rule, regulation or order, conflict with or result in a breach by Borrower of any of the terms or conditions term of any Organizational Document of Borrower material contract, loan agreement, indenture or of any corporate restriction or of any other agreement or instrument to which Borrower is now a party and do not and will not constitute a default under any of the foregoing or result in the creation or imposition of any liens, charges or encumbrances of any nature upon any of the property or assets of Borrower other than Liens in favor of Lender.
(e) The authorization, execution, delivery and performance of this Agreement, the Note and the other Loan Documents by Borrower do not require submission to, approval of, or other action by any governmental authority or agency, except for such action that has been duly obtained or taken and is in full force and effect.
(f) Each of the Loan Documents that purports to create a security interest creates a valid first priority Lien on the Collateral subject only to Permitted Liens, securing the payment and performance of the Obligations.
(g) Except as disclosed on Schedule IV, there is no action, suit, proceeding, claim, inquiry or investigation, at law or in equity, before or by any court, regulatory agency, public board or body pending or, to the best of Borrower’s knowledge, threatened against or affecting Borrower, any Guarantor or any of their Subsidiaries, challenging Borrower’s or any Guarantor’s authority to enter into this Agreement, the Note or any of the other Loan Documents or any other action wherein an unfavorable ruling or finding would adversely affect the enforceability of this Agreement, the Note or any of the other Loan Documents, or could reasonably be expected to have a Material Adverse Effect.
(h) Borrower has good, marketable and insurable title in fee simple to all Collateral that is real property, and good title to all other Collateral, in each case free and clear of all Liens except for Permitted Liens. With respect to Collateral that is personal property, Borrower owns/leases the real property where the Collateral will be located, subject to no Liens of any kind except for Permitted Liens, and has provided a complete and accurate legal description and the exact name of the fee simple owner of record of such real property, and no person other than Borrower is in occupancy or possession of any portion of such real property.
(i) Borrower is in compliance with all laws, rules, regulations and orders of governmental authorities applicable to it and its properties except to the extent the non-compliance with which could not reasonably be expected to have a Material Adverse Effect.
(j) Borrower has heretofore furnished to Lender the Financial Statements and those statements fairly present the financial condition of Borrower and such Guarantor, if any, on the dates thereof and the results of its operations and cash flows for the periods then ended and were prepared in accordance with GAAP. Since the date of the most recent financial statements, there has been no material adverse change in the business, properties or condition (financial or otherwise) of Borrower or any Guarantor. Except as disclosed in the Financial Statements or the notes thereto and for the items disclosed on Schedule IV, neither Borrower nor any Guarantor, as of each Closing Date, has or will have any liabilities, contingent or otherwise, that could reasonably be expected to have a Material Adverse Effect.
(k) Borrower has paid or caused to be paid, and will pay, to the proper authorities when due all federal, state and local taxes required to be withheld by it. Borrower has filed, and will pay, all federal, state and local tax returns which are required to be filed, and Borrower has paid or caused to be paid to the respective taxing authorities all taxes as shown on said returns or on any assessment received by it to the extent such taxes have become due, except any such taxes or charges which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP have been set aside on its books.
(l) For purposes of Section 9-307 of the UCC, Borrower is and will remain located in the Borrower’s State. Borrower’s residence for federal income tax purposes is located at its Notice Address specified in Schedule I. Borrower has authorized Lender to file financing statements that are sufficient when filed to perfect the security interests created pursuant to this Agreement and the other Loan Documents. When such financing statements are filed in the offices noted therein, Lender will have a valid and perfected security interest in the Collateral that constitutes personal property, subject to no other Lien other than Permitted Liens.
(m) None of the Collateral constitutes a replacement of, substitution for or accessory to any property of Borrower subject to a lien of any kind.
(n) No ERISA Event has occurred or is reasonably likely to occur with respect to any Plan, and each Plan is in compliance in all material respects with the applicable provisions of ERISA.
(o) Borrower has obtained all permits, licenses and other authorizations which are required under all Environmental Laws at Borrower’s facilities or in connection with the operation of its businesssubject. Except as disclosed on Schedule IV, Borrower and all activities of Borrower at its facilities comply with all Environmental Laws and with all terms and conditions of any required permits, licenses and authorizations applicable to Borrower with respect thereto. Except as disclosed on Schedule IV, Borrower is also in compliance with all limitations, restrictions, conditions, standards, prohibitions, requirements, obligations, schedules and timetables contained in Environmental Laws or contained in any plan, order, decree, judgment or notice of which Borrower is aware. Except as disclosed on Schedule IV, Borrower is not aware of, nor has Borrower received notice of, any events, conditions, circumstances, activities, practices, incidents, actions or plans which may interfere with or prevent continued compliance with, or which may give rise to any liability under, any Environmental Laws.
(p) All factual information heretofor or contemporaneously furnished by or on behalf of Borrower or any Guarantor in writing to Lender for purposes of or in connection with this Agreement or any transaction contemplated hereby is, and all other such factual information hereafter furnished by or on behalf of Borrower or any Guarantor to Lender will be, true and correct in every material respect on the date as of which such information is dated or certified, and such information is not, or shall not be, as the case may be, incomplete by omitting to state any material fact necessary to make such information not misleading.
(q) None of Borrower, any Guarantor or any of their Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying “margin stock.” None of the proceeds of any Loan will be used for the purpose of, or be made available by Borrower, any Guarantor or any of their Subsidiaries in any manner to any other Person to enable or assist such Person in, directly or indirectly purchasing or carrying “margin stock”. Terms for which meanings are provided in F.R.S. Board Regulation T, U or X or any regulations substituted therefor, as from time to time in effect, are used in this Section with such meanings.
(r) None of Borrower, any Guarantor or any of their Subsidiaries is an “investment company” nor a “company controlled by an investment company” within the meaning of the Investment Company Act of 1940, as amended, or a “holding company,” or a “subsidiary company” of a “holding company,” or an “affiliate” of a “holding company” or of a “subsidiary company” of a “holding company,” within the meaning of the Public Utility Holding Company Act of 1935, as amended.
(s) Schedule V is an accurate and complete list of all Subsidiaries of Borrower and each Corporate Guarantor and the respective ownership interests therein.
(t) Borrower and each Guarantor are solvent and will not be rendered insolvent by the Loan Documents or the transactions contemplated thereby and, after giving effect to such transactions, neither Borrower nor any Guarantor will be left with an unreasonably small amount of capital with which to engage in its business, nor does Borrower or any Guarantor intend to incur, or believe that it has incurred, debts beyond its ability to pay as they mature. Neither Borrower nor any Guarantor contemplates the commencement of insolvency, bankruptcy, liquidation or consolidation proceedings or the appointment of a receiver, liquidator, conservator, trustee or similar official in respect of Borrower or any Guarantor or any of their assets. Neither Borrower nor any Guarantor are entering into the transactions contemplated by the Loan Documents with any intent to hinder, delay or defraud any of Borrower’s or any Guarantor’s creditors.FIRST AMENDMENT 5 ---------------
Appears in 1 contract
Samples: Loan and Security Agreement (Velocity Asset Management Inc)
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER. As to items 4.(a) through 4.(g) below Borrower representshereby certifies, represents and warrants and covenants for the benefit of to Lender, and as followsto items 4.(h) through 4.(j) below Borrower covenants and agrees with Lender, that:
(a) Borrower is a corporation duly organizedThe Purchase Agreement has not been altered, validly existing and in good standing under the laws of the jurisdiction of its organization. Borrower is in good standing and is duly licensed amended or qualified to transact business in each jurisdiction where the nature of its business requires such qualification, except for those jurisdictions in which the failure to qualify could not reasonably be expected to have a Material Adverse Effect. Borrower’s exact legal name is as set forth on the execution page hereof.
(b) Borrower has full power and authority and holds all requisite governmental licenses, permits and other approvals to (i) enter into and perform its obligations under this Agreement, the Note and each other Loan Document to which it is a party and to own its property, (ii) use the Collateral and (iii) conduct its business substantially as currently conducted by it, except as to clause (iii) where the failure to hold such licenses, permits and approvals could not reasonably be expected to have a Material Adverse Effect.
(c) This Agreement, the Note and the other Loan Documents to which it is a party have been duly authorized, executed and delivered by Borrower and constitute legal, valid and binding obligations of Borrower, enforceable against Borrower in accordance with their respective terms, except to the extent limited by bankruptcy, reorganization or other laws of general application relating to or effecting the enforcement of creditors’ rights.
(d) The execution and delivery of this Agreement, the Note and the other Loan Documents, the consummation of the transactions contemplated hereby and thereby and the fulfillment of the terms and conditions hereof and thereof do not and will not violate any law, rule, regulation or order, conflict with or result in a breach of any of the terms or conditions of any Organizational Document of Borrower or of any corporate restriction or of any agreement or instrument to which Borrower is now a party and do not and will not constitute a default under any of the foregoing or result in the creation or imposition of any liens, charges or encumbrances of any nature upon any of the property or assets of Borrower other than Liens in favor of Lender.
(e) The authorization, execution, delivery and performance of this Agreement, the Note and the other Loan Documents by Borrower do not require submission to, approval of, or other action by any governmental authority or agency, except for such action that has been duly obtained or taken modified and is in full force and effect.
(b) Borrower has full title and right to assign its interest in the Purchase Agreement to Lender pursuant to this Agreement.
(c) No consent or approval of any person is required to be obtained by Borrower for the execution and delivery by Borrower of this Agreement.
(d) Borrower has delivered to Lender a true and complete copy of the executed counterpart of the Purchase Agreement.
(e) Except for the assignment by Borrower in this Agreement and the Loan Documents, no other assignment of all or any part of any interest of Borrower in and to the Purchase Agreement has been made by Borrower which remains in effect.
(f) Each There exists no monetary default under the Purchase Agreement, nor, to the best knowledge of Borrower, any nonmonetary default or any event or conditions which, with notice or the passage of time or both, would constitute such a monetary or nonmonetary default or would result in the termination of the Loan Documents that purports Purchase Agreement or would give any party thereto the right to create a security interest creates a valid first priority Lien on cancel the Collateral subject only to Permitted Liens, securing the payment and performance of the ObligationsPurchase Agreement.
(g) Except as disclosed on Schedule IVNo offsets, there is no action, suit, proceeding, claim, inquiry credits or investigation, at law or in equity, before or by any court, regulatory agency, public board or body pending or, defenses to the best payment or performance of Borrower’s knowledge, threatened against or affecting Borrower, any Guarantor or any obligation of their Subsidiaries, challenging Borrower’s or any Guarantor’s authority to enter into this Agreement, Borrower under the Note or any of the other Loan Documents or any other action wherein an unfavorable ruling or finding would adversely affect the enforceability of this Agreement, the Note or any of the other Loan Documents, or could reasonably be expected to have a Material Adverse EffectPurchase Agreement exist.
(h) Borrower has goodshall not assign, marketable and insurable title in fee simple to all Collateral that is real property, and good title to all other Collateral, in each case free and clear of all Liens except for Permitted Liens. With respect to Collateral that is personal property, Borrower owns/leases the real property where the Collateral will be located, subject to no Liens of any kind except for Permitted Liens, and has provided a complete and accurate legal description and the exact name of the fee simple owner of record of such real property, and no person transfer or hypothecate (other than Borrower is in occupancy to Lender) the whole or possession any part of any portion of such real propertyBorrower’s interest under the Purchase Agreement.
(i) Borrower is in compliance with all lawsshall obtain the prior written consent of Lender before entering into any agreement that amends, rulesalters, regulations and orders of governmental authorities applicable modifies or terminates the Purchase Agreement, which consent Lender agrees not to it and its properties except unreasonably withhold or delay so long as Equity Provider has consented to the extent the non-compliance with which could not reasonably be expected to have a Material Adverse Effect.
(j) Borrower has heretofore furnished to Lender the Financial Statements and those statements fairly present the financial condition of Borrower such amendment, alteration, modification or termination, and such Guarantoramendment, if anyalteration, on the dates thereof modification or termination does not materially and the results of its operations and cash flows adversely affect Lender’s security for the periods then ended Loan, Lender’s other rights and were prepared in accordance with GAAP. Since the date of the most recent financial statements, there has been no material adverse change in the business, properties or condition (financial or otherwise) of Borrower or any Guarantor. Except as disclosed in the Financial Statements or the notes thereto and for the items disclosed on Schedule IV, neither Borrower nor any Guarantor, as of each Closing Date, has or will have any liabilities, contingent or otherwise, that could reasonably be expected to have a Material Adverse Effect.
(k) Borrower has paid or caused to be paid, and will pay, to the proper authorities when due all federal, state and local taxes required to be withheld by it. Borrower has filed, and will pay, all federal, state and local tax returns which are required to be filed, and Borrower has paid or caused to be paid to the respective taxing authorities all taxes as shown on said returns or on any assessment received by it to the extent such taxes have become due, except any such taxes or charges which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP have been set aside on its books.
(l) For purposes of Section 9-307 of the UCC, Borrower is and will remain located in the Borrower’s State. Borrower’s residence for federal income tax purposes is located at its Notice Address specified in Schedule I. Borrower has authorized Lender to file financing statements that are sufficient when filed to perfect the security interests created pursuant to benefits under this Agreement and the other Loan Documents. When such financing statements are filed in , or Borrower’s rights and benefits under the offices noted thereinPurchase Agreement; provided, Lender will have a valid and perfected security interest in however, nothing herein shall limit or impair the Collateral that constitutes personal property, subject right of Equity Provider to no other Lien other than Permitted Lienswaive any default or covenant or condition of the Purchase Agreement.
(mj) None of the Collateral constitutes a replacement of, substitution for or accessory Borrower agrees to any property of Borrower subject to a lien of any kind.
(n) No ERISA Event has occurred or is reasonably likely to occur with respect to any Plan, perform and each Plan is in compliance comply in all material respects with all the applicable provisions of ERISA.
(o) Borrower has obtained all permits, licenses and other authorizations which are required under all Environmental Laws at Borrower’s facilities or in connection with the operation of its business. Except as disclosed on Schedule IV, Borrower and all activities of Borrower at its facilities comply with all Environmental Laws and with all terms and conditions of any required permits, licenses and authorizations applicable to Borrower with respect thereto. Except as disclosed on Schedule IV, Borrower is also in compliance with all limitations, restrictionsterms, conditions, standardscovenants and requirements by it to be performed or observed in this Agreement, prohibitionsthe Purchase Agreement and the Loan Documents. The foregoing sentence shall not be construed as creating personal recourse on Borrower or personal liability for Borrower, requirements, obligations, schedules and timetables contained in Environmental Laws where Borrower does not otherwise have personal recourse or contained in any plan, order, decree, judgment or notice of which Borrower is aware. Except as disclosed on Schedule IV, Borrower is not aware of, nor has Borrower received notice of, any events, conditions, circumstances, activities, practices, incidents, actions or plans which may interfere with or prevent continued compliance with, or which may give rise to any liability under, any Environmental Lawsotherwise personally liable.
(p) All factual information heretofor or contemporaneously furnished by or on behalf of Borrower or any Guarantor in writing to Lender for purposes of or in connection with this Agreement or any transaction contemplated hereby is, and all other such factual information hereafter furnished by or on behalf of Borrower or any Guarantor to Lender will be, true and correct in every material respect on the date as of which such information is dated or certified, and such information is not, or shall not be, as the case may be, incomplete by omitting to state any material fact necessary to make such information not misleading.
(q) None of Borrower, any Guarantor or any of their Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying “margin stock.” None of the proceeds of any Loan will be used for the purpose of, or be made available by Borrower, any Guarantor or any of their Subsidiaries in any manner to any other Person to enable or assist such Person in, directly or indirectly purchasing or carrying “margin stock”. Terms for which meanings are provided in F.R.S. Board Regulation T, U or X or any regulations substituted therefor, as from time to time in effect, are used in this Section with such meanings.
(r) None of Borrower, any Guarantor or any of their Subsidiaries is an “investment company” nor a “company controlled by an investment company” within the meaning of the Investment Company Act of 1940, as amended, or a “holding company,” or a “subsidiary company” of a “holding company,” or an “affiliate” of a “holding company” or of a “subsidiary company” of a “holding company,” within the meaning of the Public Utility Holding Company Act of 1935, as amended.
(s) Schedule V is an accurate and complete list of all Subsidiaries of Borrower and each Corporate Guarantor and the respective ownership interests therein.
(t) Borrower and each Guarantor are solvent and will not be rendered insolvent by the Loan Documents or the transactions contemplated thereby and, after giving effect to such transactions, neither Borrower nor any Guarantor will be left with an unreasonably small amount of capital with which to engage in its business, nor does Borrower or any Guarantor intend to incur, or believe that it has incurred, debts beyond its ability to pay as they mature. Neither Borrower nor any Guarantor contemplates the commencement of insolvency, bankruptcy, liquidation or consolidation proceedings or the appointment of a receiver, liquidator, conservator, trustee or similar official in respect of Borrower or any Guarantor or any of their assets. Neither Borrower nor any Guarantor are entering into the transactions contemplated by the Loan Documents with any intent to hinder, delay or defraud any of Borrower’s or any Guarantor’s creditors.
Appears in 1 contract
Samples: Buy Sell Agreement
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER. Borrower represents, warrants and covenants for the benefit of Lender, as of the date hereof and each Closing Date, as follows:
(a) Borrower is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization. Borrower is in good standing and is duly licensed or qualified to transact business in each jurisdiction where the nature of its business requires such qualification, except for those jurisdictions in which the failure to qualify could not reasonably be expected to have a Material Adverse Effect. Borrower’s exact legal name is as set forth on the execution page hereof.
(b) Borrower has full power and authority and holds all requisite governmental licenses, permits and other approvals to (i) enter into and perform its obligations under this Agreement, the Note and each other Loan Document to which it is a party and to own its property, (ii) use the Collateral and (iii) conduct its business substantially as currently conducted by it, except as to clause (iii) where the failure to hold such licenses, permits and approvals could not reasonably be expected to have a Material Adverse Effect.
(c) This Agreement, the Note and the other Loan Documents to which it is a party have been duly authorized, executed and delivered by Borrower and constitute legal, valid and binding obligations of Borrower, enforceable against Borrower in accordance with their respective terms, except to the extent limited by bankruptcy, reorganization or other laws of general application relating to or effecting the enforcement of creditors’ rights.
(d) The execution and delivery of this Agreement, the Note and the other Loan Documents, the consummation of the transactions contemplated hereby and thereby and the fulfillment of the terms and conditions hereof and thereof do not and will not violate any law, rule, regulation or order, conflict with or result in a breach of any of the terms or conditions of any Organizational Document of Borrower or of any corporate restriction or of any agreement or instrument to which Borrower is now a party and do not and will not constitute a default under any of the foregoing or result in the creation or imposition of any liens, charges or encumbrances of any nature upon any of the property or assets of Borrower other than Liens in favor of Lender.
(e) The authorization, execution, delivery and performance of this Agreement, the Note and the other Loan Documents by Borrower do not require submission to, approval of, or other action by any governmental authority or agency, except for such action that has been duly obtained or taken and is in full force and effect.
(f) Each Assuming the timely filing with the Secretary of State of Borrower’s State of UCC-1 financing statements showing Borrower as the “debtor” thereunder and Lender as the “secured party” thereunder and containing a description of the Collateral substantially similar to the description of the Collateral contained in the respective Collateral Schedules, each of the Loan Documents that purports to create a security interest creates a valid first priority Lien on the Collateral subject only to Permitted Liens, securing the payment and performance of the Obligations.
(g) Except as disclosed on Schedule IVby Borrower in its filings with the SEC that are available to the public, there is no action, suit, proceeding, claim, inquiry or investigation, at law or in equity, before or by any court, regulatory agency, public board or body pending or, to the best of Borrower’s knowledge, threatened against or affecting Borrower, any Guarantor Borrower or any of their SubsidiariesGuarantor, challenging Borrower’s or any Guarantor’s authority to enter into this Agreement, the Note or any of the other Loan Documents or any other action wherein an unfavorable ruling or finding would adversely affect the enforceability of this Agreement, the Note or any of the other Loan Documents, or could reasonably be expected to have a Material Adverse Effect.
(h) Borrower has good, marketable and insurable title in fee simple to all Collateral that is real property, and good title to all other of the Collateral, in each case free and clear of all Liens except for Permitted Liens. With respect to Collateral that is personal property, Borrower owns/leases the real property where the Collateral will be located, subject to no Liens of any kind except for Permitted Liens, and has provided a complete and accurate legal description and the exact name of the fee simple owner of record of such real property, and no person other than Borrower is in occupancy or possession of any portion of such real property.
(i) Borrower is in compliance with all laws, rules, regulations and orders of governmental authorities applicable to it and its properties except to the extent the non-compliance with which could not reasonably be expected to have a Material Adverse Effect.
(j) Borrower has heretofore furnished to Lender the Financial Statements and those statements fairly present the financial condition of Borrower and such Guarantor, if any, on the dates thereof and the results of its operations and cash flows for the periods then ended and were prepared in accordance with GAAP. Since the date of the most recent financial statements, there has been no material adverse change in the business, properties or financial condition (financial or otherwise) prospects of Borrower or any Guarantor. Except as disclosed in the Financial Statements or the notes thereto and for the items previously disclosed on Schedule IVin writing by Borrower to Lender, neither Borrower nor any Guarantor, as of each Closing Date, has or will have any liabilities, contingent or otherwise, that could reasonably be expected to have a Material Adverse Effect.
(k) Borrower has paid or caused to be paid, and will pay, to the proper authorities when due all federal, state and local taxes required to be withheld by it. Borrower has filed, and will pay, all federal, state and local tax returns which are required to be filedfiled by it, and Borrower has paid or caused to be paid to the respective taxing authorities all taxes as shown on said returns or on any assessment received by it to the extent such taxes have become due, except any such taxes or charges which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP have been set aside on its books.
(l) For purposes of Section 9-307 of the UCC, Borrower is and will remain located in the Borrower’s State. Borrower’s residence for federal income tax purposes is located at its Notice Address specified in Schedule I. Borrower has authorized Lender to file financing statements that are sufficient when filed to perfect the security interests created pursuant to this Agreement and the other Loan Documents. When such financing statements are filed in the offices noted therein, Lender will have a valid and perfected security interest in the Collateral that constitutes personal property, subject to no other Lien other than Permitted Liens.
(m) None of the Collateral constitutes a replacement of, substitution for or accessory to any property of Borrower subject to a lien of any kind.
(n) No ERISA Event has occurred or is reasonably likely to occur with respect to any Plan, and each Plan is in compliance in all material respects with the applicable provisions of ERISA.
(o) Borrower has obtained all permits, licenses and other authorizations which are required under all Environmental Laws at Borrower’s facilities or in connection with the operation of its business. Except as disclosed on Schedule IV, Borrower and all activities of Borrower at its facilities comply with all Environmental Laws and with all terms and conditions of any required permits, licenses and authorizations applicable to Borrower with respect thereto. Except as disclosed on Schedule IV, Borrower is also in compliance with all limitations, restrictions, conditions, standards, prohibitions, requirements, obligations, schedules and timetables contained in Environmental Laws or contained in any plan, order, decree, judgment or notice of which Borrower is aware. Except as disclosed on Schedule IV, Borrower is not aware of, nor has Borrower received notice of, any events, conditions, circumstances, activities, practices, incidents, actions or plans which may interfere with or prevent continued compliance with, or which may give rise to any liability under, any Environmental Laws.
(p) All factual information heretofor or contemporaneously furnished by or on behalf of Borrower or any Guarantor in writing to Lender for purposes of or in connection with this Agreement or any transaction contemplated hereby is, and all other such factual information hereafter furnished by or on behalf of Borrower or any Guarantor to Lender will be, true and correct in every material respect on the date as of which such information is dated or certified, and such information is not, or shall not be, as the case may be, incomplete by omitting to state any material fact necessary to make such information not misleading.
(qn) None of Borrower, Borrower or any Guarantor or any of their Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying “margin stock.” None of the proceeds of any Loan will be used for the purpose of, or be made available by Borrower, Borrower or any Guarantor or any of their Subsidiaries in any manner to any other Person to enable or assist such Person in, directly or indirectly purchasing or carrying “margin stock”. Terms for which meanings are provided in F.R.S. Board Regulation T, U or X or any regulations substituted therefor, as from time to time in effect, are used in this Section with such meanings.
(ro) None of Borrower, Borrower or any Guarantor or any of their Subsidiaries is an “investment company” nor a “company controlled by an investment company” within the meaning of the Investment Company Act of 1940, as amended, or a “holding company,” or a “subsidiary company” of a “holding company,” or an “affiliate” of a “holding company” or of a “subsidiary company” of a “holding company,” within the meaning of the Public Utility Holding Company Act of 1935, as amended.
(s) Schedule V is an accurate and complete list of all Subsidiaries of Borrower and each Corporate Guarantor and the respective ownership interests therein.
(t) Borrower and each Guarantor are solvent and will not be rendered insolvent by the Loan Documents or the transactions contemplated thereby and, after giving effect to such transactions, neither Borrower nor any Guarantor will be left with an unreasonably small amount of capital with which to engage in its business, nor does Borrower or any Guarantor intend to incur, or believe that it has incurred, debts beyond its ability to pay as they mature. Neither Borrower nor any Guarantor contemplates the commencement of insolvency, bankruptcy, liquidation or consolidation proceedings or the appointment of a receiver, liquidator, conservator, trustee or similar official in respect of Borrower or any Guarantor or any of their assets. Neither Borrower nor any Guarantor are entering into the transactions contemplated by the Loan Documents with any intent to hinder, delay or defraud any of Borrower’s or any Guarantor’s creditors.
Appears in 1 contract
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER. Borrower represents, warrants and covenants for the benefit of Lender, as follows:
(a) Borrower is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction State of its organizationNevada, has power to enter into this Agreement and by proper corporate action has duly authorized the execution and delivery of this Agreement, the Tax-Exempt Loan Agreement, the Mortgage, the Hazardous Substances Agreement and the Escrow Agreement. Borrower is in good standing and is duly licensed or qualified to transact business in each jurisdiction the State and in all jurisdictions where the character of the property owned or leased or the nature of its the business requires transacted by it makes such qualification, except for those jurisdictions in which the failure to qualify could not reasonably be expected to have a Material Adverse Effectlicensing or qualification necessary. Borrower’s 's exact legal name is as set forth on the execution page hereof.
(b) Borrower has full power been fully authorized to execute and authority and holds all requisite governmental licenses, permits and other approvals to (i) enter into and perform its obligations under deliver this Agreement, the Note and each other Tax-Exempt Loan Document to which it is a party and to own its property, (ii) use the Collateral and (iii) conduct its business substantially as currently conducted by it, except as to clause (iii) where the failure to hold such licenses, permits and approvals could not reasonably be expected to have a Material Adverse Effect.
(c) This Agreement, the Note Mortgage, the Hazardous Substances Agreement, the Subordination Agreement and the Escrow Agreement under the terms and provisions of the resolution of its board of directors, or by other appropriate official approval, and further represents, covenants and warrants that all requirements have been met, and procedures have occurred in order to ensure the enforceability of this Agreement, the Tax-Exempt Loan Documents to which it is a party Agreement, the Mortgage, the Hazardous Substances Agreement and the Escrow Agreement, and this Agreement, the Tax-Exempt Loan Agreement, the Mortgage, the Hazardous Substances Agreement and the Escrow Agreement have been duly authorized, executed and delivered by delivered.
(c) The officer of Borrower executing this Agreement, the Tax-Exempt Loan Agreement, the Mortgage, the Hazardous Substances Agreement, the Escrow Agreement and any related documents has been duly authorized to execute and deliver this Agreement, the Tax-Exempt Loan Agreement, the Mortgage, the Hazardous Substances Agreement, the Escrow Agreement and such related documents under the terms and provisions of a resolution of Borrower's board of directors.
(d) This Agreement, the Tax-Exempt Loan Agreement, the Mortgage, the Hazardous Substances Agreement and the Escrow Agreement constitute legal, valid and legally binding obligations of Borrower, enforceable against Borrower in accordance with their respective terms, except to the extent limited by bankruptcy, reorganization or other laws of general application relating to or effecting affecting the enforcement of creditors’ ' rights.
(de) The execution and delivery of this Agreement, the Note Tax-Exempt Loan Agreement, the Mortgage, the Hazardous Substances Agreement and the other Loan DocumentsEscrow Agreement, the consummation of the transactions contemplated hereby and thereby and the fulfillment of the terms and conditions hereof and thereof do not and will not violate any law, rule, regulation or order, conflict with or result in a breach of any of the terms or conditions of any Organizational Document the articles of incorporation or bylaws of Borrower or of any corporate restriction or of any agreement or instrument to which Borrower is now a party and do not and will not constitute a default under any of the foregoing or result in the creation or imposition of any liens, charges or encumbrances of any nature upon any of the property or assets of Borrower other than Liens in favor contrary to the terms of Lenderany instrument or agreement.
(ef) The authorization, execution, delivery and performance of this Agreement, the Note and the other Loan Documents Agreement by Borrower do not require submission to, approval of, or other action by any governmental authority or agency, except for such which action that with respect to this Agreement has not been duly obtained or taken and which is in full force final and effect.
(f) Each of the Loan Documents that purports to create a security interest creates a valid first priority Lien on the Collateral subject only to Permitted Liens, securing the payment and performance of the Obligationsnonappealable.
(g) Except as disclosed on Schedule IV, there There is no action, suit, proceeding, claim, inquiry or investigation, at law or in equity, before or by any court, regulatory agency, public board or body pending or, to the best of Borrower’s 's knowledge, threatened against or affecting Borrower, any Guarantor or any of their Subsidiaries, challenging Borrower’s or any Guarantor’s 's authority to enter into this Agreement, the Note Tax-Exempt Loan Agreement, the Mortgage, the Hazardous Substances Agreement or any of the other Loan Documents Escrow Agreement or any other action wherein an unfavorable ruling or finding would adversely affect the enforceability of this Agreement, the Note Tax-Exempt Loan Agreement, the Mortgage, the Hazardous Substances Agreement or the Escrow Agreement or any other transaction of the other Loan DocumentsBorrower which is similar hereto, or could reasonably be expected to have a Material Adverse Effectwould materially and adversely affect the financial condition, business or properties of Borrower.
(h) Borrower has good, marketable and insurable title in fee simple to all Collateral that is real property, and good title to all other Collateral, in each case free and clear of all Liens except for Permitted Liens. With respect to Collateral that is personal property, Borrower owns/leases the real property where the Collateral will be located, subject to no Liens of any kind except for Permitted Liens, and has provided a complete and accurate legal description The Premises and the exact name of the fee simple owner of record of such real property, and no person other than Borrower is in occupancy or possession of property at which any portion of such real propertythe Property is located is properly zoned for its current and anticipated use and the use of the Property will not violate any applicable zoning, land use, environmental or similar law or restriction. Borrower has all licenses and permits to use the Property.
(i) Borrower is in compliance with all laws, rules, regulations and orders of governmental authorities applicable to it and its properties except to the extent the non-compliance with which could not reasonably be expected to have a Material Adverse Effect.
(j) Borrower has heretofore furnished to Lender a Phase I Environmental Site Assessment dated January 22, 2003, prepared by URS (the Financial Statements and those statements fairly present the financial condition of Borrower and such Guarantor, if any, on the dates thereof and the results of its operations and cash flows for the periods then ended and were prepared in accordance with GAAP. Since the date of the most recent financial statements, there has been no material adverse change in the business, properties or condition (financial or otherwise) of Borrower or any Guarantor"Report"). Except as disclosed to Lender in the Financial Statements or the notes thereto and for the items disclosed on Schedule IVReport, neither Borrower nor any Guarantor, as of each Closing Date, has or will have any liabilities, contingent or otherwise, that could reasonably be expected to have a Material Adverse Effect.
(k) Borrower has paid received no notification of any kind suggesting that the Property or caused any adjacent property is or may be contaminated with any Hazardous Waste or Materials or is or may be required to be paidcleaned up in accordance with any applicable law or regulation; and Borrower further represents and warrants that, and will payexcept as previously disclosed to Lender in writing, to the proper authorities when due all federal, state and local taxes required to be withheld by it. Borrower has filed, and will pay, all federal, state and local tax returns which are required to be filed, and Borrower has paid or caused to be paid to the respective taxing authorities all taxes best of its knowledge as shown on said returns or on any assessment received by it to the extent such taxes have become due, except any such taxes or charges which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP have been set aside on its books.
(l) For purposes of Section 9-307 of the UCCdate hereof after due and diligent inquiry, Borrower is and will remain there are no Hazardous Waste or Materials located in in, on or under the Borrower’s State. Borrower’s residence for federal income tax purposes is located at its Notice Address specified in Schedule I. Borrower has authorized Lender to file financing statements that are sufficient when filed to perfect the security interests created pursuant to this Agreement and the other Loan Documents. When such financing statements are filed in the offices noted therein, Lender will have a valid and perfected security interest in the Collateral that constitutes personal Property or any adjacent property, subject to no other Lien other than Permitted Liens.
(m) None of or incorporated in any Improvements, nor has the Collateral constitutes Property or any adjacent property ever been used as a replacement oflandfill or a waste disposal site, substitution or a manufacturing, handling, storage, distribution or disposal facility for Hazardous Waste or accessory to any property of Borrower subject to a lien of any kind.
(n) No ERISA Event has occurred or is reasonably likely to occur with respect to any Plan, and each Plan is in compliance in all material respects with the applicable provisions of ERISA.
(o) Materials. Borrower has obtained all permits, licenses and other authorizations which are required under all any Environmental Laws at Borrower’s 's facilities or in connection with the operation of its businessfacilities. Except as previously disclosed on Schedule IVto Lender in writing, Borrower and all activities of Borrower at its facilities comply with all Environmental Laws and with all terms and conditions of any required permits, licenses and authorizations applicable to Borrower with respect thereto. Except as previously disclosed on Schedule IVto Lender in writing, Borrower is also in compliance with all limitations, restrictions, conditions, standards, prohibitions, requirements, obligations, schedules and timetables contained in Environmental Laws or contained in any plan, order, decree, judgment or notice of which Borrower is aware. Except as previously disclosed on Schedule IVto Lender in writing, Borrower is not aware of, nor has Borrower received notice of, any events, conditions, circumstances, activities, practices, incidents, actions or plans which may interfere with or prevent continued compliance with, or which may give rise to any liability under, any Environmental Laws.
(pj) Borrower has heretofore furnished to Lender the audited financial statements of Corporate Guarantor for its fiscal years ended January 31, 2002, January 31, 2001, January 31, 2000 and January 31, 1999 and the unaudited financial statements of Borrower for the six months ended July 31, 2002 and July 31, 2001, and those statements fairly present the financial condition of Corporate Guarantor on the dates thereof and the results of its operations and cash flows for the periods then ended and were prepared in accordance with generally accepted accounting principles. Since the date of the most recent financial statements, there has been no material adverse change in the business, properties or condition (financial or otherwise) of Corporate Guarantor.
(k) Borrower has paid or caused to be paid to the proper authorities when due all federal, state and local taxes required to be withheld by it. Borrower has filed all federal, state and local tax returns which are required to be filed, and Borrower has paid or caused to be paid to the respective taxing authorities all taxes as shown on said returns or on any assessment received by it to the extent such taxes have become due.
(l) Borrower has or will have good and absolute title to all Property and all proceeds thereof, free and clear of all mortgages, security interests, liens and encumbrances except for the security interest created pursuant to this Agreement and the Mortgage and the Permitted Exceptions.
(m) All factual financial and other information heretofor or contemporaneously furnished provided to Lender by or on behalf of Borrower or any Guarantor in writing to Lender for purposes of or in connection with this Agreement or any transaction Borrower's request for the Loan contemplated hereby is, and all other such factual information hereafter furnished by or on behalf of Borrower or any Guarantor to Lender will be, is true and correct in every all material respect on the date respects and Borrower has not omitted to provide Lender with any information which would be material to Lender's decision to enter into this Agreement and, as of which to projections, valuations or pro forma financial statements, present a good faith opinion as to such information is dated or certifiedprojections, valuations and pro forma condition and results.
(n) Borrower has authorized Lender to file financing statements, and such information is notfinancing statements when filed will be sufficient to perfect the security interest created pursuant to this Agreement. When such financing statements are filed in the offices noted therein, Lender will have a valid and perfected security interest in the Property, subject to no other security interest, assignment, lien or shall not beencumbrance. None of the Property constitutes a replacement of, as substitution for or accessory to any property of Borrower subject to a lien of any kind. Borrower owns the case may be, incomplete by omitting Premises subject to state no liens or encumbrances of any material fact necessary to make such information not misleadingkind except the Permitted Exceptions.
(qo) None No person other than Borrower is in occupancy or possession of Borrower, any Guarantor or any of their Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying “margin stock.” None portion of the proceeds of real property where any Loan will be used for the purpose of, or be made available by Borrower, any Guarantor or any of their Subsidiaries in any manner to any other Person to enable or assist such Person in, directly or indirectly purchasing or carrying “margin stock”. Terms for which meanings are provided in F.R.S. Board Regulation T, U or X or any regulations substituted therefor, as from time to time in effect, are used in this Section with such meanings.
(r) None of Borrower, any Guarantor or any of their Subsidiaries is an “investment company” nor a “company controlled by an investment company” within the meaning portion of the Investment Company Act of 1940, as amended, or a “holding company,” or a “subsidiary company” of a “holding company,” or an “affiliate” of a “holding company” or of a “subsidiary company” of a “holding company,” within the meaning of the Public Utility Holding Company Act of 1935, as amendedProperty is located.
(s) Schedule V is an accurate and complete list of all Subsidiaries of Borrower and each Corporate Guarantor and the respective ownership interests therein.
(t) Borrower and each Guarantor are solvent and will not be rendered insolvent by the Loan Documents or the transactions contemplated thereby and, after giving effect to such transactions, neither Borrower nor any Guarantor will be left with an unreasonably small amount of capital with which to engage in its business, nor does Borrower or any Guarantor intend to incur, or believe that it has incurred, debts beyond its ability to pay as they mature. Neither Borrower nor any Guarantor contemplates the commencement of insolvency, bankruptcy, liquidation or consolidation proceedings or the appointment of a receiver, liquidator, conservator, trustee or similar official in respect of Borrower or any Guarantor or any of their assets. Neither Borrower nor any Guarantor are entering into the transactions contemplated by the Loan Documents with any intent to hinder, delay or defraud any of Borrower’s or any Guarantor’s creditors.
Appears in 1 contract
Samples: Taxable Rate Loan Agreement (International Absorbents Inc)
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER. Borrower hereby re-makes each and every representation and warranty of Original Borrower to Lender contained in ARTICLE III of the Mortgage (excluding those contained in SUBSECTIONS 3.3(a) and 3.3(t)), as modified hereby, and Borrower (and Guarantor with respect to SUBSECTIONS (f) and (g) below) further represents, warrants and covenants for the benefit of Lender, to Lender as follows:
(a) Borrower is a corporation limited liability company, duly organizedformed, validly existing existing, and in good standing under the laws of the jurisdiction State of Delaware, and has full power and authority to consummate the Transfer and the Assumption and to perform its organizationobligations under the Loan Documents. Borrower is in good standing and is duly licensed or qualified to transact business in each jurisdiction where the nature Commonwealth of its business requires such qualification, except for those jurisdictions in which the failure to qualify could not reasonably be expected to have a Material Adverse Effect. Borrower’s exact legal name is as set forth on the execution page hereofMassachusetts.
(b) The consummation of the Transfer and the Assumption, and the execution, delivery, and/or performance by Borrower has full power of this Agreement and authority and holds all requisite governmental licenses, permits and the other approvals to Loan Documents: (i) enter into and perform its obligations under this Agreementwill not result in any breach of, the Note and each or constitute a default under, any mortgage, agreement, articles of organization, operating agreement or other Loan Document instrument to which it Borrower is a party and to own its property, or by which Borrower may be bound or affected; (ii) use the Collateral and do not contravene any applicable law, regulation or order; (iii) conduct its business substantially as currently conducted require no authorization, approval, consent or other action by, and no notice to or filing with, any governmental authority or regulatory body; and (iv) are within Borrower's powers and have been duly authorized by it, except as to clause (iii) where the failure to hold such licenses, permits and approvals could not reasonably be expected to have a Material Adverse Effectall necessary action.
(c) This Agreement, the Note Agreement and the other Loan Documents to which it Borrower is a party have been duly authorized, executed and delivered by Borrower and constitute legal, valid and binding obligations of Borrower, enforceable against Borrower in accordance with their respective terms, except subject to applicable bankruptcy law and the extent limited by bankruptcy, reorganization or other laws rights of general application relating to or effecting the enforcement of creditors’ rightscreditors generally.
(d) The execution and delivery of this Agreement, the Note This Agreement and the other Loan Documents, the consummation Documents collectively grant to Lender a valid and enforceable first priority security conveyance of the transactions contemplated hereby and thereby and the fulfillment of the terms and conditions hereof and thereof do not and will not violate any law, rule, regulation or order, conflict with or result in a breach of any of the terms or conditions of any Organizational Document of Borrower or of any corporate restriction or of any agreement or instrument to which Borrower is now a party and do not and will not constitute a default under any of the foregoing or result security interest in the creation or imposition of any liensProperty, charges or encumbrances of any nature upon any of subject only to the property or assets of Borrower other than Liens in favor of LenderPermitted Exceptions.
(e) The authorizationBorrower has no set-offs, executioncounterclaims, delivery and performance defenses or other causes of action against Lender or any of Lender's officers, agents or employees arising out of the indebtedness evidenced by the Note, any action taken or not taken by Lender or any of Lender's officers, agents or employees with respect to the Loan or the Loan Documents, the Transfer, the Assumption, or the modification of the Loan Documents, and, to the extent any such set-offs, counterclaims, defenses or other causes of action may exist, whether known or unknown, such items are waived by Borrower. Borrower expressly disclaims any reliance on any oral representation made or allegedly made by Lender or any of its officers, agents or employees with respect to the Loan, the Loan Documents or this Agreement, the Note and the other Loan Documents by Borrower do not require submission to, approval of, or other action by any governmental authority or agency, except for such action that has been duly obtained or taken and is in full force and effect.
(f) Each There are no pending or threatened actions, suits or proceedings at law, in equity or before or by any governmental authorities that, if determined adversely, could affect Borrower, Guarantor, the Property, the validity or enforceability of the Loan Documents that purports to create a security interest creates a valid first Note and Mortgage or the priority Lien on the Collateral subject only to Permitted Liens, securing the payment and performance of the Obligationslien thereof. Neither Borrower nor Guarantor is in default with respect to any order, writ, injunction, decree or demand of any court or governmental authorities.
(g) Except as disclosed on Schedule IV, there is no action, suit, proceeding, claim, inquiry or investigation, at law or Any brokerage commissions due in equity, before or by any court, regulatory agency, public board or body pending or, to connection with the best of Borrower’s knowledge, threatened against or affecting Borrower, any Guarantor or any of their Subsidiaries, challenging Borrower’s or any Guarantor’s authority to enter into this Agreement, Transfer and/or the Note or any of the other Loan Documents or any other action wherein an unfavorable ruling or finding would adversely affect the enforceability of this Agreement, the Note or any of the other Loan Documents, or could reasonably be expected to Assumption have a Material Adverse Effect.
(h) Borrower has good, marketable and insurable title been paid in fee simple to all Collateral that is real propertyfull, and good title to all other Collateral, any such commissions coming due in each case free and clear of all Liens except for Permitted Liens. With respect to Collateral that is personal property, Borrower owns/leases the real property where the Collateral future will be located, subject to no Liens of any kind except for Permitted Liens, and has provided a complete and accurate legal description and the exact name of the fee simple owner of record of such real property, and no person other than Borrower is in occupancy or possession of any portion of such real property.
(i) Borrower is in compliance with all laws, rules, regulations and orders of governmental authorities applicable to it and its properties except to the extent the non-compliance with which could not reasonably be expected to have a Material Adverse Effect.
(j) Borrower has heretofore furnished to Lender the Financial Statements and those statements fairly present the financial condition of Borrower and such Guarantor, if any, on the dates thereof and the results of its operations and cash flows for the periods then ended and were prepared in accordance with GAAP. Since the date of the most recent financial statements, there has been no material adverse change in the business, properties or condition (financial or otherwise) of Borrower or any Guarantor. Except as disclosed in the Financial Statements or the notes thereto and for the items disclosed on Schedule IV, neither Borrower nor any Guarantor, as of each Closing Date, has or will have any liabilities, contingent or otherwise, that could reasonably be expected to have a Material Adverse Effect.
(k) Borrower has paid or caused to be paid, and will pay, to the proper authorities when due all federal, state and local taxes required to be withheld by it. Borrower has filed, and will pay, all federal, state and local tax returns which are required to be filed, and Borrower has promptly paid or caused to be paid by Borrower or Guarantor. Borrower and Guarantor hereby jointly and severally agree to indemnify, defend and hold harmless Lender from any and all liability, claims, demands, actions and causes of action whatsoever arising out of or relating to the respective taxing authorities all taxes as shown on said returns claim of any person for any brokerage commissions, including, without limitation, Lender's attorneys' fees and expenses, and costs and expenses incurred by Lender in investigating, preparing or on defending against any assessment received by it to the extent such taxes have become duelitigation or claim, except action, suit, proceeding or demand of any such taxes kind or charges which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP have been set aside on its bookscharacter related thereto.
(lh) For purposes of Section 9All state or local mortgage taxes, intangible taxes, stamp taxes and other fees or taxes (including customary per-307 of the UCC, Borrower is page or document filing and will remain located recording fees imposed by law) required to be paid in the Borrower’s State. Borrower’s residence for federal income tax purposes is located at its Notice Address specified in Schedule I. Borrower has authorized Lender to file financing statements that are sufficient when filed to perfect the security interests created pursuant to this Agreement and the other Loan Documents. When such financing statements are filed in the offices noted therein, Lender will have a valid and perfected security interest in the Collateral that constitutes personal property, subject to no other Lien other than Permitted Liens.
(m) None Commonwealth of the Collateral constitutes a replacement of, substitution for or accessory to any property of Borrower subject to a lien of any kind.
(n) No ERISA Event has occurred or is reasonably likely to occur with respect to any Plan, and each Plan is in compliance in all material respects with the applicable provisions of ERISA.
(o) Borrower has obtained all permits, licenses and other authorizations which are required under all Environmental Laws at Borrower’s facilities or Massachusetts in connection with the operation of its business. Except as disclosed on Schedule IVTransfer, Borrower and all activities of Borrower at its facilities comply with all Environmental Laws and with all terms and conditions of any required permits, licenses and authorizations applicable to Borrower with respect thereto. Except as disclosed on Schedule IV, Borrower is also in compliance with all limitations, restrictions, conditions, standards, prohibitions, requirements, obligations, schedules and timetables contained in Environmental Laws or contained in any plan, order, decree, judgment or notice of which Borrower is aware. Except as disclosed on Schedule IV, Borrower is not aware of, nor has Borrower received notice of, any events, conditions, circumstances, activities, practices, incidents, actions or plans which may interfere with or prevent continued compliance withthe Assumption, or which may give rise to any liability underthe execution, any Environmental Laws.
(p) All factual information heretofor delivery, filing, or contemporaneously furnished by or on behalf recording of Borrower or any Guarantor in writing to Lender for purposes of or in connection with this Agreement or any transaction contemplated other Loan Document have been or will be paid upon the recording of this Agreement. Borrower and Guarantor hereby isjointly and severally agree to indemnify, defend and hold harmless Lender from any and all liability, claims, demands, actions and causes of action whatsoever arising out of or relating to the claim of any person or entity for any such tax or fee, including, without limitation, Lender's attorneys' fees and expenses, and all other such factual information hereafter furnished costs and expenses incurred by Lender in investigating, preparing or on behalf of Borrower defending against any litigation or any Guarantor to Lender will beclaim, true and correct in every material respect on the date as of which such information is dated action, suit, proceeding or certified, and such information is not, or shall not be, as the case may be, incomplete by omitting to state any material fact necessary to make such information not misleading.
(q) None of Borrower, any Guarantor or any of their Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying “margin stock.” None of the proceeds demand of any Loan will be used for the purpose of, kind or be made available by Borrower, any Guarantor or any of their Subsidiaries in any manner to any other Person to enable or assist such Person in, directly or indirectly purchasing or carrying “margin stock”. Terms for which meanings are provided in F.R.S. Board Regulation T, U or X or any regulations substituted therefor, as from time to time in effect, are used in this Section with such meaningscharacter related thereto.
(r) None of Borrower, any Guarantor or any of their Subsidiaries is an “investment company” nor a “company controlled by an investment company” within the meaning of the Investment Company Act of 1940, as amended, or a “holding company,” or a “subsidiary company” of a “holding company,” or an “affiliate” of a “holding company” or of a “subsidiary company” of a “holding company,” within the meaning of the Public Utility Holding Company Act of 1935, as amended.
(s) Schedule V is an accurate and complete list of all Subsidiaries of Borrower and each Corporate Guarantor and the respective ownership interests therein.
(t) Borrower and each Guarantor are solvent and will not be rendered insolvent by the Loan Documents or the transactions contemplated thereby and, after giving effect to such transactions, neither Borrower nor any Guarantor will be left with an unreasonably small amount of capital with which to engage in its business, nor does Borrower or any Guarantor intend to incur, or believe that it has incurred, debts beyond its ability to pay as they mature. Neither Borrower nor any Guarantor contemplates the commencement of insolvency, bankruptcy, liquidation or consolidation proceedings or the appointment of a receiver, liquidator, conservator, trustee or similar official in respect of Borrower or any Guarantor or any of their assets. Neither Borrower nor any Guarantor are entering into the transactions contemplated by the Loan Documents with any intent to hinder, delay or defraud any of Borrower’s or any Guarantor’s creditors.
Appears in 1 contract
Samples: Assumption, Consent and Loan Modification Agreement (BioMed Realty Trust Inc)
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER. The Borrower representsand each other Obligor party hereto hereby represents and warrants (in the case of each Obligor, warrants solely as to itself) that as of the date of this Amendment and covenants for the benefit of Lender, as follows:
after giving effect hereto (a) the representations and warranties of the Borrower and each other Obligor contained in the Loan Agreement and the other Loan Documents to which it is a corporation duly organized, validly existing party are true and correct in good standing under the laws all material respects (without giving effect to any materiality qualifier contained therein) on and as of the jurisdiction date hereof to the same extent as though made on and as of its organization. Borrower is in good standing and is duly licensed or qualified to transact business in each jurisdiction where the nature of its business requires such qualificationdate hereof, except for those jurisdictions to the extent such representations and warranties specifically relate to an earlier date, in which case they are true and correct in all material respects (without giving effect to any materiality qualifier contained therein) as of such earlier date, (b) the failure to qualify execution, delivery and performance of this Amendment by the Borrower and the Borrowing Base Guarantors have been duly authorized by all necessary action, and do not (i) require any consent or approval of any holders of Equity Interests of the Borrower or the Borrowing Base Guarantors, other than those already obtained, (ii) contravene the Organic Documents of the Borrower or the Borrowing Base Guarantors, (iii) violate or cause a default under any Applicable Law or Material Contract, or (iv) result in or require the imposition of any Lien (other than Permitted Liens) on any Property of the Borrower or the other Obligors, except, as set forth solely in clause (iii), as could not reasonably be expected to have a Material Adverse Effect. Borrower’s exact legal name is , and (c) this Amendment and the Loan Agreement (as set forth on the execution page hereof.
(bamended hereby) Borrower has full power and authority and holds all requisite governmental licenses, permits and other approvals to (i) enter into and perform its obligations under this Agreement, the Note and each other Loan Document to which it is a legal, valid, and binding obligation of the Borrower and such other Obligors party and to own hereto or thereto, as applicable, enforceable in accordance with its property, (ii) use the Collateral and (iii) conduct its business substantially as currently conducted by itterms, except as to clause (iii) where the failure to hold such licenses, permits and approvals could not reasonably enforceability may be expected to have a Material Adverse Effect.
(c) This Agreement, the Note and the other Loan Documents to which it is a party have been duly authorized, executed and delivered by Borrower and constitute legal, valid and binding obligations of Borrower, enforceable against Borrower in accordance with their respective terms, except to the extent limited by bankruptcy, reorganization insolvency or other similar laws of general application relating to or effecting affecting the enforcement of creditors’ rightsrights generally.
(d) The execution and delivery of this Agreement, the Note and the other Loan Documents, the consummation of the transactions contemplated hereby and thereby and the fulfillment of the terms and conditions hereof and thereof do not and will not violate any law, rule, regulation or order, conflict with or result in a breach of any of the terms or conditions of any Organizational Document of Borrower or of any corporate restriction or of any agreement or instrument to which Borrower is now a party and do not and will not constitute a default under any of the foregoing or result in the creation or imposition of any liens, charges or encumbrances of any nature upon any of the property or assets of Borrower other than Liens in favor of Lender.
(e) The authorization, execution, delivery and performance of this Agreement, the Note and the other Loan Documents by Borrower do not require submission to, approval of, or other action by any governmental authority or agency, except for such action that has been duly obtained or taken and is in full force and effect.
(f) Each of the Loan Documents that purports to create a security interest creates a valid first priority Lien on the Collateral subject only to Permitted Liens, securing the payment and performance of the Obligations.
(g) Except as disclosed on Schedule IV, there is no action, suit, proceeding, claim, inquiry or investigation, at law or in equity, before or by any court, regulatory agency, public board or body pending or, to the best of Borrower’s knowledge, threatened against or affecting Borrower, any Guarantor or any of their Subsidiaries, challenging Borrower’s or any Guarantor’s authority to enter into this Agreement, the Note or any of the other Loan Documents or any other action wherein an unfavorable ruling or finding would adversely affect the enforceability of this Agreement, the Note or any of the other Loan Documents, or could reasonably be expected to have a Material Adverse Effect.
(h) Borrower has good, marketable and insurable title in fee simple to all Collateral that is real property, and good title to all other Collateral, in each case free and clear of all Liens except for Permitted Liens. With respect to Collateral that is personal property, Borrower owns/leases the real property where the Collateral will be located, subject to no Liens of any kind except for Permitted Liens, and has provided a complete and accurate legal description and the exact name of the fee simple owner of record of such real property, and no person other than Borrower is in occupancy or possession of any portion of such real property.
(i) Borrower is in compliance with all laws, rules, regulations and orders of governmental authorities applicable to it and its properties except to the extent the non-compliance with which could not reasonably be expected to have a Material Adverse Effect.
(j) Borrower has heretofore furnished to Lender the Financial Statements and those statements fairly present the financial condition of Borrower and such Guarantor, if any, on the dates thereof and the results of its operations and cash flows for the periods then ended and were prepared in accordance with GAAP. Since the date of the most recent financial statements, there has been no material adverse change in the business, properties or condition (financial or otherwise) of Borrower or any Guarantor. Except as disclosed in the Financial Statements or the notes thereto and for the items disclosed on Schedule IV, neither Borrower nor any Guarantor, as of each Closing Date, has or will have any liabilities, contingent or otherwise, that could reasonably be expected to have a Material Adverse Effect.
(k) Borrower has paid or caused to be paid, and will pay, to the proper authorities when due all federal, state and local taxes required to be withheld by it. Borrower has filed, and will pay, all federal, state and local tax returns which are required to be filed, and Borrower has paid or caused to be paid to the respective taxing authorities all taxes as shown on said returns or on any assessment received by it to the extent such taxes have become due, except any such taxes or charges which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP have been set aside on its books.
(l) For purposes of Section 9-307 of the UCC, Borrower is and will remain located in the Borrower’s State. Borrower’s residence for federal income tax purposes is located at its Notice Address specified in Schedule I. Borrower has authorized Lender to file financing statements that are sufficient when filed to perfect the security interests created pursuant to this Agreement and the other Loan Documents. When such financing statements are filed in the offices noted therein, Lender will have a valid and perfected security interest in the Collateral that constitutes personal property, subject to no other Lien other than Permitted Liens.
(m) None of the Collateral constitutes a replacement of, substitution for or accessory to any property of Borrower subject to a lien of any kind.
(n) No ERISA Event has occurred or is reasonably likely to occur with respect to any Plan, and each Plan is in compliance in all material respects with the applicable provisions of ERISA.
(o) Borrower has obtained all permits, licenses and other authorizations which are required under all Environmental Laws at Borrower’s facilities or in connection with the operation of its business. Except as disclosed on Schedule IV, Borrower and all activities of Borrower at its facilities comply with all Environmental Laws and with all terms and conditions of any required permits, licenses and authorizations applicable to Borrower with respect thereto. Except as disclosed on Schedule IV, Borrower is also in compliance with all limitations, restrictions, conditions, standards, prohibitions, requirements, obligations, schedules and timetables contained in Environmental Laws or contained in any plan, order, decree, judgment or notice of which Borrower is aware. Except as disclosed on Schedule IV, Borrower is not aware of, nor has Borrower received notice of, any events, conditions, circumstances, activities, practices, incidents, actions or plans which may interfere with or prevent continued compliance with, or which may give rise to any liability under, any Environmental Laws.
(p) All factual information heretofor or contemporaneously furnished by or on behalf of Borrower or any Guarantor in writing to Lender for purposes of or in connection with this Agreement or any transaction contemplated hereby is, and all other such factual information hereafter furnished by or on behalf of Borrower or any Guarantor to Lender will be, true and correct in every material respect on the date as of which such information is dated or certified, and such information is not, or shall not be, as the case may be, incomplete by omitting to state any material fact necessary to make such information not misleading.
(q) None of Borrower, any Guarantor or any of their Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying “margin stock.” None of the proceeds of any Loan will be used for the purpose of, or be made available by Borrower, any Guarantor or any of their Subsidiaries in any manner to any other Person to enable or assist such Person in, directly or indirectly purchasing or carrying “margin stock”. Terms for which meanings are provided in F.R.S. Board Regulation T, U or X or any regulations substituted therefor, as from time to time in effect, are used in this Section with such meanings.
(r) None of Borrower, any Guarantor or any of their Subsidiaries is an “investment company” nor a “company controlled by an investment company” within the meaning of the Investment Company Act of 1940, as amended, or a “holding company,” or a “subsidiary company” of a “holding company,” or an “affiliate” of a “holding company” or of a “subsidiary company” of a “holding company,” within the meaning of the Public Utility Holding Company Act of 1935, as amended.
(s) Schedule V is an accurate and complete list of all Subsidiaries of Borrower and each Corporate Guarantor and the respective ownership interests therein.
(t) Borrower and each Guarantor are solvent and will not be rendered insolvent by the Loan Documents or the transactions contemplated thereby and, after giving effect to such transactions, neither Borrower nor any Guarantor will be left with an unreasonably small amount of capital with which to engage in its business, nor does Borrower or any Guarantor intend to incur, or believe that it has incurred, debts beyond its ability to pay as they mature. Neither Borrower nor any Guarantor contemplates the commencement of insolvency, bankruptcy, liquidation or consolidation proceedings or the appointment of a receiver, liquidator, conservator, trustee or similar official in respect of Borrower or any Guarantor or any of their assets. Neither Borrower nor any Guarantor are entering into the transactions contemplated by the Loan Documents with any intent to hinder, delay or defraud any of Borrower’s or any Guarantor’s creditors.
Appears in 1 contract
Samples: Loan and Security Agreement (Ak Steel Holding Corp)
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER. Borrower represents, represents and warrants and covenants for the benefit of to Lender, as followsand agrees that:
(a) Borrower is the representations and warranties contained in the Loan Agreement (as amended hereby) and the other outstanding Financing Agreements are true and correct in all material respects at and as of the date hereof as though made on and as of the date hereof, except (i) to the extent specifically made with regard to a corporation duly organized, validly existing particular date and in good standing (ii) for such changes as are a result of any act or omission specifically permitted under the laws of the jurisdiction of its organization. Borrower is in good standing and is duly licensed Loan Agreement (or qualified to transact business in each jurisdiction where the nature of its business requires such qualificationunder any Loan Document), except for those jurisdictions in which the failure to qualify could not reasonably be expected to have a Material Adverse Effect. Borrower’s exact legal name is or as set forth on the execution page hereof.otherwise specifically permitted by Lender;
(b) Borrower has full power on the Amendment Effective Date, after giving effect to this Amendment, no Event of Default will have occurred and authority and holds all requisite governmental licenses, permits and other approvals to (i) enter into and perform its obligations under this Agreement, the Note and each other Loan Document to which it is a party and to own its property, (ii) use the Collateral and (iii) conduct its business substantially as currently conducted by it, except as to clause (iii) where the failure to hold such licenses, permits and approvals could not reasonably be expected to have a Material Adverse Effect.continuing;
(c) This Agreementthe execution, the Note delivery and the other Loan Documents to which it is a party performance of this Amendment have been duly authorizedauthorized by all necessary action on the part of, and duly executed and delivered by Borrower by, Borrower, and constitute this Amendment is a legal, valid and binding obligations obligation of Borrower, enforceable against Borrower in accordance with their respective its terms, except as the enforcement thereof may be subject to the extent limited by effect of any applicable bankruptcy, reorganization insolvency, reorganization, moratorium, or other similar laws of general application relating to or effecting the enforcement of affecting creditors’ rights.rights generally and general principles of equity (regardless of whether such enforcement is sought in a proceeding in equity or at law);
(d) The execution the execution, delivery and delivery performance of this Agreement, the Note and the other Loan Documents, the consummation of the transactions contemplated hereby and thereby and the fulfillment of the terms and conditions hereof and thereof Amendment do not and will not violate any law, rule, regulation or order, conflict with or result in a breach by Borrower of any of the terms or conditions term of any Organizational Document of Borrower material contract, loan agreement, indenture or of any corporate restriction or of any other agreement or instrument to which Borrower is now a party and do not and will not constitute a default under any of the foregoing or result in the creation or imposition of any liens, charges or encumbrances of any nature upon any of the property or assets of Borrower other than Liens in favor of Lender.is subject; and
(e) The authorization, execution, delivery and performance of this Agreementwithin forty-five (45) days following the Amendment Effective Date, the Note and the other Loan Documents by Borrower do not require submission to, approval of, or other action by any governmental authority or agency, except for such action that has been duly obtained or taken and is in full force and effect.
shall either (fi) Each of the Loan Documents that purports to create a security interest creates a valid first priority Lien on the Collateral subject only to Permitted Liens, securing the payment and performance of the Obligations.
(g) Except as disclosed on Schedule IV, there is no action, suit, proceeding, claim, inquiry or investigation, at law or in equity, before or by any court, regulatory agency, public board or body pending or, to the best permanently remove all of Borrower’s knowledge, threatened against Accounts receivable from “Bxxx’x Bees” from eligible status under the Borrowing Base or affecting Borrower, any Guarantor or any of their Subsidiaries, challenging Borrower’s or any Guarantor’s authority to enter into this Agreement, the Note or any of the other Loan Documents or any other action wherein an unfavorable ruling or finding would adversely affect the enforceability of this Agreement, the Note or any of the other Loan Documents, or could reasonably be expected to have a Material Adverse Effect.
(hii) Borrower has good, marketable and insurable title in fee simple to provide Lender with sole dominion over all Collateral that is real property, and good title to all other Collateral, in each case free and clear of all Liens except for Permitted Liens. With respect to Collateral that is personal property, Borrower owns/leases the real property where the Collateral will be located, subject to no Liens of any kind except for Permitted Liens, and has provided a complete and accurate legal description and the exact name of the fee simple owner of record of such real property, and no person other than Borrower is in occupancy or possession of any portion of such real property.
(i) Borrower is in compliance with all laws, rules, regulations and orders of governmental authorities applicable to it and its properties except to the extent the non-compliance with which could not reasonably be expected to have a Material Adverse Effect.
(j) Borrower has heretofore furnished to Lender the Financial Statements and those statements fairly present the financial condition of Borrower and such Guarantor, if any, on the dates thereof and the results of its operations and cash flows for the periods then ended and were prepared in accordance with GAAP. Since the date of the most recent financial statements, there has been no material adverse change in the business, properties or condition (financial or otherwise) of Borrower or any Guarantor. Except as disclosed in the Financial Statements or the notes thereto and for the items disclosed on Schedule IV, neither Borrower nor any Guarantor, as of each Closing Date, has or will have any liabilities, contingent or otherwise, that could reasonably be expected to have a Material Adverse Effect.
(k) Borrower has paid or caused to be paid, and will pay, to the proper authorities when due all federal, state and local taxes required to be withheld by it. Borrower has filed, and will pay, all federal, state and local tax returns which are required to be filed, and Borrower has paid or caused to be paid to the respective taxing authorities all taxes as shown on said returns or on any assessment received by it to the extent such taxes have become due, except any such taxes or charges which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP have been set aside on its books.
(l) For purposes of Section 9-307 of the UCC, Borrower is and will remain located in the Borrower’s State. Borrower’s residence for federal income tax purposes is located at its Notice Address specified in Schedule I. Borrower has authorized Lender to file financing statements that are sufficient when filed to perfect the security interests created pursuant to this Agreement and the other Loan Documents. When such financing statements are filed in the offices noted therein, Lender will have a valid and perfected security interest in the Collateral that constitutes personal property, subject to no other Lien other than Permitted Liens.
(m) None of the Collateral constitutes a replacement of, substitution for or accessory to any property of Borrower subject to a lien of any kind.
(n) No ERISA Event has occurred or is reasonably likely to occur with respect to any Plan, and each Plan is in compliance in all material respects with the applicable provisions of ERISA.
(o) Borrower has obtained all permits, licenses and other authorizations which are required under all Environmental Laws at Borrower’s facilities or in connection with the operation of its business. Except as disclosed on Schedule IV, Borrower and all activities of Borrower at its facilities comply with all Environmental Laws and with all terms and conditions of any required permits, licenses and authorizations applicable to Borrower with respect thereto. Except as disclosed on Schedule IV, Borrower is also in compliance with all limitations, restrictions, conditions, standards, prohibitions, requirements, obligations, schedules and timetables contained in Environmental Laws or contained in any plan, order, decree, judgment or notice of which Borrower is aware. Except as disclosed on Schedule IV, Borrower is not aware of, nor has Borrower received notice of, any events, conditions, circumstances, activities, practices, incidents, actions or plans which may interfere with or prevent continued compliance with, or which may give rise to any liability under, any Environmental Laws.
(p) All factual information heretofor or contemporaneously furnished by or on behalf of Borrower or any Guarantor in writing to Lender for purposes of or in connection with this Agreement or any transaction contemplated hereby is, and all other such factual information hereafter furnished by or on behalf of Borrower or any Guarantor to Lender will be, true and correct in every material respect on the date as of which such information is dated or certified, and such information is not, or shall not be, as the case may be, incomplete by omitting to state any material fact necessary to make such information not misleading.
(q) None of Borrower, any Guarantor or any of their Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying “margin stock.” None of the proceeds of any Loan will be used for the purpose of, or be made available by Borrower, any Guarantor or any of their Subsidiaries in any manner to any other Person to enable or assist such Person in, directly or indirectly purchasing or carrying “margin stock”. Terms for which meanings are provided in F.R.S. Board Regulation T, U or X or any regulations substituted therefor, as from time to time in effect, are used in this Section with such meanings.
(r) None of Borrower, any Guarantor or any of their Subsidiaries is an “investment company” nor a “company controlled by an investment company” within the meaning of the Investment Company Act of 1940, as amended, or a “holding company,” or a “subsidiary company” of a “holding company,” or an “affiliate” of a “holding company” or of a “subsidiary company” of a “holding company,” within the meaning of the Public Utility Holding Company Act of 1935, as amended.
(s) Schedule V is an accurate and complete list of all Subsidiaries of Borrower and each Corporate Guarantor and the respective ownership interests therein.
(t) Borrower and each Guarantor are solvent and will not be rendered insolvent by the Loan Documents or the transactions contemplated thereby and, after giving effect to such transactions, neither Borrower nor any Guarantor will be left with an unreasonably small amount of capital with which to engage in its business, nor does Borrower or any Guarantor intend to incur, or believe that it has incurred, debts beyond its ability to pay as they mature. Neither Borrower nor any Guarantor contemplates the commencement of insolvency, bankruptcy, liquidation or consolidation proceedings or the appointment of a receiver, liquidator, conservator, trustee or similar official collected in respect of Borrower such “Bxxx’x Bees” accounts through the execution of one or any Guarantor or any of their assets. Neither Borrower nor any Guarantor are entering into more written agreements among the transactions contemplated by the Loan Documents with any intent Borrower, Lender and JPMorgan Chase Bank, such agreement to hinder, delay or defraud any of Borrower’s or any Guarantor’s creditorsbe in form and substance satisfactory to Lender in its sole discretion.
Appears in 1 contract
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER. In order to induce Agent and Lenders to enter into this Amendment, Borrower represents, warrants and covenants for the benefit of Lender, as followsto Agent and each Lender that:
(a) Borrower is The representations and warranties contained in Section 4.1 of the Original Agreement are true and correct at and as of the time of the effectiveness hereof, except to the extent that such representations and warranties are made in the Original Agreement only in reference to a corporation duly organized, validly existing specific date and in good standing except to the extent that the facts upon which such representations are based have been changed by the extension of credit under the laws of the jurisdiction of its organization. Borrower is in good standing and is duly licensed or qualified to transact business in each jurisdiction where the nature of its business requires such qualification, except for those jurisdictions in which the failure to qualify could not reasonably be expected to have a Material Adverse Effect. Borrower’s exact legal name is as set forth on the execution page hereofCredit Agreement.
(b) Borrower has full power is duly authorized to execute and authority deliver this Amendment and holds all requisite governmental licenses, permits is and other approvals will continue to (i) enter into be duly authorized to borrow and to perform its obligations under the Credit Agreement. Borrower has duly taken all corporate action necessary to authorize the execution and delivery of this Agreement, the Note and each other Loan Document to which it is a party Amendment and to own its property, (ii) use authorize the Collateral and (iii) conduct its business substantially as currently conducted by it, except as to clause (iii) where performance of the failure to hold such licenses, permits and approvals could not reasonably be expected to have a Material Adverse Effectobligations hereunder.
(c) This Agreement, the Note and the other Loan Documents to which it is a party have been duly authorized, executed and delivered by Borrower and constitute legal, valid and binding obligations of Borrower, enforceable against Borrower in accordance with their respective terms, except to the extent limited by bankruptcy, reorganization or other laws of general application relating to or effecting the enforcement of creditors’ rights.
(d) The execution and delivery by Borrower of this Agreement, the Note Amendment and the other Loan Documents, performance by it of its obligations hereunder and under the Credit Agreement and the consummation of the transactions contemplated hereby and thereby and the fulfillment of the terms and conditions hereof and thereof do not and will not violate conflict with any provision of law, rulestatute, rule or regulation or order, conflict with or result in a breach of any of the terms articles of incorporation or conditions of any Organizational Document bylaws of Borrower or of any corporate restriction material agreement, judgment, license, order or of any agreement permit applicable to or instrument to which binding upon Borrower is now a party and do not and will not constitute a default under any of the foregoing or result in the creation or imposition of any lienslien, charges charge or encumbrances encumbrance upon any assets or properties of Borrower, except as expressly contemplated in the Loan Documents. Except for those which have been duly obtained, no consent, approval, authorization or order of any nature upon any court or governmental authority or third party is required in connection with the execution and delivery by Borrower of this Amendment or to consummate the property or assets transactions contemplated hereby. 58704 08037 CORP 122530 3
(d) When this Amendment is duly executed and delivered, each of Borrower other than Liens this Amendment and the Credit Agreement will be a legal and binding instrument and agreement of Borrower, enforceable in favor accordance with its terms, except as limited by bankruptcy, insolvency and similar laws and by general principles of Lenderequity.
(e) The authorizationaudited annual Consolidated financial statements of Borrower dated as of December 31, execution, delivery and performance of this Agreement, the Note 1995 and the other Loan Documents by unaudited quarterly Consolidated financial statements of Borrower do not require submission todated as of March 31, approval of, or other action by any governmental authority or agency, except for such action that has been duly obtained or taken and is in full force and effect.
(f) Each of the Loan Documents that purports to create a security interest creates a valid first priority Lien on the Collateral subject only to Permitted Liens, securing the payment and performance of the Obligations.
(g) Except as disclosed on Schedule IV, there is no action, suit, proceeding, claim, inquiry or investigation, at law or in equity, before or by any court, regulatory agency, public board or body pending or, to the best of Borrower’s knowledge, threatened against or affecting Borrower, any Guarantor or any of their Subsidiaries, challenging Borrower’s or any Guarantor’s authority to enter into this Agreement, the Note or any of the other Loan Documents or any other action wherein an unfavorable ruling or finding would adversely affect the enforceability of this Agreement, the Note or any of the other Loan Documents, or could reasonably be expected to have a Material Adverse Effect.
(h) Borrower has good, marketable and insurable title in fee simple to all Collateral that is real property, and good title to all other Collateral, in each case free and clear of all Liens except for Permitted Liens. With respect to Collateral that is personal property, Borrower owns/leases the real property where the Collateral will be located, subject to no Liens of any kind except for Permitted Liens, and has provided a complete and accurate legal description and the exact name of the fee simple owner of record of such real property, and no person other than Borrower is in occupancy or possession of any portion of such real property.
(i) Borrower is in compliance with all laws, rules, regulations and orders of governmental authorities applicable to it and its properties except to the extent the non-compliance with which could not reasonably be expected to have a Material Adverse Effect.
(j) Borrower has heretofore furnished to Lender the Financial Statements and those statements 1996 fairly present the Consolidated financial condition of Borrower and position at such Guarantor, if any, on the dates thereof and the results Consolidated statement of its operations and cash flows for the periods then ended and were prepared in accordance with GAAPending on such dates for Borrower. Copies of such financial statements have heretofore been delivered to Lender. Since the date of the most recent financial statementsMarch 31, there has been 1996, no material adverse change has occurred in the business, properties financial condition or condition (financial businesses or otherwise) of Borrower or any Guarantor. Except as disclosed in the Financial Statements Consolidated financial condition or the notes thereto and for the items disclosed on Schedule IV, neither Borrower nor any Guarantor, as of each Closing Date, has or will have any liabilities, contingent or otherwise, that could reasonably be expected to have a Material Adverse Effect.
(k) Borrower has paid or caused to be paid, and will pay, to the proper authorities when due all federal, state and local taxes required to be withheld by it. Borrower has filed, and will pay, all federal, state and local tax returns which are required to be filed, and Borrower has paid or caused to be paid to the respective taxing authorities all taxes as shown on said returns or on any assessment received by it to the extent such taxes have become due, except any such taxes or charges which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP have been set aside on its books.
(l) For purposes of Section 9-307 of the UCC, Borrower is and will remain located in the Borrower’s State. Borrower’s residence for federal income tax purposes is located at its Notice Address specified in Schedule I. Borrower has authorized Lender to file financing statements that are sufficient when filed to perfect the security interests created pursuant to this Agreement and the other Loan Documents. When such financing statements are filed in the offices noted therein, Lender will have a valid and perfected security interest in the Collateral that constitutes personal property, subject to no other Lien other than Permitted Liens.
(m) None of the Collateral constitutes a replacement of, substitution for or accessory to any property of Borrower subject to a lien of any kind.
(n) No ERISA Event has occurred or is reasonably likely to occur with respect to any Plan, and each Plan is in compliance in all material respects with the applicable provisions of ERISA.
(o) Borrower has obtained all permits, licenses and other authorizations which are required under all Environmental Laws at Borrower’s facilities or in connection with the operation of its business. Except as disclosed on Schedule IV, Borrower and all activities of Borrower at its facilities comply with all Environmental Laws and with all terms and conditions of any required permits, licenses and authorizations applicable to Borrower with respect thereto. Except as disclosed on Schedule IV, Borrower is also in compliance with all limitations, restrictions, conditions, standards, prohibitions, requirements, obligations, schedules and timetables contained in Environmental Laws or contained in any plan, order, decree, judgment or notice of which Borrower is aware. Except as disclosed on Schedule IV, Borrower is not aware of, nor has Borrower received notice of, any events, conditions, circumstances, activities, practices, incidents, actions or plans which may interfere with or prevent continued compliance with, or which may give rise to any liability under, any Environmental Laws.
(p) All factual information heretofor or contemporaneously furnished by or on behalf of Borrower or any Guarantor in writing to Lender for purposes of or in connection with this Agreement or any transaction contemplated hereby is, and all other such factual information hereafter furnished by or on behalf of Borrower or any Guarantor to Lender will be, true and correct in every material respect on the date as of which such information is dated or certified, and such information is not, or shall not be, as the case may be, incomplete by omitting to state any material fact necessary to make such information not misleading.
(q) None businesses of Borrower, any Guarantor or any of their Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying “margin stock.” None of the proceeds of any Loan will be used for the purpose of, or be made available by Borrower, any Guarantor or any of their Subsidiaries in any manner to any other Person to enable or assist such Person in, directly or indirectly purchasing or carrying “margin stock”. Terms for which meanings are provided in F.R.S. Board Regulation T, U or X or any regulations substituted therefor, as from time to time in effect, are used in this Section with such meanings.
(r) None of Borrower, any Guarantor or any of their Subsidiaries is an “investment company” nor a “company controlled by an investment company” within the meaning of the Investment Company Act of 1940, as amended, or a “holding company,” or a “subsidiary company” of a “holding company,” or an “affiliate” of a “holding company” or of a “subsidiary company” of a “holding company,” within the meaning of the Public Utility Holding Company Act of 1935, as amended.
(s) Schedule V is an accurate and complete list of all Subsidiaries of Borrower and each Corporate Guarantor and the respective ownership interests therein.
(t) Borrower and each Guarantor are solvent and will not be rendered insolvent by the Loan Documents or the transactions contemplated thereby and, after giving effect to such transactions, neither Borrower nor any Guarantor will be left with an unreasonably small amount of capital with which to engage in its business, nor does Borrower or any Guarantor intend to incur, or believe that it has incurred, debts beyond its ability to pay as they mature. Neither Borrower nor any Guarantor contemplates the commencement of insolvency, bankruptcy, liquidation or consolidation proceedings or the appointment of a receiver, liquidator, conservator, trustee or similar official in respect of Borrower or any Guarantor or any of their assets. Neither Borrower nor any Guarantor are entering into the transactions contemplated by the Loan Documents with any intent to hinder, delay or defraud any of Borrower’s or any Guarantor’s creditors.
Appears in 1 contract
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER. Borrower represents(a) Borrowers represent, warrants warrant and covenants covenant for the benefit of Lender, as follows:
(a) Lender that each Borrower is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization. Each Borrower is in good standing and is duly licensed or qualified to transact business in each jurisdiction where the nature of its business requires such qualification, except for those jurisdictions in which the failure to qualify could not reasonably be expected to have a Material Adverse Effect. Each Borrower’s 's exact legal name is as set forth on the execution page hereof.
(b) Borrower Maritrans represents, warrants and covenants for the benefit of Lender that it has full power and authority and holds all requisite governmental licenses, permits and other approvals to (i) enter into and perform its obligations under this Agreement, the Note and each other Loan Document to which it is a party and to own its property, (ii) use the Collateral and (iii) conduct its business substantially as currently conducted by it, except solely as to clause (iii) where the failure to hold such licenses, permits and approvals could not reasonably be expected to have a Material Adverse Effect.
(c) This Freedom represents, warrants and covenants for the benefit of Lender that it has full power and authority in all of its requisite governmental licenses, permits and other approvals to (i) enter into and perform its obligations under this Agreement, the Note, the Mortgage (over the FREEDOM) and each other Loan Document to which it is a party and to own its property (including the FREEDOM), (ii) use the Collateral it owns, (iii) mortgage the FREEDOM, and (iv) conduct its business substantially as currently conducted by it, except solely as to clause (iv) where the failure to hold such licenses, permits and approvals could not reasonably be expected to have a Material Adverse Effect. GEFISHER 498256 10 (LOAN AGREEMENT)
(d) 215 represents, warrants and covenants for the benefit of Lender that it has full power and authority in all of its requisite governmental licenses, permits and other approvals to (i) enter into and perform its obligations under this Agreement, the Note, the Mortgage (over the OCEAN 215) and each other Loan Document to which it is a party and to own its property (including the OCEAN 215), (ii) use the Collateral it owns, (iii) mortgage the OCEAN 215, and (iv) conduct its business substantially as currently conducted by it, except solely as to clause (iv) where the failure to hold such licenses, permits and approvals could not reasonably be expected to have a Material Adverse Effect.
(e) Each Borrower represents, warrants and covenants for the benefit of Lender that this Agreement, the Note and the other Loan Documents to which it is a party have been duly authorized, executed and delivered by such Borrower and constitute legal, valid and binding obligations of each Borrower, enforceable against such Borrower in accordance with their respective terms, except to the extent limited by bankruptcy, reorganization or other laws of general application relating to or effecting the enforcement of creditors’ ' rights.
(df) The Borrowers represent, warrant and covenant for the benefit of Lender that the execution and delivery of this Agreement, the Note and the other Loan Documents, the consummation of the transactions contemplated hereby and thereby and the fulfillment of the terms and conditions hereof and thereof do not and will not violate any law, rule, regulation or order, conflict with or result in a breach of any of the terms or conditions of any Organizational Document of any Borrower or of any corporate restriction or of any agreement or instrument to which any Borrower is now a party and do not and will not constitute a default under any of the foregoing or result in the creation or imposition of any liens, charges or encumbrances of any nature upon any of the property or assets of Borrower Collateral other than Liens in favor of Lender.
(eg) The authorizationBorrowers represent, execution, warrant and covenant for the benefit of Lender that neither the execution and delivery and performance by Borrowers of this Agreement, the Note and any of the other Loan Documents Documents, nor the consummation by Borrower do not require submission to, Borrowers of any of the transactions contemplated hereby or thereby requires the consent or approval of, giving of notice to, the registration with, or the taking of any other action by in respect of, any governmental authority or agency, except for such action that has been duly obtained domestic or taken foreign, other than the filing and is in full force recording of the Mortgages with the United States Coast Guard, National Marine Vessel Documentation Office, and effectthe UCC-1 financing statements with the Office of the Secretary of State of Nevada.
(fh) Each Freedom represents, warrants and covenants for the benefit of Lender that each of the Loan Documents that purports to create a security interest creates a valid first priority Lien on the Collateral subject only to Permitted LiensFREEDOM, securing the payment and performance of the Obligations.
(gi) Except 215 represents, warrants and covenants for the benefit of Lender that each of the Loan Documents that purports to create a security interest creates a valid first priority Lien on the 215, securing the payment and performance of the Obligations.
(j) Borrowers represent, warrant and covenant for the benefit of Lender except as disclosed on Schedule IVII hereto, there is no action, suit, proceeding, claim, inquiry or investigation, at law or in equity, before or by any court, regulatory agency, public board or body pending or, to the best of Borrower’s Borrowers' knowledge, threatened against or affecting Borrower, any Guarantor Borrower or any of their its Subsidiaries, challenging any Borrower’s or any Guarantor’s 's authority to enter into this Agreement, the Note or any of the other Loan Documents or any other action wherein an unfavorable ruling or finding would adversely affect the enforceability of this Agreement, the Note or any of the other Loan Documents, or could reasonably be expected to have a Material Adverse Effect.
(hk) Borrower Freedom represents, warrants and covenants for the benefit of Lender that it has good, good and marketable and insurable title in fee simple to all Collateral that is real property, and good title to all other Collateralthe FREEDOM, in each case free and clear of all mortgages, maritime liens and other encumbrances except Permitted Maritime Liens except for Permitted Liens. With respect to Collateral that is personal propertyand upon execution, Borrower owns/leases the real property where the Collateral will be located, subject to no Liens of any kind except for Permitted Liens, filing and has provided a complete and accurate legal description and the exact name recording of the fee simple owner mortgage, Lender will have a duly recorded first preferred lien over the whole of record of such real property, and no person other than Borrower is in occupancy or possession of any portion of such real propertythe FREEDOM.
(il) 215 represents, warrants and covenants for the benefit of Lender that it has good and marketable title to the OCEAN 215, free and clear of all mortgages, maritime liens and other encumbrances except Permitted Maritime Liens and upon execution, filing and recording of the mortgage, Lender will have a duly recorded first preferred lien over the whole of the OCEAN 215. GEFISHER 498256 11 (LOAN AGREEMENT)
(m) Borrowers represent, warrant and covenant for the benefit of Lender that each Borrower is in compliance with all laws, rules, regulations and orders of governmental authorities applicable to it and its properties except to the extent the non-compliance with which could not reasonably be expected to have a Material Adverse Effect.
(jn) Freedom represents, warrants and covenants for the benefit of the Lender that it has been issued all required permits, licenses, certificates and other approvals of all governmental authorities under all applicable laws that are material and necessary for the ownership or operation of the FREEDOM, and such permits, certificates and approvals are in full force and effect.
(o) 215 represents, warrants and covenants for the benefit of the Lender that it has been issued all required permits, licenses, certificates and other approvals of all governmental authorities under all applicable laws that are material and necessary for the ownership or operation of the OCEAN 215, and such permits, certificates and approvals are in full force and effect.
(p) Borrowers represent, warrant and covenant for the benefit of Lender that each Borrower has heretofore furnished to Lender the Financial Statements consolidated audited financial statement of Maritrans, Inc. for its fiscal year ended December 31, 2002, and the consolidated unaudited financial statement of Maritrans, Inc. and for the months ended June 30, 2003, and those statements fairly present the financial condition of each Borrower and such Guarantor, if any, on the dates thereof and the results of its operations and cash flows for the periods then ended and were prepared in accordance with GAAP. Since the date of the most recent such financial statements, there has been no material adverse change in the business, properties or condition (financial or otherwise) of Borrower or any GuarantorBorrower. Except as disclosed in the Financial Statements such financial statements or the notes thereto and for the items disclosed on Schedule IVII hereto, neither Borrower nor any Guarantorno Borrower, as of each the Closing Date, has or will have any liabilities, contingent or otherwise, that could reasonably be expected to have a Material Adverse Effect.
(kq) Borrowers represent, warrant and covenant for the benefit of Lender that each Borrower has paid or caused to be paid, and will pay, to the proper authorities when due all federal, state and local taxes required to be withheld by it. Each Borrower has filed, and will pay, all federal, state and local tax returns which are required to be filed, and each Borrower has paid or caused to be paid to the respective taxing authorities all taxes as shown on said returns or on any assessment received by it to the extent such taxes have become due, except any such taxes or charges which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP have been set aside on its books.
(lr) For Freedom and 215 represent, warrant and covenant for the benefit of Lender that, for purposes of Section 9-307 of the UCC, each Borrower is and will remain located in the Borrower’s StateState of Nevada. Borrower’s residence for federal income tax purposes is located at its Notice Address specified in Schedule I. Borrower has Freedom and 215 have authorized Lender to file financing statements that are sufficient when filed to perfect the security interests created pursuant to this Agreement and the other Loan DocumentsDocuments in the Collateral that constitutes personal property subject to Article 9 of the UCC. When such financing statements are filed in the offices noted thereintherein and the Mortgages are filed with the United States Coast Guard, Lender will have a valid and perfected security interest in the Collateral that constitutes personal propertyproperty subject to Article 9 of the UCC, subject to no other Lien other than Permitted Liens.
(ms) None Freedom and 215 represent, warrant and covenant for the benefit of Lender that, none of the Collateral constitutes a replacement of, substitution for or accessory to any of their respective property of Borrower subject to a lien Lien of any kind.
(nt) No Borrowers represent, warrant and covenant for the benefit of Lender that no ERISA Event has occurred or is reasonably likely expected to occur that, when taken together with respect all other such ERISA Events for which liability is reasonably expected to any Planoccur, and could reasonably be expected to result in a Material Adverse Effect. The present value of all accumulated benefit obligations under each Plan is in compliance in all material respects with (based on the applicable provisions assumptions used for purposes of ERISAStatement of Financial Accounting Standards No. 87) did not, as of the date of the most recent financial statements reflecting such amounts, exceed by more than 10% of the fair market value of the assets of such Plan.
(ou) Borrowers represent, warrant and covenant for the benefit of Lender that each Borrower has obtained all permits, licenses and other authorizations which that are required under all Environmental Laws at such Borrower’s 's facilities or in connection with the operation of its business. Except as disclosed on Schedule IVIII hereto, each Borrower and all activities of such Borrower at its facilities comply are in material compliance with all Environmental Laws and with all terms and conditions of any required permits, licenses and authorizations applicable to such Borrower with respect thereto. Except as disclosed on Schedule IVII hereto, each Borrower is also in compliance with all limitations, restrictions, conditions, standards, prohibitions, requirements, obligations, schedules and timetables contained in Environmental Laws or contained in any plan, order, decree, judgment or notice of which such Borrower is aware. Except as disclosed on Schedule IVII hereto, no Borrower is not aware of, nor has any Borrower received notice of, any events, conditions, circumstances, activities, practices, incidents, actions or plans which may materially interfere with or prevent continued compliance with, or which may give rise to any material liability under, any Environmental Laws.
(pv) All Borrowers represent, warrant and covenant for the benefit of Lender that all factual information heretofor heretofore or contemporaneously furnished by or on behalf of Borrower or any Guarantor Borrowers in writing to Lender for purposes of or in connection with this Agreement or any transaction contemplated hereby is, and all other such factual information hereafter furnished by or on behalf of Borrower or any Guarantor Borrowers to Lender will be, true and correct in every material respect on the date as of which such information is dated or certified, and such information is not, or shall not be, as the case may be, incomplete by omitting to state any material fact necessary to make such information not misleading.
(qw) None Borrowers represent, warrant and covenant for the benefit of Borrower, any Guarantor or Lender that no Borrower nor any of their its Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying “"margin stock.” " None of the proceeds of any the Loan will be used for the purpose of, or be made available by Borrower, any Guarantor Borrower or any of their its Subsidiaries in any manner to any other Person to enable or assist such Person in, directly or indirectly purchasing or carrying “"margin stock”". Terms for which meanings are provided in F.R.S. Board Regulation T, U or X or any regulations substituted therefor, as from time to time in effect, are used in this Section with such meanings.
(rx) None Borrowers represent, warrant and covenant for the benefit of Borrower, any Guarantor or Lender that no Borrower nor any of their its Subsidiaries is an “"investment company” " nor a “"company controlled by an investment company” " within the meaning of the Investment Company Act of 1940, as amended, or a “"holding company,” " or a “"subsidiary company” " of a “"holding company,” " or an “"affiliate” " of a “"holding company” " or of a “"subsidiary company” " of a “"holding company,” " within the meaning of the Public Utility Holding Company Act of 1935, as amended.
(sy) Borrowers represent, warrant and covenant for the benefit of Lender that Schedule V III hereto is an accurate and complete list of all Subsidiaries of each Borrower and each Corporate Guarantor and the respective its ownership interests therein.
(tz) Borrowers represent, warrant and covenant for the benefit of Lender that each Borrower and each Guarantor are is solvent and will not be rendered insolvent by the Loan Documents or the transactions contemplated thereby and, after giving effect to such transactions, neither no Borrower nor any Guarantor will be left with an unreasonably small amount of capital with which to engage in its business, nor does any Borrower or any Guarantor intend to incur, or believe that it has incurred, debts beyond its ability to pay as they mature. Neither No Borrower nor any Guarantor contemplates the commencement of insolvency, bankruptcy, liquidation or consolidation proceedings or the appointment of a receiver, liquidator, conservator, trustee or similar official in respect of such Borrower or any Guarantor or any of their its assets. Neither Borrower nor any Guarantor Borrowers are not entering into the transactions contemplated by the Loan Documents with any intent to hinder, delay or defraud any of Borrower’s or any Guarantor’s 's creditors.. GEFISHER 498256 13 (LOAN AGREEMENT)
Appears in 1 contract
Samples: Loan Agreement (Maritrans Inc /De/)
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER. Borrower representsmakes the following representations, warrants warranties and covenants covenants, all of which, together with the other representations and agreements of Borrower contained in this Project Loan Agreement, are relied upon by Governmental Lender, Funding Lender, Loan Servicer and Fiscal Agent and serve as a basis for the benefit undertakings of Governmental Lender, as followsLoan Servicer and Fiscal Agent contained in this Project Loan Agreement:
(a) Borrower is a corporation limited partnership duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization. Borrower is state in good standing which it has been organized and is duly licensed or qualified to transact conduct its business under the laws of the Property Jurisdiction and in each jurisdiction where every other state in which the nature of its business requires such qualification, except for those jurisdictions has full legal right, power and authority to enter into this Project Loan Agreement and the other Financing Documents, and to carry out and consummate all transactions contemplated hereby and by the other Financing Documents, and by proper action has duly authorized the execution, delivery and performance of this Project Loan Agreement and the other Financing Documents. All corporate general partners, if any, of Borrower are duly organized and in which good standing under the failure laws of their respective states of organization and are duly qualified to qualify could not reasonably be expected transact business in the Property Jurisdiction as either domestic or foreign corporations, as applicable. All partnership general partners, if any, are duly formed and in good standing under the laws of their respective states of formation and, to have a Material Adverse Effect. Borrower’s exact legal name is the extent required by the laws of the Property Jurisdiction, are duly qualified to transact business in the Property Jurisdiction as set forth on the execution page hereofeither domestic or foreign partnerships or limited liability companies, as applicable.
(b) Borrower has full the legal right, power and authority and holds all requisite governmental licenses, permits and other approvals to (i) enter into and perform its obligations under this Agreement, the Note and each other Loan Document to which it is a party and to own its propertyproperties and assets, including, but not limited to, the Project, (ii) use to carry on its business as now being conducted and Borrower contemplates it to be conducted with respect to the Collateral Project and (iii) conduct to execute and deliver, carry out its business substantially as currently conducted by itobligations under, except as to clause (iii) where and close the failure to hold such licenses, permits and approvals could not reasonably be expected to have a Material Adverse Effect.
(c) This Agreement, transactions provided for in the Note and the other Loan Financing Documents to which it is a party.
(c) Each of the Financing Documents to which Xxxxxxxx is a party have has been duly authorized, executed and delivered by Borrower Xxxxxxxx and, assuming due authorization, execution and constitute delivery by the other parties thereto, constitutes the legal, valid and binding obligations obligation of Borrower, enforceable against Borrower in accordance with their its respective terms, except subject to the extent limited by bankruptcy, reorganization or insolvency, reorganization, moratorium and other similar laws affecting the rights of creditors generally and general application relating to or effecting the enforcement principles of creditors’ rightsequity.
(d) The No authorization, consent, approval, order, registration, declaration or withholding of objection on the part of, or filing of or with any governmental authority, other than those already obtained or those necessary to be obtained during the course of construction of the Project, is required for the due execution and delivery or approval, as the case may be, by Xxxxxxxx of, and the performance by Borrower of its obligations under, the Financing Documents to which it is a party.
(e) None of the execution and delivery of this Agreement, the Note and the other Loan DocumentsFinancing Documents to which Borrower is a party, the consummation of the transactions contemplated hereby and thereby and provided for in the Financing Documents, or Borrower’s fulfillment of or compliance with the terms and conditions hereof and thereof do not and of the Financing Documents (i) violates or will not violate any law, rulerule or regulation of any governmental agency or body having jurisdiction over Borrower, regulation or any of its activities or properties, or any judgment, order, conflict with writ, injunction or result in a breach of decree to which Borrower is subject, or any of the terms organizational or conditions other governing documents of Borrower, (ii) conflicts or will conflict with any Organizational Document of Borrower agreement, instrument or of any corporate restriction or of any agreement or instrument license to which Borrower is now a party and do not and or by which it or any of its properties or assets is bound or results or will not result in a breach of, or constitutes or will constitute a default under (with due notice or the passage of time or both) under, any of the foregoing such agreement, instrument or license, (iii) contravenes or will contravene any such law, rule or regulation or any such judgment, order, writ, injunction or decree, or (iv) result in the creation or imposition of any lienslien, charges charge or encumbrances encumbrance of any nature whatsoever upon any of the property or assets of Borrower other than Liens in favor of Lender.
(e) The authorization, execution, delivery and performance of this Agreement, the Note and the other Loan Documents by Borrower do not require submission to, approval of, or other action by any governmental authority or agencyBorrower, except for such action that has been duly obtained any lien, charge or taken and is in full force and effect.
(f) Each encumbrance permitted under the terms of the Loan Documents that purports to create a security interest creates a valid first priority Lien on the Collateral subject only to Permitted Liens, securing the payment and performance of the ObligationsFinancing Documents.
(g) Except as disclosed on Schedule IV, there is no action, suit, proceeding, claim, inquiry or investigation, at law or in equity, before or by any court, regulatory agency, public board or body pending or, to the best of Borrower’s knowledge, threatened against or affecting Borrower, any Guarantor or any of their Subsidiaries, challenging Borrower’s or any Guarantor’s authority to enter into this Agreement, the Note or any of the other Loan Documents or any other action wherein an unfavorable ruling or finding would adversely affect the enforceability of this Agreement, the Note or any of the other Loan Documents, or could reasonably be expected to have a Material Adverse Effect.
(h) Borrower has good, marketable and insurable title in fee simple to all Collateral that is real property, and good title to all other Collateral, in each case free and clear of all Liens except for Permitted Liens. With respect to Collateral that is personal property, Borrower owns/leases the real property where the Collateral will be located, subject to no Liens of any kind except for Permitted Liens, and has provided a complete and accurate legal description and the exact name of the fee simple owner of record of such real property, and no person other than Borrower is in occupancy or possession of any portion of such real property.
(i) Borrower is in compliance with all laws, rules, regulations and orders of governmental authorities applicable to it and its properties except to the extent the non-compliance with which could not reasonably be expected to have a Material Adverse Effect.
(j) Borrower has heretofore furnished to Lender the Financial Statements and those statements fairly present the financial condition of Borrower and such Guarantor, if any, on the dates thereof and the results of its operations and cash flows for the periods then ended and were prepared in accordance with GAAP. Since the date of the most recent financial statements, there has been no material adverse change in the business, properties or condition (financial or otherwise) of Borrower or any Guarantor. Except as disclosed in the Financial Statements or the notes thereto and for the items disclosed on Schedule IV, neither Borrower nor any Guarantor, as of each Closing Date, has or will have any liabilities, contingent or otherwise, that could reasonably be expected to have a Material Adverse Effect.
(k) Borrower has paid or caused to be paid, and will pay, to the proper authorities when due all federal, state and local taxes required to be withheld by it. Borrower has filed, and will pay, all federal, state and local tax returns which are required to be filed, and Borrower has paid or caused to be paid to the respective taxing authorities all taxes as shown on said returns or on any assessment received by it to the extent such taxes have become due, except any such taxes or charges which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP have been set aside on its books.
(l) For purposes of Section 9-307 of the UCC, Borrower is and will remain located in the Borrower’s State. Borrower’s residence for federal income tax purposes is located at its Notice Address specified in Schedule I. Borrower has authorized Lender to file financing statements that are sufficient when filed to perfect the security interests created pursuant to this Agreement and the other Loan Documents. When such financing statements are filed in the offices noted therein, Lender will have a valid and perfected security interest in the Collateral that constitutes personal property, subject to no other Lien other than Permitted Liens.
(m) None of the Collateral constitutes a replacement of, substitution for or accessory to any property of Borrower subject to a lien of any kind.
(n) No ERISA Event has occurred or is reasonably likely to occur with respect to any Plan, and each Plan is in compliance in all material respects with the applicable provisions of ERISA.
(o) Borrower has obtained all permits, licenses and other authorizations which are required under all Environmental Laws at Borrower’s facilities or in connection with the operation of its business. Except as disclosed on Schedule IV, Borrower and all activities of Borrower at its facilities comply with all Environmental Laws and with all terms and conditions of any required permits, licenses and authorizations applicable to Borrower with respect thereto. Except as disclosed on Schedule IV, Borrower is also in compliance with all limitations, restrictions, conditions, standards, prohibitions, requirements, obligations, schedules and timetables contained in Environmental Laws or contained in any plan, order, decree, judgment or notice of which Borrower is aware. Except as disclosed on Schedule IV, Borrower is not aware of, nor has Borrower received notice of, any events, conditions, circumstances, activities, practices, incidents, actions or plans which may interfere with or prevent continued compliance with, or which may give rise to any liability under, any Environmental Laws.
(p) All factual information heretofor or contemporaneously furnished by or on behalf of Borrower or any Guarantor in writing to Lender for purposes of or in connection with this Agreement or any transaction contemplated hereby is, and all other such factual information hereafter furnished by or on behalf of Borrower or any Guarantor to Lender will be, true and correct in every material respect on the date as of which such information is dated or certified, and such information is not, or shall not be, as the case may be, incomplete by omitting to state any material fact necessary to make such information not misleading.
(q) None of Borrower, any Guarantor or any of their Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying “margin stock.” None of the proceeds of any Loan will be used for the purpose of, or be made available by Borrower, any Guarantor or any of their Subsidiaries in any manner to any other Person to enable or assist such Person in, directly or indirectly purchasing or carrying “margin stock”. Terms for which meanings are provided in F.R.S. Board Regulation T, U or X or any regulations substituted therefor, as from time to time in effect, are used in this Section with such meanings.
(r) None of Borrower, any Guarantor or any of their Subsidiaries is an “investment company” nor a “company controlled by an investment company” within the meaning of the Investment Company Act of 1940, as amended, or a “holding company,” or a “subsidiary company” of a “holding company,” or an “affiliate” of a “holding company” or of a “subsidiary company” of a “holding company,” within the meaning of the Public Utility Holding Company Act of 1935, as amended.
(s) Schedule V is an accurate and complete list of all Subsidiaries of Borrower and each Corporate Guarantor and the respective ownership interests therein.
(t) Borrower and each Guarantor are solvent and will not be rendered insolvent by the Loan Documents or the transactions contemplated thereby and, after giving effect to such transactions, neither Borrower nor any Guarantor will be left with an unreasonably small amount of capital with which to engage in its business, nor does Borrower or any Guarantor intend to incur, or believe that it has incurred, debts beyond its ability to pay as they mature. Neither Borrower nor any Guarantor contemplates the commencement of insolvency, bankruptcy, liquidation or consolidation proceedings or the appointment of a receiver, liquidator, conservator, trustee or similar official in respect of Borrower or any Guarantor or any of their assets. Neither Borrower nor any Guarantor are entering into the transactions contemplated by the Loan Documents with any intent to hinder, delay or defraud any of Borrower’s or any Guarantor’s creditors.
Appears in 1 contract
Samples: Project Loan Agreement
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER. In order to induce Agent and Lenders to enter into this Amendment, Borrower represents, warrants and covenants for the benefit of Lender, as followsto Agent and each Lender that:
(a) Borrower is The representations and warranties contained in Section 4.1 of the Original Agreement are true and correct at and as of the time of the effectiveness hereof, except to the extent that such representations and warranties are made in the Original Agreement only in reference to a corporation duly organized, validly existing specific date and in good standing except to the extent that the facts upon which such representations are based have been changed by the extension of credit under the laws of the jurisdiction of its organization. Borrower is in good standing and is duly licensed or qualified to transact business in each jurisdiction where the nature of its business requires such qualification, except for those jurisdictions in which the failure to qualify could not reasonably be expected to have a Material Adverse Effect. Borrower’s exact legal name is as set forth on the execution page hereofCredit Agreement.
(b) Borrower has full power is duly authorized to execute and authority deliver this Amendment, the Renewal Notes and holds all requisite governmental licenses, permits each other Amendment Document and other approvals is and will continue to (i) enter into be duly authorized to borrow and to perform its obligations under the Credit Agreement. Borrower has duly taken all corporate action necessary to authorize the execution and delivery of this AgreementAmendment, the Note Renewal Notes and each other Loan Document to which it is a party Amendment Documents and to own its property, (ii) use authorize the Collateral performance of the obligations hereunder and (iii) conduct its business substantially as currently conducted by it, except as to clause (iii) where the failure to hold such licenses, permits and approvals could not reasonably be expected to have a Material Adverse Effectthereunder.
(c) This Agreement, the Note and the other Loan Documents to which it is a party have been duly authorized, executed and delivered by Borrower and constitute legal, valid and binding obligations of Borrower, enforceable against Borrower in accordance with their respective terms, except to the extent limited by bankruptcy, reorganization or other laws of general application relating to or effecting the enforcement of creditors’ rights.
(d) The execution and delivery by Borrower of this AgreementAmendment, the Note Renewal Notes and each other Amendment Document and the other Loan Documents, performance by it of its obligations hereunder and under the Credit Agreement and the consummation of the transactions contemplated hereby and thereby and the fulfillment of the terms and conditions hereof and thereof do not and will not violate conflict with any provision of law, rulestatute, rule or regulation or order, conflict with or result in a breach of any of the terms articles of incorporation or conditions of any Organizational Document bylaws of Borrower or of any corporate restriction material agreement, judgment, license, order or of any agreement permit applicable to or instrument to which binding upon Borrower is now a party and do not and will not constitute a default under any of the foregoing or result in the creation or imposition of any lienslien, charges charge or encumbrances encumbrance upon any assets or properties of Borrower, except as expressly contemplated in the Loan Documents. Except for those which have been duly obtained, no consent, approval, 58704 08037 CORP 133021 13 authorization or order of any nature upon court or governmental authority or third party is required in connection with the execution and delivery by Borrower of this Amendment, the Renewal Notes or any Amendment Document or to consummate the transactions contemplated hereby and thereby.
(d) When this Amendment, the Renewal Notes and each other Amendment Document is duly executed and delivered, each of this Amendment, the property or assets Renewal Notes, the other Amendment Documents and the Credit Agreement will be a legal and binding instrument and agreement of Borrower other than Liens Borrower, enforceable in favor accordance with its terms, except as limited by bankruptcy, insolvency and similar laws and by general principles of Lenderequity.
(e) The authorizationaudited annual Consolidated financial statements of Borrower dated as of December 31, execution, delivery and performance of this Agreement, the Note 1995 and the other Loan Documents by unaudited quarterly Consolidated financial statements of Borrower do not require submission todated as of September 30, approval of, or other action by any governmental authority or agency, except for such action that has been duly obtained or taken and is in full force and effect.
(f) Each of the Loan Documents that purports to create a security interest creates a valid first priority Lien on the Collateral subject only to Permitted Liens, securing the payment and performance of the Obligations.
(g) Except as disclosed on Schedule IV, there is no action, suit, proceeding, claim, inquiry or investigation, at law or in equity, before or by any court, regulatory agency, public board or body pending or, to the best of Borrower’s knowledge, threatened against or affecting Borrower, any Guarantor or any of their Subsidiaries, challenging Borrower’s or any Guarantor’s authority to enter into this Agreement, the Note or any of the other Loan Documents or any other action wherein an unfavorable ruling or finding would adversely affect the enforceability of this Agreement, the Note or any of the other Loan Documents, or could reasonably be expected to have a Material Adverse Effect.
(h) Borrower has good, marketable and insurable title in fee simple to all Collateral that is real property, and good title to all other Collateral, in each case free and clear of all Liens except for Permitted Liens. With respect to Collateral that is personal property, Borrower owns/leases the real property where the Collateral will be located, subject to no Liens of any kind except for Permitted Liens, and has provided a complete and accurate legal description and the exact name of the fee simple owner of record of such real property, and no person other than Borrower is in occupancy or possession of any portion of such real property.
(i) Borrower is in compliance with all laws, rules, regulations and orders of governmental authorities applicable to it and its properties except to the extent the non-compliance with which could not reasonably be expected to have a Material Adverse Effect.
(j) Borrower has heretofore furnished to Lender the Financial Statements and those statements 1996 fairly present the Consolidated financial condition of Borrower and position at such Guarantor, if any, on the dates thereof and the results Consolidated statement of its operations and cash flows for the periods then ended and were prepared in accordance with GAAPending on such dates for Borrower. Copies of such financial statements have heretofore been delivered to Lender. Since the date of the most recent financial statementsSeptember 30, there has been 1996, no material adverse change has occurred in the business, properties financial condition or condition (financial businesses or otherwise) of Borrower or any Guarantor. Except as disclosed in the Financial Statements Consolidated financial condition or the notes thereto and for the items disclosed on Schedule IV, neither Borrower nor any Guarantor, as of each Closing Date, has or will have any liabilities, contingent or otherwise, that could reasonably be expected to have a Material Adverse Effect.
(k) Borrower has paid or caused to be paid, and will pay, to the proper authorities when due all federal, state and local taxes required to be withheld by it. Borrower has filed, and will pay, all federal, state and local tax returns which are required to be filed, and Borrower has paid or caused to be paid to the respective taxing authorities all taxes as shown on said returns or on any assessment received by it to the extent such taxes have become due, except any such taxes or charges which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP have been set aside on its books.
(l) For purposes of Section 9-307 of the UCC, Borrower is and will remain located in the Borrower’s State. Borrower’s residence for federal income tax purposes is located at its Notice Address specified in Schedule I. Borrower has authorized Lender to file financing statements that are sufficient when filed to perfect the security interests created pursuant to this Agreement and the other Loan Documents. When such financing statements are filed in the offices noted therein, Lender will have a valid and perfected security interest in the Collateral that constitutes personal property, subject to no other Lien other than Permitted Liens.
(m) None of the Collateral constitutes a replacement of, substitution for or accessory to any property of Borrower subject to a lien of any kind.
(n) No ERISA Event has occurred or is reasonably likely to occur with respect to any Plan, and each Plan is in compliance in all material respects with the applicable provisions of ERISA.
(o) Borrower has obtained all permits, licenses and other authorizations which are required under all Environmental Laws at Borrower’s facilities or in connection with the operation of its business. Except as disclosed on Schedule IV, Borrower and all activities of Borrower at its facilities comply with all Environmental Laws and with all terms and conditions of any required permits, licenses and authorizations applicable to Borrower with respect thereto. Except as disclosed on Schedule IV, Borrower is also in compliance with all limitations, restrictions, conditions, standards, prohibitions, requirements, obligations, schedules and timetables contained in Environmental Laws or contained in any plan, order, decree, judgment or notice of which Borrower is aware. Except as disclosed on Schedule IV, Borrower is not aware of, nor has Borrower received notice of, any events, conditions, circumstances, activities, practices, incidents, actions or plans which may interfere with or prevent continued compliance with, or which may give rise to any liability under, any Environmental Laws.
(p) All factual information heretofor or contemporaneously furnished by or on behalf of Borrower or any Guarantor in writing to Lender for purposes of or in connection with this Agreement or any transaction contemplated hereby is, and all other such factual information hereafter furnished by or on behalf of Borrower or any Guarantor to Lender will be, true and correct in every material respect on the date as of which such information is dated or certified, and such information is not, or shall not be, as the case may be, incomplete by omitting to state any material fact necessary to make such information not misleading.
(q) None businesses of Borrower, any Guarantor or any of their Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying “margin stock.” None of the proceeds of any Loan will be used for the purpose of, or be made available by Borrower, any Guarantor or any of their Subsidiaries in any manner to any other Person to enable or assist such Person in, directly or indirectly purchasing or carrying “margin stock”. Terms for which meanings are provided in F.R.S. Board Regulation T, U or X or any regulations substituted therefor, as from time to time in effect, are used in this Section with such meanings.
(r) None of Borrower, any Guarantor or any of their Subsidiaries is an “investment company” nor a “company controlled by an investment company” within the meaning of the Investment Company Act of 1940, as amended, or a “holding company,” or a “subsidiary company” of a “holding company,” or an “affiliate” of a “holding company” or of a “subsidiary company” of a “holding company,” within the meaning of the Public Utility Holding Company Act of 1935, as amended.
(s) Schedule V is an accurate and complete list of all Subsidiaries of Borrower and each Corporate Guarantor and the respective ownership interests therein.
(t) Borrower and each Guarantor are solvent and will not be rendered insolvent by the Loan Documents or the transactions contemplated thereby and, after giving effect to such transactions, neither Borrower nor any Guarantor will be left with an unreasonably small amount of capital with which to engage in its business, nor does Borrower or any Guarantor intend to incur, or believe that it has incurred, debts beyond its ability to pay as they mature. Neither Borrower nor any Guarantor contemplates the commencement of insolvency, bankruptcy, liquidation or consolidation proceedings or the appointment of a receiver, liquidator, conservator, trustee or similar official in respect of Borrower or any Guarantor or any of their assets. Neither Borrower nor any Guarantor are entering into the transactions contemplated by the Loan Documents with any intent to hinder, delay or defraud any of Borrower’s or any Guarantor’s creditors.
Appears in 1 contract
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER. The Borrower representshereby represents and warrants to, warrants and covenants for and agrees with, the benefit Senior Creditor on the date hereof and at all times hereafter until the earlier to occur of Lender(i) the indefeasible payment and performance in full of all of the Senior Debt and the termination of all of the Senior Loan Documents or (ii) the date of termination of this Agreement pursuant to Section 32 hereof (the "Termination Date"), as followsthat:
(a) the Borrower is a corporation duly organized, validly existing has not relied on and will not rely on any representation or information of any nature made by or received from the Senior Creditor relative to the Borrower or the Senior Debt in good standing entering into and performing its obligations under the laws of the jurisdiction of its organization. Borrower is in good standing this Agreement and is duly licensed or qualified to transact business in each jurisdiction where the nature of its business requires such qualification, except for those jurisdictions in which the failure to qualify could not reasonably be expected to have a Material Adverse Effect. Borrower’s exact legal name is as set forth on the execution page hereof.any Subordinated Loan Document;
(b) no consent or authorization of, filing with, or other act by or in respect of, any Governmental Authority or any other Person is or will be required on the part of or with respect to the Borrower has full power and authority and holds all requisite governmental licensesin connection with the execution, permits and other approvals to (i) enter into and perform its obligations under delivery, performance, validity or enforceability of this Agreement, the Note and each other Loan Document to which it is a party and to own its property, (ii) use the Collateral and (iii) conduct its business substantially as currently conducted by it, except as to clause (iii) where the failure to hold such licenses, permits and approvals could not reasonably be expected to have a Material Adverse Effect.;
(c) This the Borrower has no knowledge of, and has not authorized or consented to, any sale, assignment or transfer by the Subordinated Creditor of any of the Subordinated Debt or any Subordinated Loan Document, or any right, title or interest therein, to any other Person in violation of this Agreement;
(d) attached hereto as Exhibits A, B and C are true, correct and complete executed copies of the Subordinated Note, the Note Purchase Agreement and the other Loan Documents to which it is a party Letter Agreements, and none of the Subordinated Note, the Purchase Agreement nor the Letter Agreements have been duly authorizedamended, executed restated, replaced or modified as of the date hereof;
(e) the Borrower has not made, and delivered by Borrower the Subordinated Creditor has not collected, accepted or received, any payment or distribution of any kind on, in satisfaction of or with respect to any of the Subordinated Debt at any time prior to the Subordinated Loan Maturity Date or otherwise in violation of this Agreement;
(f) as of the date hereof, no default, event of default, or other similar event or circumstance has occurred and constitute legal, valid and binding obligations of Borrower, enforceable against Borrower in accordance with their respective terms, is continuing under any Subordinated Loan Document; and
(g) except to the extent limited by bankruptcy, reorganization or other laws of general application relating to or effecting expressly permitted under the enforcement of creditors’ rights.
(d) The execution and delivery of this Senior Credit Agreement, the Note and the other Loan Documents, the consummation of the transactions contemplated hereby and thereby and the fulfillment of the terms and conditions hereof and thereof do not and will not violate any law, rule, regulation or order, conflict with or result in a breach of any of the terms or conditions of any Organizational Document of Borrower or of any corporate restriction or of any agreement or instrument to which Borrower is now a party and do not and will not constitute a default under any of the foregoing or result in the creation or imposition of any liens, charges or encumbrances of any nature upon any of the property or assets of Borrower other than Liens in favor of Lender.
(e) The authorization, execution, delivery and performance of this Agreement, the Note and the other Loan Documents by Borrower do not require submission to, approval of, or other action by any governmental authority or agency, except for such action that has been duly obtained or taken and is in full force and effect.
(f) Each of the Loan Documents that purports to create a security interest creates a valid first priority Lien on the Collateral subject only to Permitted Liens, securing the payment and performance of the Obligations.
(g) Except as disclosed on Schedule IV, there is no action, suit, proceeding, claim, inquiry or investigation, at law or in equity, before or by any court, regulatory agency, public board or body pending or, to the best of Borrower’s knowledge, threatened against or affecting Borrower, any Guarantor or any of their Subsidiaries, challenging Borrower’s or any Guarantor’s authority to enter into this Agreement, the Note or any of the other Loan Documents or any other action wherein an unfavorable ruling or finding would adversely affect the enforceability of this Agreement, the Note or any of the other Loan Documents, or could reasonably be expected to have a Material Adverse Effect.
(h) Borrower has good, marketable and insurable title in fee simple to all Collateral that is real property, and good title to all other Collateral, in each case free and clear of all Liens except for Permitted Liens. With respect to Collateral that is personal property, Borrower owns/leases the real property where the Collateral will be located, subject to no Liens of any kind except for Permitted Liens, and has provided a complete and accurate legal description and the exact name of the fee simple owner of record of such real property, and no person other than Borrower is in occupancy or possession of any portion of such real property.
(i) the Borrower is in compliance with all lawsshall not enter into any other agreements, rulesinstruments or documents that cause the Borrower to make, regulations and orders of governmental authorities applicable to it and its properties incur, assume, or otherwise become liable for any other Subordinated Debt (except to the extent the non-compliance with which could not reasonably be expected otherwise expressly permitted under this Agreement) that evidence, govern, document, or otherwise relate to have a Material Adverse Effect.
(j) Borrower has heretofore furnished to Lender the Financial Statements and those statements fairly present the financial condition of Borrower and such Guarantor, if any, on the dates thereof and the results of its operations and cash flows for the periods then ended and were prepared in accordance with GAAP. Since the date of the most recent financial statements, there has been no material adverse change in the business, properties or condition (financial or otherwise) of Borrower or any Guarantor. Except as disclosed in the Financial Statements or the notes thereto and for the items disclosed on Schedule IV, neither Borrower nor any Guarantor, as of each Closing Date, has or will have any liabilities, contingent or otherwise, that could reasonably be expected to have a Material Adverse Effect.
(k) Borrower has paid or caused to be paidSubordinated Debt, and will pay, to (ii) the proper authorities when due all federal, state and local taxes required to be withheld by it. Borrower has filed, and will pay, all federal, state and local tax returns which are required to be filed, and Borrower has paid or caused to be paid to the respective taxing authorities all taxes as shown on said returns or on any assessment received by it to the extent such taxes have become due, except any such taxes or charges which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP have been set aside on its books.
(l) For purposes of Section 9-307 of the UCC, Borrower is and will remain located in the Borrower’s State. Borrower’s residence for federal income tax purposes is located at its Notice Address original principal amount specified in Schedule I. Borrower has authorized Lender to file financing statements that are sufficient when filed to perfect the security interests created pursuant to this Agreement such Subordinated Note, together with any accrued and the other Loan Documents. When such financing statements are filed in the offices noted therein, Lender will have a valid and perfected security unpaid interest in the Collateral that constitutes personal property, subject to no other Lien other than Permitted Liens.
(m) None of the Collateral constitutes a replacement of, substitution for or accessory to any property of Borrower subject to a lien of any kind.
(n) No ERISA Event has occurred or is reasonably likely to occur with respect to any Plan, and each Plan is in compliance in all material respects with the applicable provisions of ERISA.
(o) Borrower has obtained all permits, licenses and other authorizations which are required under all Environmental Laws at Borrower’s facilities or in connection with the operation of its business. Except as disclosed on Schedule IV, Borrower thereon and all activities of Borrower at its facilities comply with all Environmental Laws and with all terms and conditions of any required permits, licenses and authorizations applicable to Borrower with respect thereto. Except as disclosed on Schedule IV, Borrower is also in compliance with all limitations, restrictions, conditions, standards, prohibitions, requirementsother liabilities, obligations, schedules and timetables contained in Environmental Laws or contained in any planindemnities, ordercosts, decree, judgment or notice of which Borrower is aware. Except as disclosed on Schedule IV, Borrower is not aware of, nor has Borrower received notice of, any events, conditions, circumstances, activities, practices, incidents, actions or plans which may interfere with or prevent continued compliance with, or which may give rise to any liability under, any Environmental Laws.
(p) All factual information heretofor or contemporaneously furnished by or on behalf of Borrower or any Guarantor in writing to Lender for purposes of or in connection with this Agreement or any transaction contemplated hereby isfees, and all other such factual information hereafter furnished by or on behalf of Borrower or any Guarantor to Lender will be, true and correct in every material respect on the date as of which such information is dated or certified, and such information is not, or shall not be, as the case may be, incomplete by omitting to state any material fact necessary to make such information not misleading.
(q) None of Borrower, any Guarantor or any of their Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying “margin stock.” None of the proceeds expenses of any Loan will be used for the purpose of, or be made available by Borrower, kind incurred at any Guarantor or any of their Subsidiaries in any manner to any other Person to enable or assist such Person in, directly or indirectly purchasing or carrying “margin stock”. Terms for which meanings are provided in F.R.S. Board Regulation T, U or X or any regulations substituted therefor, as time and from time to time by the Borrower to the Subordinated Creditor under the Subordinated Loan Documents as in effecteffect on the date hereof, are used in this Section with such meanings.
(r) None of Borrower, any Guarantor or any of their Subsidiaries is an “investment company” nor a “company controlled by an investment company” within the meaning shall comprise and represent all of the Investment Company Act Subordinated Debt of 1940, as amended, any kind now or a “holding company,” or a “subsidiary company” of a “holding company,” or an “affiliate” of a “holding company” or of a “subsidiary company” of a “holding company,” within the meaning of the Public Utility Holding Company Act of 1935, as amended.
(s) Schedule V is an accurate and complete list of all Subsidiaries of Borrower and each Corporate Guarantor and the respective ownership interests therein.
(t) Borrower and each Guarantor are solvent and will not be rendered insolvent hereafter owing by the Loan Documents or Borrower to the transactions contemplated thereby and, after giving effect to such transactions, neither Borrower nor any Guarantor will be left with an unreasonably small amount of capital with which to engage in its business, nor does Borrower or any Guarantor intend to incur, or believe that it has incurred, debts beyond its ability to pay as they mature. Neither Borrower nor any Guarantor contemplates the commencement of insolvency, bankruptcy, liquidation or consolidation proceedings or the appointment of a receiver, liquidator, conservator, trustee or similar official in respect of Borrower or any Guarantor or any of their assets. Neither Borrower nor any Guarantor are entering into the transactions contemplated by the Loan Documents with any intent to hinder, delay or defraud any of Borrower’s or any Guarantor’s creditorsSubordinated Creditor.
Appears in 1 contract
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER. Borrower hereby re-makes each and every representation and warranty of Borrower to Lender contained in the Note and the Mortgage and the other Original Loan Documents, except for the representations in Section 3.3(a), Section 3.3(b), Section 3.3(c), Section 3.3(d) and Section 3.3(e) of the Mortgage, and Borrower further represents, warrants and covenants for the benefit of Lender, to Lender as follows:
(a) Borrower is a corporation duly organized, validly existing and in good standing under the laws All of the jurisdiction representations and warranties (i) added to Section 3.3 of its organization. Borrower is the Mortgage pursuant to Section 4 of this Agreement and (ii) contained in good standing that certain Organizational Certificate (as defined on Exhibit B) are true, complete and is duly licensed or qualified to transact business in each jurisdiction where correct as of the nature date of its business requires such qualification, except for those jurisdictions in which the failure to qualify could not reasonably be expected to have a Material Adverse Effect. Borrower’s exact legal name is as set forth on the execution page hereofthis Agreement.
(b) The consummation of the Transfer and the Assumption, and the execution, delivery, and/or performance by Borrower has full power and authority and holds all requisite governmental licenses, permits and other approvals to (i) enter into and perform its obligations under of this Agreement, the Note and each other Loan Document to which it is a party and to own its property, (ii) use the Collateral and (iii) conduct its business substantially as currently conducted by it, except as to clause (iii) where the failure to hold such licenses, permits and approvals could not reasonably be expected to have a Material Adverse Effect.
(c) This Agreement, the Note Modification Documents and the other Loan Documents to which it the Borrower is a party, and the effectiveness of any assignment of any of Borrower’s rights and interests of any kind to Lender: (i) shall not result in any breach of, or constitute a default under, any mortgage, agreement, or other instrument to which Borrower is a party or by which Borrower may be bound or affected, or Borrower’s certificate of formation or limited liability agreement; (ii) do not contravene any applicable law, regulation or order; (iii) require no authorization, approval, consent or other action by, and no notice to or filing with, any court, any governmental authority or regulatory body; (iv) are within the power and authority of Borrower and have been duly authorizedauthorized by all necessary action and will not violate any provision of the certificate of formation, executed operating agreement or other organizational documents of Borrower; (v) shall not contravene any contractual or other restriction binding on or affecting Borrower, and delivered by (vi) shall not result in or require the creation of any lien, security interest, other charge or encumbrance (other than pursuant hereto) upon or with respect to any of the properties of Borrower.
(c) This Agreement and the other Loan Documents to which Borrower and constitute legalis a party shall, when delivered, be valid and binding obligations of Borrower, Borrower enforceable against Borrower in accordance with their respective terms, except to the extent as limited by equitable principles and bankruptcy, reorganization or other insolvency and similar laws of general application relating to or effecting the enforcement of affecting creditors’ rights.
(d) This Agreement and the other Loan Documents collectively grant to Lender a valid and enforceable first priority security conveyance of and security interest in the Property, subject only to the Permitted Exceptions. Without limiting the foregoing provisions of this Section 3(d), the Mortgage, as modified by this Agreement, is a valid and enforceable first lien and security interest on the Property, subject only to the Permitted Exceptions.
(e) Borrower is, and notwithstanding the Transfer and the Assumption, shall at all times continue to be, a “non-foreign person” within the meaning of Sections 1445 and 7701 of the United States Internal Revenue Code of 1986, as amended, and the regulations issued thereunder.
(f) Borrower has no set-offs, offsets, counterclaims, defenses or other causes of action against Lender or any of Lender’s officers, agents or employees arising out of the indebtedness evidenced by the Note, any action taken or not taken by Lender or any of Lender’s officers, agents or employees with respect to the Loan or the Loan Documents, the Transfer, the Assumption, or any modification of the Original Loan Documents, and, to the extent any such set-offs, counterclaims, defenses or other causes of action may exist, whether known or unknown, such items are waived by Borrower. Borrower expressly disclaims any reliance on any oral representation made or allegedly made by Lender or any of its officers, agents or employees with respect to the Loan, this Agreement or any of the other Loan Documents.
(g) There are no pending or, to Borrower’s knowledge, threatened litigation, investigations, actions, suits or proceedings (including, without limitation, condemnation proceedings) at law, in equity or before or by any court, governmental or quasi-governmental authorities, arbitrator or other authority that, if determined adversely, could affect Borrower, the Property, the validity or enforceability of the Note (as modified by this Agreement), the Mortgage (as modified by this Agreement) or any of the other Loan Documents or the priority of the lien thereof. Borrower is not in default with respect to any order, writ, injunction, decree or demand of any court or governmental authorities.
(h) Any brokerage commissions and fees due in connection with the Transfer and/or the Assumption have been paid in full, and any such commissions and fees coming due in the future will be promptly paid or caused to be paid by Borrower. Borrower hereby agrees to indemnify, defend and hold harmless Lender from any and all liability, claims, demands, actions and causes of action whatsoever arising out of or relating to the claim of any Person for any brokerage commissions and fees, including, without limitation, Lender’s attorneys’ fees and expenses, and costs and expenses incurred by Lender in investigating, preparing or defending against any litigation or claim, action, suit, proceeding or demand of any kind or character regarding any brokerage commissions and fees due and payable by reason of the Transfer and/or the Assumption.
(i) All state or local mortgage taxes, intangible taxes, stamp taxes and other fees or taxes (including customary per-page or document filing and recording fees imposed by law) required to be paid in the State of New York (including, without limitation, the City of Port Chester, New York, County of Westchester, New York and any other political subdivision of the State of New York) in connection with the Transfer, the Assumption, or the execution, delivery, filing, or recording of this Agreement or any other Loan Document have been or will be paid by Borrower upon the recording of this Agreement. Borrower hereby agrees to indemnify, defend and hold harmless Lender from any and all liability, claims, demands, actions and causes of action whatsoever arising out of or relating to the claim of any Person for any such tax or fee, including, without limitation, Lender’s attorneys’ fees and expenses, and costs and expenses incurred by Lender in investigating, preparing or defending against any litigation or claim, action, suit, proceeding or demand of any kind or character related thereto.
(j) No Default or Event of Default exists under any of the Loan Documents.
(k) The Transfer, the Assumption and the execution of this Agreement and the other Loan Modification Documents have been duly authorized by all necessary corporate, partnership, limited liability company or other action on the part of Borrower, the other Borrowers, Guarantor and the other entities set forth on the organizational chart of Borrower attached to the Organizational Certificate, and the individuals who executed this Agreement have been authorized to execute this Agreement on behalf of Borrower and Guarantor. Borrower has obtained all consents and approvals required in connection with the Transfer, the Assumption and the execution and delivery of this Agreement, the Note Agreement and the other Loan Documents, Modification Documents and the consummation performance of the transactions contemplated hereby Note and thereby and the fulfillment of the terms and conditions hereof and thereof do not and will not violate any lawMortgage, rule, regulation or order, conflict with or result in a breach of any of the terms or conditions of any Organizational Document of Borrower or of any corporate restriction or of any agreement or instrument to which Borrower is now a party and do not and will not constitute a default under any of the foregoing or result in the creation or imposition of any liens, charges or encumbrances of any nature upon any of the property or assets of Borrower other than Liens in favor of Lender.
(e) The authorization, execution, delivery and performance of as modified by this Agreement, the Note and the other Loan Documents by Borrower do not require submission toModification Documents.
(l) No portion of the Property is subject to any liens, approval ofencumbrances, security interests, or other action by any governmental authority or agencyclaims whatsoever, except for such action the lien of the Loan Documents and except insofar as the Property may be encumbered by the Permitted Exceptions, any rights of tenants under their respective Leases or any municipal tax liens not yet due and payable.
(m) Borrower currently complies with ERISA. Neither the Transfer nor the Assumption, nor the exercise by Lender of any of Lender’s rights under the Loan Documents constitutes, or will constitute, a non-exempt, prohibited transaction under ERISA as with respect to Borrower.
(n) Borrower and each of the other Borrowers, as applicable, is in compliance with all of the covenants, obligations, representations and warranties set forth in that has been duly obtained or taken certain (i) Reserve Agreement (Initial TI/LC Reserve), dated as of March 8, 2011, among M. Xxxxxx Xxxxxxx & Company, Inc., a Delaware corporation (“Servicer”), Borrower, 15 Executive Borrower, 470 Bridgeport Borrower, 950 Bridgeport Borrower and is Lender (the “Initial TI Reserve Agreement”), (ii) Reserve Agreement (Ongoing Reserve), dated as of March 8, 2011, among Borrowers, Lender and Servicer (the “Ongoing Reserve Agreement”), and (iii) Reserve Agreement (Earnout Reserve), dated as of March 8, 2011, among Borrowers, Lender and Servicer (the “Earnout Reserve Agreement”; collectively with the Initial TI Reserve Agreement and the Ongoing Reserve Agreement, the “Reserve Agreements”), and all of the covenants, obligations, representations and warranties set forth in the Reserve Agreements are in full force and effect.
(f) Each of the Loan Documents that purports to create a security interest creates a valid first priority Lien on the Collateral subject only to Permitted Liens, securing the payment and performance of the Obligations.
(g) Except as disclosed on Schedule IV, there is no action, suit, proceeding, claim, inquiry or investigation, at law or in equity, before or by any court, regulatory agency, public board or body pending or, to the best of Borrower’s knowledge, threatened against or affecting Borrower, any Guarantor or any of their Subsidiaries, challenging Borrower’s or any Guarantor’s authority to enter into this Agreement, the Note or any of the other Loan Documents or any other action wherein an unfavorable ruling or finding would adversely affect the enforceability of this Agreement, the Note or any of the other Loan Documents, or could reasonably be expected to have a Material Adverse Effect.
(h) Borrower has good, marketable and insurable title in fee simple to all Collateral that is real property, and good title to all other Collateral, in each case free and clear of all Liens except for Permitted Liens. With respect to Collateral that is personal property, Borrower owns/leases the real property where the Collateral will be located, subject to no Liens of any kind except for Permitted Liens, and has provided a complete and accurate legal description and the exact name of the fee simple owner of record of such real property, and no person other than Borrower is in occupancy or possession of any portion of such real property.
(i) Borrower is in compliance with all laws, rules, regulations and orders of governmental authorities applicable to it and its properties except to the extent the non-compliance with which could not reasonably be expected to have a Material Adverse Effect.
(j) Borrower has heretofore furnished to Lender the Financial Statements and those statements fairly present the financial condition of Borrower and such Guarantor, if any, on the dates thereof and the results of its operations and cash flows for the periods then ended and were prepared in accordance with GAAP. Since the date of the most recent financial statements, there has been no material adverse change in the business, properties or condition (financial or otherwise) of Borrower or any Guarantor. Except as disclosed in the Financial Statements or the notes thereto and for the items disclosed on Schedule IV, neither Borrower nor any Guarantor, as of each Closing Date, has or will have any liabilities, contingent or otherwise, that could reasonably be expected to have a Material Adverse Effect.
(k) Borrower has paid or caused to be paid, and will pay, to the proper authorities when due all federal, state and local taxes required to be withheld by it. Borrower has filed, and will pay, all federal, state and local tax returns which are required to be filed, and Borrower has paid or caused to be paid to the respective taxing authorities all taxes as shown on said returns or on any assessment received by it to the extent such taxes have become due, except any such taxes or charges which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP have been set aside on its books.
(l) For purposes of Section 9-307 of the UCC, Borrower is and will remain located in the Borrower’s State. Borrower’s residence for federal income tax purposes is located at its Notice Address specified in Schedule I. Borrower has authorized Lender to file financing statements that are sufficient when filed to perfect the security interests created pursuant to this Agreement and the other Loan Documents. When such financing statements are filed in the offices noted therein, Lender will have a valid and perfected security interest in the Collateral that constitutes personal property, subject to no other Lien other than Permitted Liens.
(m) None of the Collateral constitutes a replacement of, substitution for or accessory to any property of Borrower subject to a lien of any kind.
(n) No ERISA Event has occurred or is reasonably likely to occur with respect to any Plan, and each Plan is in compliance in all material respects with the applicable provisions of ERISA.
(o) Borrower has obtained all permits, licenses and other authorizations which are required under all Environmental Laws at Borrower’s facilities or in connection with the operation of its business. Except as disclosed on Schedule IV, Borrower and all activities of Borrower at its facilities comply with all Environmental Laws and with all terms and conditions of any required permits, licenses and authorizations applicable to Borrower with respect thereto. Except as disclosed on Schedule IV, Borrower is also in compliance with all limitations, restrictions, conditions, standards, prohibitions, requirements, obligations, schedules and timetables contained in Environmental Laws or contained in any plan, order, decree, judgment or notice of which Borrower is aware. Except as disclosed on Schedule IV, Borrower is not aware of, nor has Borrower received notice of, any events, conditions, circumstances, activities, practices, incidents, actions or plans which may interfere with or prevent continued compliance with, or which may give rise to any liability under, any Environmental Laws.
(p) All factual information heretofor or contemporaneously furnished by or on behalf of Borrower or any Guarantor in writing to Lender for purposes of or in connection with this Agreement or any transaction contemplated hereby is, and all other such factual information hereafter furnished by or on behalf of Borrower or any Guarantor to Lender will be, true and correct in every material respect on the date as of which such information is dated or certified, and such information is not, or shall not be, as the case may be, incomplete by omitting to state any material fact necessary to make such information not misleading.
(q) None of Borrower, any Guarantor or any of their Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying “margin stock.” None of the proceeds of any Loan will be used for the purpose of, or be made available by Borrower, any Guarantor or any of their Subsidiaries in any manner to any other Person to enable or assist such Person in, directly or indirectly purchasing or carrying “margin stock”. Terms for which meanings are provided in F.R.S. Board Regulation T, U or X or any regulations substituted therefor, as from time to time in effect, are used in this Section with such meanings.
(r) None of Borrower, any Guarantor or any of their Subsidiaries is an “investment company” nor a “company controlled by an investment company” within the meaning of the Investment Company Act of 1940, as amended, or a “holding company,” or a “subsidiary company” of a “holding company,” or an “affiliate” of a “holding company” or of a “subsidiary company” of a “holding company,” within the meaning of the Public Utility Holding Company Act of 1935, as amended.
(s) Schedule V is an accurate and complete list of all Subsidiaries of Borrower and each Corporate Guarantor and the respective ownership interests therein.
(t) Borrower and each Guarantor are solvent and will not be rendered insolvent of the other Borrowers, as applicable, has satisfied its obligations under that certain Post-Closing Side Letter, dated as of March 8, 2011, by Borrowers to Lender (the Loan Documents or the transactions contemplated thereby and, after giving effect to such transactions, neither Borrower nor any Guarantor will be left with an unreasonably small amount of capital with which to engage in its business, nor does Borrower or any Guarantor intend to incur, or believe that it has incurred, debts beyond its ability to pay as they mature. Neither Borrower nor any Guarantor contemplates the commencement of insolvency, bankruptcy, liquidation or consolidation proceedings or the appointment of a receiver, liquidator, conservator, trustee or similar official in respect of Borrower or any Guarantor or any of their assets. Neither Borrower nor any Guarantor are entering into the transactions contemplated by the Loan Documents with any intent to hinder, delay or defraud any of Borrower’s or any Guarantor’s creditors“Side Letter”).
Appears in 1 contract
Samples: Assumption, Consent and Modification Agreement (GTJ REIT, Inc.)
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER. Borrower represents, hereby represents and warrants to and covenants for and agrees with Administrative Agent with respect to itself and the benefit of Lender, as followsPledged Collateral that:
(a) Borrower is a corporation duly organizedhas all requisite power and authority to execute, validly existing deliver and in good standing under perform this Agreement and the laws of Formation Agreement and to consummate the jurisdiction of its organization. Borrower is in good standing and is duly licensed or qualified to transact business in each jurisdiction where the nature of its business requires such qualification, except for those jurisdictions in which the failure to qualify could not reasonably be expected to have a Material Adverse Effect. Borrower’s exact legal name is as set forth on the execution page hereoftransactions contemplated hereby.
(b) Borrower This Agreement has full power and authority and holds all requisite governmental licenses, permits and other approvals to (i) enter into and perform its obligations under this Agreement, the Note and each other Loan Document to which it is a party and to own its property, (ii) use the Collateral and (iii) conduct its business substantially as currently conducted by it, except as to clause (iii) where the failure to hold such licenses, permits and approvals could not reasonably be expected to have a Material Adverse Effect.
(c) This Agreement, the Note and the other Loan Documents to which it is a party have been duly authorized, executed and delivered by Borrower and constitute Borrower, is the legal, valid and binding obligations obligation of Borrower, and is enforceable against as to Borrower in accordance with their respective its terms, except subject, however, to the extent limited by bankruptcy, reorganization insolvency and other rights of creditors generally and to general principles of equity.
(c) The execution, delivery, observance and performance by Borrower of this Agreement and the transactions contemplated hereby will not result in any violation of the Formation Agreement or, to Borrower’s knowledge and on the date hereof, any constitutional provision, law, statute, ordinance, rule or other laws regulation applicable to it, or any judgment, decree or order applicable to it, and will not conflict with, or cause a breach of, or default under, any such term or, except for the liens created or contemplated hereby, result in the creation of general application relating any mortgage lien, pledge, charge or encumbrance upon any of its properties or assets pursuant to or effecting the enforcement of creditors’ rightsany such term.
(d) The As of the date hereof, it is not necessary for Borrower to obtain or make any (i) governmental consent, approval or authorization, registration or filing from or with any governmental authorities or (ii) consent, approval, waiver or notification of partners, creditors, lessors or other nongovernmental persons, in each case, in connection with the execution and delivery of this Agreement, the Note and the other Loan Documents, Agreement or the consummation of the transactions herein presently contemplated hereby and thereby and the fulfillment of the terms and conditions hereof and thereof do which has not and will not violate any law, rule, regulation been filed or order, conflict with or result in a breach of any of the terms or conditions of any Organizational Document of Borrower or of any corporate restriction or of any agreement or instrument to which Borrower is now a party and do not and will not constitute a default under any of the foregoing or result in the creation or imposition of any liens, charges or encumbrances of any nature upon any of the property or assets of Borrower other than Liens in favor of Lenderobtained.
(e) The authorizationBorrower is as of the date hereof (i) the sole economic, executionmanaging and voting member of Issuer, delivery (ii) the owner of 100% of the membership interests in Issuer and performance (iii) the sole owner of this Agreementall direct beneficial interests in the Pledged Collateral. Borrower owns the Pledged Collateral, the Note and the other Loan Documents by Borrower do not require submission toPledged Collateral is and shall remain, approval offree and clear of any lien, mortgage, encumbrance, charge, pledge, security interest, or claim of any kind (including, without limitation, any unconditional sale or other action title retention agreement) other than as created by any governmental authority this Agreement or agency, except for such action that has been duly obtained or taken and is in full force and effectas permitted by the Loan Agreement.
(f) Each The Equity Interests are, and Borrower covenants and agrees that it will ensure at all times that such Equity Interests remain, “securities” within the meaning of the Loan Documents UCC and, in particular, with respect to the Equity Interests that purports to create are represented by a security interest creates a valid first priority Lien on certificate or certificates, are “certificated securities” within the Collateral subject only to Permitted Liens, securing the payment and performance meaning of Section 8-102(a)(4) of the ObligationsUCC, and Borrower has taken all steps necessary to afford Administrative Agent “control” of such Equity Interests within the meaning of the UCC.
(g) Except as disclosed on Schedule IV, there is no action, suit, proceeding, claim, inquiry or investigationBorrower covenants and agrees to defend, at law or its sole cost and expense, Administrative Agent’s right, title and Security Interest in equity, before or by any court, regulatory agency, public board or body pending or, and to the best Pledged Collateral and the proceeds thereof, created pursuant hereto, against the claims and demands of Borrower’s knowledge, threatened against or affecting Borrower, any Guarantor or any of their Subsidiaries, challenging Borrower’s or any Guarantor’s authority to enter into this Agreement, the Note or any of the other Loan Documents or any other action wherein an unfavorable ruling or finding would adversely affect the enforceability of this Agreement, the Note or any of the other Loan Documents, or could reasonably be expected to have a Material Adverse Effectall Persons whomsoever.
(h) Borrower has good, marketable The Equity Interests have been duly authorized and insurable title in fee simple to all Collateral that is real property, validly issued and good title to all other Collateral, in each case free are fully paid and clear of all Liens except for Permitted Liens. With respect to Collateral that is personal property, Borrower owns/leases the real property where the Collateral will be located, subject to no Liens of any kind except for Permitted Liens, and has provided a complete and accurate legal description and the exact name of the fee simple owner of record of such real property, and no person other than Borrower is in occupancy or possession of any portion of such real propertynonassessable.
(i) Borrower is The Equity Interests constitute 100% of the interests in compliance with all lawscapital, rulesprofits, regulations distribution, management and orders of governmental authorities applicable to it and its properties except to the extent the non-compliance with which could not reasonably be expected to have a Material Adverse Effectvoting rights in Issuer.
(j) Upon Administrative Agent obtaining and maintaining possession of the certificates identified on Schedule 1 and the filing of a UCC financing statement adequately describing the Pledged Collateral in the office of the Secretary of State of the State of Delaware, all steps necessary to create and perfect the security interest created by this Agreement as a valid and continuing first priority lien on, and first priority perfected (subject to possession of the certificates and filing of the financing statements referenced above) security interest in, the Pledged Collateral, in favor of Administrative Agent, prior to all other liens, security interests and other claims of any sort whatsoever, have been taken. Borrower has heretofore furnished not granted a security interest in the Pledged Collateral to Lender the Financial Statements and those statements fairly present the financial condition of Borrower and such Guarantorany other party, if any, on the dates thereof and the results of its operations and cash flows for the periods then ended and were prepared in accordance with GAAP. Since the date of the most recent financial statements, there has been no material adverse change security interest granted pursuant to this Agreement in the businessPledged Collateral constitutes a valid, properties or condition (financial or otherwise) of Borrower or any Guarantor. Except as disclosed perfected first priority security interest in the Financial Statements or the notes thereto Pledged Collateral, enforceable as such against all creditors of, and for the items disclosed on Schedule IVpurchasers from, neither Borrower nor any Guarantor, as of each Closing Date, has or will have any liabilities, contingent or otherwise, that could reasonably be expected to have a Material Adverse EffectBorrower.
(k) Borrower has paid not changed its name, or caused used, adopted or discontinued the use of any trade name, fictitious name or other trade name or trade style unless permitted to be paid, and will pay, to do so under the proper authorities when due all federal, state and local taxes required to be withheld by it. Borrower has filed, and will pay, all federal, state and local tax returns which are required to be filed, and Borrower has paid or caused to be paid to terms of the respective taxing authorities all taxes as shown on said returns or on any assessment received by it to the extent such taxes have become due, except any such taxes or charges which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP have been set aside on its booksLoan Agreement.
(l) For purposes Borrower will not change its name in any manner which could make any financing or continuation statement filed hereunder seriously misleading within the meaning of Section 9-307 507(c) of the UCC (or any other then-applicable provision of the UCC) unless Borrower shall have given Administrative Agent at least 10 Business Days’ prior notice thereof and shall have taken all action (or made arrangements to take such action substantially simultaneously with such change, Borrower if it is and will remain located impossible to take such action in the Borrower’s State. Borrower’s residence for federal income tax purposes is located at its Notice Address specified in Schedule I. Borrower has authorized Lender advance) necessary or reasonably requested by Administrative Agent to file financing statements that are sufficient when filed to perfect the security interests created pursuant to this Agreement and the other Loan Documents. When amend such financing statements are filed in the offices noted therein, Lender will have a valid and perfected security interest in the Collateral statement or continuation statement so that constitutes personal property, subject to no other Lien other than Permitted Liensit is not seriously misleading.
(m) None Borrower shall perform all of its obligations under the Formation Agreement and shall not amend the Formation Agreement in contravention of the Collateral constitutes a replacement of, substitution for or accessory to any property of Borrower subject to a lien of any kind.
(n) No ERISA Event has occurred or is reasonably likely to occur with respect to any Plan, and each Plan is in compliance in all material respects with the applicable provisions of ERISA.
(o) Borrower has obtained all permits, licenses and other authorizations which are required under all Environmental Laws at Borrower’s facilities or in connection with the operation of its business. Except as disclosed on Schedule IV, Borrower and all activities of Borrower at its facilities comply with all Environmental Laws and with all terms and conditions of any required permits, licenses and authorizations applicable to Borrower with respect thereto. Except as disclosed on Schedule IV, Borrower is also in compliance with all limitations, restrictions, conditions, standards, prohibitions, requirements, obligations, schedules and timetables contained in Environmental Laws or contained in any plan, order, decree, judgment or notice of which Borrower is aware. Except as disclosed on Schedule IV, Borrower is not aware of, nor has Borrower received notice of, any events, conditions, circumstances, activities, practices, incidents, actions or plans which may interfere with or prevent continued compliance with, or which may give rise to any liability under, any Environmental Laws.
(p) All factual information heretofor or contemporaneously furnished by or on behalf of Borrower or any Guarantor in writing to Lender for purposes of or in connection with this Loan Agreement or any transaction contemplated hereby is, and all other such factual information hereafter furnished by or on behalf of Borrower or any Guarantor to Lender will be, true and correct in every material respect on the date as of which such information is dated or certified, and such information is not, or shall not be, as the case may be, incomplete by omitting to state any material fact necessary to make such information not misleading.
(q) None of Borrower, any Guarantor or any of their Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying “margin stock.” None of the proceeds of any Loan will be used for the purpose of, or be made available by Borrower, any Guarantor or any of their Subsidiaries in any manner to any other Person to enable that would reduce or assist such Person in, directly impede Administrative Agent’s rights or indirectly purchasing or carrying “margin stock”. Terms for which meanings are provided in F.R.S. Board Regulation T, U or X or any regulations substituted therefor, as from time to time in effect, are used in this Section with such meaningsremedies hereunder.
(r) None of Borrower, any Guarantor or any of their Subsidiaries is an “investment company” nor a “company controlled by an investment company” within the meaning of the Investment Company Act of 1940, as amended, or a “holding company,” or a “subsidiary company” of a “holding company,” or an “affiliate” of a “holding company” or of a “subsidiary company” of a “holding company,” within the meaning of the Public Utility Holding Company Act of 1935, as amended.
(s) Schedule V is an accurate and complete list of all Subsidiaries of Borrower and each Corporate Guarantor and the respective ownership interests therein.
(t) Borrower and each Guarantor are solvent and will not be rendered insolvent by the Loan Documents or the transactions contemplated thereby and, after giving effect to such transactions, neither Borrower nor any Guarantor will be left with an unreasonably small amount of capital with which to engage in its business, nor does Borrower or any Guarantor intend to incur, or believe that it has incurred, debts beyond its ability to pay as they mature. Neither Borrower nor any Guarantor contemplates the commencement of insolvency, bankruptcy, liquidation or consolidation proceedings or the appointment of a receiver, liquidator, conservator, trustee or similar official in respect of Borrower or any Guarantor or any of their assets. Neither Borrower nor any Guarantor are entering into the transactions contemplated by the Loan Documents with any intent to hinder, delay or defraud any of Borrower’s or any Guarantor’s creditors.
Appears in 1 contract
Samples: Secured Revolving Credit Agreement (Taubman Centers Inc)
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER. Borrower represents, warrants and covenants for the benefit of Lender, as follows:
(a) Borrower is a corporation limited liability company duly organizedformed, validly existing and in good standing under the laws of the jurisdiction of its organization. Borrower is in good standing and is duly licensed or qualified to transact business in each jurisdiction where the nature of its business requires such qualification, except for those jurisdictions in which the failure to qualify could not reasonably be expected to have a Material Adverse Effect. Borrower’s exact legal name is as set forth on the execution page hereof.
(b) Borrower has full the requisite power and authority and holds all requisite governmental licenses, permits and other approvals to (i) enter into and perform its obligations under this Agreement, the Note and each other Loan Document to which it is a party and to own its property, (ii) use the Collateral and (iii) conduct its business substantially as currently conducted by it, except as to clause (iii) where the failure to hold such licenses, permits and approvals could not reasonably be expected to have a Material Adverse Effect.
(c) This Agreement, the Note and the other Loan Documents to which it is a party have been duly authorized, executed and delivered by Borrower and constitute legal, valid and binding obligations of Borrower, enforceable against Borrower in accordance with their respective terms, except to the extent limited by bankruptcy, reorganization insolvency, reorganization, conservatorship, receivership, liquidation or other laws of general application relating to or effecting the enforcement of creditors’ rightsrights and by general equitable remedies.
(d) The execution and delivery of this Agreement, the Note and the other Loan Documents, the consummation of the transactions contemplated hereby and thereby and the fulfillment of the terms and conditions hereof and thereof do not and will not violate any applicable law, rule, regulation or order, conflict with or result in a breach of any of the terms or conditions of any Organizational Document of Borrower or of any corporate restriction or of any agreement or instrument to which Borrower is now a party except where such violation would not have a Material Adverse Effect and do not and will not constitute a material default under any of the foregoing or result in the creation or imposition of any liensLiens, charges or encumbrances of any nature upon any of the property or assets of Borrower other than Liens in favor of LenderLender and Permitted Liens.
(e) The authorization, execution, delivery and performance of this Agreement, the Note and the other Loan Documents by Borrower do not require submission to, approval of, or other action by any governmental authority or agency, except for such action that has been duly obtained or taken and is in full force and effect.
(f) Each of the Loan Documents that purports to create a security interest creates a valid first priority Lien on the Collateral subject only to Permitted Liens, securing the payment and performance of the Obligations.
(g) Except as disclosed on Schedule IVIV (which may be updated as of each Closing Date), there is no action, suit, proceeding, claim, inquiry or investigation, at law or in equity, before or by any court, regulatory agency, public board or body pending or, to the best of Borrower’s knowledge, threatened in writing against or affecting Borrower, any Guarantor or any of their Subsidiaries, challenging Borrower’s or any Guarantor’s authority to enter into this Agreement, the Note or any of the other Loan Documents or any other action wherein an unfavorable ruling or finding would adversely affect the enforceability of this Agreement, the Note or any of the other Loan Documents, or could reasonably be expected to have a Material Adverse Effect.
(h) Borrower has good, marketable and insurable title in fee simple to all Collateral that is real property, and good title to all other Collateral, in each case Collateral free and clear of all Liens except for Permitted Liens. With respect to Collateral that is personal property, Borrower owns/leases the real property where the Collateral will be located, subject to no Liens of any kind except for Permitted Liens, and has provided a complete and accurate legal description and the exact name of the fee simple owner of record of such real property, and no person other than Borrower is in occupancy or possession of any portion of such real property.
(i) Borrower is in compliance with all laws, rules, regulations and orders of governmental authorities applicable to it and its properties except to the extent the non-compliance with which could not reasonably be expected to have a Material Adverse Effect.
(j) Borrower has heretofore furnished to Lender the Financial Statements and those statements fairly present the financial condition of Borrower and such Guarantor, if any, on the dates thereof and the results of its operations and cash flows for the periods then ended and were prepared in accordance with GAAP. Since the date of the most recent financial statements, there has been no material adverse change in the business, properties or condition (financial or otherwise) of Borrower or any GuarantorGuarantor except changes in the oil and gas industry and the United States and world economy generally. Except as disclosed in the Financial Statements or the notes thereto and for the items disclosed on Schedule IVIV (which may be updated as of each Closing Date), neither Borrower nor any Guarantor, as of each Closing Date, has or will have any liabilities, contingent or otherwise, that could reasonably be expected to have a Material Adverse Effect.
(k) Borrower has paid or caused to be paid, and will pay, to the proper authorities when due all federal, state and local taxes required to be withheld by it, except any such taxes or charges which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP have been set aside on its books. Borrower has filed, and will pay, all federal, state and local tax returns which are required to be filed, and Borrower has paid or caused to be paid to the respective taxing authorities all taxes as shown on said returns or on any assessment received by it to the extent such taxes have become due, except any such taxes or charges which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP have been set aside on its books.
(l) For purposes of Section 9-307 of the UCC, Borrower is and will remain located in the Borrower’s State. Borrower’s residence for federal income tax purposes is located at its Notice Address specified in Schedule I. Borrower has authorized Lender to file financing statements that are sufficient when filed to perfect the security interests created pursuant to this Agreement and the other Loan Documents. When such financing statements are filed in the offices noted therein, Lender will have a valid and perfected security interest in the Collateral that constitutes personal property, subject to no other Lien other than Permitted Liens.
(m) None of the Collateral constitutes a replacement of, substitution for or accessory to any property of Borrower subject to a lien Lien of any kindkind except for Permitted Liens.
(n) No ERISA Event has occurred or is reasonably likely to occur with respect to any Plan, and each Plan is in compliance in all material respects with the applicable provisions of ERISA.
(o) Borrower has obtained all permits, licenses and other authorizations which are required under all applicable Environmental Laws at Borrower’s facilities or in connection with the operation of its businessbusiness except those the failure of which to obtain would not be reasonably likely to cause a Material Adverse Effect. Except as disclosed on Schedule IV, to the knowledge of Borrower, Borrower and all activities of Borrower at its facilities comply with all applicable Environmental Laws and with all terms and conditions of any required permits, licenses and authorizations applicable to Borrower with respect theretothereto except where the failure to be in compliance would not be reasonably likely to cause a Material Adverse Effect. Except as disclosed on Schedule IV, Borrower is also in compliance with all limitations, restrictions, conditions, standards, prohibitions, requirements, obligations, schedules and timetables contained in applicable Environmental Laws or contained in any applicable plan, order, decree, judgment or notice of which Borrower is awareaware except where the failure to be in compliance would not be reasonably likely to cause a Material Adverse Effect. Except as disclosed on Schedule IVIV (which may be updated as of each Closing Date), Borrower is not aware has no knowledge of, nor has Borrower received written notice of, any events, conditions, circumstances, activities, practices, incidents, actions or plans which may interfere with or prevent continued compliance with, or which may give rise to any liability under, any applicable Environmental Laws.
(p) All factual information (other than the Financial Statements, as to which Section IV(k) shall apply) heretofor or contemporaneously furnished by or on behalf of Borrower or any Guarantor in writing to Lender for purposes of or in connection with this Agreement or any transaction contemplated hereby is, and all other such factual information (other than the Financial Statements, as to which Section IV(k) shall apply) hereafter furnished by or on behalf of Borrower or any Guarantor to Lender will be, true and correct in every material respect on the date as of which such information is dated or certified, and such information is not, or shall not be, as the case may be, incomplete by omitting to state any material fact necessary to make such information not misleading.
(q) None of Borrower, any Guarantor or any of their Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying “margin stock.” None of the proceeds of any Loan will be used for the purpose of, or be made available by Borrower, any Guarantor or any of their Subsidiaries in any manner to any other Person to enable or assist such Person in, directly or indirectly purchasing or carrying “margin stock”. Terms for which meanings are provided in F.R.S. Board Regulation T, U or X or any regulations substituted therefor, as from time to time in effect, are used in this Section with such meanings.
(r) None of Borrower, any Guarantor or any of their Subsidiaries is an “investment company” nor a “company controlled by an investment company” within the meaning of the Investment Company Act of 1940, as amended, or a “holding company,” or a “subsidiary company” of a “holding company,” or an “affiliate” of a “holding company” or of a “subsidiary company” of a “holding company,” within the meaning of the Public Utility Holding Company Act of 1935, as amended.
(s) Schedule V is an accurate and complete list of all Subsidiaries of Borrower and each Corporate Guarantor and the respective ownership interests therein.
(t) Borrower and each the Guarantor are solvent and will not be rendered insolvent by the Loan Documents or the transactions contemplated thereby and, after giving effect to such transactions, neither Borrower nor any Guarantor will be left with an unreasonably small amount of capital with which to engage in its business, nor does Borrower or any Guarantor intend to incur, or believe that it has incurred, debts beyond its ability to pay as they mature. Neither Borrower nor any Guarantor contemplates the commencement of insolvency, bankruptcy, liquidation or consolidation proceedings or the appointment of a receiver, liquidator, conservator, trustee or similar official in respect of Borrower or any Guarantor or any of their assets. Neither Borrower nor any Guarantor are is entering into the transactions contemplated by the Loan Documents with any intent to hinder, delay or defraud any of Borrower’s or any Guarantor’s creditors.
Appears in 1 contract
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER. Borrower represents, warrants and covenants for the benefit of LenderLender and Issuer, as follows:
(a) Borrower is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction state of its organizationDelaware, has power to enter into this Agreement and by proper corporate action has duly authorized the execution and delivery of this Agreement, the Escrow Agreement and the Tax Regulatory Agreement. Borrower is in good standing and is duly licensed or qualified to transact business in each jurisdiction the State and in all jurisdictions where the character of the property owned or leased or the nature of its the business requires transacted by it makes such qualification, except for those jurisdictions in which the failure to qualify could not reasonably be expected to have a Material Adverse Effect. Borrower’s exact legal name is as set forth on the execution page hereoflicensing or qualification necessary.
(b) Borrower has full power been fully authorized to execute and authority and holds all requisite governmental licenses, permits and other approvals to (i) enter into and perform its obligations under deliver this Agreement, the Note Escrow Agreement and each the Tax Regulatory Agreement under the terms and provisions of the resolution of its board of directors, or by other Loan Document appropriate official approval, and further represents, covenants and warrants that all requirements have been met, and procedures have occurred in order to which it is a party and ensure, to own its propertythe extent permitted by law, (ii) use the Collateral and (iii) conduct its business substantially as currently conducted by it, except as to clause (iii) where the failure to hold such licenses, permits and approvals could not reasonably be expected to have a Material Adverse Effect.
(c) This enforceability of this Agreement, the Note Escrow Agreement and the other Loan Documents to which it is a party Tax Regulatory Agreement and this Agreement, the Escrow Agreement and the Tax Regulatory Agreement have been duly authorized, executed and delivered by delivered.
(c) The officer of Borrower executing this Agreement, the Escrow Agreement and the Tax Regulatory Agreement and any related documents has been duly authorized to execute and deliver this Agreement, the Escrow Agreement and the Tax Regulatory Agreement and such related documents under the terms and provisions of a resolution of Borrower's board of directors.
(d) This Agreement, the Escrow Agreement and the Tax Regulatory Agreement constitute legal, valid and legally binding obligations of Borrower, enforceable against Borrower in accordance with their respective terms, except to the extent limited by bankruptcy, reorganization or other laws and equitable principles of general application relating to or effecting the enforcement of creditors’ ' rights.
(de) The execution and delivery of this Agreement, the Note Escrow Agreement and the other Loan DocumentsTax Regulatory Agreement, the consummation of the transactions contemplated hereby and thereby and the fulfillment of the terms and conditions hereof and thereof do not and will not violate any law, rule, regulation or order, conflict with or result in a breach of any of the terms or conditions of any Organizational Document the articles of incorporation or bylaws of Borrower or of any corporate restriction or of any agreement or instrument to which Borrower is now a party and do not and will not constitute a default under any of the foregoing or result in the creation or imposition of any liens, charges or encumbrances of any nature upon any of the property or assets of Borrower other than Liens in favor contrary to the terms of Lenderany instrument or agreement.
(ef) The authorization, execution, delivery and performance of this Agreement, the Note and the other Loan Documents Agreement by Borrower do not require submission to, approval of, or other action by any governmental authority or agency, except for such which action that with respect to this Agreement has not been duly obtained or taken and which is in full force final and effect.
(f) Each of nonappealable or will not be taken within the Loan Documents that purports to create a security interest creates a valid first priority Lien on the Collateral subject only to Permitted Liens, securing the payment and performance of the Obligationstime required by this Agreement or by applicable law.
(g) Except as has been disclosed on Schedule IVin Exhibit E hereto, there is no action, suit, proceeding, claim, inquiry or investigation, at law or in equity, before or by any court, regulatory agency, public board or body pending or, to the best of Borrower’s 's knowledge, threatened against or affecting Borrower, any Guarantor or any of their Subsidiaries, challenging Borrower’s or any Guarantor’s 's authority to enter into this Agreement, the Note Escrow Agreement or any of the other Loan Documents Tax Regulatory Agreement or any other action wherein an unfavorable ruling or finding would adversely affect the enforceability of this Agreement, the Note Escrow Agreement or the Tax Regulatory Agreement or any other transaction of Borrower which is similar hereto, or the exclusion of the Interest from gross income for federal tax purposes under the Code, or would materially and adversely affect any of the other Loan Documents, or could reasonably be expected to have a Material Adverse Effecttransactions contemplated by this Agreement.
(h) Borrower has good, marketable and insurable title in fee simple to all Collateral that is real property, and good title to all other Collateral, in each case free and clear of all Liens except for Permitted Liens. With respect to Collateral that is personal property, Borrower owns/leases The property at which the real property where the Collateral will be located, subject to no Liens of any kind except for Permitted Liens, and has provided a complete and accurate legal description Equipment and the exact name Additional Collateral is located is properly zoned for its current and anticipated use and the use of the fee simple owner of record of such real property, and no person other than Borrower is in occupancy or possession of any portion of such real property.
(i) Borrower is in compliance with all laws, rules, regulations and orders of governmental authorities applicable to it and its properties except to the extent the non-compliance with which could not reasonably be expected to have a Material Adverse Effect.
(j) Borrower has heretofore furnished to Lender the Financial Statements and those statements fairly present the financial condition of Borrower and such Guarantor, if any, on the dates thereof Equipment and the results of its operations Additional Collateral and cash flows for the periods then ended and were prepared in accordance with GAAP. Since the date operation of the most recent financial statementsProject and will not violate any applicable zoning, there has been no material adverse change in the businessland use, properties environmental or condition (financial similar law or otherwise) of restriction. Borrower or any Guarantor. Except as disclosed in the Financial Statements or the notes thereto and for the items disclosed on Schedule IV, neither Borrower nor any Guarantor, as of each Closing Date, has or will have any liabilities, contingent or otherwise, that could reasonably be expected at the time the related disbursement is requested from the Escrow Fund all licenses and permits to have a Material Adverse Effect.
(k) Borrower has paid or caused to be paid, use the Equipment and will pay, to the proper authorities when due all federal, state Additional Collateral and local taxes required to be withheld by itoperate the Project. Borrower has filed, and will pay, all federal, state and local tax returns which are required to be filed, and Borrower has paid or caused to be paid to the respective taxing authorities all taxes as shown on said returns or on any assessment received by it to the extent such taxes have become due, except any such taxes or charges which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP have been set aside on its books.
(l) For purposes of Section 9-307 of the UCC, Borrower is and will remain located in the Borrower’s State. Borrower’s residence for federal income tax purposes is located at its Notice Address specified in Schedule I. Borrower has authorized Lender to file financing statements that are sufficient when filed to perfect the security interests created pursuant to this Agreement and the other Loan Documents. When such financing statements are filed in the offices noted therein, Lender will have a valid and perfected security interest in at the Collateral that constitutes personal property, subject to no other Lien other than Permitted Liens.
(m) None of time the Collateral constitutes a replacement of, substitution for or accessory to any property of Borrower subject to a lien of any kind.
(n) No ERISA Event has occurred or related disbursement is reasonably likely to occur with respect to any Plan, and each Plan is in compliance in all material respects with requested from the applicable provisions of ERISA.
(o) Borrower has Escrow Fund obtained all permits, licenses and other authorizations which are required under all federal, state and local laws relating to emissions, discharges, releases of pollutants, contaminants, hazardous or toxic materials, or wastes into ambient air, surface water, ground water or land, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of pollutants, contaminants or hazardous or toxic materials or wastes ("Environmental Laws Laws") at the Borrower’s 's facilities or in connection with the operation of its businessfacilities. Except as previously disclosed on Schedule IVto Lender in writing, Borrower and all activities of the Borrower at its facilities comply with all Environmental Laws and with all terms and conditions of any required permits, licenses and authorizations applicable to Borrower with respect thereto. Except as previously disclosed on Schedule IVto Lender in writing, Borrower is also in compliance with all limitations, restrictions, conditions, standards, prohibitions, requirements, obligations, schedules and timetables contained in Environmental Laws or contained in any plan, order, decree, judgment or notice of which Borrower is aware. Except as previously disclosed on Schedule IVto Lender in writing, Borrower is not aware of, nor has Borrower received notice of, any events, conditions, circumstances, activities, practices, incidents, actions or plans which may interfere with or prevent continued compliance with, or which may give rise to any liability under, any Environmental Laws.
(pi) All factual information heretofor The Project will be used to manufacture and distribute bicycles and bicycle related parts and accessories or contemporaneously furnished by or on behalf for the production of Borrower or any Guarantor in writing to Lender for purposes of or in connection with this Agreement or any transaction contemplated hereby is, and all other such factual information hereafter furnished by or on behalf of Borrower or any Guarantor to Lender will be, true and correct in every material respect on the date as of which such information is dated or certified, and such information is not, or shall not be, as the case may be, incomplete by omitting to state any material fact necessary to make such information not misleadingtangible personal property.
(qj) None of Borrower, any Guarantor Borrower owns or any of their Subsidiaries is engaged principallywill own the Project and intends to operate the Project, or as one of its important activities, in cause the business of extending credit for the purpose of purchasing or carrying “margin stock.” None of the proceeds of any Loan will Project to be used for the purpose of, or be made available by Borrower, any Guarantor or any of their Subsidiaries in any manner to any other Person to enable or assist such Person in, directly or indirectly purchasing or carrying “margin stock”. Terms for which meanings are provided in F.R.S. Board Regulation T, U or X or any regulations substituted thereforoperated, as from time to time in effect, are used in this Section with such meanings.
(r) None of Borrower, any Guarantor or any of their Subsidiaries is an “investment company” nor a “company controlled by an investment company” "economic development project," within the meaning of the Investment Company Act Act, until the date on which all of 1940the Loan Payments have been fully paid or the applicable Prepayment Amount has been fully paid.
(k) Borrower will not take any action that would cause the Interest to become includable in gross income of the recipient for federal income tax purposes under the Code (including, as amendedwithout limitation, intentional acts under Treas. Reg. Section 1.148-2(c) or a “holding company,” or a “subsidiary company” of a “holding company,” or an “affiliate” of a “holding company” or of a “subsidiary company” of a “holding company,” deliberate action within the meaning of the Public Utility Holding Company Act of 1935, as amendedTreas.
(s) Schedule V is an accurate and complete list of all Subsidiaries of Borrower and each Corporate Guarantor and the respective ownership interests therein.
(t) Borrower and each Guarantor are solvent and will not be rendered insolvent by the Loan Documents or the transactions contemplated thereby and, after giving effect to such transactions, neither Borrower nor any Guarantor will be left with an unreasonably small amount of capital with which to engage in its business, nor does Borrower or any Guarantor intend to incur, or believe that it has incurred, debts beyond its ability to pay as they mature. Neither Borrower nor any Guarantor contemplates the commencement of insolvency, bankruptcy, liquidation or consolidation proceedings or the appointment of a receiver, liquidator, conservator, trustee or similar official in respect of Borrower or any Guarantor or any of their assets. Neither Borrower nor any Guarantor are entering into the transactions contemplated by the Loan Documents with any intent to hinder, delay or defraud any of Borrower’s or any Guarantor’s creditors.
Appears in 1 contract
Samples: Loan Agreement (Gt Bicycles Inc)
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER. Borrower represents, warrants and covenants for the benefit of Lender, as follows:
(a) Borrower is a corporation limited liability company duly organized, organized and validly existing and in good standing under the laws of the jurisdiction State of its organization. Borrower is in good standing Delaware, and is duly licensed or qualified to transact do business in each jurisdiction where the nature State of its business requires such qualification, except for those jurisdictions in which the failure to qualify could not reasonably be expected to have a Material Adverse EffectNew Jersey. Borrower’s exact legal name registered office is as set forth on the execution page hereofin its Certificate of Formation or most recent amendment thereto.
(b) Borrower has full the requisite power and authority under its organizational documents to execute and holds all requisite governmental licensesdeliver this Agreement and the Note, permits and other approvals to (i) enter into and perform its obligations under this Agreement, the Note and each the other Loan Document to which it is a party Documents and to own its propertyconsummate the transactions contemplated hereby and Borrower has taken any and all necessary action to authorize the execution and delivery of this Agreement and the Note, (ii) use the Collateral performance of Borrower’s obligations under this Agreement and (iii) conduct its business substantially as currently conducted by it, except as to clause (iii) where the failure to hold such licenses, permits consummation of the transactions contemplated herein and approvals could not reasonably be expected to have a Material Adverse EffectBorrower is otherwise in compliance with all applicable laws and regulations.
(c) This Agreement, the Note and the other Loan Documents to which it is a party have been duly authorized, executed and delivered by Borrower and constitute legal, valid and binding obligations of Borrower, enforceable against Borrower in accordance with their respective terms, except to the extent that such enforcement may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws affecting the rights of creditors generally or general application relating principles of equity. Neither the entry into nor the performance of and compliance with this Agreement, the Note or any of the Loan Documents has resulted or will result in any violation of, or a conflict with or a default under, any judgment, decree, order, mortgage, indenture, contract, agreement or lease by which Borrower or any property of Borrower is bound or any statute, rule or regulation applicable to or effecting the enforcement of creditors’ rightsBorrower.
(d) The Neither the execution and delivery of this Agreement, Agreement nor the Note and the other Loan Documentshas resulted or will result in any violation of, the consummation of the transactions contemplated hereby and thereby and the fulfillment of the terms and conditions hereof and thereof do not and will not violate any law, rule, regulation or order, a conflict with or result in a breach of default under, any of the terms judgment, decree, order, mortgage, indenture, contract, agreement or conditions of lease by which Borrower or any Organizational Document property of Borrower is bound or of any corporate restriction statute, rule or of any agreement or instrument regulation applicable to which Borrower is now a party and do not and will not constitute a default under any of the foregoing or result in the creation or imposition of any liens, charges or encumbrances of any nature upon any of the property or assets of Borrower other than Liens in favor of LenderBorrower.
(e) The authorization, execution, delivery and performance of this Agreement, the Note and the other Loan Documents by Borrower do not require submission to, approval of, or other action by any governmental authority or agency, except for such action that has been duly obtained or taken and is in full force and effect.
(f) Each of the Loan Documents that purports to create a security interest creates a valid first priority Lien on the Collateral subject only to Permitted Liens, securing the payment and performance of the Obligations.
(g) Except as disclosed on Schedule IV, there There is no action, suit, proceeding, claim, inquiry proceeding or investigation, at law or in equity, before or by any court, regulatory agency, public board or body investigation pending or, to the best of Borrower’s knowledge, threatened against threatened, which questions, directly or affecting Borrower, any Guarantor or any of their Subsidiaries, challenging Borrower’s or any Guarantor’s authority to enter into this Agreementindirectly, the Note validity or any of the other Loan Documents or any other action wherein an unfavorable ruling or finding would adversely affect the enforceability of this Agreement, the Note Agreement or any of the other Loan Documents, or could reasonably any action taken or to be expected to have a Material Adverse Effect.
(h) Borrower has goodtaken pursuant hereto or thereto, marketable and insurable title or which might result in fee simple to all Collateral that is real property, and good title to all other Collateral, in each case free and clear of all Liens except for Permitted Liens. With respect to Collateral that is personal property, Borrower owns/leases the real property where the Collateral will be located, subject to no Liens of any kind except for Permitted Liens, and has provided a complete and accurate legal description and the exact name of the fee simple owner of record of such real property, and no person other than Borrower is in occupancy or possession of any portion of such real property.
(i) Borrower is in compliance with all laws, rules, regulations and orders of governmental authorities applicable to it and its properties except to the extent the non-compliance with which could not reasonably be expected to have a Material Adverse Effect.
(j) Borrower has heretofore furnished to Lender the Financial Statements and those statements fairly present the financial condition of Borrower and such Guarantor, if any, on the dates thereof and the results of its operations and cash flows for the periods then ended and were prepared in accordance with GAAP. Since the date of the most recent financial statements, there has been no material adverse change in the condition (financial or otherwise) or business of Borrower.
(f) There has been no legislative action, regulatory change, revocation of license or right to do business, properties fire, explosion, flood, drought, windstorm, earthquake, accident, other casualty or act of God, labor trouble, riot, civil commotion, condemnation or other action or event which has had any material adverse effect on the business or condition (financial or otherwise) of Borrower or any Guarantor. Except as disclosed the Property, whether insured against or not, since Borrower submitted to Lender its request to modify the Existing Loan in accordance with the Financial Statements or the notes thereto and for the items disclosed on Schedule IV, neither Borrower nor any Guarantor, as of each Closing Date, has or will have any liabilities, contingent or otherwise, that could reasonably be expected to have a Material Adverse Effectterms hereof.
(kg) The financial statements and other data and information supplied by Borrower has paid in connection with Borrower’s request to so modify the Existing Loan or caused to be paidotherwise supplied by Borrower in contemplation of such modification (including, and will pay, to the proper authorities when due all federal, state and local taxes required to be withheld by it. Borrower has filed, and will paywithout limitation, all federal, state and local tax returns which are required to be filed, and Borrower has paid or caused to be paid to information so supplied regarding the respective taxing authorities all taxes as shown on said returns or on any assessment received by it to the extent such taxes have become due, except any such taxes or charges which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP have been set aside on its books.
(l) For purposes of Section 9-307 of the UCCProperty, Borrower is and will remain located in the Borrower’s State. Borrower’s residence for federal income tax purposes is located at its Notice Address specified in Schedule I. Borrower has authorized Lender to file financing statements that are sufficient when filed to perfect the security interests created pursuant to this Agreement and the other Loan Documents. When such financing statements are filed in the offices noted thereinCBRE Operating Partnership, Lender will have a valid and perfected security interest in the Collateral that constitutes personal property, subject to no other Lien other than Permitted Liens.
L.P. (m“Indemnitor”) None of the Collateral constitutes a replacement of, substitution for or accessory to any property of Borrower subject to a lien of any kind.
(n) No ERISA Event has occurred or is reasonably likely to occur with respect to any Plan, and each Plan is in compliance were in all material respects with true and correct as of the applicable provisions dates specified therein, and since such dates no Material Adverse Change has occurred. As used herein a “Material Adverse Change” shall mean the occurrence of ERISA.
(o) Borrower has obtained all permits, licenses and other authorizations which are required under all Environmental Laws at Borrower’s facilities one or in connection with the operation of its business. Except as disclosed on Schedule IV, Borrower and all activities of Borrower at its facilities comply with all Environmental Laws and with all terms and conditions of any required permits, licenses and authorizations applicable to Borrower with respect thereto. Except as disclosed on Schedule IV, Borrower is also in compliance with all limitations, restrictions, conditions, standards, prohibitions, requirements, obligations, schedules and timetables contained in Environmental Laws or contained in any plan, order, decree, judgment or notice of which Borrower is aware. Except as disclosed on Schedule IV, Borrower is not aware of, nor has Borrower received notice of, any more events, conditionsconditions or circumstances that in and of itself and/or in conjunction with any other events, circumstancesconditions or circumstances results in a material adverse effect on (i) the use, activities, practices, incidents, actions value or plans which may interfere with or prevent continued compliance withcondition of the Property, or which may give rise to any liability under, any Environmental Laws.
(pii) All factual information heretofor the legal or contemporaneously furnished by financial status or on behalf business operations of Borrower or any Guarantor in writing to Lender for purposes of or in connection with this Agreement or any transaction contemplated hereby is, and all other such factual information hereafter furnished by or on behalf of Borrower or any Guarantor to Lender will be, true and correct in every material respect on the date as of which such information is dated or certified, and such information is not, or shall not be, as the case may be, incomplete by omitting to state any material fact necessary to make such information not misleadingIndemnitor.
(q) None of Borrower, any Guarantor or any of their Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying “margin stock.” None of the proceeds of any Loan will be used for the purpose of, or be made available by Borrower, any Guarantor or any of their Subsidiaries in any manner to any other Person to enable or assist such Person in, directly or indirectly purchasing or carrying “margin stock”. Terms for which meanings are provided in F.R.S. Board Regulation T, U or X or any regulations substituted therefor, as from time to time in effect, are used in this Section with such meanings.
(r) None of Borrower, any Guarantor or any of their Subsidiaries is an “investment company” nor a “company controlled by an investment company” within the meaning of the Investment Company Act of 1940, as amended, or a “holding company,” or a “subsidiary company” of a “holding company,” or an “affiliate” of a “holding company” or of a “subsidiary company” of a “holding company,” within the meaning of the Public Utility Holding Company Act of 1935, as amended.
(s) Schedule V is an accurate and complete list of all Subsidiaries of Borrower and each Corporate Guarantor and the respective ownership interests therein.
(t) Borrower and each Guarantor are solvent and will not be rendered insolvent by the Loan Documents or the transactions contemplated thereby and, after giving effect to such transactions, neither Borrower nor any Guarantor will be left with an unreasonably small amount of capital with which to engage in its business, nor does Borrower or any Guarantor intend to incur, or believe that it has incurred, debts beyond its ability to pay as they mature. Neither Borrower nor any Guarantor contemplates the commencement of insolvency, bankruptcy, liquidation or consolidation proceedings or the appointment of a receiver, liquidator, conservator, trustee or similar official in respect of Borrower or any Guarantor or any of their assets. Neither Borrower nor any Guarantor are entering into the transactions contemplated by the Loan Documents with any intent to hinder, delay or defraud any of Borrower’s or any Guarantor’s creditors.
Appears in 1 contract
Samples: Omnibus Amendment to Loan Documents (Cb Richard Ellis Realty Trust)
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER. Borrower represents, warrants and covenants for the benefit of LenderLender and Issuer, as follows:
(a) Borrower is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction State of its organizationDelaware, has power to enter into the Borrower Documents and by proper corporate action has duly authorized the execution and delivery of the Borrower Documents. Borrower is in good standing and is duly licensed or qualified to transact business in each jurisdiction the State and in all jurisdictions where the character of the property owned or leased or the nature of its the business requires transacted by it makes such qualification, except for those jurisdictions in which the failure to qualify could not reasonably be expected to have a Material Adverse Effectlicensing or qualification necessary. Borrower’s exact legal name is as set forth on the execution page hereof.
(b) Borrower has full power been fully authorized to execute and authority deliver the Borrower Documents under the terms and holds provisions of the resolution of its board of directors, or by other appropriate official approval, and further represents, covenants and warrants that all requisite governmental licensesrequirements have been met, permits and other approvals procedures have occurred in order to (i) enter into and perform its obligations under this Agreement, ensure the Note and each other Loan Document to which it is a party and to own its property, (ii) use enforceability of the Collateral and (iii) conduct its business substantially as currently conducted by it, except as to clause (iii) where the failure to hold such licenses, permits and approvals could not reasonably be expected to have a Material Adverse Effect.
(c) This Agreement, the Note Borrower Documents and the other Loan Borrower Documents to which it is a party have been duly authorized, executed and delivered by delivered.
(c) The officer of Borrower executing the Borrower Documents and any related documents has been duly authorized to execute and deliver the Borrower Documents and such related documents under the terms and provisions of a resolution of Borrower’s board of directors.
(d) The Borrower Documents constitute legal, valid and legally binding obligations of Borrower, enforceable against Borrower in accordance with their respective terms, except to the extent limited by bankruptcy, reorganization or other laws of general application relating to or effecting affecting the enforcement of creditors’ rights.
(de) The execution and delivery of this Agreement, the Note and the other Loan Borrower Documents, the consummation of the transactions contemplated hereby and thereby and the fulfillment of the terms and conditions hereof and thereof do not and will not violate any law, rule, regulation or order, conflict with or result in a breach of any of the terms or conditions of any Organizational Document the articles of incorporation or bylaws of Borrower or of any corporate restriction or of any agreement or instrument to which Borrower is now a party and do not and will not constitute a default under any of the foregoing or result in the creation or imposition of any liens, charges or encumbrances of any nature upon any of the property or assets of Borrower other than Liens in favor contrary to the terms of Lenderany instrument or agreement.
(ef) The authorization, execution, delivery and performance of this Agreement, the Note and the other Loan Documents Agreement by Borrower do not require submission to, approval of, or other action by any governmental authority or agency, except for such which action that with respect to this Agreement has not been duly obtained or taken and which is in full force final and effect.
(f) Each of the Loan Documents that purports to create a security interest creates a valid first priority Lien on the Collateral subject only to Permitted Liens, securing the payment and performance of the Obligationsnonappealable.
(g) Except as disclosed on Schedule IV, there There is no action, suit, proceeding, claim, inquiry or investigation, at law or in equity, before or by any court, regulatory agency, public board or body pending or, to the best of Borrower’s knowledge, threatened against or affecting Borrower, any Guarantor or any of their Subsidiaries, challenging Borrower’s or any Guarantor’s authority to enter into this Agreement, the Note Escrow Agreement or any of the other Loan Documents Tax Regulatory Agreement or any other action wherein an unfavorable ruling or finding would adversely affect the enforceability of this Agreement, the Note Escrow Agreement or the Tax Regulatory Agreement or any other transaction of Borrower which is similar hereto, or the exclusion of the other Loan DocumentsInterest from gross income for federal tax purposes under the Code, or could reasonably be expected to have a Material Adverse Effectmaterial adverse effect on the financial condition, operations, business or prospects of Borrower.
(h) Borrower has good, marketable The property at which the Collateral is located is properly zoned for its current and insurable title in fee simple to all Collateral that is real property, anticipated use and good title to all other Collateral, in each case free and clear the use of all Liens except for Permitted Liens. With respect to Collateral that is personal property, Borrower owns/leases the real property where the Collateral will be locatednot violate any applicable zoning, subject land use, environmental or similar law or restriction. Borrower has all licenses and permits to no Liens use the Collateral. Borrower has obtained all permits, licenses and other authorizations which are required under federal, state and local laws relating to emissions, discharges, releases of pollutants, contaminants, hazardous or toxic materials, or wastes into ambient air, surface water, ground water or land, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of pollutants, contaminants or hazardous or toxic materials or wastes (“Environmental Laws”) at Borrower’s facilities or in connection with the operation of its facilities. Except as previously disclosed to Lender in writing, Borrower and all activities of Borrower at its facilities comply with all Environmental Laws and with all terms and conditions of any kind except for Permitted Liensrequired permits, licenses and has provided a complete and accurate legal description and the exact name of the fee simple owner of record of such real propertyauthorizations applicable to Borrower with respect thereto. Except as previously disclosed to Lender in writing, and no person other than Borrower is also in occupancy compliance with all limitations, restrictions, conditions, standards, prohibitions, requirements, obligations, schedules and timetables contained in Environmental Laws or possession contained in any plan, order, decree, judgment or notice of which Borrower is aware. Except as previously disclosed to Lender in writing, Borrower is not aware of, nor has Borrower received notice of, any portion of such real propertyevents, conditions, circumstances, activities, practices, incidents, actions or plans which may interfere with or prevent continued compliance with, or which may give rise to any liability under, any Environmental Laws.
(i) Borrower The Project is in compliance of the type authorized and permitted to be financed with all laws, rules, regulations and orders the proceeds of governmental authorities applicable to it and its properties except the Bond pursuant to the extent the non-compliance with which could not reasonably be expected to have a Material Adverse EffectAct.
(j) Borrower owns or will own the Project and intends to operate the Project, or cause the Project to be operated, for industrial purposes within the meaning of the Act, until the date on which all of the Loan Payments have been fully paid or the applicable Prepayment Amount has been fully paid.
(k) Borrower will not take any action that would cause the Interest to become includable in gross income of the recipient for federal income tax purposes under the Code (including, without limitation, intentional acts under Treas. Reg. § 1.148-2(c) or deliberate action within the meaning of Treas. Reg. § 1.141-2(d)), and Borrower will take and will cause its officers, employees and agents to take all affirmative actions legally within its power necessary to ensure that the Interest does not become includable in gross income of the recipient for federal income tax purposes under the Code (including, without limitation, the calculation and payment of any rebate required to preserve such exclusion).
(l) Borrower has heretofore furnished to Lender the Financial Statements audited financial statements of Guarantor for its fiscal years ended January 31, 2004, January 31, 2005, January 31, 2006 and January 31, 2007, and the unaudited financial statement of Guarantor for the quarter ended July 31, 2007, and those statements fairly present the financial condition of Borrower and such Guarantor, if any, Guarantor on the dates thereof and the results of its operations and cash flows for the periods then ended and were prepared in accordance with GAAP. Since the date of the most recent financial statements, there has been no material adverse change in the business, properties or condition (financial or otherwise) of Borrower or any Guarantor. Except as disclosed in the Financial Statements or the notes thereto and for the items disclosed on Schedule IV, neither Borrower nor any Guarantor, as of each Closing Date, has or will have any liabilities, contingent or otherwise, that could reasonably be expected to have a Material Adverse Effect.
(km) Borrower has paid or caused to be paid, and will pay, paid to the proper authorities when due all federal, state and local taxes required to be withheld by it. Borrower has filed, and will pay, filed all federal, state and local tax returns which are required to be filed, and Borrower has paid or caused to be paid to the respective taxing authorities all taxes as shown on said returns or on any assessment received by it to the extent such taxes have become due, except any such taxes or charges which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP have been set aside on its books.
(ln) For purposes Borrower has or will have good and absolute title to all Collateral and all proceeds thereof, free and clear of Section 9-307 of all mortgages, security interests, liens and encumbrances except for the UCC, Borrower is and will remain located in the Borrower’s State. Borrower’s residence for federal income tax purposes is located at its Notice Address specified in Schedule I. security interest created pursuant to this Agreement.
(o) Borrower has authorized Lender to file financing statements, and such financing statements that are sufficient when filed will be sufficient to perfect the security interests interest created pursuant to this Agreement and the other Loan DocumentsAgreement. When such financing statements are filed in the offices noted therein, Lender Lender, as holder of the Bond, will have a valid and perfected security interest in the Collateral that constitutes personal propertyCollateral, subject to no other Lien other than Permitted Liens.
(m) security interest, assignment, lien or encumbrance. None of the Collateral is or will become a fixture on real estate. None of the Collateral constitutes a replacement of, substitution for or accessory to any property of Borrower subject to a lien of any kind.
(n) No ERISA Event has occurred or is reasonably likely to occur with respect to any Plan, and each Plan is in compliance in all material respects with . Borrower leases the applicable provisions of ERISA.
(o) Borrower has obtained all permits, licenses and other authorizations which are required under all Environmental Laws at Borrower’s facilities or in connection with real property where the operation of its business. Except as disclosed on Schedule IV, Borrower and all activities of Borrower at its facilities comply with all Environmental Laws and with all terms and conditions of any required permits, licenses and authorizations applicable to Borrower with respect thereto. Except as disclosed on Schedule IV, Borrower is also in compliance with all limitations, restrictions, conditions, standards, prohibitions, requirements, obligations, schedules and timetables contained in Environmental Laws or contained in any plan, order, decree, judgment or notice of which Borrower is aware. Except as disclosed on Schedule IV, Borrower is not aware of, nor has Borrower received notice of, any events, conditions, circumstances, activities, practices, incidents, actions or plans which may interfere with or prevent continued compliance with, or which may give rise to any liability under, any Environmental LawsCollateral will be located.
(p) All factual information heretofor or contemporaneously furnished by or on behalf of Borrower or any Guarantor in writing to Lender for purposes of or will aid and assist Issuer in connection with this Agreement preparing and submitting to the Secretary of the Treasury a Form 8038 (or any transaction contemplated hereby is, other applicable information reporting statement) at the time and all other such factual information hereafter furnished in the form required by or on behalf of Borrower or any Guarantor to Lender will be, true and correct in every material respect on the date as of which such information is dated or certified, and such information is not, or shall not be, as the case may be, incomplete by omitting to state any material fact necessary to make such information not misleadingCode.
(q) None of BorrowerBorrower will comply fully at all times with the Tax Regulatory Agreement, and Borrower will not take any Guarantor or any of their Subsidiaries is engaged principallyaction, or as one of its important activitiesomit to take any action, in which, if taken or omitted, respectively, would violate the business of extending credit for the purpose of purchasing or carrying “margin stock.” None of the proceeds of any Loan will be used for the purpose of, or be made available by Borrower, any Guarantor or any of their Subsidiaries in any manner to any other Person to enable or assist such Person in, directly or indirectly purchasing or carrying “margin stock”. Terms for which meanings are provided in F.R.S. Board Regulation T, U or X or any regulations substituted therefor, as from time to time in effect, are used in this Section with such meaningsTax Regulatory Agreement.
(r) None Expenses for work done by officers or employees of BorrowerBorrower in connection with the Project will be included as a Project Cost, any Guarantor if at all, only to the extent (i) such persons were specifically employed for such particular purpose, (ii) the expenses do not exceed the actual cost thereof and (iii) such expenses are treated or any capable of their Subsidiaries is an “investment company” nor being treated (whether or not so treated) on the books of Borrower as a “company controlled by an investment company” within the meaning of the Investment Company Act of 1940, as amended, or a “holding company,” or a “subsidiary company” of a “holding company,” or an “affiliate” of a “holding company” or of a “subsidiary company” of a “holding company,” within the meaning of the Public Utility Holding Company Act of 1935, as amendedcapital expenditure in conformity with GAAP.
(s) Schedule V is an accurate and complete list Any costs incurred with respect to that part of all Subsidiaries the Project paid from the Loan Proceeds shall be treated or capable of being treated on the books of Borrower and each Corporate Guarantor and the respective ownership interests thereinas capital expenditures in conformity with GAAP.
(t) Borrower and each Guarantor are solvent and will not be rendered insolvent by No part of the Loan Documents or the transactions contemplated thereby and, after giving effect to such transactions, neither Borrower nor any Guarantor Proceeds will be left with an unreasonably small amount used to finance inventory or rolling stock or will be used for working capital or to finance any other cost not constituting a Project Cost.
(u) No person other than Borrower is in occupancy or possession of capital with which any portion of the real property where the Project is located.
(v) The Project is property of the character subject to engage in its business, nor does Borrower or any Guarantor intend to incur, or believe that it has incurred, debts beyond its ability to pay as they mature. the allowance for depreciation under Section 167 of the Code.
(w) Neither Borrower nor any Guarantor contemplates the commencement of insolvencyindividual or entity owning directly or indirectly any interest in Borrower, bankruptcy, liquidation is an individual or consolidation proceedings entity whose property or the appointment of a receiver, liquidator, conservator, trustee or similar official in respect of Borrower or any Guarantor or interests are subject to being “blocked” under any of their assets. Neither Borrower nor any Guarantor are entering into the transactions contemplated by the Loan Documents with any intent to hinder, delay Terrorism Laws or defraud is otherwise in violation of any of Borrower’s or any Guarantor’s creditorsthe Terrorism Laws.
Appears in 1 contract
Samples: Loan Agreement (RathGibson Inc)
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER. Borrower represents, warrants does hereby represent and covenants for the benefit of Lender, warrant to Lender as follows, and Guarantor hereby joins in such representations and warranties:
(a) a. Except as disclosed in EXHIBIT C, Borrower has received no written notice of any, nor is there any pending litigation or administrative proceeding involving in any manner the Collateral or the ownership, leasing, operation, management, use, or maintenance thereof.
b. Borrower has received no written notice from any federal, state, or local taxing authority asserting any, nor is there any, tax, lien, or assessment against the Collateral, which is due and which has not been paid.
c. Borrower is a corporation Delaware corporation, duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization. Borrower is in good standing and is duly licensed or qualified to transact do business in each jurisdiction where the nature of its business requires such qualification, except for those jurisdictions state in which the failure such qualification is required for Borrower to qualify could not reasonably be expected to have a Material Adverse Effect. Borrower’s exact legal name is as set forth on the execution page hereofconduct its business.
(b) Borrower has full power d. The execution and authority and holds all requisite governmental licenses, permits and other approvals to (i) enter into and perform its obligations under delivery of this Agreement, the Note and each other Loan Document to which it is a party and to own its property, (ii) use the Collateral and (iii) conduct its business substantially as currently conducted by it, except as to clause (iii) where the failure to hold such licenses, permits and approvals could not reasonably be expected to have a Material Adverse Effect.
(c) This Agreement, the Note Agreement and the other Loan Documents to which it is a party consummation of the transactions contemplated hereby have been duly authorizedauthorized by all necessary corporate action by Borrower, executed and delivered by Borrower and constitute this Agreement constitutes the legal, valid and binding obligations obligation of BorrowerBorrower and Guarantor, enforceable against Borrower and Guarantor in accordance with their respective its terms, except to the extent as such terms may be limited by bankruptcy, reorganization insolvency, reorganization, moratorium or other similar laws of general application or by legal or equitable principles relating to or effecting limiting creditors' rights generally. All persons who have executed this Agreement on behalf of Borrower have been duly authorized to do so by all necessary action on behalf of Borrower. Neither the enforcement of creditors’ rights.
(d) The execution and delivery of this Agreement, the Note and the other Loan Documents, nor the consummation of the transactions contemplated hereby and thereby and the fulfillment of the terms and conditions hereof and thereof do not and will not (i) violate any lawprovision of Borrower's organizational documents or governing instruments of Borrower, rule(ii) violate any judgment, regulation or order, conflict with or result in a breach of any of the terms or conditions of any Organizational Document of Borrower or of any corporate restriction or of any agreement or instrument to which Borrower is now a party and do not and will not constitute a default under any of the foregoing or result in the creation or imposition of any liensruling, charges or encumbrances of any nature upon any of the property or assets of Borrower other than Liens in favor of Lender.
(e) The authorizationinjunction, execution, delivery and performance of this Agreement, the Note and the other Loan Documents by Borrower do not require submission to, approval ofdecree, or other action by any governmental authority or agency, except for such action that has been duly obtained or taken and is in full force and effect.
(f) Each award of the Loan Documents that purports to create a security interest creates a valid first priority Lien on the Collateral subject only to Permitted Liens, securing the payment and performance of the Obligations.
(g) Except as disclosed on Schedule IV, there is no action, suit, proceeding, claim, inquiry or investigation, at law or in equity, before or by any court, regulatory agencyadministrative agency or governmental body against, public board or body pending orbinding upon Borrower, or (iii) to the best of Borrower’s 's knowledge, threatened constitute a violation by Borrower of any law or regulation of any jurisdiction as such law or regulation relates to or affects Borrower.
e. Except as disclosed on EXHIBIT D, Borrower has no knowledge of any liens which have been filed against the Collateral.
f. No representation or affecting Borrowerwarranty by Borrower or Guarantor, written or oral, (whether or not contained in this Agreement or in any Guarantor other instrument executed in connection herewith), contains any untrue statement of any material fact or omits any of their Subsidiariesmaterial fact or statement necessary to make the facts or statements contained herein or therein not false or misleading.
g. All information and documents furnished to Lender pursuant to this Agreement are true, challenging Borrower’s accurate and complete in all material respects.
h. Borrower is conveying the Collateral to Lender or any Guarantor’s authority to enter into this Agreement, the Note or any its designee in lieu of the other Loan Documents or any other action wherein an unfavorable ruling or finding would adversely affect exercise of Lender's remedies pursuant to the enforceability of this Agreement, the Note or any of the other Loan Documents, or could reasonably be expected to and Borrower and Guarantor have a Material Adverse Effect.
(h) Borrower has goodthroughout the negotiation, marketable and insurable title in fee simple to all Collateral that is real propertypreparation, and good title to all other Collateral, in each case free execution of this Agreement been represented by competent legal counsel of its own choosing. This Agreement was reviewed by Borrower and clear of all Liens except for Permitted Liens. With respect to Collateral that is personal property, Borrower owns/leases the real property where the Collateral will be located, subject to no Liens of any kind except for Permitted LiensGuarantor and their counsel, and has provided a complete Borrower and accurate legal description Guarantor acknowledge and the exact name of the fee simple owner of record of such real property, and no person other than Borrower is in occupancy or possession of any portion of such real property.agree that they
(i) Borrower is in compliance with all laws, rules, regulations and orders understand fully the terms of governmental authorities applicable to it and its properties except to the extent the non-compliance with which could not reasonably be expected to have a Material Adverse Effect.
(j) Borrower has heretofore furnished to Lender the Financial Statements and those statements fairly present the financial condition of Borrower and such Guarantor, if any, on the dates thereof and the results of its operations and cash flows for the periods then ended and were prepared in accordance with GAAP. Since the date of the most recent financial statements, there has been no material adverse change in the business, properties or condition (financial or otherwise) of Borrower or any Guarantor. Except as disclosed in the Financial Statements or the notes thereto and for the items disclosed on Schedule IV, neither Borrower nor any Guarantor, as of each Closing Date, has or will have any liabilities, contingent or otherwise, that could reasonably be expected to have a Material Adverse Effect.
(k) Borrower has paid or caused to be paid, and will pay, to the proper authorities when due all federal, state and local taxes required to be withheld by it. Borrower has filed, and will pay, all federal, state and local tax returns which are required to be filed, and Borrower has paid or caused to be paid to the respective taxing authorities all taxes as shown on said returns or on any assessment received by it to the extent such taxes have become due, except any such taxes or charges which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP have been set aside on its books.
(l) For purposes of Section 9-307 of the UCC, Borrower is and will remain located in the Borrower’s State. Borrower’s residence for federal income tax purposes is located at its Notice Address specified in Schedule I. Borrower has authorized Lender to file financing statements that are sufficient when filed to perfect the security interests created pursuant to this Agreement and the other Loan Documents. When such financing statements are filed in consequences of the offices noted thereinissuance hereof and thereof, Lender and (ii) have entered into this Agreement of their own free will have a valid and perfected security interest in the Collateral that constitutes personal propertyaccord, subject without threat or duress and pursuant to no other Lien other than Permitted Liensarms-length negotiations.
(m) None of the Collateral constitutes a replacement of, substitution for or accessory to any property of Borrower subject to a lien of any kind.
(n) No ERISA Event has occurred or is reasonably likely to occur with respect to any Plan, and each Plan is in compliance in all material respects with the applicable provisions of ERISA.
(o) i. Borrower has obtained all permits, licenses and other authorizations which are required under all Environmental Laws at Borrower’s facilities or in connection with the operation of its business. Except as disclosed on Schedule IV, Borrower and all activities of Borrower at its facilities comply complied with all Environmental Laws applicable laws, ordinances, regulations, statutes, rules and with all terms and conditions of any required permitsrestrictions (collectively, licenses and authorizations applicable "Laws") related to Borrower with respect thereto. Except as disclosed on Schedule IV, Borrower is also in compliance with all limitations, restrictions, conditions, standards, prohibitions, requirements, obligations, schedules and timetables contained in Environmental Laws or contained in any plan, order, decree, judgment or notice of which Borrower is aware. Except as disclosed on Schedule IV, Borrower is not aware of, nor has Borrower received notice of, any events, conditions, circumstances, activities, practices, incidents, actions or plans which may interfere with or prevent continued compliance with, or which may give rise to any liability under, any Environmental Lawsthe Collateral.
(p) All factual information heretofor or contemporaneously furnished by or on behalf of Borrower or any Guarantor in writing to Lender for purposes of or in connection with this Agreement or any transaction contemplated hereby is, and all other such factual information hereafter furnished by or on behalf of Borrower or any Guarantor to Lender will be, true and correct in every material respect on the date as of which such information is dated or certified, and such information is not, or shall not be, as the case may be, incomplete by omitting to state any material fact necessary to make such information not misleading.
(q) None of Borrower, any Guarantor or any of their Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying “margin stock.” None of the proceeds of any Loan will be used for the purpose of, or be made available by Borrower, any Guarantor or any of their Subsidiaries in any manner to any other Person to enable or assist such Person in, directly or indirectly purchasing or carrying “margin stock”. Terms for which meanings are provided in F.R.S. Board Regulation T, U or X or any regulations substituted therefor, as from time to time in effect, are used in this Section with such meanings.
(r) None of Borrower, any Guarantor or any of their Subsidiaries is an “investment company” nor a “company controlled by an investment company” within the meaning of the Investment Company Act of 1940, as amended, or a “holding company,” or a “subsidiary company” of a “holding company,” or an “affiliate” of a “holding company” or of a “subsidiary company” of a “holding company,” within the meaning of the Public Utility Holding Company Act of 1935, as amended.
(s) Schedule V is an accurate and complete list of all Subsidiaries of Borrower and each Corporate Guarantor and the respective ownership interests therein.
(t) Borrower and each Guarantor are solvent and will not be rendered insolvent by the Loan Documents or the transactions contemplated thereby and, after giving effect to such transactions, neither Borrower nor any Guarantor will be left with an unreasonably small amount of capital with which to engage in its business, nor does Borrower or any Guarantor intend to incur, or believe that it has incurred, debts beyond its ability to pay as they mature. Neither Borrower nor any Guarantor contemplates the commencement of insolvency, bankruptcy, liquidation or consolidation proceedings or the appointment of a receiver, liquidator, conservator, trustee or similar official in respect of Borrower or any Guarantor or any of their assets. Neither Borrower nor any Guarantor are entering into the transactions contemplated by the Loan Documents with any intent to hinder, delay or defraud any of Borrower’s or any Guarantor’s creditors.
Appears in 1 contract
Samples: Agreement for Conveyance in Lieu of Foreclosure (National Techteam Inc /De/)
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER. Borrower represents, warrants and covenants for the benefit of LenderLender and Issuer, as follows:
(a) Borrower is a corporation duly organized, validly existing and in good standing under the laws of The Commonwealth of Massachusetts, has power to enter into this Agreement and by proper corporate action has duly authorized the jurisdiction execution and delivery of its organizationthis Agreement, the Escrow Agreement and the Tax Regulatory Agreement. Borrower is in good standing and is duly licensed or qualified to transact business in each jurisdiction the State and in all jurisdictions where the character of the property owned or leased or the nature of its the business requires transacted by it makes such qualification, except for those jurisdictions in which the failure to qualify could not reasonably be expected to have a Material Adverse Effect. Borrower’s exact legal name is as set forth on the execution page hereoflicensing or qualification necessary.
(b) Borrower has full power been fully authorized to execute and authority and holds all requisite governmental licenses, permits and other approvals to (i) enter into and perform its obligations under deliver this Agreement, the Note Escrow Agreement and each the Tax Regulatory Agreement under the terms and provisions of the resolution of its board of directors, or by other Loan Document appropriate official approval, and further represents, covenants and warrants that all requirements have been met, and procedures have occurred in order to which it is a party and to own its property, (ii) use ensure the Collateral and (iii) conduct its business substantially as currently conducted by it, except as to clause (iii) where the failure to hold such licenses, permits and approvals could not reasonably be expected to have a Material Adverse Effect.
(c) This enforceability of this Agreement, the Note Escrow Agreement and the other Loan Documents to which it is a party Tax Regulatory Agreement and this Agreement, the Escrow Agreement and the Tax Regulatory Agreement have been duly authorized, executed and delivered by delivered.
(c) The officer of Borrower executing this Agreement, the Escrow Agreement and the Tax Regulatory Agreement and any related documents has been duly authorized to execute and deliver this Agreement, the Escrow Agreement and the Tax Regulatory Agreement and such related documents under the terms and provisions of a resolution of Borrower's board of directors.
(d) This Agreement, the Escrow Agreement and the Tax Regulatory Agreement constitute legal, valid and legally binding obligations of Borrower, enforceable against Borrower in accordance with their respective terms, except to the extent limited by bankruptcy, reorganization or other laws of general application relating to or effecting the enforcement of creditors’ ' rights.
(de) The execution and delivery of this Agreement, the Note Escrow Agreement and the other Loan DocumentsTax Regulatory Agreement, the consummation of the transactions contemplated hereby and thereby and the fulfillment of the terms and conditions hereof and thereof do not and will not violate any law, rule, regulation or order, conflict with or result in a breach of any of the terms or conditions of any Organizational Document the articles of organization or bylaws of Borrower or of any corporate restriction or of any agreement or instrument to which Borrower is now a party and do not and will not constitute a default under any of the foregoing or result in the creation or imposition of any liens, charges or encumbrances of any nature upon any of the property or assets of Borrower other than Liens in favor contrary to the terms of Lenderany instrument or agreement.
(ef) The To the best of Borrower's knowledge, the authorization, execution, delivery and performance of this Agreement, the Note and the other Loan Documents Agreement by Borrower do not require submission to, approval of, or other action by any governmental authority or agency, except for such which action that with respect to this Agreement has not been duly obtained or taken and which is in full force final and effect.
(f) Each of the Loan Documents that purports to create a security interest creates a valid first priority Lien on the Collateral subject only to Permitted Liens, securing the payment and performance of the Obligationsnonappealable.
(g) Except as disclosed on Schedule IV, there There is no action, suit, proceeding, claim, inquiry or investigation, at law or in equity, before or by any court, regulatory agency, public board or body pending or, to the best of Borrower’s 's knowledge, threatened against or affecting Borrower, any Guarantor or any of their Subsidiaries, challenging Borrower’s or any Guarantor’s 's authority to enter into this Agreement, the Note Escrow Agreement or any of the other Loan Documents Tax Regulatory Agreement or any other action wherein an unfavorable ruling or finding would adversely affect the enforceability of this Agreement, the Note Escrow Agreement or the Tax Regulatory Agreement or any other transaction of Borrower which is similar hereto, or the exclusion of the Interest from gross income for federal tax purposes under the Code, or would materially and adversely affect any of the other Loan Documents, or could reasonably be expected to have a Material Adverse Effecttransactions contemplated by this Agreement.
(h) Borrower has good, marketable and insurable title in fee simple to all Collateral that The Project is real property, and good title to all other Collateral, in each case free and clear of all Liens except for Permitted Liens. With respect to Collateral that is personal property, Borrower owns/leases the real property where the Collateral will be located, subject to no Liens of any kind except for Permitted Liens, and has provided a complete and accurate legal description and the exact name of the fee simple owner of record of such real property, type authorized and no person other than Borrower is in occupancy or possession of any portion of such real propertypermitted to be financed pursuant to the Act.
(i) Borrower is in compliance with owns or will own the Project and intends to operate the Project, or cause the Project to be operated, as a "project," within the meaning of the Act, until the date on which all laws, rules, regulations and orders of governmental authorities the Loan Payments have been fully paid or the applicable to it and its properties except to the extent the non-compliance with which could not reasonably be expected to have a Material Adverse EffectPrepayment Amount has been fully paid.
(j) Borrower will not take any action, or permit any action within its control to be taken on its behalf, that would cause the Interest to become includable in gross income of the recipient for federal income tax purposes under the Code (including, without limitation, intentional acts under Treas. Reg. ss. 1.148-2(c) or deliberate action within the meaning of Treas. Reg. ss.
1. 141-2(d)), and Borrower will take and will cause its officers, employees and agents to take all affirmative actions legally within its power necessary to ensure that the Interest does not become includable in gross income of the recipient for federal income tax purposes under the Code (including, without limitation, the calculation and payment of any rebate required to preserve such exclusion).
(k) Borrower has heretofore furnished to Lender the Financial Statements audited financial statement of Guarantor for Guarantor's fiscal years ended December 31, 1994, December 31, 1995 and December 31, 1996 and the unaudited financial statement of Guarantor for the six months ended June 30, 1997, and those statements fairly present the financial condition of Borrower and such Guarantor, if any, Guarantor on the dates thereof and the results of its operations and cash flows for the periods then ended and were prepared in accordance with GAAPgenerally accepted accounting principles. Since the date of the most recent financial statements, there has been no material adverse change in the business, properties or condition (financial or otherwise) of Borrower or any Guarantor. Except as disclosed in the Financial Statements or the notes thereto and for the items disclosed on Schedule IV, neither Borrower nor any Guarantor, as of each Closing Date, has or will have any liabilities, contingent or otherwise, that could reasonably be expected to have a Material Adverse Effect.
(kl) Borrower has and Guarantor have paid or caused to be paid, and will pay, paid to the proper authorities when due all federal, state and local taxes required to be withheld by itthem. Borrower has filed, and will pay, Guarantor have filed all federal, state and local tax returns which are required to be filed, and Borrower has and Guarantor have paid or caused to be paid to the respective taxing authorities all taxes as shown on said returns or on any assessment received by it them to the extent such taxes have become due, except any such taxes or charges which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP have been set aside on its books.
(l) For purposes of Section 9-307 of the UCC, Borrower is and will remain located in the Borrower’s State. Borrower’s residence for federal income tax purposes is located at its Notice Address specified in Schedule I. Borrower has authorized Lender to file financing statements that are sufficient when filed to perfect the security interests created pursuant to this Agreement and the other Loan Documents. When such financing statements are filed in the offices noted therein, Lender will have a valid and perfected security interest in the Collateral that constitutes personal property, subject to no other Lien other than Permitted Liens.
(m) None of the Collateral constitutes a replacement of, substitution for or accessory to any property of Borrower subject to a lien of any kind.
(n) No ERISA Event has occurred or is reasonably likely to occur with respect to any Plan, and each Plan is in compliance in all material respects with the applicable provisions of ERISA.
(o) Borrower has obtained all permits, licenses All financial and other authorizations which are required under all Environmental Laws at Borrower’s facilities or in connection with the operation of its business. Except as disclosed on Schedule IV, Borrower and all activities of Borrower at its facilities comply with all Environmental Laws and with all terms and conditions of any required permits, licenses and authorizations applicable information provided to Borrower with respect thereto. Except as disclosed on Schedule IV, Borrower is also in compliance with all limitations, restrictions, conditions, standards, prohibitions, requirements, obligations, schedules and timetables contained in Environmental Laws or contained in any plan, order, decree, judgment or notice of which Borrower is aware. Except as disclosed on Schedule IV, Borrower is not aware of, nor has Borrower received notice of, any events, conditions, circumstances, activities, practices, incidents, actions or plans which may interfere with or prevent continued compliance with, or which may give rise to any liability under, any Environmental Laws.
(p) All factual information heretofor or contemporaneously furnished Lender by or on behalf of Borrower or any Guarantor in writing to Lender for purposes of or in connection with this Agreement or any transaction Borrower's request for the Loan contemplated hereby is, and all other such factual information hereafter furnished by or on behalf of Borrower or any Guarantor to Lender will be, is true and correct in every all material respect respects and, as to projections, valuations or pro forma financial statements, present a good faith opinion as to such projections, valuations and pro forma condition and results.
(n) Borrower will aid and assist Issuer in connection with preparing and submitting to the Secretary of the Treasury a Form 8038 (or other applicable information reporting statement) at the time and in the form required by the Code.
(o) Borrower will comply fully at all times with the Tax Regulatory Agreement, and Borrower will not take any action, or omit to take any action, which, if taken or omitted, respectively, would violate the Tax Regulatory Agreement.
(p) Expenses for work done by officers or employees of Borrower in connection with the Project will be included as an Acquisition Cost, if at all, only to the extent (i) such persons were specifically employed for such particular purpose, (ii) the expenses do not exceed the actual cost thereof and (iii) such expenses are treated or capable of being treated (whether or not so treated) on the date books of Borrower as of which such information is dated or certified, and such information is not, or shall not be, as the case may be, incomplete by omitting to state any material fact necessary to make such information not misleadinga capital expenditure in conformity with generally accepted accounting principles applied on a consistent basis.
(q) None of Borrower, any Guarantor or any of their Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying “margin stock.” None Any costs incurred with respect to that part of the proceeds Project paid from the Loan Proceeds shall be treated or capable of any Loan will be used for being treated on the purpose of, or be made available by Borrower, any Guarantor or any books of their Subsidiaries Borrower as capital expenditures in any manner to any other Person to enable or assist such Person in, directly or indirectly purchasing or carrying “margin stock”. Terms for which meanings are provided in F.R.S. Board Regulation T, U or X or any regulations substituted therefor, as from time to time in effect, are used in this Section conformity with such meaningsgenerally accepted accounting principles applied on a consistent basis.
(r) None of Borrower, any Guarantor or any of their Subsidiaries is an “investment company” nor a “company controlled by an investment company” within the meaning No part of the Investment Company Act of 1940, as amended, or a “holding company,” or a “subsidiary company” of a “holding company,” or an “affiliate” of a “holding company” or of a “subsidiary company” of a “holding company,” within the meaning of the Public Utility Holding Company Act of 1935, as amended.
(s) Schedule V is an accurate and complete list of all Subsidiaries of Borrower and each Corporate Guarantor and the respective ownership interests therein.
(t) Borrower and each Guarantor are solvent and will not be rendered insolvent by the Loan Documents or the transactions contemplated thereby and, after giving effect to such transactions, neither Borrower nor any Guarantor Proceeds will be left with used to finance inventory or rolling stock or will be used for working capital or to finance any other cost not constituting an unreasonably small amount of capital with which to engage in its business, nor does Borrower or any Guarantor intend to incur, or believe that it has incurred, debts beyond its ability to pay as they mature. Neither Borrower nor any Guarantor contemplates the commencement of insolvency, bankruptcy, liquidation or consolidation proceedings or the appointment of a receiver, liquidator, conservator, trustee or similar official in respect of Borrower or any Guarantor or any of their assets. Neither Borrower nor any Guarantor are entering into the transactions contemplated by the Loan Documents with any intent to hinder, delay or defraud any of Borrower’s or any Guarantor’s creditorsAcquisition Cost.
Appears in 1 contract
Samples: Loan Agreement (Asahi America Inc)
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER. The Borrower representshereby represents and warrants to, warrants and covenants for with, the benefit of Lender, Holder as follows:
(a) The Borrower is a corporation duly organizedand will be the sole legal and beneficial owner and holder of record of all of its Collateral. The liens granted hereunder constitute valid and perfected liens. The Borrower shall, validly existing at the Borrower’s expense, take all actions necessary or advisable from time to time to maintain the priority and in good standing under the laws perfection of the jurisdiction of its organization. Borrower is in good standing liens granted to the Holder hereunder and is duly licensed shall not take any actions that would alter, impair or qualified to transact business in each jurisdiction where the nature of its business requires such qualification, except for those jurisdictions in which the failure to qualify could not reasonably be expected to have a Material Adverse Effect. Borrower’s exact legal name is as set forth on the execution page hereofeliminate said priority or perfection.
(b) The correct legal name and jurisdiction of organization of the Borrower has full power and authority and holds all requisite governmental licenses, permits and other approvals is set forth in the initial paragraph hereof. The Borrower shall not change any such name or jurisdiction without giving at least thirty (30) days’ prior written notice thereof to (i) enter into and perform the Holder. The Borrower shall keep its obligations under this Agreement, the Note and each other Loan Document to which it is a party and to own its property, (ii) use the Collateral and (iii) conduct its business substantially as currently conducted by it, except as records pertaining to clause (iii) where such Collateral at the failure location set forth on the signature page hereto and at any other location described in writing to hold such licenses, permits and approvals could not reasonably be expected to have a Material Adverse Effectthe Holder.
(c) This AgreementThe Borrower shall comply in all material respects with all laws, the Note and the other Loan Documents to which it is a party have been duly authorizedregulations, executed and delivered by Borrower and constitute legal, valid and binding obligations of Borrower, enforceable against Borrower in accordance with their respective terms, except judicial orders or decrees applicable to the extent limited by bankruptcy, reorganization or other laws of general application relating to or effecting the enforcement of creditors’ rightsCollateral.
(d) The execution Borrower shall pay promptly when due any taxes, assessments, and delivery of this Agreement, the Note and the other Loan Documents, the consummation of the transactions contemplated hereby and thereby and the fulfillment of the terms and conditions hereof and thereof do not and will not violate any law, rule, regulation or order, conflict with or result in a breach of any of the terms or conditions of any Organizational Document of Borrower or of any corporate restriction or of any agreement or instrument to which Borrower is now a party and do not and will not constitute a default under any of the foregoing or result in the creation or imposition of any liens, governmental charges or encumbrances of any nature levies imposed upon any of the property or assets of Borrower other than Liens in favor of LenderCollateral.
(e) The authorizationBorrower shall advise the Holder promptly, executionin reasonable detail, delivery and performance of this Agreement, the Note and the other Loan Documents by Borrower do not require submission to, approval of, (i) any lien made or other action by any governmental authority or agency, except for such action that has been duly obtained or taken and is in full force and effect.
(f) Each of the Loan Documents that purports to create a security interest creates a valid first priority Lien on the Collateral subject only to Permitted Liens, securing the payment and performance of the Obligations.
(g) Except as disclosed on Schedule IV, there is no action, suit, proceeding, claim, inquiry or investigation, at law or in equity, before or by any court, regulatory agency, public board or body pending or, to the best of Borrower’s knowledge, threatened asserted against or affecting Borrower, any Guarantor or any of their Subsidiaries, challenging Borrower’s or any Guarantor’s authority to enter into this Agreement, the Note or any of the other Loan Documents Collateral, and (ii) the occurrence of any event or any other action wherein an unfavorable ruling or finding would adversely affect the enforceability of this Agreement, the Note or any of the other Loan Documents, or condition which could reasonably be expected to have a Material Adverse Effectmaterial adverse effect on the validity, perfection or priority of the liens granted hereunder.
(hf) The Borrower has goodshall not sell, marketable and insurable title assign, transfer, set over to, or xxxxx x xxxx to any Person in fee simple to all or otherwise encumber the Collateral that is real property, and good title to all other Collateral, in each case free and clear of all Liens except for Permitted Liens. With with respect to Collateral that is personal property, Borrower owns/leases the real property where sale of inventory and obsolete or surplus assets or assets no longer used or useful in the Collateral will be located, subject to no Liens business in the ordinary course of any kind except for Permitted Liens, and has provided a complete and accurate legal description and the exact name of the fee simple owner of record of such real property, and no person other than Borrower is in occupancy or possession of any portion of such real propertybusiness consistent with Borrower’s past practices.
(ig) Borrower is in compliance with all lawsThe Holder may, rules, regulations and orders of governmental authorities applicable to it and its properties except to the extent the non-compliance with which could not reasonably be expected to have a Material Adverse Effect.
(j) Borrower has heretofore furnished to Lender the Financial Statements and those statements fairly present the financial condition of Borrower and such Guarantor, if any, on the dates thereof and the results of its operations and cash flows for the periods then ended and were prepared in accordance with GAAP. Since the date of the most recent financial statements, there has been no material adverse change in the business, properties or condition (financial or otherwise) of Borrower or any Guarantor. Except as disclosed in the Financial Statements or the notes thereto and for the items disclosed on Schedule IV, neither Borrower nor any Guarantor, as of each Closing Date, has or will have any liabilities, contingent or otherwise, that could reasonably be expected to have a Material Adverse Effect.
(k) Borrower has paid or caused to be paid, and will pay, to the proper authorities when due all federal, state and local taxes required to be withheld by it. Borrower has filed, and will pay, all federal, state and local tax returns which are required to be filed, and Borrower has paid or caused to be paid to the respective taxing authorities all taxes as shown on said returns or on any assessment received by it to the extent such taxes have become due, except any such taxes or charges which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP have been set aside on its books.
(l) For purposes of Section 9-307 of the UCC, Borrower is and will remain located in the Borrower’s State. Borrower’s residence for federal income tax purposes is located at its Notice Address specified in Schedule I. Borrower has authorized Lender to file financing statements that are sufficient when filed to perfect the security interests created pursuant to this Agreement and the other Loan Documents. When such financing statements are filed in the offices noted therein, Lender will have a valid and perfected security interest in the Collateral that constitutes personal property, subject to no other Lien other than Permitted Liens.
(m) None of the Collateral constitutes a replacement of, substitution for or accessory to any property of Borrower subject to a lien of any kind.
(n) No ERISA Event has occurred or is reasonably likely to occur with respect to any Plan, and each Plan is in compliance in all material respects with the applicable provisions of ERISA.
(o) Borrower has obtained all permits, licenses and other authorizations which are required under all Environmental Laws at Borrower’s facilities or in connection with the operation of its business. Except as disclosed on Schedule IV, Borrower and all activities of Borrower at its facilities comply with all Environmental Laws and with all terms and conditions of any required permits, licenses and authorizations applicable to Borrower with respect thereto. Except as disclosed on Schedule IV, Borrower is also in compliance with all limitations, restrictions, conditions, standards, prohibitions, requirements, obligations, schedules and timetables contained in Environmental Laws or contained in any plan, order, decree, judgment or notice of which Borrower is aware. Except as disclosed on Schedule IV, Borrower is not aware of, nor has Borrower received notice of, any events, conditions, circumstances, activities, practices, incidents, actions or plans which may interfere with or prevent continued compliance with, or which may give rise to any liability under, any Environmental Laws.
(p) All factual information heretofor or contemporaneously furnished by or on behalf of Borrower or any Guarantor in writing to Lender for purposes of or in connection with this Agreement or any transaction contemplated hereby is, and all other such factual information hereafter furnished by or on behalf of Borrower or any Guarantor to Lender will be, true and correct in every material respect on the date as of which such information is dated or certified, and such information is not, or shall not be, as the case may be, incomplete by omitting to state any material fact necessary to make such information not misleading.
(q) None of Borrower, any Guarantor or any of their Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying “margin stock.” None of the proceeds of any Loan will be used for the purpose of, or be made available by Borrower, any Guarantor or any of their Subsidiaries in any manner to any other Person to enable or assist such Person in, directly or indirectly purchasing or carrying “margin stock”. Terms for which meanings are provided in F.R.S. Board Regulation T, U or X or any regulations substituted therefor, as from time to time in effecttime, are used in this Section with such meanings.
upon prior notice to the Borrower (r) None except following the occurrence of Borrower, any Guarantor or any an Event of their Subsidiaries is an “investment company” nor a “company controlled by an investment company” within the meaning of the Investment Company Act of 1940, as amended, or a “holding company,” or a “subsidiary company” of a “holding company,” or an “affiliate” of a “holding company” or of a “subsidiary company” of a “holding company,” within the meaning of the Public Utility Holding Company Act of 1935, as amended.
(s) Schedule V is an accurate and complete list of all Subsidiaries of Borrower and each Corporate Guarantor and the respective ownership interests therein.
(t) Borrower and each Guarantor are solvent and will not be rendered insolvent by Default under the Loan Documents or when no prior notice shall be required), contact account debtors to verify the transactions contemplated thereby andvalidity, after giving effect to such transactions, neither Borrower nor any Guarantor will be left with an unreasonably small amount of capital with which to engage in its business, nor does Borrower or any Guarantor intend other matter relating to incurany accounts by mail, telephone or believe that it has incurred, debts beyond its ability otherwise. The Borrower shall cooperate fully with the Holder’s efforts to pay as they mature. Neither Borrower nor so verify any Guarantor contemplates the commencement of insolvency, bankruptcy, liquidation or consolidation proceedings or the appointment of a receiver, liquidator, conservator, trustee or similar official in respect of Borrower or any Guarantor or any of their assets. Neither Borrower nor any Guarantor are entering into the transactions contemplated by the Loan Documents with any intent to hinder, delay or defraud any of Borrower’s or any Guarantor’s creditorsaccounts.
Appears in 1 contract
Samples: Security Agreement (BioRestorative Therapies, Inc.)
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER. Borrower hereby represents, warrants and covenants for as of the benefit date hereof and as of Lender, as followsthe date the Loan is made hereunder that:
(a) Borrower is a corporation is, and will remain, duly organized, validly existing and in good standing under the laws of the State set forth in the first paragraph of this Agreement, has its chief executive offices at the location set forth in such paragraph, and is, and will remain, duly qualified and licensed in every jurisdiction of its organization. Borrower is in good standing and is duly licensed or qualified wherever necessary to transact business in each jurisdiction where the nature of carry on its business requires such qualification, except for those jurisdictions in which the failure to qualify could not reasonably be expected to have a Material Adverse Effect. Borrower’s exact legal name is as set forth on the execution page hereof.and operations;
(b) Borrower has full adequate power and authority capacity to enter into, and holds all requisite governmental licenses, permits and other approvals to (i) enter into and perform its obligations obligations, under this Agreement, the Note and each any other Loan Document documents evidencing, or given in connection with, any of the Indebtedness (all of the foregoing being hereinafter referred to which it is a party and to own its property, (ii) use as the Collateral and (iii) conduct its business substantially as currently conducted by it, except as to clause (iii) where the failure to hold such licenses, permits and approvals could not reasonably be expected to have a Material Adverse Effect."Debt Documents");
(c) This Agreement, the Note Agreement and the other Loan Debt Documents to which it is a party have been duly authorized, executed and delivered by Borrower and constitute legal, valid and binding obligations of Borrower, agreements enforceable against Borrower under all applicable laws in accordance with their respective terms, except to the extent limited by bankruptcy, reorganization or other laws of general application relating to or effecting that the enforcement of creditors’ rights.remedies may be limited under applicable bankruptcy and insolvency laws;
(d) The execution and delivery No approval, consent or withholding of this Agreementobjections is required from any governmental authority or instrumentality with respect to the entry into, the Note and the other Loan Documentsor performance by, the consummation of the transactions contemplated hereby and thereby and the fulfillment of the terms and conditions hereof and thereof do not and will not violate any law, rule, regulation or order, conflict with or result in a breach Borrower of any of the terms or conditions Debt Documents, except such as may have already been obtained;
(e) The entry into, and performance by, Borrower of the Debt Documents will not (i) violate any Organizational Document of the organizational documents of Borrower or any judgment, order, law or regulation applicable to Borrower, or (ii) result in any breach of, constitute a default under, or result in the creation of any corporate restriction lien, claim or encumbrance on any of Borrower's property (except for liens in favor of Lender) pursuant to, any indenture mortgage, deed of trust, bank loan, credit agreement, or other agreement or instrument to which Borrower is now a party and do not and will not constitute a default under any of the foregoing or result in the creation or imposition of any liens, charges or encumbrances of any nature upon any of the property or assets of Borrower other than Liens in favor of Lender.
(e) The authorization, execution, delivery and performance of this Agreement, the Note and the other Loan Documents by Borrower do not require submission to, approval of, or other action by any governmental authority or agency, except for such action that has been duly obtained or taken and is in full force and effect.party;
(f) Each of There are no suits or proceedings pending or threatened in court or before any commission, board or other administrative agency against or affecting Borrower which if adversely decided against Borrower would, in the Loan Documents that purports aggregate, have a material adverse effect on Borrower, its business or operations, or its ability to create a security interest creates a valid first priority Lien on perform its obligations under the Collateral subject only to Permitted Liens, securing the payment and performance of the Obligations.Debt Documents;
(g) Except as disclosed on Schedule IV, there is no action, suit, proceeding, claim, inquiry or investigation, at law or in equity, before or by any court, regulatory agency, public board or body pending or, to the best of Borrower’s knowledge, threatened against or affecting Borrower, any Guarantor or any of their Subsidiaries, challenging Borrower’s or any Guarantor’s authority to enter into this Agreement, the Note or any of the other Loan Documents or any other action wherein an unfavorable ruling or finding would adversely affect the enforceability of this Agreement, the Note or any of the other Loan Documents, or could reasonably be expected to have a Material Adverse Effect.
(h) Borrower has good, marketable and insurable title in fee simple to all Collateral that is real property, and good title to all other Collateral, in each case free and clear of all Liens except for Permitted Liens. With respect to Collateral that is personal property, Borrower owns/leases the real property where the Collateral will be located, subject to no Liens of any kind except for Permitted Liens, and has provided a complete and accurate legal description and the exact name of the fee simple owner of record of such real property, and no person other than Borrower is in occupancy or possession of any portion of such real property.
(i) Borrower is in compliance with all laws, rules, regulations and orders of governmental authorities applicable to it and its properties except to the extent the non-compliance with which could not reasonably be expected to have a Material Adverse Effect.
(j) Borrower has heretofore furnished All financial statements delivered to Lender in connection with the Financial Statements and those statements fairly present the financial condition of Borrower and such Guarantor, if any, on the dates thereof and the results of its operations and cash flows for the periods then ended and were Indebtedness have been prepared in accordance with GAAP. Since generally accepted accounting principles, and since the date of the most recent financial statementsstatement, there has been no material adverse change in the businesschange;
(h) The Collateral is not, properties or condition (financial or otherwise) of and will not be, used by Borrower or any Guarantor. Except as disclosed Guarantor for personal, family or household purposes;
(i) The Collateral is, and will remain, in the Financial Statements or the notes thereto good condition and for the items disclosed on Schedule IV, repair and neither Borrower nor any GuarantorGuarantor will be negligent in the care and use thereof;
(j) Borrower and/or Guarantor is, as of each Closing Dateand will remain, has or will have any liabilitiesthe sole and lawful owner, contingent or otherwiseand in possession of, that could reasonably be expected to have a Material Adverse Effect.the Collateral security;
(k) Borrower has paid or caused to be paidThe Collateral is, and will payremain, to the proper authorities when due free and clear of all federalliens, state claims and local taxes required to be withheld by it. Borrower has filedencumbrances of every kind, nature and will pay, all federal, state and local tax returns which are required to be filed, and Borrower has paid or caused to be paid to the respective taxing authorities all taxes as shown on said returns or on any assessment received by it to the extent such taxes have become duedescription, except any such for (i) liens in favor of Lender, (ii) liens for taxes not yet due or charges which are for taxes being diligently contested in good faith and which do not involve, in the reasonable judgment of Lender, any risk of the sale, forfeiture or loss of any of the Collateral, and (iii) inchoate materialmen's, mechanic's, repairmen's and similar liens arising by appropriate proceedings and operation of law in the normal course of business for amounts which adequate reserves in accordance with GAAP have been set aside on its books.are not delinquent (all of such permitted liens being hereinafter referred to as "Permitted Liens");
(l) For purposes of Section 9-307 of the UCC, Borrower is and will remain located in the Borrower’s State. Borrower’s residence for federal income tax purposes is located at its Notice Address specified in Schedule I. Borrower has authorized good and marketable title to its assets as disclosed on any balance sheets supplied to Lender to file financing statements that are sufficient when filed to perfect the security interests created pursuant to this Agreement Agreement. Such property and the other Loan Documents. When such financing statements assets are filed in the offices noted therein, Lender will have a valid and perfected security interest in the Collateral that constitutes personal property, subject to no other Lien other than Permitted Liens.lien or encumbrance of any kind, except for liens arising pursuant to or expressly permitted by this Agreement; and
(m) None of The real estate where the Collateral constitutes a replacement of, substitution for or accessory to any property of Borrower subject to a lien of any kind.
(n) No ERISA Event has occurred or is reasonably likely to occur with respect to any Plan, and each Plan shall be located throughout the term hereof is in compliance in all material respects with located at the location set forth on the applicable provisions of ERISA.
(o) Borrower has obtained all permits, licenses and other authorizations which are required under all Environmental Laws at Borrower’s facilities or in connection with the operation of its business. Except as disclosed on Schedule IV, Borrower and all activities of Borrower at its facilities comply with all Environmental Laws and with all terms and conditions of any required permits, licenses and authorizations applicable to Borrower with respect thereto. Except as disclosed on Schedule IV, Borrower is also in compliance with all limitations, restrictions, conditions, standards, prohibitions, requirements, obligations, schedules and timetables contained in Environmental Laws or contained in any plan, order, decree, judgment or notice of which Borrower is aware. Except as disclosed on Schedule IV, Borrower is not aware of, nor has Borrower received notice of, any events, conditions, circumstances, activities, practices, incidents, actions or plans which may interfere with or prevent continued compliance with, or which may give rise to any liability under, any Environmental Laws.
(p) All factual information heretofor or contemporaneously furnished by or on behalf of Borrower or any Guarantor in writing to Lender for purposes of or in connection with this Agreement or any transaction contemplated hereby is, and all other such factual information hereafter furnished by or on behalf of Borrower or any Guarantor to Lender will be, true and correct in every material respect on the date as of which such information is dated or certifiedCollateral Schedule, and such information real estate is not, free and clear of any lien or shall not be, as encumbrance of any kind whatsoever and such is evidenced by a certificate of no lien (Certificado de Libertad de Gravamenes) issued by the case may be, incomplete by omitting to state any material fact necessary to make such information not misleading.
(q) None of Borrower, any Guarantor or any of their Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying “margin stock.” None Public Registry of the proceeds State in which the real estate is located, a copy of any Loan will which shall be used for the purpose of, or be made available delivered by Borrower, any Guarantor or any of their Subsidiaries in any manner Borrower to any other Person to enable or assist such Person in, directly or indirectly purchasing or carrying “margin stock”. Terms for which meanings are provided in F.R.S. Board Regulation T, U or X or any regulations substituted therefor, as from time to time in effect, are used in this Section with such meaningsLender.
(r) None of Borrower, any Guarantor or any of their Subsidiaries is an “investment company” nor a “company controlled by an investment company” within the meaning of the Investment Company Act of 1940, as amended, or a “holding company,” or a “subsidiary company” of a “holding company,” or an “affiliate” of a “holding company” or of a “subsidiary company” of a “holding company,” within the meaning of the Public Utility Holding Company Act of 1935, as amended.
(s) Schedule V is an accurate and complete list of all Subsidiaries of Borrower and each Corporate Guarantor and the respective ownership interests therein.
(t) Borrower and each Guarantor are solvent and will not be rendered insolvent by the Loan Documents or the transactions contemplated thereby and, after giving effect to such transactions, neither Borrower nor any Guarantor will be left with an unreasonably small amount of capital with which to engage in its business, nor does Borrower or any Guarantor intend to incur, or believe that it has incurred, debts beyond its ability to pay as they mature. Neither Borrower nor any Guarantor contemplates the commencement of insolvency, bankruptcy, liquidation or consolidation proceedings or the appointment of a receiver, liquidator, conservator, trustee or similar official in respect of Borrower or any Guarantor or any of their assets. Neither Borrower nor any Guarantor are entering into the transactions contemplated by the Loan Documents with any intent to hinder, delay or defraud any of Borrower’s or any Guarantor’s creditors.
Appears in 1 contract
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER. Borrower hereby re-makes each and every representation and warranty of Borrower to Lender contained in the Note and the Mortgage and the other Original Loan Documents, except for the representations in Section 3.3(a), Section 3.3(b), Section 3.3(c), Section 3.3(d) and Section 3.3(e) of the Mortgage, and Borrower further represents, warrants and covenants for the benefit of Lender, to Lender as follows:
(a) Borrower is a corporation duly organized, validly existing and in good standing under the laws All of the jurisdiction representations and warranties (i) added to Section 3.3 of its organization. Borrower is the Mortgage pursuant to Section 4 of this Agreement and (ii) contained in good standing that certain Organizational Certificate (as defined on Exhibit B) are true, complete and is duly licensed or qualified to transact business in each jurisdiction where correct as of the nature date of its business requires such qualification, except for those jurisdictions in which the failure to qualify could not reasonably be expected to have a Material Adverse Effect. Borrower’s exact legal name is as set forth on the execution page hereofthis Agreement.
(b) The consummation of the Transfer and the Assumption, and the execution, delivery, and/or performance by Borrower has full power and authority and holds all requisite governmental licenses, permits and other approvals to (i) enter into and perform its obligations under of this Agreement, the Note and each other Loan Document to which it is a party and to own its property, (ii) use the Collateral and (iii) conduct its business substantially as currently conducted by it, except as to clause (iii) where the failure to hold such licenses, permits and approvals could not reasonably be expected to have a Material Adverse Effect.
(c) This Agreement, the Note Modification Documents and the other Loan Documents to which it the Borrower is a party, and the effectiveness of any assignment of any of Borrower’s rights and interests of any kind to Lender: (i) shall not result in any breach of, or constitute a default under, any mortgage, agreement, or other instrument to which Borrower is a party or by which Borrower may be bound or affected, or Borrower’s certificate of formation or limited liability agreement; (ii) do not contravene any applicable law, regulation or order; (iii) require no authorization, approval, consent or other action by, and no notice to or filing with, any court, any governmental authority or regulatory body; (iv) are within the power and authority of Borrower and have been duly authorizedauthorized by all necessary action and will not violate any provision of the certificate of formation, executed operating agreement or other organizational documents of Borrower; (v) shall not contravene any contractual or other restriction binding on or affecting Borrower, and delivered by (vi) shall not result in or require the creation of any lien, security interest, other charge or encumbrance (other than pursuant hereto) upon or with respect to any of the properties of Borrower.
(c) This Agreement and the other Loan Documents to which Borrower and constitute legalis a party shall, when delivered, be valid and binding obligations of Borrower, Borrower enforceable against Borrower in accordance with their respective terms, except to the extent as limited by equitable principles and bankruptcy, reorganization or other insolvency and similar laws of general application relating to or effecting the enforcement of affecting creditors’ rights.
(d) This Agreement and the other Loan Documents collectively grant to Lender a valid and enforceable first priority security conveyance of and security interest in the Property, subject only to the Permitted Exceptions. Without limiting the foregoing provisions of this Section 3(d), the Mortgage, as modified by this Agreement, is a valid and enforceable first lien and security interest on the Property, subject only to the Permitted Exceptions.
(e) Borrower is, and notwithstanding the Transfer and the Assumption, shall at all times continue to be, a “non-foreign person” within the meaning of Sections 1445 and 7701 of the United States Internal Revenue Code of 1986, as amended, and the regulations issued thereunder.
(f) Borrower has no set-offs, offsets, counterclaims, defenses or other causes of action against Lender or any of Lender’s officers, agents or employees arising out of the indebtedness evidenced by the Note, any action taken or not taken by Lender or any of Lender’s officers, agents or employees with respect to the Loan or the Loan Documents, the Transfer, the Assumption, or any modification of the Original Loan Documents, and, to the extent any such set-offs, counterclaims, defenses or other causes of action may exist, whether known or unknown, such items are waived by Borrower. Borrower expressly disclaims any reliance on any oral representation made or allegedly made by Lender or any of its officers, agents or employees with respect to the Loan, this Agreement or any of the other Loan Documents.
(g) There are no pending or, to Borrower’s knowledge, threatened litigation, investigations, actions, suits or proceedings (including, without limitation, condemnation proceedings) at law, in equity or before or by any court, governmental or quasi-governmental authorities, arbitrator or other authority that, if determined adversely, could affect Borrower, the Property, the validity or enforceability of the Note (as modified by this Agreement), the Mortgage (as modified by this Agreement) or any of the other Loan Documents or the priority of the lien thereof. Borrower is not in default with respect to any order, writ, injunction, decree or demand of any court or governmental authorities.
(h) Any brokerage commissions and fees due in connection with the Transfer and/or the Assumption have been paid in full, and any such commissions and fees coming due in the future will be promptly paid or caused to be paid by Borrower. Borrower hereby agrees to indemnify, defend and hold harmless Lender from any and all liability, claims, demands, actions and causes of action whatsoever arising out of or relating to the claim of any Person for any brokerage commissions and fees, including, without limitation, Lender’s attorneys’ fees and expenses, and costs and expenses incurred by Lender in investigating, preparing or defending against any litigation or claim, action, suit, proceeding or demand of any kind or character regarding any brokerage commissions and fees due and payable by reason of the Transfer and/or the Assumption.
(i) All state or local mortgage taxes, intangible taxes, stamp taxes and other fees or taxes (including customary per-page or document filing and recording fees imposed by law) required to be paid in the State of Connecticut (including, without limitation, the Town of Orange, Connecticut, County of New Haven, Connecticut and any other political subdivision of the State of Connecticut) in connection with the Transfer, the Assumption, or the execution, delivery, filing, or recording of this Agreement or any other Loan Document have been or will be paid by Borrower upon the recording of this Agreement. Borrower hereby agrees to indemnify, defend and hold harmless Lender from any and all liability, claims, demands, actions and causes of action whatsoever arising out of or relating to the claim of any Person for any such tax or fee, including, without limitation, Lender’s attorneys’ fees and expenses, and costs and expenses incurred by Lender in investigating, preparing or defending against any litigation or claim, action, suit, proceeding or demand of any kind or character related thereto.
(j) No Default or Event of Default exists under any of the Loan Documents.
(k) The Transfer, the Assumption and the execution of this Agreement and the other Loan Modification Documents have been duly authorized by all necessary corporate, partnership, limited liability company or other action on the part of Borrower, the other Borrowers, Guarantor and the other entities set forth on the organizational chart of Borrower attached to the Organizational Certificate, and the individuals who executed this Agreement have been authorized to execute this Agreement on behalf of Borrower and Guarantor. Borrower has obtained all consents and approvals required in connection with the Transfer, the Assumption and the execution and delivery of this Agreement, the Note Agreement and the other Loan Documents, Modification Documents and the consummation performance of the transactions contemplated hereby Note and thereby and the fulfillment of the terms and conditions hereof and thereof do not and will not violate any lawMortgage, rule, regulation or order, conflict with or result in a breach of any of the terms or conditions of any Organizational Document of Borrower or of any corporate restriction or of any agreement or instrument to which Borrower is now a party and do not and will not constitute a default under any of the foregoing or result in the creation or imposition of any liens, charges or encumbrances of any nature upon any of the property or assets of Borrower other than Liens in favor of Lender.
(e) The authorization, execution, delivery and performance of as modified by this Agreement, the Note and the other Loan Documents by Borrower do not require submission toModification Documents.
(l) No portion of the Property is subject to any liens, approval ofencumbrances, security interests, or other action by any governmental authority or agencyclaims whatsoever, except for such action the lien of the Loan Documents and except insofar as the Property may be encumbered by the Permitted Exceptions, any rights of tenants under their respective Leases or any municipal tax liens not yet due and payable.
(m) Borrower currently complies with ERISA. Neither the Transfer nor the Assumption, nor the exercise by Lender of any of Lender’s rights under the Loan Documents constitutes, or will constitute, a non-exempt, prohibited transaction under ERISA as with respect to Borrower.
(n) Borrower and each of the other Borrowers, as applicable, is in compliance with all of the covenants, obligations, representations and warranties set forth in that has been duly obtained or taken certain (i) Reserve Agreement (Initial TI/LC Reserve), dated as of March 8, 2011, among M. Xxxxxx Xxxxxxx & Company, Inc., a Delaware corporation (“Servicer”), Borrower, 470 Bridgeport Borrower, 950 Bridgeport Borrower, 8 Xxxxxx Borrower and is Lender (the “Initial TI Reserve Agreement”), (ii) Reserve Agreement (Ongoing Reserve), dated as of March 8, 2011, among Borrowers, Lender and Servicer (the “Ongoing Reserve Agreement”), and (iii) Reserve Agreement (Earnout Reserve), dated as of March 8, 2011, among Borrowers, Lender and Servicer (the “Earnout Reserve Agreement”; collectively with the Initial TI Reserve Agreement and the Ongoing Reserve Agreement, the “Reserve Agreements”), and all of the covenants, obligations, representations and warranties set forth in the Reserve Agreements are in full force and effect.
(f) Each of the Loan Documents that purports to create a security interest creates a valid first priority Lien on the Collateral subject only to Permitted Liens, securing the payment and performance of the Obligations.
(g) Except as disclosed on Schedule IV, there is no action, suit, proceeding, claim, inquiry or investigation, at law or in equity, before or by any court, regulatory agency, public board or body pending or, to the best of Borrower’s knowledge, threatened against or affecting Borrower, any Guarantor or any of their Subsidiaries, challenging Borrower’s or any Guarantor’s authority to enter into this Agreement, the Note or any of the other Loan Documents or any other action wherein an unfavorable ruling or finding would adversely affect the enforceability of this Agreement, the Note or any of the other Loan Documents, or could reasonably be expected to have a Material Adverse Effect.
(h) Borrower has good, marketable and insurable title in fee simple to all Collateral that is real property, and good title to all other Collateral, in each case free and clear of all Liens except for Permitted Liens. With respect to Collateral that is personal property, Borrower owns/leases the real property where the Collateral will be located, subject to no Liens of any kind except for Permitted Liens, and has provided a complete and accurate legal description and the exact name of the fee simple owner of record of such real property, and no person other than Borrower is in occupancy or possession of any portion of such real property.
(i) Borrower is in compliance with all laws, rules, regulations and orders of governmental authorities applicable to it and its properties except to the extent the non-compliance with which could not reasonably be expected to have a Material Adverse Effect.
(j) Borrower has heretofore furnished to Lender the Financial Statements and those statements fairly present the financial condition of Borrower and such Guarantor, if any, on the dates thereof and the results of its operations and cash flows for the periods then ended and were prepared in accordance with GAAP. Since the date of the most recent financial statements, there has been no material adverse change in the business, properties or condition (financial or otherwise) of Borrower or any Guarantor. Except as disclosed in the Financial Statements or the notes thereto and for the items disclosed on Schedule IV, neither Borrower nor any Guarantor, as of each Closing Date, has or will have any liabilities, contingent or otherwise, that could reasonably be expected to have a Material Adverse Effect.
(k) Borrower has paid or caused to be paid, and will pay, to the proper authorities when due all federal, state and local taxes required to be withheld by it. Borrower has filed, and will pay, all federal, state and local tax returns which are required to be filed, and Borrower has paid or caused to be paid to the respective taxing authorities all taxes as shown on said returns or on any assessment received by it to the extent such taxes have become due, except any such taxes or charges which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP have been set aside on its books.
(l) For purposes of Section 9-307 of the UCC, Borrower is and will remain located in the Borrower’s State. Borrower’s residence for federal income tax purposes is located at its Notice Address specified in Schedule I. Borrower has authorized Lender to file financing statements that are sufficient when filed to perfect the security interests created pursuant to this Agreement and the other Loan Documents. When such financing statements are filed in the offices noted therein, Lender will have a valid and perfected security interest in the Collateral that constitutes personal property, subject to no other Lien other than Permitted Liens.
(m) None of the Collateral constitutes a replacement of, substitution for or accessory to any property of Borrower subject to a lien of any kind.
(n) No ERISA Event has occurred or is reasonably likely to occur with respect to any Plan, and each Plan is in compliance in all material respects with the applicable provisions of ERISA.
(o) Borrower has obtained all permits, licenses and other authorizations which are required under all Environmental Laws at Borrower’s facilities or in connection with the operation of its business. Except as disclosed on Schedule IV, Borrower and all activities of Borrower at its facilities comply with all Environmental Laws and with all terms and conditions of any required permits, licenses and authorizations applicable to Borrower with respect thereto. Except as disclosed on Schedule IV, Borrower is also in compliance with all limitations, restrictions, conditions, standards, prohibitions, requirements, obligations, schedules and timetables contained in Environmental Laws or contained in any plan, order, decree, judgment or notice of which Borrower is aware. Except as disclosed on Schedule IV, Borrower is not aware of, nor has Borrower received notice of, any events, conditions, circumstances, activities, practices, incidents, actions or plans which may interfere with or prevent continued compliance with, or which may give rise to any liability under, any Environmental Laws.
(p) All factual information heretofor or contemporaneously furnished by or on behalf of Borrower or any Guarantor in writing to Lender for purposes of or in connection with this Agreement or any transaction contemplated hereby is, and all other such factual information hereafter furnished by or on behalf of Borrower or any Guarantor to Lender will be, true and correct in every material respect on the date as of which such information is dated or certified, and such information is not, or shall not be, as the case may be, incomplete by omitting to state any material fact necessary to make such information not misleading.
(q) None of Borrower, any Guarantor or any of their Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying “margin stock.” None of the proceeds of any Loan will be used for the purpose of, or be made available by Borrower, any Guarantor or any of their Subsidiaries in any manner to any other Person to enable or assist such Person in, directly or indirectly purchasing or carrying “margin stock”. Terms for which meanings are provided in F.R.S. Board Regulation T, U or X or any regulations substituted therefor, as from time to time in effect, are used in this Section with such meanings.
(r) None of Borrower, any Guarantor or any of their Subsidiaries is an “investment company” nor a “company controlled by an investment company” within the meaning of the Investment Company Act of 1940, as amended, or a “holding company,” or a “subsidiary company” of a “holding company,” or an “affiliate” of a “holding company” or of a “subsidiary company” of a “holding company,” within the meaning of the Public Utility Holding Company Act of 1935, as amended.
(s) Schedule V is an accurate and complete list of all Subsidiaries of Borrower and each Corporate Guarantor and the respective ownership interests therein.
(t) Borrower and each Guarantor are solvent and will not be rendered insolvent of the other Borrowers, as applicable, has satisfied its obligations under that certain Post-Closing Side Letter, dated as of March 8, 2011, by Borrowers to Lender (the Loan Documents or the transactions contemplated thereby and, after giving effect to such transactions, neither Borrower nor any Guarantor will be left with an unreasonably small amount of capital with which to engage in its business, nor does Borrower or any Guarantor intend to incur, or believe that it has incurred, debts beyond its ability to pay as they mature. Neither Borrower nor any Guarantor contemplates the commencement of insolvency, bankruptcy, liquidation or consolidation proceedings or the appointment of a receiver, liquidator, conservator, trustee or similar official in respect of Borrower or any Guarantor or any of their assets. Neither Borrower nor any Guarantor are entering into the transactions contemplated by the Loan Documents with any intent to hinder, delay or defraud any of Borrower’s or any Guarantor’s creditors“Side Letter”).
Appears in 1 contract
Samples: Assumption, Consent and Modification Agreement (GTJ REIT, Inc.)
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER. Borrower hereby represents, warrants and covenants for the benefit (which representations, warranties and covenants will survive creation of Lender, any indebtedness of Borrower to Collateral Agent and any extension of credit thereunder) as follows:
(a) Borrower The Personal Property is a corporation duly organizednot used or bought for personal, validly existing and in good standing under the laws of the jurisdiction of its organization. Borrower is in good standing and is duly licensed family or qualified to transact business in each jurisdiction where the nature of its business requires such qualification, except for those jurisdictions in which the failure to qualify could not reasonably be expected to have a Material Adverse Effect. Borrower’s exact legal name is as set forth on the execution page hereofhousehold purposes.
(b) The tangible portion of the Personal Property will be kept on or at the Premises; and Borrower has full power and authority and holds shall not, without the prior written consent of Collateral Agent, remove the Personal Property or any portion thereof therefrom except such portions or items of Personal Property which are consumed or worn out in ordinary usage, all requisite governmental licenses, permits and other approvals to (i) enter into and perform its obligations under this Agreement, the Note and each other Loan Document to of which it is a party and to own its property, (ii) use the Collateral and (iii) conduct its business substantially as currently conducted will be promptly replaced by it, except as to clause (iii) where the failure to hold such licenses, permits and approvals could not reasonably be expected to have a Material Adverse EffectBorrower with similar items of comparable value.
(c) This AgreementAt the request of Collateral Agent, the Note Borrower shall join Collateral Agent in executing one or more financing statements and the other Loan Documents to which it is a party have been duly authorized, executed and delivered by Borrower and constitute legal, valid and binding obligations of Borrower, enforceable against Borrower in accordance with their respective terms, except fixture filings pursuant to the extent limited Uniform Commercial Code of [________________] as in effect in the State of [________________] (“Uniform Commercial Code”), in form satisfactory to Collateral Agent and shall pay the cost of recording and filing the same in all public offices wherever recording or filing is deemed by bankruptcy, reorganization Collateral Agent to be necessary or other laws of general application relating to or effecting the enforcement of creditors’ rightsdesirable.
(d) The execution and delivery Bxxxxxxx’s principal place of this Agreement, business is in the Note and the other Loan Documents, the consummation State of the transactions contemplated hereby and thereby and the fulfillment of the terms and conditions hereof and thereof [________________] at [________________]. Borrower does not do not and will not violate business under any law, rule, regulation or order, conflict with or result trade name except as previously disclosed in a breach writing to Collateral Agent. Borrower shall immediately notify Collateral Agent in writing of any change in its place of business or the terms adoption or conditions change of any Organizational Document trade name or fictitious business name and shall, upon request of Borrower Collateral Agent, execute any additional financing statements or of any corporate restriction other certificates necessary to reflect the adoption or of any agreement change in trade name or instrument to which Borrower is now a party and do not and will not constitute a default under any of the foregoing or result in the creation or imposition of any liens, charges or encumbrances of any nature upon any of the property or assets of Borrower other than Liens in favor of Lenderfictitious business name.
(e) The authorization, execution, delivery and performance Borrower shall immediately notify Collateral Agent of this Agreement, any claim against the Note and the other Loan Documents by Borrower do not require submission to, approval of, or other action by any governmental authority or agency, except for such action that has been duly obtained or taken and is in full force and effect.
(f) Each of the Loan Documents that purports to create a security interest creates a valid first priority Lien on the Collateral subject only to Permitted Liens, securing the payment and performance of the Obligations.
(g) Except as disclosed on Schedule IV, there is no action, suit, proceeding, claim, inquiry or investigation, at law or in equity, before or by any court, regulatory agency, public board or body pending or, Personal Property adverse to the best interest of Borrower’s knowledge, threatened against or affecting Borrower, any Guarantor or any of their Subsidiaries, challenging Borrower’s or any Guarantor’s authority to enter into this Agreement, the Note or any of the other Loan Documents or any other action wherein an unfavorable ruling or finding would adversely affect the enforceability of this Agreement, the Note or any of the other Loan Documents, or could reasonably be expected to have a Material Adverse Effect.
(h) Borrower has good, marketable and insurable title in fee simple to all Collateral that is real property, and good title to all other Collateral, in each case free and clear of all Liens except for Permitted Liens. With respect to Collateral that is personal property, Borrower owns/leases the real property where the Collateral will be located, subject to no Liens of any kind except for Permitted Liens, and has provided a complete and accurate legal description and the exact name of the fee simple owner of record of such real property, and no person other than Borrower is in occupancy or possession of any portion of such real property.
(i) Borrower is in compliance with all laws, rules, regulations and orders of governmental authorities applicable to it and its properties except to the extent the non-compliance with which could not reasonably be expected to have a Material Adverse Effect.
(j) Borrower has heretofore furnished to Lender the Financial Statements and those statements fairly present the financial condition of Borrower and such Guarantor, if any, on the dates thereof and the results of its operations and cash flows for the periods then ended and were prepared in accordance with GAAP. Since the date of the most recent financial statements, there has been no material adverse change in the business, properties or condition (financial or otherwise) of Borrower or any Guarantor. Except as disclosed in the Financial Statements or the notes thereto and for the items disclosed on Schedule IV, neither Borrower nor any Guarantor, as of each Closing Date, has or will have any liabilities, contingent or otherwise, that could reasonably be expected to have a Material Adverse Effect.
(k) Borrower has paid or caused to be paid, and will pay, to the proper authorities when due all federal, state and local taxes required to be withheld by it. Borrower has filed, and will pay, all federal, state and local tax returns which are required to be filed, and Borrower has paid or caused to be paid to the respective taxing authorities all taxes as shown on said returns or on any assessment received by it to the extent such taxes have become due, except any such taxes or charges which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP have been set aside on its books.
(l) For purposes of Section 9-307 of the UCC, Borrower is and will remain located in the Borrower’s State. Borrower’s residence for federal income tax purposes is located at its Notice Address specified in Schedule I. Borrower has authorized Lender to file financing statements that are sufficient when filed to perfect the security interests created pursuant to this Agreement and the other Loan Documents. When such financing statements are filed in the offices noted therein, Lender will have a valid and perfected security interest in the Collateral that constitutes personal property, subject to no other Lien other than Permitted Liens.
(m) None of the Collateral constitutes a replacement of, substitution for or accessory to any property of Borrower subject to a lien of any kind.
(n) No ERISA Event has occurred or is reasonably likely to occur with respect to any Plan, and each Plan is in compliance in all material respects with the applicable provisions of ERISA.
(o) Borrower has obtained all permits, licenses and other authorizations which are required under all Environmental Laws at Borrower’s facilities or in connection with the operation of its business. Except as disclosed on Schedule IV, Borrower and all activities of Borrower at its facilities comply with all Environmental Laws and with all terms and conditions of any required permits, licenses and authorizations applicable to Borrower with respect thereto. Except as disclosed on Schedule IV, Borrower is also in compliance with all limitations, restrictions, conditions, standards, prohibitions, requirements, obligations, schedules and timetables contained in Environmental Laws or contained in any plan, order, decree, judgment or notice of which Borrower is aware. Except as disclosed on Schedule IV, Borrower is not aware of, nor has Borrower received notice of, any events, conditions, circumstances, activities, practices, incidents, actions or plans which may interfere with or prevent continued compliance with, or which may give rise to any liability under, any Environmental Laws.
(p) All factual information heretofor or contemporaneously furnished by or on behalf of Borrower or any Guarantor in writing to Lender for purposes of or in connection with this Agreement or any transaction contemplated hereby is, and all other such factual information hereafter furnished by or on behalf of Borrower or any Guarantor to Lender will be, true and correct in every material respect on the date as of which such information is dated or certified, and such information is not, or shall not be, as the case may be, incomplete by omitting to state any material fact necessary to make such information not misleading.
(q) None of Borrower, any Guarantor or any of their Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying “margin stock.” None of the proceeds of any Loan will be used for the purpose of, or be made available by Borrower, any Guarantor or any of their Subsidiaries in any manner to any other Person to enable or assist such Person in, directly or indirectly purchasing or carrying “margin stock”. Terms for which meanings are provided in F.R.S. Board Regulation T, U or X or any regulations substituted therefor, as from time to time in effect, are used in this Section with such meanings.
(r) None of Borrower, any Guarantor or any of their Subsidiaries is an “investment company” nor a “company controlled by an investment company” within the meaning of the Investment Company Act of 1940, as amended, or a “holding company,” or a “subsidiary company” of a “holding company,” or an “affiliate” of a “holding company” or of a “subsidiary company” of a “holding company,” within the meaning of the Public Utility Holding Company Act of 1935, as amended.
(s) Schedule V is an accurate and complete list of all Subsidiaries of Borrower and each Corporate Guarantor and the respective ownership interests Agent therein.
(t) Borrower and each Guarantor are solvent and will not be rendered insolvent by the Loan Documents or the transactions contemplated thereby and, after giving effect to such transactions, neither Borrower nor any Guarantor will be left with an unreasonably small amount of capital with which to engage in its business, nor does Borrower or any Guarantor intend to incur, or believe that it has incurred, debts beyond its ability to pay as they mature. Neither Borrower nor any Guarantor contemplates the commencement of insolvency, bankruptcy, liquidation or consolidation proceedings or the appointment of a receiver, liquidator, conservator, trustee or similar official in respect of Borrower or any Guarantor or any of their assets. Neither Borrower nor any Guarantor are entering into the transactions contemplated by the Loan Documents with any intent to hinder, delay or defraud any of Borrower’s or any Guarantor’s creditors.
Appears in 1 contract
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER. Borrower hereby re-makes each and every representation and warranty of Borrower to Lender contained in the Note and the Mortgage and the other Original Loan Documents, except for the representations in Section 3.3(a), Section 3.3(b), Section 3.3(c), Section 3.3(d) and Section 3.3(e) of the Mortgage, and Borrower further represents, warrants and covenants for the benefit of Lender, to Lender as follows:
(a) Borrower is a corporation duly organized, validly existing and in good standing under the laws All of the jurisdiction representations and warranties (i) added to Section 3.3 of its organization. Borrower is the Mortgage pursuant to Section 4 of this Agreement and (ii) contained in good standing that certain Organizational Certificate (as defined on Exhibit B) are true, complete and is duly licensed or qualified to transact business in each jurisdiction where correct as of the nature date of its business requires such qualification, except for those jurisdictions in which the failure to qualify could not reasonably be expected to have a Material Adverse Effect. Borrower’s exact legal name is as set forth on the execution page hereofthis Agreement.
(b) The consummation of the Transfer and the Assumption, and the execution, delivery, and/or performance by Borrower has full power and authority and holds all requisite governmental licenses, permits and other approvals to (i) enter into and perform its obligations under of this Agreement, the Note and each other Loan Document to which it is a party and to own its property, (ii) use the Collateral and (iii) conduct its business substantially as currently conducted by it, except as to clause (iii) where the failure to hold such licenses, permits and approvals could not reasonably be expected to have a Material Adverse Effect.
(c) This Agreement, the Note Modification Documents and the other Loan Documents to which it the Borrower is a party, and the effectiveness of any assignment of any of Borrower’s rights and interests of any kind to Lender: (i) shall not result in any breach of, or constitute a default under, any mortgage, agreement, or other instrument to which Borrower is a party or by which Borrower may be bound or affected, or Borrower’s certificate of formation or limited liability agreement; (ii) do not contravene any applicable law, regulation or order; (iii) require no authorization, approval, consent or other action by, and no notice to or filing with, any court, any governmental authority or regulatory body; (iv) are within the power and authority of Borrower and have been duly authorizedauthorized by all necessary action and will not violate any provision of the certificate of formation, executed operating agreement or other organizational documents of Borrower; (v) shall not contravene any contractual or other restriction binding on or affecting Borrower, and delivered by (vi) shall not result in or require the creation of any lien, security interest, other charge or encumbrance (other than pursuant hereto) upon or with respect to any of the properties of Borrower.
(c) This Agreement and the other Loan Documents to which Borrower and constitute legalis a party shall, when delivered, be valid and binding obligations of Borrower, Borrower enforceable against Borrower in accordance with their respective terms, except to the extent as limited by equitable principles and bankruptcy, reorganization or other insolvency and similar laws of general application relating to or effecting the enforcement of affecting creditors’ rights.
(d) This Agreement and the other Loan Documents collectively grant to Lender a valid and enforceable first priority security conveyance of and security interest in the Property, subject only to the Permitted Exceptions. Without limiting the foregoing provisions of this Section 3(d), the Mortgage, as modified by this Agreement, is a valid and enforceable first lien and security interest on the Property, subject only to the Permitted Exceptions.
(e) Borrower is, and notwithstanding the Transfer and the Assumption, shall at all times continue to be, a “non-foreign person” within the meaning of Sections 1445 and 7701 of the United States Internal Revenue Code of 1986, as amended, and the regulations issued thereunder.
(f) Borrower has no set-offs, offsets, counterclaims, defenses or other causes of action against Lender or any of Lender’s officers, agents or employees arising out of the indebtedness evidenced by the Note, any action taken or not taken by Lender or any of Lender’s officers, agents or employees with respect to the Loan or the Loan Documents, the Transfer, the Assumption, or any modification of the Original Loan Documents, and, to the extent any such set-offs, counterclaims, defenses or other causes of action may exist, whether known or unknown, such items are waived by Borrower. Borrower expressly disclaims any reliance on any oral representation made or allegedly made by Lender or any of its officers, agents or employees with respect to the Loan, this Agreement or any of the other Loan Documents.
(g) There are no pending or, to Borrower’s knowledge, threatened litigation, investigations, actions, suits or proceedings (including, without limitation, condemnation proceedings) at law, in equity or before or by any court, governmental or quasi-governmental authorities, arbitrator or other authority that, if determined adversely, could affect Borrower, the Property, the validity or enforceability of the Note (as modified by this Agreement), the Mortgage (as modified by this Agreement) or any of the other Loan Documents or the priority of the lien thereof. Borrower is not in default with respect to any order, writ, injunction, decree or demand of any court or governmental authorities.
(h) Any brokerage commissions and fees due in connection with the Transfer and/or the Assumption have been paid in full, and any such commissions and fees coming due in the future will be promptly paid or caused to be paid by Borrower. Borrower hereby agrees to indemnify, defend and hold harmless Lender from any and all liability, claims, demands, actions and causes of action whatsoever arising out of or relating to the claim of any Person for any brokerage commissions and fees, including, without limitation, Lender’s attorneys’ fees and expenses, and costs and expenses incurred by Lender in investigating, preparing or defending against any litigation or claim, action, suit, proceeding or demand of any kind or character regarding any brokerage commissions and fees due and payable by reason of the Transfer and/or the Assumption.
(i) All state or local mortgage taxes, intangible taxes, stamp taxes and other fees or taxes (including customary per-page or document filing and recording fees imposed by law) required to be paid in the State of Connecticut (including, without limitation, the Town of Milford, Connecticut, County of New Haven, Connecticut and any other political subdivision of the State of Connecticut) in connection with the Transfer, the Assumption, or the execution, delivery, filing, or recording of this Agreement or any other Loan Document have been or will be paid by Borrower upon the recording of this Agreement. Borrower hereby agrees to indemnify, defend and hold harmless Lender from any and all liability, claims, demands, actions and causes of action whatsoever arising out of or relating to the claim of any Person for any such tax or fee, including, without limitation, Lender’s attorneys’ fees and expenses, and costs and expenses incurred by Lender in investigating, preparing or defending against any litigation or claim, action, suit, proceeding or demand of any kind or character related thereto.
(j) No Default or Event of Default exists under any of the Loan Documents.
(k) The Transfer, the Assumption and the execution of this Agreement and the other Loan Modification Documents have been duly authorized by all necessary corporate, partnership, limited liability company or other action on the part of Borrower, the other Borrowers, Guarantor and the other entities set forth on the organizational chart of Borrower attached to the Organizational Certificate, and the individuals who executed this Agreement have been authorized to execute this Agreement on behalf of Borrower and Guarantor. Borrower has obtained all consents and approvals required in connection with the Transfer, the Assumption and the execution and delivery of this Agreement, the Note Agreement and the other Loan Documents, Modification Documents and the consummation performance of the transactions contemplated hereby Note and thereby and the fulfillment of the terms and conditions hereof and thereof do not and will not violate any lawMortgage, rule, regulation or order, conflict with or result in a breach of any of the terms or conditions of any Organizational Document of Borrower or of any corporate restriction or of any agreement or instrument to which Borrower is now a party and do not and will not constitute a default under any of the foregoing or result in the creation or imposition of any liens, charges or encumbrances of any nature upon any of the property or assets of Borrower other than Liens in favor of Lender.
(e) The authorization, execution, delivery and performance of as modified by this Agreement, the Note and the other Loan Documents by Borrower do not require submission toModification Documents.
(l) No portion of the Property is subject to any liens, approval ofencumbrances, security interests, or other action by any governmental authority or agencyclaims whatsoever, except for such action the lien of the Loan Documents and except insofar as the Property may be encumbered by the Permitted Exceptions, any rights of tenants under their respective Leases or any municipal tax liens not yet due and payable.
(m) Borrower currently complies with ERISA. Neither the Transfer nor the Assumption, nor the exercise by Lender of any of Lender’s rights under the Loan Documents constitutes, or will constitute, a non-exempt, prohibited transaction under ERISA as with respect to Borrower.
(n) Borrower and each of the other Borrowers, as applicable, is in compliance with all of the covenants, obligations, representations and warranties set forth in that has been duly obtained or taken certain (i) Reserve Agreement (Initial TI/LC Reserve), dated as of March 8, 2011, among M. Xxxxxx Xxxxxxx & Company, Inc., a Delaware corporation (“Servicer”), Borrower, 15 Executive Borrower, 470 Bridgeport Borrower, 8 Xxxxxx Borrower and is Lender (the “Initial TI Reserve Agreement”), (ii) Reserve Agreement (Ongoing Reserve), dated as of March 8, 2011, among Borrowers, Lender and Servicer (the “Ongoing Reserve Agreement”), and (iii) Reserve Agreement (Earnout Reserve), dated as of March 8, 2011, among Borrowers, Lender and Servicer (the “Earnout Reserve Agreement”; collectively with the Initial TI Reserve Agreement and the Ongoing Reserve Agreement, the “Reserve Agreements”), and all of the covenants, obligations, representations and warranties set forth in the Reserve Agreements are in full force and effect.
(f) Each of the Loan Documents that purports to create a security interest creates a valid first priority Lien on the Collateral subject only to Permitted Liens, securing the payment and performance of the Obligations.
(g) Except as disclosed on Schedule IV, there is no action, suit, proceeding, claim, inquiry or investigation, at law or in equity, before or by any court, regulatory agency, public board or body pending or, to the best of Borrower’s knowledge, threatened against or affecting Borrower, any Guarantor or any of their Subsidiaries, challenging Borrower’s or any Guarantor’s authority to enter into this Agreement, the Note or any of the other Loan Documents or any other action wherein an unfavorable ruling or finding would adversely affect the enforceability of this Agreement, the Note or any of the other Loan Documents, or could reasonably be expected to have a Material Adverse Effect.
(h) Borrower has good, marketable and insurable title in fee simple to all Collateral that is real property, and good title to all other Collateral, in each case free and clear of all Liens except for Permitted Liens. With respect to Collateral that is personal property, Borrower owns/leases the real property where the Collateral will be located, subject to no Liens of any kind except for Permitted Liens, and has provided a complete and accurate legal description and the exact name of the fee simple owner of record of such real property, and no person other than Borrower is in occupancy or possession of any portion of such real property.
(i) Borrower is in compliance with all laws, rules, regulations and orders of governmental authorities applicable to it and its properties except to the extent the non-compliance with which could not reasonably be expected to have a Material Adverse Effect.
(j) Borrower has heretofore furnished to Lender the Financial Statements and those statements fairly present the financial condition of Borrower and such Guarantor, if any, on the dates thereof and the results of its operations and cash flows for the periods then ended and were prepared in accordance with GAAP. Since the date of the most recent financial statements, there has been no material adverse change in the business, properties or condition (financial or otherwise) of Borrower or any Guarantor. Except as disclosed in the Financial Statements or the notes thereto and for the items disclosed on Schedule IV, neither Borrower nor any Guarantor, as of each Closing Date, has or will have any liabilities, contingent or otherwise, that could reasonably be expected to have a Material Adverse Effect.
(k) Borrower has paid or caused to be paid, and will pay, to the proper authorities when due all federal, state and local taxes required to be withheld by it. Borrower has filed, and will pay, all federal, state and local tax returns which are required to be filed, and Borrower has paid or caused to be paid to the respective taxing authorities all taxes as shown on said returns or on any assessment received by it to the extent such taxes have become due, except any such taxes or charges which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP have been set aside on its books.
(l) For purposes of Section 9-307 of the UCC, Borrower is and will remain located in the Borrower’s State. Borrower’s residence for federal income tax purposes is located at its Notice Address specified in Schedule I. Borrower has authorized Lender to file financing statements that are sufficient when filed to perfect the security interests created pursuant to this Agreement and the other Loan Documents. When such financing statements are filed in the offices noted therein, Lender will have a valid and perfected security interest in the Collateral that constitutes personal property, subject to no other Lien other than Permitted Liens.
(m) None of the Collateral constitutes a replacement of, substitution for or accessory to any property of Borrower subject to a lien of any kind.
(n) No ERISA Event has occurred or is reasonably likely to occur with respect to any Plan, and each Plan is in compliance in all material respects with the applicable provisions of ERISA.
(o) Borrower has obtained all permits, licenses and other authorizations which are required under all Environmental Laws at Borrower’s facilities or in connection with the operation of its business. Except as disclosed on Schedule IV, Borrower and all activities of Borrower at its facilities comply with all Environmental Laws and with all terms and conditions of any required permits, licenses and authorizations applicable to Borrower with respect thereto. Except as disclosed on Schedule IV, Borrower is also in compliance with all limitations, restrictions, conditions, standards, prohibitions, requirements, obligations, schedules and timetables contained in Environmental Laws or contained in any plan, order, decree, judgment or notice of which Borrower is aware. Except as disclosed on Schedule IV, Borrower is not aware of, nor has Borrower received notice of, any events, conditions, circumstances, activities, practices, incidents, actions or plans which may interfere with or prevent continued compliance with, or which may give rise to any liability under, any Environmental Laws.
(p) All factual information heretofor or contemporaneously furnished by or on behalf of Borrower or any Guarantor in writing to Lender for purposes of or in connection with this Agreement or any transaction contemplated hereby is, and all other such factual information hereafter furnished by or on behalf of Borrower or any Guarantor to Lender will be, true and correct in every material respect on the date as of which such information is dated or certified, and such information is not, or shall not be, as the case may be, incomplete by omitting to state any material fact necessary to make such information not misleading.
(q) None of Borrower, any Guarantor or any of their Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying “margin stock.” None of the proceeds of any Loan will be used for the purpose of, or be made available by Borrower, any Guarantor or any of their Subsidiaries in any manner to any other Person to enable or assist such Person in, directly or indirectly purchasing or carrying “margin stock”. Terms for which meanings are provided in F.R.S. Board Regulation T, U or X or any regulations substituted therefor, as from time to time in effect, are used in this Section with such meanings.
(r) None of Borrower, any Guarantor or any of their Subsidiaries is an “investment company” nor a “company controlled by an investment company” within the meaning of the Investment Company Act of 1940, as amended, or a “holding company,” or a “subsidiary company” of a “holding company,” or an “affiliate” of a “holding company” or of a “subsidiary company” of a “holding company,” within the meaning of the Public Utility Holding Company Act of 1935, as amended.
(s) Schedule V is an accurate and complete list of all Subsidiaries of Borrower and each Corporate Guarantor and the respective ownership interests therein.
(t) Borrower and each Guarantor are solvent and will not be rendered insolvent of the other Borrowers, as applicable, has satisfied its obligations under that certain Post-Closing Side Letter, dated as of March 8, 2011, by Borrowers to Lender (the Loan Documents or the transactions contemplated thereby and, after giving effect to such transactions, neither Borrower nor any Guarantor will be left with an unreasonably small amount of capital with which to engage in its business, nor does Borrower or any Guarantor intend to incur, or believe that it has incurred, debts beyond its ability to pay as they mature. Neither Borrower nor any Guarantor contemplates the commencement of insolvency, bankruptcy, liquidation or consolidation proceedings or the appointment of a receiver, liquidator, conservator, trustee or similar official in respect of Borrower or any Guarantor or any of their assets. Neither Borrower nor any Guarantor are entering into the transactions contemplated by the Loan Documents with any intent to hinder, delay or defraud any of Borrower’s or any Guarantor’s creditors“Side Letter”).
Appears in 1 contract
Samples: Assumption, Consent and Modification Agreement (GTJ REIT, Inc.)
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER. Borrower represents, warrants and covenants for to the benefit of Lender, as followsCreditors that:
(a) Borrower is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization. Borrower is in good standing and is duly licensed or qualified to transact business in each jurisdiction where the nature of its business requires such qualification, except for those jurisdictions in which the failure to qualify could not reasonably be expected to have a Material Adverse Effect. Borrower’s exact legal name is as set forth on the execution page hereof.
(b) Borrower has full power and authority and holds all requisite governmental licenses, permits and other approvals to (i) enter into and perform its obligations under this Agreement, the Note and each other Loan Document to which it is a party and to own its property, (ii) use the Collateral and (iii) conduct its business substantially as currently conducted by it, except as to clause (iii) where the failure to hold such licenses, permits and approvals could not reasonably be expected to have a Material Adverse Effect.
(c) This Agreement, the Note and the other Loan Documents to which it is a party have been duly authorized, executed and delivered by Borrower and constitute legal, valid and binding obligations of Borrower, enforceable against Borrower in accordance with their respective terms, except to the extent limited by bankruptcy, reorganization or other laws of general application relating to or effecting the enforcement of creditors’ rights.
(d) The execution and delivery of this Agreement, the Note and the other Loan Documents, the consummation of the transactions contemplated hereby and thereby and the fulfillment of the terms and conditions hereof and thereof do not and will not violate any law, rule, regulation or order, conflict with or result in a breach of any of the terms or conditions of any Organizational Document of Borrower or of any corporate restriction or of any agreement or instrument to which Borrower is now a party and do not and will not constitute a default under any of the foregoing or result in the creation or imposition of any liens, charges or encumbrances of any nature upon any of the property or assets of Borrower other than Liens in favor of Lender.
(e) The authorization, execution, delivery and performance of this Agreement, the Note and the other Loan Documents by Borrower do not require submission to, approval of, or other action by any governmental authority or agency, except for such action that has been duly obtained or taken and is in full force and effect.
(f) Each of the Loan Documents that purports to create a security interest creates a valid first priority Lien on the Collateral subject only to Permitted Liens, securing the payment and performance of the Obligations.
(g) Except as disclosed on Schedule IV, there is no action, suit, proceeding, claim, inquiry or investigation, at law or in equity, before or by any court, regulatory agency, public board or body pending or, to the best of Borrower’s knowledge, threatened against or affecting Borrower, any Guarantor or any of their Subsidiaries, challenging Borrower’s or any Guarantor’s authority to enter into this Agreement, the Note or any of the other Loan Documents or any other action wherein an unfavorable ruling or finding would adversely affect the enforceability of this Agreement, the Note or any of the other Loan Documents, or could reasonably be expected to have a Material Adverse Effect.
(h) Borrower has good, marketable and insurable title in fee simple to all Collateral that is real property, and good title to all other Collateral, in each case free and clear of all Liens except for Permitted Liens. With respect to Collateral that is personal property, Borrower owns/leases the real property where the Collateral will be located, subject to no Liens of any kind except for Permitted Liens, and has provided a complete and accurate legal description and the exact name of the fee simple owner of record of such real property, and no person other than Borrower is in occupancy or possession of any portion of such real property.
(i) Borrower is in compliance with all laws, rules, regulations and orders of governmental authorities applicable to it and its properties except to the extent the non-compliance with which could not reasonably be expected to have a Material Adverse Effect.
(j) Borrower has heretofore furnished to Lender the Financial Statements and those statements fairly present the financial condition of Borrower and such Guarantor, if any, on the dates thereof and the results of its operations and cash flows for the periods then ended and were prepared in accordance with GAAP. Since the date of the most recent financial statements, there has been no material adverse change in the business, properties or condition (financial or otherwise) of Borrower or any Guarantor. Except as disclosed in the Financial Statements or the notes thereto and for the items disclosed on Schedule IV, neither Borrower nor any Guarantor, as of each Closing Date, has or will have any liabilities, contingent or otherwise, that could reasonably be expected to have a Material Adverse Effect.
(k) Borrower has paid or caused to be paid, and will pay, to the proper authorities when due all federal, state and local taxes required to be withheld by it. Borrower has filed, and will pay, all federal, state and local tax returns which are required to be filed, and Borrower has paid or caused to be paid to the respective taxing authorities all taxes as shown on said returns or on any assessment received by it to the extent such taxes have become due, except any such taxes or charges which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP have been set aside on its books.
(l) For purposes of Section 9-307 of the UCC, Borrower is and will remain located in the Borrower’s State. Borrower’s residence for federal income tax purposes is located at its Notice Address specified in Schedule I. Borrower has authorized Lender to file financing statements that are sufficient when filed to perfect the security interests created pursuant to this Agreement and the other Loan Documents. When such financing statements are filed in the offices noted therein, Lender will have a valid and perfected security interest in the Collateral that constitutes personal property, subject to no other Lien other than Permitted Liens.
(m) None of the Collateral constitutes a replacement of, substitution for or accessory to any property of Borrower subject to a lien of any kind.
(n) No ERISA Event has occurred or is reasonably likely to occur with respect to any Plan, and each Plan is in compliance in all material respects with the applicable provisions of ERISA.
(o) Borrower has obtained all permits, licenses and other authorizations which are required under all Environmental Laws at Borrower’s facilities or in connection with the operation of its business. Except as disclosed on Schedule IV, Borrower and all activities of Borrower at its facilities comply with all Environmental Laws and with all terms and conditions of any required permits, licenses and authorizations applicable to Borrower with respect thereto. Except as disclosed on Schedule IV, Borrower is also in compliance with all limitations, restrictions, conditions, standards, prohibitions, requirements, obligations, schedules and timetables contained in Environmental Laws or contained in any plan, order, decree, judgment or notice of which Borrower is aware. Except as disclosed on Schedule IV, Borrower is not aware of, nor has Borrower received notice of, any events, conditions, circumstances, activities, practices, incidents, actions or plans which may interfere with or prevent continued compliance with, or which may give rise to any liability under, any Environmental Laws.
(p) All factual information heretofor or contemporaneously furnished by or on behalf of Borrower has been duly authorized by all necessary action, corporate or otherwise, and does not violate any provision of law, governmental regulation, or any Guarantor in writing to Lender for purposes of agreement or in connection with this Agreement or any transaction contemplated hereby isinstrument by which Borrower is bound, and all requires no governmental or other such factual information hereafter furnished by or on behalf of Borrower or any Guarantor to Lender will be, true and correct in every material respect on the date as of which such information is dated or certified, and such information is not, or shall consent that has not be, as the case may be, incomplete by omitting to state any material fact necessary to make such information not misleadingbeen obtained.
(qb) None No Event of BorrowerDefault (as defined in the Amended 2008 Loan Agreement, any Guarantor the Amended 2009 Loan Agreement or any of their Subsidiaries the TAB Loan Documents) has occurred and is engaged principallycontinuing and no event has occurred and is continuing and no condition exists that would, with notice or the lapse or time, or as one both, constitute an Event of its important activities, in the business of extending credit for the purpose of purchasing or carrying “margin stock.” None of the proceeds of any Loan will be used for the purpose of, or be made available by Borrower, any Guarantor or any of their Subsidiaries in any manner to any other Person to enable or assist Default under such Person in, directly or indirectly purchasing or carrying “margin stock”. Terms for which meanings are provided in F.R.S. Board Regulation T, U or X or any regulations substituted therefor, as from time to time in effect, are used in this Section with such meaningsagreements.
(rc) None Borrower agrees that (i) it will, together with its successors and assigns, be bound by the provisions hereof as they relate to the relative rights of Borrower, the Parties as among them; (ii) the terms of this Agreement shall not give Borrower any Guarantor or substantive rights vis-a-vis any of their Subsidiaries is an “investment company” nor a “company controlled by an investment company” within the meaning Creditors; (iii) it does not and will not receive any right, benefit, priority or interest under or because of the Investment Company Act existence of 1940, this Agreement; (iv) it will execute and deliver such additional documents and take such additional action as amended, may be necessary or a “holding company,” desirable in the opinion of any Creditor to effectuate the provisions and purposes of this Agreement; and (v) if any Party shall enforce its rights or a “subsidiary company” of a “holding company,” or an “affiliate” of a “holding company” or of a “subsidiary company” of a “holding company,” within the meaning remedies in violation of the Public Utility Holding Company Act terms of 1935this Agreement, Borrower shall not use such violation as amendeda defense to any Enforcement Action by any other Party nor assert such violation as a counterclaim or basis for set-off or recoupment against any Creditor, provided that Borrower will continue to have all of its other remedies at law or in equity for damages or loss or other harm it may incur.
(sd) Schedule V is an accurate Borrower has delivered to each Party true and complete list copies of all Subsidiaries the Security Documents of Borrower and each Corporate Guarantor and the respective ownership interests thereinother Party.
(t) Borrower and each Guarantor are solvent and will not be rendered insolvent by the Loan Documents or the transactions contemplated thereby and, after giving effect to such transactions, neither Borrower nor any Guarantor will be left with an unreasonably small amount of capital with which to engage in its business, nor does Borrower or any Guarantor intend to incur, or believe that it has incurred, debts beyond its ability to pay as they mature. Neither Borrower nor any Guarantor contemplates the commencement of insolvency, bankruptcy, liquidation or consolidation proceedings or the appointment of a receiver, liquidator, conservator, trustee or similar official in respect of Borrower or any Guarantor or any of their assets. Neither Borrower nor any Guarantor are entering into the transactions contemplated by the Loan Documents with any intent to hinder, delay or defraud any of Borrower’s or any Guarantor’s creditors.
Appears in 1 contract
Samples: Intercreditor Agreement (InterMetro Communications, Inc.)
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER. Each Borrower represents, warrants and covenants for the benefit of Lender, as follows:
(a) Borrower is a corporation or limited liability company, as applicable, duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization. Borrower is in good standing and is duly licensed or qualified to transact business in each jurisdiction where the nature of its business requires such qualification, except for those jurisdictions in which the failure to qualify could not reasonably be expected to have a Material Adverse Effect. Borrower’s 's exact legal name is as set forth on the execution page hereof.
(b) Borrower has full power and authority and holds all requisite governmental licenses, permits and other approvals to (i) enter into and perform its obligations under this Agreement, the Note Notes and each other Loan Document to which it is a party and to own its property, (ii) use the Collateral and (iii) conduct its business substantially as currently conducted by it, except as to clause (iii) where the failure to hold such licenses, permits and approvals could not reasonably be expected to have a Material Adverse Effect.
(c) This Agreement, the Note Notes and the other Loan Documents to which it is a party have been duly authorized, executed and delivered by Borrower and constitute legal, valid and binding obligations of Borrower, enforceable against Borrower in accordance with their respective terms, except to the extent limited by bankruptcy, reorganization or other laws of general application relating to or effecting the enforcement of creditors’ ' rights.
(d) The execution and delivery of this Agreement, the Note Notes and the other Loan Documents, the consummation of the transactions contemplated hereby and thereby (subject to satisfaction of the conditions described in Article III hereof) and the fulfillment of the terms and conditions hereof and thereof do not and will not violate any law, rule, regulation or order, conflict with or result in a breach of any of the terms or conditions of any Organizational Document of Borrower or of any corporate or limited liability company, as applicable, restriction or of any agreement or instrument to which Borrower is now a party and do not and will not constitute a default under any of the foregoing or result in the creation or imposition of any liens, charges or encumbrances of any nature upon any of the property or assets of Borrower other than Liens in favor of Lender.
(e) The authorization, execution, delivery and performance of this Agreement, the Note Notes and the other Loan Documents by Borrower do not require submission to, approval of, or other action by any governmental authority or agency, except for such action that has been duly obtained or taken and is in full force and effect.
(f) Each of the Loan Documents that purports to create a security interest creates a valid first priority Lien on the Collateral subject only to Permitted Liens, securing the payment and performance of the Obligations.
(g) Except as disclosed on Schedule IV, there is no action, suit, proceeding, claim, inquiry or investigation, at law or in equity, before or by any court, regulatory agency, public board or body pending or, to the best of Borrower’s 's knowledge, threatened against or affecting Borrower, any Guarantor or any of their Subsidiaries, Subsidiaries challenging Borrower’s 's or any Guarantor’s 's authority to enter into this Agreement, the Note Notes or any of the other Loan Documents or any other action wherein an unfavorable ruling or finding would adversely affect the enforceability of this Agreement, the Note Notes or any of the other Loan Documents, or could reasonably be expected to have a Material Adverse Effect.
(h) Borrower has good, marketable and insurable title in fee simple to all Collateral that is real property, and good title to all other Collateral, in each case free and clear of all Liens except for Permitted Liens. With respect to Collateral that is personal property, Borrower owns/leases the real property where the Collateral will be located, subject to no Liens of any kind except for Permitted Liens, and has provided a complete and accurate legal description and the exact name of the fee simple owner of record of such real property, and no person other than Borrower is in occupancy or possession of any portion of such real property.
(i) Borrower is in compliance with all laws, rules, regulations and orders of governmental authorities applicable to it and its properties except to the extent the non-compliance with which could not reasonably be expected to have a Material Adverse Effect.
(j) Borrower has heretofore furnished to Lender the Financial Statements and those statements fairly present the financial condition of Borrower and such Guarantor, if any, on the dates thereof and the results of its operations and cash flows for the periods then ended and were prepared in accordance with GAAP. Since the date of the most recent financial statements, there has been no material adverse change in the business, properties or condition (financial or otherwise) of Borrower or any Guarantor. Except as disclosed in the Financial Statements or the notes thereto and for the items disclosed on Schedule IV, neither Borrower nor any Guarantor, as of each Closing Date, has or will have any liabilities, contingent or otherwise, that could reasonably be expected to have a Material Adverse Effect.
(k) Borrower has paid or caused to be paid, and will pay, to the proper authorities when due all federal, state and local taxes required to be withheld by it. Borrower has filed, and will pay, all federal, state and local tax returns which are required to be filed, and Borrower has paid or caused to be paid to the respective taxing authorities all taxes as shown on said returns or on any assessment received by it to the extent such taxes have become due, except any such taxes or charges which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP have been set aside on its books.
(l) For purposes of Section 9-307 of the UCC, Borrower is and will remain located in the Borrower’s 's State. Borrower’s residence for federal income tax purposes is located at its Notice Address specified in Schedule I. Borrower has authorized Lender to file financing statements that are sufficient when filed to perfect the security interests created pursuant to this Agreement and the other Loan Documents. When such financing statements are filed in the offices noted therein, Lender will have a valid and perfected security interest in the Collateral that constitutes personal property, subject to no other Lien other than Permitted Liens.
(m) None of the Collateral constitutes a replacement of, substitution for or accessory to any property of Borrower subject to a lien of any kindkind except Permitted Liens.
(n) No ERISA Event has occurred or is reasonably likely expected to occur that, when taken together with respect all other such ERISA Events for which liability is reasonably expected to any occur, could reasonably be expected to result in a Material Adverse Effect. The present value of all accumulated benefit obligations under each Plan (based on the assumptions used for purposes of Statement of Financial Accounting Standards No. 87) did not, as of the date of the most recent financial statements reflecting such amounts, exceed by more than 10% of the fair market value of the assets of such Plan, and each Plan is in compliance in the present value of all material respects with accumulated benefit obligations of all underfunded Plans (based on the applicable provisions assumptions used for purposes of ERISAStatement of Financial Accounting Standards No. 87) did not, as of the date of the most recent financial statements reflecting such amounts, exceed by more than $100,000 the fair market value of the assets of all such underfunded Plans.
(o) Borrower has obtained all permits, licenses and other authorizations which are required under all Environmental Laws at Borrower’s 's facilities or in connection with the operation of its business. Except as disclosed on Schedule IV, Borrower and all activities of Borrower at its facilities comply with all Environmental Laws and with all terms and conditions of any required permits, licenses and authorizations applicable to Borrower with respect thereto. Except as disclosed on Schedule IV, Borrower is also in compliance with all limitations, restrictions, conditions, standards, prohibitions, requirements, obligations, schedules and timetables contained in Environmental Laws or contained in any plan, order, decree, judgment or notice of which Borrower is aware. Except as disclosed on Schedule IV, Borrower is not aware of, nor has Borrower received notice of, any events, conditions, circumstances, activities, practices, incidents, actions or plans which may interfere with or prevent continued compliance with, or which may give rise to any liability under, any Environmental Laws.
(p) All factual information heretofor or contemporaneously furnished by or on behalf of Borrower or any Guarantor in writing to Lender for purposes of or in connection with this Agreement or any transaction contemplated hereby is, and all other such factual information hereafter furnished by or on behalf of Borrower or any Guarantor to Lender will be, true and correct in every material respect on the date as of which such information is dated or certified, and such information is not, or shall not be, as the case may be, incomplete by omitting to state any material fact necessary to make such information not misleading.
(q) None of Borrower, any Guarantor or any of their Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying “"margin stock.” " None of the proceeds of any Loan will be used for the purpose of, or be made available by Borrower, any Guarantor or any of their Subsidiaries in any manner to any other Person to enable or assist such Person in, directly or indirectly purchasing or carrying “"margin stock”". Terms for which meanings are provided in F.R.S. Board Regulation T, U or X or any regulations substituted therefor, as from time to time in effect, are used in this Section with such meanings.
(r) None of Borrower, any Guarantor or any of their Subsidiaries is an “"investment company” " nor a “"company controlled by an investment company” " within the meaning of the Investment Company Act of 1940, as amended, or a “"holding company,” " or a “"subsidiary company” " of a “"holding company,” " or an “"affiliate” " of a “"holding company” " or of a “"subsidiary company” " of a “"holding company,” " within the meaning of the Public Utility Holding Company Act of 1935, as amended.
(s) Schedule V is an accurate and complete list of all Subsidiaries of Borrower and each Corporate Guarantor and the respective ownership interests therein.
(t) Borrower and each Guarantor are solvent and will not be rendered insolvent by the Loan Documents or the transactions contemplated thereby and, after giving effect to such transactions, neither Borrower nor any Guarantor will be left with an unreasonably small amount of capital with which to engage in its business, nor does Borrower or any Guarantor intend to incur, or believe that it has incurred, debts beyond its ability to pay as they mature. Neither Borrower nor any Guarantor contemplates the commencement of insolvency, bankruptcy, liquidation or consolidation proceedings or the appointment of a receiver, liquidator, conservator, trustee or similar official in respect of Borrower or any Guarantor or any of their assets. Neither Borrower nor any Guarantor are entering into the transactions contemplated by the Loan Documents with any intent to hinder, delay or defraud any of Borrower’s 's or any Guarantor’s 's creditors.
(u) The Obligations constitute senior indebtedness which is entitled to the benefits of the subordination provisions of all outstanding Subordinated Indebtedness. In addition, (a) no Event of Default or Default (each as defined in the Indenture) exists, nor will any such Event of Default or default exist immediately after granting or continuation of any Loan, under the Indenture, the Senior Subordinated Notes or any agreement executed by any Borrower in connection therewith; (b) no Borrower or Guarantor nor any of their subsidiaries has incurred any Indebtedness (as defined in the Indenture) in violation of Section 1008 of the Indenture; and (c) all of the Obligations constitute Indebtedness permitted by the terms of Section 1008 of the Indenture.
Appears in 1 contract
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER. Borrower represents, warrants and covenants for the benefit of LenderLender and Issuer, as follows:
(a) Borrower is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction State of its organizationDelaware, has power to enter into this Agreement and by proper corporate action, has duly authorized the execution and delivery of this Agreement, the Escrow Agreement and the Statement as to Tax Exempt Status. Borrower is in good standing and is duly licensed or qualified to transact business in each jurisdiction the Commonwealth and in all jurisdictions where the nature of its business requires such qualification, except for those jurisdictions in which the failure to qualify could not reasonably be expected to so qualified would have a Material Adverse Effect. material adverse effect in the financial or operating condition of Borrower’s exact legal name is as set forth on the execution page hereof.
(b) Borrower has full power been fully authorized to execute and authority and holds all requisite governmental licenses, permits and other approvals to (i) enter into and perform its obligations under deliver this Agreement, the Note Escrow Agreement and each other Loan Document to which it is a party and to own its property, (ii) use the Collateral and (iii) conduct its business substantially as currently conducted by it, except Statement as to clause (iii) where Tax Exempt Status under the failure terms and provisions of the resolutions of its board of directors, or by other appropriate official approval, and further represents, covenants and warrants that all requirements have been met, and procedures have occurred in order to hold such licenses, permits and approvals could not reasonably be expected to have a Material Adverse Effect.
(c) This ensure the enforceability of this Agreement, the Note Escrow Agreement and the other Loan Documents Statement as to which it is a party Tax Exempt Status and this Agreement, the Escrow Agreement and the Statement as to Tax Exempt Status have been duly authorized, executed and delivered by delivered.
(c) The officers of Borrower executing this Agreement, the Escrow Agreement and the Statement as to Tax Exempt Status and any related documents have been duly authorized to execute and deliver this Agreement, the Escrow Agreement and the Statement as to Tax Exempt Status and such related documents under the terms and provisions of resolution(s) of Borrower's board of directors, its charter and by-laws.
(d) This Agreement, the Escrow Agreement and the Statement as to Tax Exempt Status constitute legal, valid and legally binding obligations of Borrower, enforceable against Borrower in accordance with their respective terms, except to the extent limited by bankruptcy, reorganization or other laws of general application relating to or effecting affecting the enforcement of creditors’ rights' rights and by general equitable principles.
(de) The authorization, execution and delivery of this Agreement, the Note Escrow Agreement and the other Loan DocumentsStatement as to Tax Exempt Status, the consummation of the transactions contemplated hereby and thereby and the fulfillment of the terms and conditions hereof and thereof do not and will not violate any law, rule, regulation or order, conflict with or result in a breach of any of the terms or conditions of any Organizational Document the charter or bylaws of Borrower or of any corporate restriction or of any agreement or instrument to which Borrower is now a party and do not and will not constitute a default under any of the foregoing or result in the creation or imposition of any liens, charges or encumbrances of any nature upon any of the property or assets of Borrower other than Liens in favor contrary to the terms of Lenderany instrument or agreement.
(ef) The authorization, execution, delivery and performance of this Agreement, the Note Escrow Agreement and the other Loan Documents Statement as to Tax Exempt Status by Borrower do not require submission to, approval of, or other action by any governmental authority or agency, except for such which action that with respect to this Agreement, the Escrow Agreement and the Statement as to Tax Exempt Status has not been duly obtained or taken and which is in full force final and effect.
(f) Each of the Loan Documents that purports to create a security interest creates a valid first priority Lien on the Collateral subject only to Permitted Liens, securing the payment and performance of the Obligationsnon-appealable.
(g) Except as disclosed on Schedule IV, there There is no action, suit, proceeding, claim, inquiry or investigation, at law or in equity, before or by any court, regulatory agency, public board or body pending or, to the best of Borrower’s 's knowledge, threatened against or affecting Borrower, any Guarantor or any of their Subsidiaries, challenging Borrower’s or any Guarantor’s 's authority to enter into this Agreement, the Note or any of Escrow Agreement and the other Loan Documents Statement as to Tax Exempt Status or any other action wherein an unfavorable ruling or finding would adversely affect the enforceability of this Agreement, the Note Escrow Agreement and the Statement as to Tax Exempt Status or the exclusion of the Interest from gross income for federal tax purposes under the Code, or would materially and adversely affect any of the other Loan Documents, or could reasonably be expected to have a Material Adverse Effecttransactions contemplated by this Agreement.
(h) The Premises is properly zoned for its current and anticipated use and the use of the Equipment will not violate any applicable zoning, land use, environmental or similar law or restriction which would have a material and adverse effect on the use of the Premises or the financial or operating condition of Borrower. Borrower has good, marketable all licenses and insurable title in fee simple permits to all Collateral that is real property, and good title to all other Collateral, in each case free and clear of all Liens except for Permitted Liens. With respect to Collateral that is personal property, Borrower owns/leases operate the real property where the Collateral will be located, subject to no Liens of any kind except for Permitted Liens, and has provided a complete and accurate legal description and the exact name of the fee simple owner of record of such real property, and no person other than Borrower is in occupancy or possession of any portion of such real propertyEquipment.
(i) Borrower is in compliance with all laws, rules, regulations and orders of governmental authorities applicable to it and its properties except to the extent the non-compliance with which could not reasonably be expected to have a Material Adverse Effect.
(j) Borrower has heretofore furnished to Lender the Financial Statements and those statements fairly present the financial condition of Borrower and such Guarantor, if any, on the dates thereof and the results of its operations and cash flows for the periods then ended and were prepared in accordance with GAAP. Since the date of the most recent financial statements, there has been no material adverse change in the business, properties or condition (financial or otherwise) of Borrower or any Guarantor. Except as disclosed in the Financial Statements or the notes thereto and for the items disclosed on Schedule IV, neither Borrower nor any Guarantor, as of each Closing Date, has or will have any liabilities, contingent or otherwise, that could reasonably be expected to have a Material Adverse Effect.
(k) Borrower has paid or caused to be paid, and will pay, to the proper authorities when due all federal, state and local taxes required to be withheld by it. Borrower has filed, and will pay, all federal, state and local tax returns which are required to be filed, and Borrower has paid or caused to be paid to the respective taxing authorities all taxes as shown on said returns or on any assessment received by it to the extent such taxes have become due, except any such taxes or charges which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP have been set aside on its books.
(l) For purposes of Section 9-307 of the UCC, Borrower is and will remain located in the Borrower’s State. Borrower’s residence for federal income tax purposes is located at its Notice Address specified in Schedule I. Borrower has authorized Lender to file financing statements that are sufficient when filed to perfect the security interests created pursuant to this Agreement and the other Loan Documents. When such financing statements are filed in the offices noted therein, Lender will have a valid and perfected security interest in the Collateral that constitutes personal property, subject to no other Lien other than Permitted Liens.
(m) None of the Collateral constitutes a replacement of, substitution for or accessory to any property of Borrower subject to a lien of any kind.
(n) No ERISA Event has occurred or is reasonably likely to occur with respect to any Plan, and each Plan is in compliance in all material respects with the applicable provisions of ERISA.
(o) Borrower has obtained all permits, licenses and other authorizations which are required under all federal, state and local laws relating to emissions, discharges, releases of pollutants, contaminants, hazardous or toxic materials, or waste into ambient air, surface water, ground water or land, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of pollutants, contaminants or hazardous or toxic materials or wastes ("Environmental Laws Laws") at Borrower’s 's facilities or in connection with the operation of its businessfacilities. Except as previously disclosed on Schedule IVto Lender in writing, Borrower and all activities of Borrower at its facilities comply with all Environmental Laws and with all terms and conditions of any required permits, licenses and authorizations applicable to Borrower with respect thereto. Except as previously disclosed on Schedule IVto Lender in writing, Borrower is also in compliance with all limitations, restrictions, conditions, standards, prohibitions, requirements, obligations, schedules and timetables contained in Environmental Laws or contained in any plan, order, decree, judgment or notice of which Borrower is aware. Except as previously disclosed on Schedule IVto Lender in writing, Borrower is not aware of, nor has Borrower received notice of, any events, conditions, circumstances, activities, practices, incidents, actions or plans which may interfere with or prevent continued compliance with, or which may give rise to any liability under, any Environmental Laws.
(pj) All factual information heretofor or contemporaneously furnished by or on behalf The Equipment is of Borrower or any Guarantor in writing the type authorized and permitted to Lender for purposes of or in connection with this Agreement or any transaction contemplated hereby is, and all other such factual information hereafter furnished by or on behalf of Borrower or any Guarantor to Lender will be, true and correct in every material respect on be financed under the date as of which such information is dated or certified, and such information is not, or shall not be, as the case may be, incomplete by omitting to state any material fact necessary to make such information not misleadingAct.
(qk) None of BorrowerBorrower owns or will own the Equipment, any Guarantor or any of their Subsidiaries is engaged principallyand intends to operate the Equipment, or as one of its important activities, in cause the business of extending credit for the purpose of purchasing or carrying “margin stock.” None of the proceeds of any Loan will Equipment to be used for the purpose of, or be made available by Borrower, any Guarantor or any of their Subsidiaries in any manner to any other Person to enable or assist such Person in, directly or indirectly purchasing or carrying “margin stock”. Terms for which meanings are provided in F.R.S. Board Regulation T, U or X or any regulations substituted thereforoperated, as from time to time in effect, are used in this Section with such meanings.
(r) None of Borrower, any Guarantor or any of their Subsidiaries is an “investment company” nor a “company controlled by an investment company” "project," within the meaning of the Investment Company Act Act, until the date on which all of 1940the Loan Payments have been fully paid or the applicable Prepayment Amount has been fully paid.
(l) Borrower will not take any action that would cause the Interest to become includable in gross income of the recipient for federal income tax purposes under the Code (including, as amendedwithout limitation, intentional acts under Treas. Reg. [SECTION]1.148-2(c) or a “holding company,” or a “subsidiary company” of a “holding company,” or an “affiliate” of a “holding company” or of a “subsidiary company” of a “holding company,” deliberate action within the meaning of the Public Utility Holding Company Act of 1935, as amended.
(s) Schedule V is an accurate and complete list of all Subsidiaries of Borrower and each Corporate Guarantor and the respective ownership interests therein.
(t) Borrower and each Guarantor are solvent and will not be rendered insolvent by the Loan Documents or the transactions contemplated thereby and, after giving effect to such transactions, neither Borrower nor any Guarantor will be left with an unreasonably small amount of capital with which to engage in its business, nor does Borrower or any Guarantor intend to incur, or believe that it has incurred, debts beyond its ability to pay as they matureTreas. Neither Borrower nor any Guarantor contemplates the commencement of insolvency, bankruptcy, liquidation or consolidation proceedings or the appointment of a receiver, liquidator, conservator, trustee or similar official in respect of Borrower or any Guarantor or any of their assetsReg. Neither Borrower nor any Guarantor are entering into the transactions contemplated by the Loan Documents with any intent to hinder, delay or defraud any of Borrower’s or any Guarantor’s creditors.[SECTION]
Appears in 1 contract
Samples: Loan Agreement (Westerbeke Corp)
