REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER. Borrower represents, warrants and covenants for the benefit of Lender and Issuer, as follows: (a) Borrower is a corporation duly organized, validly existing and in good standing under the laws of Delaware, has power to enter into this Agreement and by proper 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 the State and in all jurisdictions where the character of the property owned or leased or the nature of the business transacted by it makes such licensing or qualification necessary. (b) Borrower has been fully authorized to execute and deliver this Agreement, the Escrow Agreement and the Statement as to Tax Exempt Status under the terms and provisions of the resolution of its board of directors by 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 Escrow Agreement and the Statement as to Tax Exempt Status and this Agreement, the Escrow Agreement and the Statement as to Tax Exempt Status have been duly authorized, executed and delivered. (c) The officer of Borrower executing this Agreement, the Escrow Agreement and the Statement as to Tax Exempt Status and any related documents has 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 a resolution of Borrower's board of directors. (d) This Agreement, the Escrow Agreement and the Statement as to Tax Exempt Status constitute 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 effecting the enforcement of creditors' rights. (e) The execution and delivery of this Agreement, the Escrow Agreement and the Statement as to Tax Exempt Status, the consummation of the transactions contemplated hereby and the fulfillment of the terms and conditions hereof 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 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 contrary to the terms of any instrument or agreement. (f) The authorization, execution, delivery and performance of this Agreement or the Escrow Agreement by Borrower do not require submission to, approval of, or other action by any governmental authority or agency, which action with respect to this Agreement or the Escrow Agreement has not been taken and which is final and non-appealable. (g) 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, challenging Borrower's authority to enter into this Agreement or the Escrow Agreement or to execute and deliver the 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 Escrow Agreement or 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 transactions contemplated by this Agreement. (h) The Project is located in an area properly zoned for the Project's current and anticipated use and the Project will not violate any applicable zoning, land use, environmental or similar law or restriction. The Borrower has all licenses and permits for the operation of the Project except building permits, which the Borrower expects to obtain in the ordinary course. (i) The Project is of the type authorized and permitted to be financed under the Act. (j) Borrower 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 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, 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) The Borrower has heretofore furnished to Lender the audited financial statement of the Borrower for its fiscal year ended September 30, 1995 and the unaudited financial statement of the Borrower for the fiscal year ended September 30, 1996, and those statements fairly present the financial condition of the Borrower 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 the Borrower. (m) 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. (n) Borrower has or will have good and absolute title to the Project, free and clear of all mortgages, security interests, liens and encumbrances except for the security interest created for the benefit of the Bank securing the Letter of Credit. (o) All financial and other information provided to Lender by or on behalf of Borrower in connection with Borrower's request for the Loan contemplated hereby is true and correct in all material 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. (p) 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. (q) The representations contained in the Statement as to Tax Exempt Status are true and correct as of the date hereof. Borrower will comply fully at all times with the Statement as to Tax Exempt Status, and Borrower will not take any action, or omit to take any action, which, if taken or omitted, respectively, would violate the Statement as to Tax Exempt Status. (r) Expenses for work done by officers or employees of Borrower in connection with the Project will be included as a Project 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 books of Borrower as a capital expenditure in conformity with generally accepted accounting principles applied on a consistent basis. (s) Any costs incurred with respect to that part of the Project paid from the Loan Proceeds shall be treated or capable of being treated on the books of Borrower as capital expenditures in conformity with generally accepted accounting principles applied on a consistent basis. (t) No part of the Loan Proceeds will be 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 any portion of the Project, except as described in the Statement as to Tax Exempt Status. (v) The Project is land or property of the character subject to the allowance for depreciation under Section 167 of the Code.
Appears in 1 contract
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER. Borrower represents, warrants and covenants for the benefit of Lender and Issuer, as follows:
(a) Borrower Westerbeke is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, is in good standing and is qualified to do business in the Commonwealth, has power to enter into this Agreement and by proper action corporate action, has duly authorized the execution and delivery of this Agreement, the Escrow Agreement, the Mortgage, the Assignment, the Hazardous Substances Agreement and the Statement as to Tax Exempt Status. Borrower Westerbeke is in good standing and is duly licensed or qualified to transact business in the State Commonwealth and in all jurisdictions where its failure to be so qualified would have a material adverse effect on the character financial or operating condition of the property owned or leased or the nature of the business transacted by it makes such licensing or qualification necessaryBorrower.
(b) Borrower 150 John Hancock is a registered limited liability partnershix xxlx xxxxxized, validly existing and in good standing under the laws of Massachusetts, has power to enter into this Agreement, the Escrow Agreement, the Hazardous Substances Agreement and the Statement as to Tax Exempt Status and by proper limited liability partnership action, has duly authorized the execution and delivery of this Agreement, the Escrow Agreement, the Hazardous Substances Agreement and the Statement as to Tax Exempt Status. 150 John Hancock is in good standing and is duly licensed or qualifxxx tx transact business in the Commonwealth and in all jurisdictions where its failure to be so qualified would have a material adverse effect on the financial or operating condition of Borrower.
(c) Westerbeke has been fully authorized to execute and deliver this Agreement, the Escrow Agreement, the Mortgage, the Assignment, the Hazardous Substances Agreement and the Statement as to Tax Exempt Status under the terms and provisions of the resolution resolutions of its board of directors 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 Escrow Agreement, the Mortgage, the Assignment, the Hazardous Substances Agreement and the Statement as to Tax Exempt Status and this Agreement, the Escrow Agreement, the Mortgage, the Assignment, the Hazardous Substances Agreement and the Statement as to Tax Exempt Status have been duly authorized, executed and delivered.
(cd) 150 John Hancock has been fully authorized to execute and delxxxx xxxx Xxreement, the Escrow Agreement, the Hazardous Substances Agreement and the Statement as to Tax Exempt Status under the terms and provisions of its partnership agreement, 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 Escrow Agreement, the Hazardous Substances Agreement and the Statement as to Tax Exempt Status and this Agreement, the Escrow Agreement, the Hazardous Substances Agreement and the Statement as to Tax Exempt Status have been duly authorized, executed and delivered.
(e) The officer officers of Borrower Westerbeke executing this Agreement, the Escrow Agreement, the Mortgage, the Assignment, the Hazardous Substances Agreement and the Statement as to Tax Exempt Status and any related documents has have been duly authorized to execute and deliver this Agreement, the Escrow Agreement, the Mortgage, the Assignment, the Hazardous Substances Agreement and the Statement as to Tax Exempt Status and such related documents under the terms and provisions of a resolution resolution(s) of Borrower's board of directors, its charter and by-laws.
(df) The partners of 150 John Hancock executing this Agreement, the Escrow Agreemexx, txx Xxxxrdous Substances 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, the Hazardous Substances Agreement and the Statement as to Tax Exempt Status and such related documents under the terms and provisions of its partnership agreement.
(g) This Agreement, the Escrow Agreement Agreement, the Mortgage, the Hazardous Substances Agreement, the Assignment and the Statement as to Tax Exempt Status constitute valid and legally binding obligations of BorrowerWesterbeke, enforceable against Borrower Westerbeke in accordance with their respective terms, except to the extent limited by bankruptcy, reorganization or other laws of general application relating to effecting or affecting the enforcement of creditors' rightsrights and by general equitable principles.
(eh) This Agreement, the Escrow Agreement, the Hazardous Substances Agreement and the Statement as to Tax Exempt Status constitute valid and legally binding obligations of 150 John Hancock, enforceable against 150 John Hancock in accxxxxnxx xxxx their respective terms, exxxxt xx xxx extent limited by bankruptcy, reorganization or other laws of general application relating to or affecting the enforcement of creditors' rights and by general equitable principles.
(i) The authorization, execution and delivery by Westerbeke of this Agreement, the Escrow Agreement Agreement, the Mortgage, the Assignment, the Hazardous Substances Agreement, and the Statement as to Tax Exempt Status, the consummation of the transactions contemplated hereby and the fulfillment of the terms and conditions hereof by Westerbeke do not and will not violate any law, rule, regulation or orderorder that would have a material adverse effect on the operation of the Mortgaged Property or the financial or operating condition of Westerbeke, conflict with or result in a breach of any of the terms or conditions of the by-laws or charter of Westerbeke or of any corporate other agreement by and between Westerbeke and its shareholders or any agreement among the shareholders or of any restriction or of any agreement or instrument to which Borrower Westerbeke 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 Westerbeke contrary to the terms of any instrument or agreement.
(fj) The authorization, execution and delivery by 150 John Hancock of this Agreement, the Escrow Agreement, the Xxxardous Xubstances Agreement and the Statement as to Tax Exempt Status, the consummation of the transactions contemplated hereby by 150 John Hancock and the fulfillment of the terms and conditixxx hereof xx 000 John Hancock do not and will not violate any law, rule, regulatxxx ox order that would have a material adverse effect on the operation of the Mortgaged Property or the financial or operating condition of 150 John Hancock, conflict with or result in a breach of any of the xxxmx or conditions of the partnership agreement of 150 John Hancock or of any other agreement by and between the xxxtxxxx xx 150 John Hancock or of any restriction or of any agreement or xxxtxxxxxx to which 150 John Hancock is now a party and do not and will not constitute x xxxxult 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 150 John Hancock contrary to the terms of any instrument or axxxxmxxx.
(k) The authorization, execution, delivery and performance of this Agreement, the Escrow Agreement, the Mortgage, the Assignment, the Hazardous Substances Agreement or the Escrow Agreement Statement of Tax Exempt Status by Borrower Westerbeke do not require submission to, approval of, or other action by any governmental authority or agency, which action with respect to this Agreement, the Escrow Agreement, the Mortgage, the Assignment, the Hazardous Substances Agreement or the Statement of Tax Exempt Status has not been taken and which is final and non- appealable, except for such submissions, approvals and other actions which are not required at this time in light of the status of construction of the Project, but in any event will be obtained prior to or at the completion of the construction.
(l) The authorization, execution, delivery and performance of this Agreement, the Escrow Agreement, the Hazardous Substances Agreement or the Statement of Tax Exempt Status by 150 John Hancock do not require submission to, approval of, ox xxhxx xxxxon by any governmental authority or agency, which action with respect to this Agreement, the Escrow Agreement or the Statement of Tax Exempt Status has not been taken and which is final and non-appealable, except for such submissions, approvals and other actions which are not required at this time in light of the status of construction of the Project, but in any event will be obtained prior to or at the completion of the construction.
(gm) 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 BorrowerWesterbeke's knowledge, threatened against or affecting BorrowerWesterbeke, challenging BorrowerWesterbeke's authority to enter into this Agreement or Agreement, the Escrow Agreement, the Mortgage, the Assignment, the Hazardous Substances Agreement or to execute and deliver the 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 Escrow Agreement, the Mortgage, the Assignment, the Hazardous Substances Agreement or 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 transactions contemplated by this Agreement.
(hn) 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 150 John Hancock's knowledge, threatened against or affecting 150 Xxxx Xxxxock, challenging 150 John Hancock's authority to enter xxxo this Agreement, thx Xxxxxx Xxxxxment, the Hazardous Substances Agreement or to execute and deliver the 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 Escrow Agreement, the Hazardous Substances Agreement or 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 transactions contemplated by this Agreement.
(o) The Project Premises and the property at which any portion of the Mortgaged Property is located in an area is properly zoned for the Project's its current and anticipated use and the use of the Project will not violate any applicable zoning, land use, environmental or similar law or restrictionrestriction which would have a material adverse effect on the use of the Premises or the financial or operating condition of Borrower. The Borrower Westerbeke has all licenses and permits to use and/or operate the Project.
(p) Borrower has furnished to Lender a Phase I Environmental Site Assessment dated March 7, 2000, prepared by VERTEX Engineering Services, Inc., and an Environmental Questionnaire dated April 3, 2000 (collectively, the "Report"). Except as disclosed to Lender in the Report, Borrower has received no notification of any kind suggesting that the Project or any adjacent property is or may be contaminated with any hazardous waste or materials or is or may be required to be cleaned up in accordance with any applicable law or regulation; and Borrower further represents and warrants that, except as previously disclosed to Lender in writing, to the best of its knowledge as of the date hereof after due and diligent inquiry, there are no Hazardous Waste or Materials located in, on or under the Project or any adjacent property, or incorporated in any Improvements, nor has the Project or any adjacent property ever been used as a landfill or a waste disposal site, or a manufacturing, handling, storage, distribution or disposal facility for Hazardous Waste or Materials. As used herein, the term "Hazardous Waste or Materials" includes any substance or material defined in or designated as hazardous or toxic wastes, hazardous or toxic material, a hazardous, toxic or radioactive substance, or other similar term, by any federal, state or local statute, regulation or ordinance now or hereafter in effect. Borrower has obtained all permits, licenses and other authorizations which are required under federal, state and local laws relating to emissions, discharges, releases of Hazardous Wastes or Materials 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 Hazardous Wastes or Materials ("Environmental Laws") at Borrower's facilities or in connection with the operation of the Project except building 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 required permits, licenses and authorizations applicable to Borrower with respect thereto. Except as previously disclosed to 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 the Borrower expects is aware. Except as previously disclosed to obtain Lender in the ordinary coursewriting, 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.
(iq) The Project is of the type authorized and permitted to be financed under the Act.
(jr) Borrower owns or will own the Project Project, and intends to operate the Project Project, or cause the Project to be operated, as a "project," 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.
(ks) 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, 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, intentional acts under Treas. Reg. [SECTION]1.148-2(c) or deliberate action within the calculation and payment meaning of any rebate required to preserve such exclusion).
(l) The Borrower has heretofore furnished to Lender the audited financial statement of the Borrower for its fiscal year ended September 30, 1995 and the unaudited financial statement of the Borrower for the fiscal year ended September 30, 1996, and those statements fairly present the financial condition of the Borrower 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 principlesTreas. 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 the Borrower.
(m) 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 itReg. 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.
(n) Borrower has or will have good and absolute title to the Project, free and clear of all mortgages, security interests, liens and encumbrances except for the security interest created for the benefit of the Bank securing the Letter of Credit.
(o) All financial and other information provided to Lender by or on behalf of Borrower in connection with Borrower's request for the Loan contemplated hereby is true and correct in all material 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.
(p) 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.
(q) The representations contained in the Statement as to Tax Exempt Status are true and correct as of the date hereof. Borrower will comply fully at all times with the Statement as to Tax Exempt Status, and Borrower will not take any action, or omit to take any action, which, if taken or omitted, respectively, would violate the Statement as to Tax Exempt Status.
(r) Expenses for work done by officers or employees of Borrower in connection with the Project will be included as a Project 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 books of Borrower as a capital expenditure in conformity with generally accepted accounting principles applied on a consistent basis.
(s) Any costs incurred with respect to that part of the Project paid from the Loan Proceeds shall be treated or capable of being treated on the books of Borrower as capital expenditures in conformity with generally accepted accounting principles applied on a consistent basis.
(t) No part of the Loan Proceeds will be 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 any portion of the Project, except as described in the Statement as to Tax Exempt Status.
(v) The Project is land or property of the character subject to the allowance for depreciation under Section 167 of the Code.[SECTION]
Appears in 1 contract
Samples: Loan Agreement (Westerbeke Corp)
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER. Borrower represents, warrants and covenants for the benefit of Lender and Issuer, as follows:
(a) Borrower is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, has power to enter into this Agreement the Borrower Documents 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 StatusBorrower Documents. Borrower is in good standing and is duly licensed or qualified to transact business in the State and in all jurisdictions where the character of the property owned or leased or the nature of the business transacted by it makes such licensing or qualification necessary. Borrower’s exact legal name is as set forth on the execution page hereof.
(b) Borrower has been fully authorized to execute and deliver this Agreement, the Escrow Agreement and the Statement as to Tax Exempt Status Borrower Documents under the terms and provisions of the resolution of its board of directors 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 Escrow Agreement Borrower Documents and the Statement as to Tax Exempt Status and this Agreement, the Escrow Agreement and the Statement as to Tax Exempt Status Borrower Documents have been duly authorized, executed and delivered.
(c) The officer of Borrower executing this Agreement, the Escrow Agreement and the Statement as to Tax Exempt Status Borrower Documents and any related documents has been duly authorized to execute and deliver this Agreement, the Escrow Agreement and the Statement as to Tax Exempt Status Borrower Documents and such related documents under the terms and provisions of a resolution of Borrower's ’s board of directors.
(d) This Agreement, the Escrow Agreement and the Statement as to Tax Exempt Status The Borrower Documents constitute 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 effecting or affecting the enforcement of creditors' ’ rights.
(e) The execution and delivery of this Agreement, the Escrow Agreement and the Statement as to Tax Exempt StatusBorrower Documents, the consummation of the transactions contemplated hereby and the fulfillment of the terms and conditions hereof 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 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 contrary to the terms of any instrument or agreement.
(f) The authorization, execution, delivery and performance of this Agreement or the Escrow Agreement by Borrower do not require submission to, approval of, or other action by any governmental authority or agency, which action with respect to this Agreement or the Escrow Agreement has not been taken and which is final and non-appealablenonappealable.
(g) 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, challenging Borrower's ’s authority to enter into this Agreement or Agreement, the Escrow Agreement or to execute and deliver the Statement as to Tax Exempt Status Regulatory Agreement or any other action wherein an unfavorable ruling or finding would adversely affect the enforceability of this Agreement, the Escrow Agreement or the Statement as to Tax Exempt Status 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 could reasonably be expected to have a material adverse effect on the financial condition, operations, business or prospects of the transactions contemplated by this AgreementBorrower.
(h) The Project property at which the Collateral is located in an area is properly zoned for the Project's its current and anticipated use and the Project use of the Collateral will not violate any applicable zoning, land use, environmental or similar law or restriction. The Borrower has all licenses and permits for to 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 the Project except building 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 required permits, licenses and authorizations applicable to Borrower with respect thereto. Except as previously disclosed to 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 the Borrower expects is aware. Except as previously disclosed to obtain Lender in the ordinary coursewriting, 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.
(i) The Project is of the type authorized and permitted to be financed under with the proceeds of the Bond pursuant to the Act.
(j) Borrower owns or will own the Project and intends to operate the Project Project, or cause the Project to be operated, as a "project," 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 CodeCode (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) The Borrower has heretofore furnished to Lender the audited financial statement statements of the Borrower Guarantor for its fiscal year years ended September 30January 31, 1995 2004, January 31, 2005, January 31, 2006 and January 31, 2007, and the unaudited financial statement of the Borrower Guarantor for the fiscal year quarter ended September 30July 31, 19962007, and those statements fairly present the financial condition of the Borrower 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 principlesGAAP. 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 the BorrowerGuarantor.
(m) 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.
(n) Borrower has or will have good and absolute title to the Projectall Collateral and all proceeds thereof, free and clear of all mortgages, security interests, liens and encumbrances except for the security interest created for the benefit of the Bank securing the Letter of Creditpursuant to this Agreement.
(o) All financial Borrower has authorized Lender to file financing statements, and such financing 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, as holder of the Bond, will have a valid and perfected security interest in the Collateral, subject to no other information provided 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 Lender by or on behalf any property of Borrower in connection with Borrower's request for subject to a lien of any kind. Borrower leases the Loan contemplated hereby is true and correct in all material 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 resultsreal property where the Collateral will be located.
(p) 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.
(q) The representations contained in the Statement as to Tax Exempt Status are true and correct as of the date hereof. Borrower will comply fully at all times with the Statement as to Tax Exempt StatusRegulatory Agreement, and Borrower will not take any action, or omit to take any action, which, if taken or omitted, respectively, would violate the Statement as to Tax Exempt StatusRegulatory Agreement.
(r) Expenses for work done by officers or employees of Borrower in connection with the Project will be included as a Project 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 books of Borrower as a capital expenditure in conformity with generally accepted accounting principles applied on a consistent basisGAAP.
(s) Any costs incurred with respect to that part of the Project paid from the Loan Proceeds shall be treated or capable of being treated on the books of Borrower as capital expenditures in conformity with generally accepted accounting principles applied on a consistent basisGAAP.
(t) No part of the Loan Proceeds will be 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 any portion of the Project, except as described in real property where the Statement as to Tax Exempt StatusProject is located.
(v) The Project is land or property of the character subject to the allowance for depreciation under Section 167 of the Code.
(w) Neither Borrower nor any individual or entity owning directly or indirectly any interest in Borrower, is an individual or entity whose property or interests are subject to being “blocked” under any of the Terrorism Laws or is otherwise in violation of any of the Terrorism Laws.
Appears in 1 contract
Samples: Loan Agreement (RathGibson Inc)
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER. Borrower represents, warrants and covenants for the benefit of Lender and Issuer, as follows:
(a) Borrower is a corporation duly organized, validly existing and in good standing under the laws of DelawareThe Commonwealth of Massachusetts, 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 StatusRegulatory Agreement. Borrower is in good standing and is duly licensed or qualified to transact business in the State and in all jurisdictions where the character of the property owned or leased or the nature of the business transacted by it makes such licensing or qualification necessary.
(b) Borrower has been fully authorized to execute and deliver this Agreement, the Escrow Agreement and the Statement as to Tax Exempt Status Regulatory Agreement under the terms and provisions of the resolution of its board of directors 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 Escrow Agreement and the Statement as to Tax Exempt Status Regulatory Agreement and this Agreement, the Escrow Agreement and the Statement as to Tax Exempt Status Regulatory Agreement have been duly authorized, executed and delivered.
(c) The officer of Borrower executing this Agreement, the Escrow Agreement and the Statement as to Tax Exempt Status Regulatory Agreement and any related documents has been duly authorized to execute and deliver this Agreement, the Escrow Agreement and the Statement as to Tax Exempt Status 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 Statement as to Tax Exempt Status Regulatory Agreement constitute 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 effecting the enforcement of creditors' rights.
(e) The execution and delivery of this Agreement, the Escrow Agreement and the Statement as to Tax Exempt StatusRegulatory Agreement, the consummation of the transactions contemplated hereby and the fulfillment of the terms and conditions hereof 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 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 contrary to the terms of any instrument or agreement.
(f) The To the best of Borrower's knowledge, the authorization, execution, delivery and performance of this Agreement or the Escrow Agreement by Borrower do not require submission to, approval of, or other action by any governmental authority or agency, which action with respect to this Agreement or the Escrow Agreement has not been taken and which is final and non-appealablenonappealable.
(g) 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, challenging Borrower's authority to enter into this Agreement or Agreement, the Escrow Agreement or to execute and deliver the Statement as to Tax Exempt Status Regulatory Agreement or any other action wherein an unfavorable ruling or finding would adversely affect the enforceability of this Agreement, the Escrow Agreement or the Statement as to Tax Exempt Status 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 transactions contemplated by this Agreement.
(h) The Project is located in an area properly zoned for the Project's current and anticipated use and the Project will not violate any applicable zoning, land use, environmental or similar law or restriction. The Borrower has all licenses and permits for the operation of the Project except building permits, which the Borrower expects to obtain in the ordinary course.
(i) The Project is of the type authorized and permitted to be financed under pursuant to the Act.
(ji) Borrower owns or will own the Project and intends to operate the Project Project, or cause the Project to be operated, as a "project," 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.
(kj) 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 CodeCode (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).
(lk) The Borrower has heretofore furnished to Lender the audited financial statement of the Borrower Guarantor for its Guarantor's fiscal year years ended September 30December 31, 1994, December 31, 1995 and December 31, 1996 and the unaudited financial statement of the Borrower Guarantor for the fiscal year six months ended September June 30, 19961997, and those statements fairly present the financial condition of the Borrower 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 the BorrowerGuarantor.
(ml) Borrower has and Guarantor have paid or caused to be paid to the proper authorities when due all federal, state and local taxes required to be withheld by itthem. Borrower has and 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.
(n) Borrower has or will have good and absolute title to the Project, free and clear of all mortgages, security interests, liens and encumbrances except for the security interest created for the benefit of the Bank securing the Letter of Credit.
(om) All financial and other information provided to Lender by or on behalf of Borrower or Guarantor in connection with Borrower's request for the Loan contemplated hereby is true and correct in all material 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.
(pn) 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.
(qo) The representations contained in the Statement as to Tax Exempt Status are true and correct as of the date hereof. Borrower will comply fully at all times with the Statement as to Tax Exempt StatusRegulatory Agreement, and Borrower will not take any action, or omit to take any action, which, if taken or omitted, respectively, would violate the Statement as to Tax Exempt StatusRegulatory Agreement.
(rp) Expenses for work done by officers or employees of Borrower in connection with the Project will be included as a Project 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 books of Borrower as a capital expenditure in conformity with generally accepted accounting principles applied on a consistent basis.
(sq) Any costs incurred with respect to that part of the Project paid from the Loan Proceeds shall be treated or capable of being treated on the books of Borrower as capital expenditures in conformity with generally accepted accounting principles applied on a consistent basis.
(tr) No part of the Loan Proceeds will be used to finance inventory or rolling stock or will be used for working capital or to finance any other cost not constituting a Project an Acquisition Cost.
(u) No person other than Borrower is in occupancy or possession of any portion of the Project, except as described in the Statement as to Tax Exempt Status.
(v) The Project is land or property of the character subject to the allowance for depreciation under Section 167 of the Code.
Appears in 1 contract
Samples: Loan Agreement (Asahi America Inc)
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER. Borrower represents, warrants and covenants for the benefit of Lender and Issuer, as follows:
(a) Borrower is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, has power to enter into this Loan Agreement, the Escrow Agreement and the Tax Agreement and by proper corporate action has duly authorized the execution and delivery of this Loan Agreement, the Escrow Agreement and the Statement as to Tax Exempt StatusAgreement. Borrower is in good standing and is duly licensed or qualified to transact business in the State and in all jurisdictions where the character of the property owned or leased or the nature of the business transacted by it makes such licensing or qualification necessarynecessary except where the failure to be licensed or qualified would not have a material adverse effect on the business or property of the Borrower.
(b) Borrower has been fully authorized to execute and deliver this Loan Agreement, the Escrow Agreement and the Statement as to Tax Exempt Status Agreement under the terms and provisions of the resolution of its board of directors directors, or by other appropriate official approval, and further represents, covenants and warrants that all corporate requirements have been met, and corporate procedures have occurred in order to ensure the enforceability of this Loan Agreement, the Escrow Agreement and the Statement as to Tax Exempt Status Agreement and this Loan Agreement, the Escrow Agreement and the Statement as to Tax Exempt Status Agreement have been duly authorized, executed and delivered.
(c) The authorized officer of Borrower executing this loan Agreement, the Escrow Agreement and the Statement as to Tax Exempt Status Agreement and any related documents has been duly authorized to execute and deliver this Loan Agreement, the Escrow Agreement and the Statement as to Tax Exempt Status Agreement and such related documents under the terms and provisions of a resolution of Borrower's board of directors.
(d) This Loan Agreement, the Escrow Agreement and the Statement as to Tax Exempt Status Agreement constitute 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 effecting the enforcement of creditors' rights.
(e) The execution and delivery of this Loan Agreement, the Escrow Agreement and the Statement as to Tax Exempt StatusAgreement, the consummation of the transactions contemplated hereby and the fulfillment of the terms and conditions hereof 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 the certificate of incorporation or bylaws of Borrower or of any corporate restriction or of any agreement or instrument to which Borrower is now a party 21 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 contrary to the terms of any instrument or agreement.
(f) The authorization, execution, delivery and performance of this Agreement or the Escrow Loan Agreement by Borrower do not require submission to, approval of, or other action by any governmental authority or agency, which action with respect to this Agreement or the Escrow Loan Agreement has not been taken and which is final and non-appealablenonappealable (except that no representation is being made with respect to qualification under Blue Sky or other state or federal securities laws).
(g) 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, challenging Borrower's authority to enter into this Agreement or Loan Agreement, the Escrow Agreement or to execute and deliver the Statement as to Tax Exempt Status Agreement or any other action wherein an unfavorable ruling or finding would adversely affect the enforceability of this Loan Agreement, the Escrow Agreement or the Statement as to Tax Exempt Status 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 transactions contemplated by this Loan Agreement.
(h) The Project property at which the Equipment is located in an area is properly zoned for the Project's its current and anticipated use and the Project use of the Equipment will not violate any applicable zoning, land use, environmental or similar law or restriction. The Borrower has all licenses and permits for to use the Equipment. Borrower has obtained all material 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 the Borrower's facilities or in connection with the operation of its facilities and, to the Project except building extent applicable, the Borrower's failure to obtain any permit, license or authorization will not have a material adverse effect on the business or property of the Borrower. Except as previously disclosed to Lender in writing, Borrower and all activities of the Borrower at its facilities comply with all material Environmental Laws and with all terms and conditions of any required permits, licenses and authorizations applicable to Borrower with respect thereto and, to the extent applicable, the failure to comply with any Environmental Laws will not have a material adverse effect on the business or property of the Borrower. Except as previously disclosed to Lender in writing, Borrower is also in compliance with all material 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 the Borrower expects is aware. Except as previously 22 disclosed to obtain Lender in the ordinary coursewriting, 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.
(i) The Project is of the type authorized and permitted Equipment will be used in an industrial facility to be financed under the Actmanufacture tangible personal property.
(j) Borrower owns or will own the Project Equipment and intends to operate the Project Equipment, or cause the Project Equipment to be operated, as a an "economic development project," 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, 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 be paid by, or imposed upon, the Issuer to preserve such exclusion).
(l) The Borrower has heretofore furnished to Lender the audited financial statement statements of the Borrower for its fiscal year ended September 30December 31, 1995 1996 and the unaudited financial statement statements of the Borrower for the fiscal year quarter ended September 30March 31, 19961997, and those statements fairly present the financial condition of the Borrower 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 principlesprinciples except for the absence of footnotes and year end adjustments in the case of the unaudited statements. Since the date of the most recent of such financial statements, there has been no material adverse change in the business, properties or condition (financial or otherwise) of the Borrower.
(m) 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.
(n) Borrower has or will have good and absolute title to the Projectall Equipment and all proceeds thereof, free and clear of all mortgages, security interests, liens and encumbrances except for the security interest created for the benefit of the Bank securing the Letter of Creditpursuant to this Loan Agreement and Permitted Encumbrances.
(o) All financial and other information provided to Lender by or on behalf of Borrower in connection with Borrower's request for the Loan contemplated hereby is true 23 and correct in all material respects and Borrower has not omitted to provide Lender with any information which would be material to Lender's decision to enter into this Loan Agreement and, as to any projections, valuations or pro forma financial statements, present statements provided by Borrower to Lender reflect a good faith opinion as to such projections, valuations and pro forma condition and results.
(p) Borrower has provided to Lender signed financing statements sufficient when filed to perfect the security interest created pursuant to this Loan Agreement. When such financing statements are filed in the offices noted therein, Lender, as assignee of Issuer, will have a valid and perfected security interest in the Equipment, subject to no other security interest, assignment, lien or encumbrance. None of the Equipment is or will become a fixture on real estate.
(q) Upon delivery and installation of the Equipment, Borrower will provide to Issuer and Lender a completed and executed copy of the Certificate of Acceptance attached hereto as Exhibit B.
(r) Borrower will aid and assist Issuer in connection with preparing and submitting to the Secretary of the Treasury Internal Revenue Service a Form 8038 (or other applicable information reporting statement) at the time and in the form required by the Code.
(qs) The representations contained in the Statement as to Tax Exempt Status are true and correct as of the date hereof. Borrower will comply fully at all times with the Statement as to Tax Exempt Status, and Agreement; Borrower will not take any action, or omit to take any action, which, if taken or omitted, respectively, would violate the Statement as to Tax Exempt StatusAgreement, and the representations of the Borrower contained in the Tax Agreement are true and correct.
(rt) Expenses for work done by officers or employees of Borrower in connection with the Project Equipment will be included as a Project 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 books of Borrower as a capital expenditure in conformity with generally accepted accounting principles applied on a consistent basis.
(su) Any costs incurred with respect to that part To the best of the Project paid from the Loan Proceeds shall be treated Borrower's knowledge, no member, officer or capable other official of being treated on the books of Borrower as capital expenditures in conformity with generally accepted accounting principles applied on a consistent basis.
(t) No part of the Loan Proceeds will be used to finance inventory or rolling stock or will be used for working capital or to finance Issuer has any other cost not constituting a Project Cost.
(u) No person other than Borrower is in occupancy or possession of any portion of the Project, except as described financial interest whatsoever in the Statement as to Tax Exempt StatusBorrower or in the transactions contemplated by this Loan Agreement.
(v) The Project is land or property No event has occurred and no condition exists which would constitute an Event of Default on the part of the character subject Borrower or which, with the passing of time or with the giving of notice or both, would constitute an Event of Default.
(w) Borrower assumes full responsibility for the safety and any consequences of lack of safety with respect to the allowance for depreciation under Section 167 operation and maintenance of the CodeEquipment; 24 provided, however, that the foregoing shall in no way absolve Vendor or any maintenance contractor of any liability with respect to the Equipment.
Appears in 1 contract
Samples: Loan Agreement (American Materials & Technologies Corp)
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER. Borrower represents, warrants and covenants for the benefit of Lender and Issuer, as follows:
(a) Borrower is a corporation limited liability company duly organized, validly existing and in good standing under the laws of Delawarethe State of California, has power to enter into this Agreement the Borrower Documents and by proper limited liability company action has duly authorized the execution and delivery of this Agreement, the Escrow Agreement and the Statement as to Tax Exempt StatusBorrower Documents. Borrower is in good standing and is duly licensed or qualified to transact business in the State and in all jurisdictions where the character of the property owned or leased or the nature of the business transacted by it makes such licensing or qualification necessary.. Borrower’s exact legal name is as set forth on the execution page hereof. Borrower’s U.S. Federal Tax Identification Number is [ ].
(b) Borrower has been fully authorized to execute and deliver this Agreement, the Escrow Agreement and the Statement as to Tax Exempt Status Borrower Documents under the terms and provisions of the resolution or consent of its board of directors members or managers, 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 Escrow Agreement Borrower Documents and the Statement as to Tax Exempt Status and this Agreement, the Escrow Agreement and the Statement as to Tax Exempt Status Borrower Documents have been duly authorized, executed and delivered.
(c) The officer of Borrower executing this Agreement, the Escrow Agreement and the Statement as to Tax Exempt Status Borrower Documents and any related documents has been duly authorized to execute and deliver this Agreement, the Escrow Agreement and the Statement as to Tax Exempt Status Borrower Documents and such related documents under the terms and provisions of a resolution or consent of Borrower's board of directors’s members or managers, as applicable.
(d) This Agreement, the Escrow Agreement and the Statement as to Tax Exempt Status The Borrower Documents constitute 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 effecting or affecting the enforcement of creditors' ’ rights.
(e) The execution and delivery of this Agreement, the Escrow Agreement and the Statement as to Tax Exempt StatusBorrower Documents, the consummation of the transactions contemplated hereby and the fulfillment of the terms and conditions hereof 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 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 contrary to the terms of any instrument or agreement.
(f) The authorization, execution, delivery and performance of this Agreement or the Escrow Agreement by Borrower do not require submission to, approval of, or other action by any governmental authority or agency, which action with respect to this Agreement or the Escrow Agreement has not been taken and which is final and non-appealablenonappealable.
(g) 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, challenging Borrower's ’s authority to enter into this Agreement or Agreement, the Escrow Agreement or to execute and deliver the Statement as to Tax Exempt Status Regulatory Agreement or any other action wherein an unfavorable ruling or finding would adversely affect the enforceability of this Agreement, the Escrow Agreement or the Statement as to Tax Exempt Status 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 could reasonably be expected to have a material adverse effect on the financial condition, operations, business or prospects of the transactions contemplated by this AgreementBorrower.
(h) The Project property at which the Collateral is located in an area is properly zoned for the Project's its current and anticipated use and the Project use of the Collateral will not violate any applicable zoning, land use, environmental or similar law or restriction. The Borrower has all licenses and permits for to 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 the Project except building 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 required permits, licenses and authorizations applicable to Borrower with respect thereto. Except as previously disclosed to 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 the Borrower expects is aware. Except as previously disclosed to obtain Lender in the ordinary coursewriting, 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.
(i) The Project is of the type authorized and permitted to be financed under with the proceeds of the Bond pursuant to the Act.
(j) Borrower owns or will own the Project and intends to operate the Project Project, or cause the Project to be operated, as a "“project," ” 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 or fail to take any action, or permit any action or inaction within its control to be taken or occur on its behalf, that would cause the Interest to become includable in gross income of the recipient for federal income tax purposes under the CodeCode (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).exclusion).
(l) The Borrower has heretofore furnished to Lender the audited financial statement statements of the Borrower consolidated group known as “Northgate Xxxxxxxx Markets” (herein, the “Consolidated Group”) for its fiscal year years ended September 30December 31, 1995 2005, December 31, 2006, December 31, 2007, December 31, 2009 and the unaudited financial statement of the Borrower for the fiscal year ended September 30December 31, 19962009, and those statements fairly present the financial condition of the Borrower Consolidated Group 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 principlesGAAP. 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 the BorrowerConsolidated Group.
(m) 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.
(n) Borrower has or will have good and absolute title to the Projectall Collateral and all proceeds thereof, free and clear of all mortgages, security interests, liens and encumbrances except for the security interest created for the benefit of the Bank securing the Letter of Creditpursuant to this Agreement.
(o) All financial Borrower has authorized Lender to file financing statements, and such financing 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, as holder of the Bond, will have a valid and perfected security interest in the Collateral, subject to no other information provided security interest, assignment, lien or encumbrance. None of the Collateral constitutes a replacement of, substitution for or accessory to Lender by or on behalf any property of Borrower in connection with Borrower's request for the Loan contemplated hereby is true and correct in all material respects and, as subject to projections, valuations or pro forma financial statements, present a good faith opinion as to such projections, valuations and pro forma condition and resultslien of any kind.
(p) Borrower will aid and assist Issuer and pay Issuer’s costs in connection with preparing and submitting to the Secretary of the Treasury a Form 8038 (or other applicable information reporting statement) to the Internal Revenue Service at the time and in the form required by the Code.
(q) The representations contained in the Statement as to Tax Exempt Status are true and correct as of the date hereof. Borrower will comply fully at all times with the Statement as to Tax Exempt StatusRegulatory Agreement, and Borrower will not take any action, or omit to take any action, which, if taken or omitted, respectively, would violate the Statement as to Tax Exempt StatusRegulatory Agreement, and the representations and warranties in the Tax Regulatory Agreement are true and correct.
(r) Expenses for work done by officers or employees of Borrower in connection with the Project will be included as a Project 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 books of Borrower as a capital expenditure in conformity with generally accepted accounting principles applied on a consistent basis.GAAP.
(s) Any costs incurred with respect to that part of the Project paid from the Loan Proceeds shall be treated or capable of being treated on the books of Borrower as capital expenditures in conformity with generally accepted accounting principles applied on a consistent basisGAAP.
(t) No part of the Loan Proceeds will be 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 or an affiliate of Borrower is in occupancy or possession of any portion of the Project, except as described in real property where the Statement as to Tax Exempt StatusProject is located.
(v) The Project is land or property of the character subject to the allowance for depreciation under Section 167 of the Code.
(w) Neither Borrower nor any individual or entity owning directly or indirectly any interest in Borrower, is an individual or entity whose property or interests are subject to being “blocked” under any of the Terrorism Laws or is otherwise in violation of any of the Terrorism Laws.
(x) Borrower shall comply with the applicable nondiscrimination and affirmative action provisions of the laws of the United States of America, the State and the City. Borrower shall not discriminate in its employment practices against any employee or applicant for employment because of such person’s race, religion, national origin, ancestry, sex, sexual orientation, age, marital status, medical condition or physical handicap.
(y) To the best of Borrower’s knowledge, no member, officer or other official of Issuer has any financial interest whatsoever in Borrower or in the transactions contemplated by this Agreement.
(z) Borrower shall provide for the payment of relocation assistance as provided by Chapter 16 of Division 7 of Title 1 of the Government Code of the State, and shall reimburse Issuer or others, as the case may be, for relocation assistance services, to the extent required by law.
(aa) Borrower shall comply with Section 91533(l) of the Act relating to payment of prevailing wages for construction, improvement, reconstruction or rehabilitation financed in whole or in part with the proceeds of the Bond.
(bb) Borrower covenants and agrees to operate or cause the operation of the Project as a facility described by the Act until the principal of, the premium, if any, and the interest on the Loan shall have been paid.
Appears in 1 contract
Samples: Loan Agreement
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER. Borrower represents, warrants and covenants for the benefit of Lender and Issuer, as follows:
(a) Borrower is a corporation duly organized, validly existing and in good standing under the laws of Delawarethe State of Nevada, has power to enter into this Agreement and by proper corporate action has duly authorized the execution and delivery of this Agreement, the Assignment, the Escrow Agreement, the Indemnification and Compensation Agreement and the Statement as to Tax Exempt StatusCertificate Regarding Use of Proceeds. Borrower is in good standing and is duly licensed or qualified to transact business in the State and in all jurisdictions where the character of the property owned or leased or the nature of the business transacted by it makes such licensing or qualification necessary. Borrower’s exact legal name is as set forth on the execution page hereof.
(b) Borrower has been fully authorized to execute and deliver this Agreement, the Assignment, the Escrow Agreement, the Indemnification and Compensation Agreement and the Statement as to Tax Exempt Status Certificate Regarding Use of Proceeds under the terms and provisions of the resolution of its board of directors 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 Assignment, the Escrow Agreement, the Indemnification and Compensation Agreement and the Statement as to Tax Exempt Status Certificate Regarding Use of Proceeds and this Agreement, the Assignment, the Escrow Agreement, the Indemnification and Compensation Agreement and the Statement as to Tax Exempt Status Certificate Regarding Use of Proceeds have been duly authorized, executed and delivered.
(c) The officer of Borrower executing this Agreement, the Assignment, the Escrow Agreement, the Indemnification and Compensation Agreement and the Statement as to Tax Exempt Status Certificate Regarding Use of Proceeds and any related documents has been duly authorized to execute and deliver this Agreement, the Assignment, the Escrow Agreement, the Indemnification and Compensation Agreement and the Statement as to Tax Exempt Status Certificate Regarding Use of Proceeds and such related documents under the terms and provisions of a resolution of Borrower's ’s board of directors.
(d) This Agreement, the Assignment, the Escrow Agreement, the Indemnification and Compensation Agreement and the Statement as to Tax Exempt Status Certificate Regarding Use of Proceeds constitute 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 effecting or affecting the enforcement of creditors' ’ rights.
(e) The execution and delivery of this Agreement, the Assignment, the Escrow Agreement, the Indemnification and Compensation Agreement and the Statement as to Tax Exempt StatusCertificate Regarding Use of Proceeds, the consummation of the transactions contemplated hereby and the fulfillment of the terms and conditions hereof 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 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 contrary to the terms of any instrument or agreement.
(f) The authorization, execution, delivery and performance of this Agreement or the Escrow Agreement by Borrower do not require submission to, approval of, or other action by any governmental authority or agency, which action with respect to this Agreement or the Escrow Agreement has not been taken and which is final and non-appealablenonappealable.
(g) 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, challenging Borrower's ’s authority to enter into this Agreement, the Assignment, the Escrow Agreement, the Indemnification and Compensation Agreement or the Escrow Agreement or to execute and deliver the Statement as to Tax Exempt Status Certificate Regarding Use of Proceeds or any other action wherein an unfavorable ruling or finding would adversely affect the enforceability of this Agreement, the Assignment, the Escrow Agreement, the Indemnification and Compensation Agreement or the Statement as to Tax Exempt Status Certificate Regarding Use of Proceeds 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 the financial condition, business or properties of the transactions contemplated by this AgreementBorrower.
(h) The Project property at which the Equipment is located in an area is properly zoned for the Project's its current and anticipated use use, and the Project use of the Equipment will not violate any applicable zoning, land use, environmental or similar law or restriction. The Borrower has all licenses and permits for to use the Equipment. 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 the Project except building 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 required permits, licenses and authorizations applicable to Borrower with respect thereto. Except as previously disclosed to 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 the Borrower expects is aware. Except as previously disclosed to obtain Lender in the ordinary coursewriting, 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.
(i) The Project Equipment is of the type authorized and permitted to be financed under with the proceeds of the Bond pursuant to the Act.
(j) Borrower owns or will own the Project Equipment and intends to operate the Project Equipment, or cause the Project Equipment to be operated, as a "projectan “economic development activity," ” 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 CodeCode (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).) and covenants and warrants in particular as follows:
(i) Substantially all of the proceeds of the Bond will be used for the acquisition, construction, reconstruction or improvement of property of a character subject to the allowance for depreciation and for the payment of the costs of issuance of the Bond; no more than two percent of the proceeds of the Bond shall be used to pay the costs of issuance of the Bond;
(l) The Borrower has heretofore furnished to Lender the audited financial statement of the Borrower and/or Guarantor for its fiscal year ended September 30January 31, 1995 2006, January 31, 2005, January 31, 2004 and January 31, 2003 and the unaudited financial statement of the Borrower and/or Guarantor for the fiscal year months ended September April 30, 19962006 and April 30, 2005, and those statements fairly present the financial condition of the Borrower and/or 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 the BorrowerBorrower or Guarantor.
(m) 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.
(n) Borrower has or will have good and absolute title to the Projectall Equipment and all proceeds thereof, free and clear of all mortgages, security interests, liens and encumbrances except for the security interest created for the benefit of the Bank securing the Letter of Creditpursuant to this Agreement.
(o) All financial Borrower has authorized Lender to file financing statements, and such financing 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, as assignee of Issuer and holder of the Bond, will have a valid and perfected security interest in the Equipment, subject to no other information provided security interest, assignment, lien or encumbrance. None of the Equipment is or will become a fixture on real estate. None of the Equipment constitutes a replacement of, substitution for or accessory to Lender by or on behalf any property of Borrower in connection with Borrower's request subject to a lien of any kind. Borrower owns the real property where the Equipment will be located subject to no liens or encumbrances of any kind, except for the Loan contemplated hereby is true mortgage lien in favor of Lender, its successors and correct in all material 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 resultsassigns.
(p) Borrower will aid and assist Issuer in connection with preparing and submitting to the Secretary of the Treasury a an IRS Form 8038 (or other applicable information reporting statement) at the time and in the form required by the Code.
(q) The representations contained in the Statement as to Tax Exempt Status are true and correct as of the date hereof. Borrower will comply fully at all times with the Statement as to Tax Exempt StatusCertificate Regarding Use of Proceeds, and Borrower will not take any action, or omit to take any action, which, if taken or omitted, respectively, would violate the Statement as to Tax Exempt StatusCertificate Regarding Use of Proceeds.
(r) Expenses for work done by officers or employees of Borrower in connection with the Project Equipment will be included as a Project 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 books of Borrower as a capital expenditure in conformity with generally accepted accounting principles applied on a consistent basis.
(s) Any costs incurred with respect to that part of the Project Equipment paid from the Loan Proceeds shall be treated or capable of being treated on the books of Borrower as capital expenditures in conformity with generally accepted accounting principles applied on a consistent basis.
(t) No part of the Loan Proceeds will be used to finance inventory or rolling stock or will be used for working capital or to finance any other cost not constituting a Project an Acquisition Cost.
(u) No person other than Borrower is in occupancy or possession of any portion of the Project, except as described in real property where the Statement as to Tax Exempt StatusEquipment is located.
(v) The Project Equipment is land or property of the character subject to the allowance for depreciation under Section 167 of the Code.
(w) Neither Borrower nor any individual or entity owing directly or indirectly any interest in Borrower, is an individual or entity whose property or interests are subject to being “blocked” under any of the Terrorism Laws or is otherwise in violation of any of the Terrorism Laws.
Appears in 1 contract
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER. Borrower represents, warrants and covenants for the benefit of Lender and Issuer, as follows:
(a) Borrower is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, has power to enter into this Agreement and by proper action 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 the State Commonwealth and in all jurisdictions where its failure to be so qualified would have a material adverse effect in the character financial or operating condition of the property owned or leased or the nature of the business transacted by it makes such licensing or qualification necessaryBorrower.
(b) Borrower has been fully authorized to execute and deliver this Agreement, the Escrow Agreement and the Statement as to Tax Exempt Status under the terms and provisions of the resolution resolutions of its board of directors 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 Escrow Agreement and the Statement as to Tax Exempt Status and this Agreement, the Escrow Agreement and the Statement as to Tax Exempt Status have been duly authorized, executed and delivered.
(c) The officer officers of Borrower executing this Agreement, the Escrow Agreement and the Statement as to Tax Exempt Status and any related documents has 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 a resolution 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 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 effecting or affecting the enforcement of creditors' rightsrights and by general equitable principles.
(e) The authorization, execution and delivery of this Agreement, the Escrow Agreement and the Statement as to Tax Exempt Status, the consummation of the transactions contemplated hereby and the fulfillment of the terms and conditions hereof 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 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 contrary to the terms of any instrument or agreement.
(f) The authorization, execution, delivery and performance of this Agreement or Agreement, the Escrow Agreement and the Statement as to Tax Exempt Status by Borrower do not require submission to, approval of, or other action by any governmental authority or agency, which action with respect to this Agreement or Agreement, the Escrow Agreement and the Statement as to Tax Exempt Status has not been taken and which is final and non-appealable.
(g) 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, challenging Borrower's authority to enter into this Agreement or Agreement, the Escrow Agreement or to execute and deliver the 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 Escrow Agreement or 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 transactions contemplated by this Agreement.
(h) The Project Premises is located in an area properly zoned for the Project's its current and anticipated use and the Project use of the Equipment will not violate any applicable zoning, land use, environmental or similar law or restrictionrestriction which would have a material and adverse effect on the use of the Premises or the financial or operating condition of Borrower. The Borrower has all licenses and permits for to operate the operation of the Project except building permits, which the Borrower expects to obtain in the ordinary courseEquipment.
(i) 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 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") 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 required permits, licenses and authorizations applicable to Borrower with respect thereto. Except as previously disclosed to 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 to 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.
(j) The Project Equipment is of the type authorized and permitted to be financed under the Act.
(jk) Borrower owns or will own the Project Equipment, and intends to operate the Project Equipment, or cause the Project Equipment to be operated, as a "project," 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.
(kl) 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, 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, intentional acts under Treas. Reg. [SECTION]1.148-2(c) or deliberate action within the calculation and payment meaning of any rebate required to preserve such exclusion).
(l) The Borrower has heretofore furnished to Lender the audited financial statement of the Borrower for its fiscal year ended September 30, 1995 and the unaudited financial statement of the Borrower for the fiscal year ended September 30, 1996, and those statements fairly present the financial condition of the Borrower 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 principlesTreas. 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 the Borrower.
(m) 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 itReg. 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.
(n) Borrower has or will have good and absolute title to the Project, free and clear of all mortgages, security interests, liens and encumbrances except for the security interest created for the benefit of the Bank securing the Letter of Credit.
(o) All financial and other information provided to Lender by or on behalf of Borrower in connection with Borrower's request for the Loan contemplated hereby is true and correct in all material 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.
(p) 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.
(q) The representations contained in the Statement as to Tax Exempt Status are true and correct as of the date hereof. Borrower will comply fully at all times with the Statement as to Tax Exempt Status, and Borrower will not take any action, or omit to take any action, which, if taken or omitted, respectively, would violate the Statement as to Tax Exempt Status.
(r) Expenses for work done by officers or employees of Borrower in connection with the Project will be included as a Project 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 books of Borrower as a capital expenditure in conformity with generally accepted accounting principles applied on a consistent basis.
(s) Any costs incurred with respect to that part of the Project paid from the Loan Proceeds shall be treated or capable of being treated on the books of Borrower as capital expenditures in conformity with generally accepted accounting principles applied on a consistent basis.
(t) No part of the Loan Proceeds will be 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 any portion of the Project, except as described in the Statement as to Tax Exempt Status.
(v) The Project is land or property of the character subject to the allowance for depreciation under Section 167 of the Code.[SECTION]
Appears in 1 contract
Samples: Loan Agreement (Westerbeke Corp)
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER. Borrower represents, warrants and covenants for the benefit of Lender and Issuer, as follows:
(a) Borrower is a corporation duly organized, validly existing and in good standing under the laws of Delawarethe State of Israel, has power to enter into this Agreement and by proper action has duly authorized the execution and delivery of this Agreement, the Escrow Agreement and the Statement as to Tax Exempt StatusRegulatory Agreement. Borrower is in good standing and is duly licensed or qualified to transact business in the State and in all jurisdictions where the character of failure to be so licensed or qualified would have a material adverse effect on the property owned Borrower's business or leased or the nature of the business transacted by it makes such licensing or qualification necessaryprospects.
(b) Borrower has been fully authorized to execute and deliver this Agreement, the Escrow Agreement and the Statement as to Tax Exempt Status Regulatory Agreement under the terms and provisions of the resolution of its board of directors 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 Escrow Agreement and the Statement as to Tax Exempt Status Regulatory Agreement and this Agreement, the Escrow Agreement and the Statement as to Tax Exempt Status Regulatory Agreement have been duly authorized, executed and delivered.
(c) The officer President of Borrower executing this Agreement, the Escrow Agreement and the Statement as to Tax Exempt Status Regulatory Agreement and any related documents has been duly authorized to execute and deliver this Agreement, the Escrow Agreement and the Statement as to Tax Exempt Status 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 Statement as to Tax Exempt Status Regulatory Agreement constitute 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 effecting the enforcement of creditors' rights.
(e) The execution and delivery of this Agreement, the Escrow Agreement and the Statement as to Tax Exempt StatusRegulatory Agreement, the consummation of the transactions contemplated hereby and the fulfillment of the terms and conditions hereof 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 the articles of incorporation or by laws 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 contrary to the terms of any instrument or agreement.
(f) The authorization, execution, delivery and performance of this Agreement or the Escrow Agreement by Borrower do not require submission to, approval of, or other action by any governmental authority or agency, which action with respect to this Agreement or the Escrow Agreement has not been taken and which is final and non-appealablenonappealable.
(g) 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, challenging Borrower's authority to enter into this Agreement or Agreement, the Escrow Agreement or to execute and deliver the Statement as to Tax Exempt Status Regulatory Agreement or any other action wherein an unfavorable ruling or finding would adversely affect the enforceability of this Agreement, the Escrow Agreement or the Statement as to Tax Exempt Status 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 the financial condition, business or properties of borrower or any of the transactions contemplated by this Agreement.
(h) The Project property at which the Equipment is located in an area is properly zoned for the Project's its current and anticipated use and the Project use of the Equipment will not violate any applicable zoning, land use, environmental or similar law or restriction. The Borrower has all licenses and permits for to use the Equipment. 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 the Project except building its facilities. 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. 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 the Borrower expects is aware. 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 obtain in the ordinary courseany liability under, any Environmental Laws.
(i) The Project Equipment is of the type authorized and permitted to be financed under with the proceeds of the Bond pursuant to the Act.
(j) Borrower owns or will own the Project Equipment and intends to operate the Project Equipment, or cause the Project Equipment to be operated, as a "projectProject," 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 CodeCode (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).
(l) The Borrower has heretofore furnished to Lender the audited compiled financial statement of the Borrower for its fiscal year years ended September 30December 31, 1995 and 1999 through December 31, 2001, the unaudited management-prepared financial statement of the Borrower for the fiscal year six (6) months ended September June 30, 19962001 and June 30, 2002, and those statements fairly present the financial condition of the Borrower and Guarantor on the dates thereof and the results of its their 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 Exhibit 10.18.14 - 18 (financial or otherwise) of Borrower or the BorrowerGuarantor.
(m) 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.
(n) Borrower has or will have good and absolute title to the Projectall Equipment and all proceeds thereof, free and clear of all mortgages, security interests, liens and encumbrances except for the security interest created for the benefit of the Bank securing the Letter of Creditpursuant to this Agreement.
(o) All financial and other information provided to Lender by or on behalf of Borrower in connection with Borrower's request for the Loan contemplated hereby is true and correct in all material 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.
(p) Borrower has authorized Lender to file financing statements sufficient when filed to perfect the security interest created pursuant to this Agreement. When such financing statements are filed in the offices noted therein, Lender, as assignee of Issuer and holder of the Bond, will have a valid and perfected security interest in the Equipment, subject to no other security interest, assignment, lien or encumbrance. None of the Equipment is or will become a fixture on real estate. None of the Equipment constitutes a replacement of, substitution for or accessory to any property of Borrower subject to a lien of any kind. Borrower leases the real property upon which the Equipment will be located subject to no liens or encumbrances of any kind.
(q) Upon delivery and installation of the Equipment, Borrower will provide to Issuer and Lender a completed and executed copy of the Certificate of Acceptance attached hereto as Exhibit B.
(r) 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.
(qs) The representations contained in the Statement as to Tax Exempt Status are true and correct as of the date hereof. Borrower will comply fully at all times with the Statement as to Tax Exempt StatusRegulatory Agreement, and Borrower will not take any action, or omit to take any action, which, if taken or omitted, respectively, would violate the Statement as to Tax Exempt StatusRegulatory Agreement.
(rt) Expenses for work done by officers or employees of Borrower in connection with the Project Equipment will be included as a Project 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 books of Borrower as a capital expenditure in conformity with generally accepted accounting principles applied on a consistent basis.
(su) Any costs incurred with respect to that part of the Project Equipment paid from the Loan Proceeds shall be treated or capable of being treated on the books of Borrower as capital expenditures in conformity with generally accepted accounting principles applied on a consistent basis.. Exhibit 10.18.14 - 19
(tv) No part of the Loan Proceeds will be used to finance inventory or rolling stock or will be used for working capital or to finance any other cost not constituting a Project an Acquisition Cost.
(uw) No person other than Borrower is in occupancy or possession of any portion of the Project, except as described in real property where the Statement as to Tax Exempt StatusEquipment is located.
(vx) The Project Equipment is land or property of the character subject to the allowance for depreciation under Section 167 of the Code.
(y) The Borrower has received proper State Wide Planning approval prior to the date of this Agreement.
Appears in 1 contract
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER. Borrower represents, warrants and covenants for the benefit of Lender and Issuer, as follows:
(a) Borrower is a corporation duly organized, validly existing and in good standing under the laws of Delawarethe State of Nevada, has power to enter into this Agreement and by proper corporate action has duly authorized the execution and delivery of this Agreement, the Taxable Loan Agreement, the Mortgage, the Hazardous Substances Agreement, the Escrow Agreement, the Assignment, the Indemnification and Compensation Agreement and the Statement as to Tax Exempt StatusRegulatory Agreement. Borrower is in good standing and is duly licensed or qualified to transact business in the State and in all jurisdictions where the character of the property owned or leased or the nature of the business transacted by it makes such licensing or qualification necessary. Borrower's exact legal name is as set forth on the execution page hereof.
(b) Borrower has been fully authorized to execute and deliver this Agreement, the Taxable Loan Agreement, the Mortgage, the Hazardous Substances Agreement, the Escrow Agreement, the Assignment, the Indemnification and Compensation Agreement and the Statement as to Tax Exempt Status Regulatory Agreement under the terms and provisions of the resolution of its board of directors 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 Taxable Loan Agreement, the Mortgage, the Hazardous Substances Agreement, the Escrow Agreement, the Assignment, the Indemnification and Compensation Agreement and the Statement as to Tax Exempt Status Regulatory Agreement and this Agreement, the Taxable Loan Agreement, the Mortgage, the Hazardous Substances Agreement, the Escrow Agreement, the Assignment, the Indemnification and Compensation Agreement and the Statement as to Tax Exempt Status Regulatory Agreement have been duly authorized, executed and delivered.
(c) The officer of Borrower executing this Agreement, the Taxable Loan Agreement, the Mortgage, the Hazardous Substances Agreement, the Escrow Agreement, the Assignment, the Indemnification and Compensation Agreement and the Statement as to Tax Exempt Status Regulatory Agreement and any related documents has been duly authorized to execute and deliver this Agreement, the Taxable Loan Agreement, the Mortgage, the Hazardous Substances Agreement, the Escrow Agreement, the Assignment, the Indemnification and Compensation Agreement and the Statement as to Tax Exempt Status Regulatory Agreement and such related documents under the terms and provisions of a resolution of Borrower's board of directors.
(d) This Agreement, the Taxable Loan Agreement, the Mortgage, the Hazardous Substances Agreement, the Escrow Agreement, the Assignment, the Indemnification and Compensation Agreement and the Statement as to Tax Exempt Status Regulatory Agreement constitute 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 effecting or affecting the enforcement of creditors' rights.
(e) The execution and delivery of this Agreement, the Taxable Loan Agreement, the Mortgage, the Hazardous Substances Agreement, the Escrow Agreement, the Assignment, the Indemnification and Compensation Agreement and the Statement as to Tax Exempt StatusRegulatory 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 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 contrary to the terms of any instrument or agreement.
(f) The authorization, execution, delivery and performance of this Agreement or the Escrow Agreement by Borrower do not require submission to, approval of, or other action by any governmental authority or agency, which action with respect to this Agreement or the Escrow Agreement has not been taken and which is final and non-appealablenonappealable.
(g) 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, challenging Borrower's authority to enter into this Agreement, the Taxable Loan Agreement, the Mortgage, the Hazardous Substances Agreement, the Escrow Agreement, the Assignment, the Indemnification and Compensation Agreement or the Escrow Tax Regulatory Agreement or to execute and deliver the 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 Taxable Loan Agreement, the Mortgage, the Hazardous Substances Agreement, the Escrow Agreement, the Assignment, the Indemnification and Compensation Agreement or the Statement as to Tax Exempt Status 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 the financial condition, business or properties of the transactions contemplated by this AgreementBorrower.
(h) The Project Premises and the property at which any portion of the Property is located in an area is properly zoned for the Project's its current and anticipated use and the Project use of the Property will not violate any applicable zoning, land use, environmental or similar law or restriction. The Borrower has all licenses and permits for to use the operation of the Project except building permits, which the Borrower expects to obtain in the ordinary courseProperty.
(i) Borrower has furnished to Lender a Phase I Environmental Site Assessment dated January 22, 2003, prepared by URS (the "Report"). Except as disclosed to Lender in the Report, Borrower has received no notification of any kind suggesting that the Property or any adjacent property is or may be contaminated with any Hazardous Waste or Materials or is or may be required to be cleaned up in accordance with any applicable law or regulation; and Borrower further represents and warrants that, except as previously disclosed to Lender in writing, to the best of its knowledge as of the date hereof after due and diligent inquiry, there are no Hazardous Waste or Materials located in, on or under the Property or any adjacent property, or incorporated in any Improvements, nor has the Property or any adjacent property ever been used as a landfill or a waste disposal site, or a manufacturing, handling, storage, distribution or disposal facility for Hazardous Waste or Materials. Borrower has obtained all permits, licenses and other authorizations which are required under any 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 required permits, licenses and authorizations applicable to Borrower with respect thereto. Except as previously disclosed to 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 to 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.
(j) The Project Property is of the type authorized and permitted to be financed under with the proceeds of the Bond pursuant to the Act.
(jk) Borrower owns or will own the Project Property and intends to operate the Project Property, or cause the Project Property to be operated, as a an "project,economic development activity" 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.
(kl) 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 CodeCode (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).
(lm) The Borrower has heretofore furnished to Lender the audited financial statement statements of the Borrower Corporate Guarantor for its fiscal year years ended September 30January 31, 1995 2002, January 31, 2001, January 31, 2000 and January 31, 1999 and the unaudited financial statement statements of the Borrower for the fiscal year six months ended September 30July 31, 19962002 and July 31, 2001, and those statements fairly present the financial condition of the Borrower 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 the BorrowerCorporate Guarantor.
(mn) 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.
(no) Borrower has or will have good and absolute title to the Projectall Property and all proceeds thereof, free and clear of all mortgages, security interests, liens and encumbrances except for the security interest created for pursuant to this Agreement and the benefit of Mortgage and the Bank securing the Letter of CreditPermitted Exceptions.
(op) All financial and other information provided to Lender by or on behalf of Borrower in connection with Borrower's request for the Loan contemplated hereby is true and correct in all material 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 to projections, valuations or pro forma financial statements, present a good faith opinion as to such projections, valuations and pro forma condition and results.
(pq) Borrower has authorized Lender to file financing statements, and such financing 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, as assignee of Issuer and holder of the Bond, will have a valid and perfected security interest in the Property, subject to no other security interest, assignment, lien or encumbrance. None of the Property constitutes a replacement of, substitution for or accessory to any property of Borrower subject to a lien of any kind. Borrower owns the Premises subject to no liens or encumbrances of any kind except the Permitted Exceptions.
(r) Borrower will aid and assist Issuer in connection with preparing and submitting to the Secretary of the Treasury Internal Revenue Service a Form 8038 (or other applicable information reporting statement) with respect to the Bond at the time and in the form required by the Code.
(qs) The representations contained in the Statement as to Tax Exempt Status are true and correct as of the date hereof. Borrower will comply fully at all times with the Statement as to Tax Exempt StatusRegulatory Agreement, and Borrower will not take any action, or omit to take any action, which, if taken or omitted, respectively, would violate the Statement as to Tax Exempt StatusRegulatory Agreement, and the representations and warranties in the Tax Regulatory Agreement are true and correct.
(rt) Expenses for work done by officers or employees of Borrower in connection with the Project Property will be included as a Project 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 books of Borrower as a capital expenditure in conformity with generally accepted accounting principles applied on a consistent basis.
(su) Any costs incurred with respect to that part of the Project Property paid from the Loan Proceeds shall be treated or capable of being treated on the books of Borrower as capital expenditures in conformity with generally accepted accounting principles applied on a consistent basis.
(tv) No part of the Loan Proceeds will be used to finance inventory or rolling stock or will be used for working capital or to finance any other cost not constituting a Project an Acquisition Cost.
(uw) No person other than Borrower is in occupancy or possession of any portion of the Project, except as described in real property where any portion of the Statement as to Tax Exempt StatusProperty is located.
(vx) The Project Property is land or property of the character subject to the allowance for depreciation under Section 167 of the Code.
Appears in 1 contract
Samples: Tax Exempt Loan Agreement (International Absorbents Inc)
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER. Borrower represents, warrants and covenants for the benefit of Lender and IssuerLender, as follows:
(a) Borrower is a corporation duly organized, validly existing and in good standing under the laws of Delawarethe State of Nevada, has power to enter into this Agreement and by proper corporate action has duly authorized the execution and delivery of this Agreement, the Escrow Tax-Exempt Loan Agreement, the Mortgage, the Hazardous Substances Agreement and the Statement as to Tax Exempt StatusEscrow Agreement. Borrower is in good standing and is duly licensed or qualified to transact business in the State and in all jurisdictions where the character of the property owned or leased or the nature of the business transacted by it makes such licensing or qualification necessary. Borrower's exact legal name is as set forth on the execution page hereof.
(b) Borrower has been fully authorized to execute and deliver this Agreement, the Escrow Tax-Exempt Loan Agreement, the Mortgage, the Hazardous Substances Agreement, the Subordination Agreement and the Statement as to Tax Exempt Status Escrow Agreement under the terms and provisions of the resolution of its board of directors 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 Escrow Tax-Exempt Loan Agreement, the Mortgage, the Hazardous Substances Agreement and the Statement as to Tax Exempt Status Escrow Agreement, and this Agreement, the Escrow Tax-Exempt Loan Agreement, the Mortgage, the Hazardous Substances Agreement and the Statement as to Tax Exempt Status Escrow Agreement have been duly authorized, executed and delivered.
(c) The officer of Borrower executing this Agreement, the Tax-Exempt Loan Agreement, the Mortgage, the Hazardous Substances Agreement, the Escrow Agreement and the Statement as to Tax Exempt Status 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 the Statement as to Tax Exempt Status and such related documents under the terms and provisions of a resolution of Borrower's board of directors.
(d) This Agreement, the Escrow Tax-Exempt Loan Agreement, the Mortgage, the Hazardous Substances Agreement and the Statement as to Tax Exempt Status Escrow Agreement constitute 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 effecting or affecting the enforcement of creditors' rights.
(e) The execution and delivery of this Agreement, the Escrow Tax-Exempt Loan Agreement, the Mortgage, the Hazardous Substances Agreement and the Statement as to Tax Exempt StatusEscrow 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 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 contrary to the terms of any instrument or agreement.
(f) The authorization, execution, delivery and performance of this Agreement or the Escrow Agreement by Borrower do not require submission to, approval of, or other action by any governmental authority or agency, which action with respect to this Agreement or the Escrow Agreement has not been taken and which is final and non-appealablenonappealable.
(g) 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, challenging Borrower's authority to enter into this Agreement, the Tax-Exempt Loan Agreement, the Mortgage, the Hazardous Substances Agreement or the Escrow Agreement or to execute and deliver the 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 Tax-Exempt Loan Agreement, the Mortgage, the Hazardous Substances Agreement or the Escrow Agreement or the Statement as to Tax Exempt Status or the exclusion any other transaction of the Interest from gross income for federal tax purposes under the CodeBorrower which is similar hereto, or would materially and adversely affect any the financial condition, business or properties of the transactions contemplated by this AgreementBorrower.
(h) The Project Premises and the property at which any portion of the Property is located in an area is properly zoned for the Project's its current and anticipated use and the Project use of the Property will not violate any applicable zoning, land use, environmental or similar law or restriction. The Borrower has all licenses and permits for to use the operation of the Project except building permits, which the Borrower expects to obtain in the ordinary courseProperty.
(i) The Project Borrower has furnished to Lender a Phase I Environmental Site Assessment dated January 22, 2003, prepared by URS (the "Report"). Except as disclosed to Lender in the Report, Borrower has received no notification of any kind suggesting that the Property or any adjacent property is or may be contaminated with any Hazardous Waste or Materials or is or may be required to be cleaned up in accordance with any applicable law or regulation; and Borrower further represents and warrants that, except as previously disclosed to Lender in writing, to the best of its knowledge as of the type authorized date hereof after due and permitted to be financed diligent inquiry, there are no Hazardous Waste or Materials located in, on or under the ActProperty or any adjacent property, or incorporated in any Improvements, nor has the Property or any adjacent property ever been used as a landfill or a waste disposal site, or a manufacturing, handling, storage, distribution or disposal facility for Hazardous Waste or Materials. Borrower has obtained all permits, licenses and other authorizations which are required under any 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 required permits, licenses and authorizations applicable to Borrower with respect thereto. Except as previously disclosed to 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 to 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.
(j) Borrower 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 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, 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) The Borrower has heretofore furnished to Lender the audited financial statement statements of the Borrower Corporate Guarantor for its fiscal year years ended September 30January 31, 1995 2002, January 31, 2001, January 31, 2000 and January 31, 1999 and the unaudited financial statement statements of the Borrower for the fiscal year six months ended September 30July 31, 19962002 and July 31, 2001, and those statements fairly present the financial condition of the Borrower 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 the BorrowerCorporate Guarantor.
(mk) 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.
(nl) Borrower has or will have good and absolute title to the Projectall Property and all proceeds thereof, free and clear of all mortgages, security interests, liens and encumbrances except for the security interest created for pursuant to this Agreement and the benefit of Mortgage and the Bank securing the Letter of CreditPermitted Exceptions.
(om) All financial and other information provided to Lender by or on behalf of Borrower in connection with Borrower's request for the Loan contemplated hereby is true and correct in all material 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 to projections, valuations or pro forma financial statements, present a good faith opinion as to such projections, valuations and pro forma condition and results.
(pn) Borrower has authorized Lender to file financing statements, and such financing statements when filed will aid 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 assist Issuer perfected security interest in connection with preparing and submitting the Property, subject to the Secretary no other security interest, assignment, lien or encumbrance. None of the Treasury Property constitutes a Form 8038 (replacement of, substitution for or other applicable information reporting statement) at accessory to any property of Borrower subject to a lien of any kind. Borrower owns the time and in Premises subject to no liens or encumbrances of any kind except the form required by the CodePermitted Exceptions.
(q) The representations contained in the Statement as to Tax Exempt Status are true and correct as of the date hereof. Borrower will comply fully at all times with the Statement as to Tax Exempt Status, and Borrower will not take any action, or omit to take any action, which, if taken or omitted, respectively, would violate the Statement as to Tax Exempt Status.
(r) Expenses for work done by officers or employees of Borrower in connection with the Project will be included as a Project 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 books of Borrower as a capital expenditure in conformity with generally accepted accounting principles applied on a consistent basis.
(s) Any costs incurred with respect to that part of the Project paid from the Loan Proceeds shall be treated or capable of being treated on the books of Borrower as capital expenditures in conformity with generally accepted accounting principles applied on a consistent basis.
(t) No part of the Loan Proceeds will be 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.
(uo) No person other than Borrower is in occupancy or possession of any portion of the Project, except as described in the Statement as to Tax Exempt Status.
(v) The Project is land or real property where any portion of the character subject to the allowance for depreciation under Section 167 of the CodeProperty is located.
Appears in 1 contract
Samples: Taxable Rate Loan Agreement (International Absorbents Inc)
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER. Borrower representsrepresents and warrants to Lender as of the Closing Date, warrants and covenants for the benefit of Lender and IssuerLender, as follows:
(a) Borrower is a corporation duly organized, validly existing and in good standing under the laws of Delawarethe State, 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 Mortgage, and the Statement as to Tax Exempt StatusEnvironmental Indemnity Agreement. Borrower is in good standing and is duly licensed or qualified to transact business in the State and and, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect, in all other jurisdictions where the character of the property owned or leased or the nature of the business transacted by it makes such licensing or qualification necessary. Borrower’s exact legal name is as set forth on the execution page hereof.
(b) Borrower has been fully authorized to execute and deliver this Agreement, the Escrow Agreement Mortgage and the Statement as to Tax Exempt Status Environmental Indemnity Agreement under the terms and provisions of the resolution of its board of directors 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 Escrow Agreement Mortgage and the Statement as to Tax Exempt Status Environmental Indemnity Agreement and this Agreement, the Escrow Agreement Mortgage and the Statement as to Tax Exempt Status Environmental Indemnity Agreement have been duly authorized, executed and delivered.
(c) The officer of Borrower executing this Agreement, the Escrow Mortgage, the Environmental Indemnity Agreement and the Statement as to Tax Exempt Status and any related documents has been duly authorized to execute and deliver this Agreement, the Escrow Mortgage, the Environmental Indemnity Agreement and the Statement as to Tax Exempt Status and such related documents under the terms and provisions of a resolution of Borrower's ’s board of directors.
(d) This Agreement, the Escrow Agreement Mortgage and the Statement as to Tax Exempt Status Environmental Indemnity Agreement constitute 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 effecting or affecting the enforcement rights and remedies of creditors' rightscreditors and by general equitable principles, regardless of whether such enforceability is considered in a proceeding in equity or at law.
(e) The execution and delivery of this Agreement, the Escrow Agreement Mortgage and the Statement as to Tax Exempt StatusEnvironmental Indemnity Agreement, the consummation of the transactions contemplated hereby and the fulfillment of the terms and conditions hereof 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 corporate restriction the articles of incorporation or bylaws of Borrower 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 contrary to the terms of any instrument or agreement.
(f) The authorization, execution, delivery and performance of this Agreement or Agreement, the Escrow Mortgage and the Environmental Indemnity Agreement by Borrower do not require submission to, approval of, or other action by any governmental authority or agency, which action with respect to this Agreement Agreement, the Mortgage or the Escrow Environmental Indemnity Agreement has not been taken and which is final and non-appealablenonappealable.
(g) 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 actual knowledge, threatened against or affecting Borrower, challenging Borrower's ’s authority to enter into this Agreement Agreement, the Mortgage or the Escrow Environmental Indemnity Agreement or to execute and deliver the 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 Escrow Mortgage or the Environmental Indemnity Agreement or the Statement as to Tax Exempt Status or the exclusion any other transaction of the Interest from gross income for federal tax purposes under the CodeBorrower which is similar hereto, or would materially and if determined adversely affect any of the transactions contemplated by this Agreementto Borrower, could reasonably be expected to have a Material Adverse Effect.
(h) The Project Premises and the property at which any portion of the Property is located in an area is properly zoned for the Project's its current and anticipated use and the Project use of the Property will not violate any applicable zoning, land use, environmental or similar law or restriction, except in such instances in which any such violation could not reasonably be expected to have a Material Adverse Effect. The Borrower has all licenses and permits for to use the operation of Property, except in such instances in which the Project except building failure to have such licenses and permits, which the Borrower expects to obtain either individually or in the ordinary courseaggregate, could not reasonably be expected to have a Material Adverse Effect.
(i) The Project Borrower has furnished to Lender the Report (as defined in the Environmental Indemnity Agreement). Except as disclosed to Lender in the Report, Borrower has received no notification of any kind suggesting that the Property or any adjacent property is or may be contaminated with any Hazardous Waste or Materials or is or may be required to be cleaned up in accordance with any applicable law or regulation; and Borrower further represents and warrants that, except as disclose to Lender in the Report or as previously disclosed to Lender in writing, to its actual knowledge as of the type authorized and permitted to be financed date hereof, there are no Hazardous Waste or Materials (other than Permitted Substances as such term is defined in the Environmental Indemnity Agreement) located in, on or under the ActProperty or any adjacent property, or incorporated in any Improvements, nor has the Property or any adjacent property ever been used as a landfill or a waste disposal site, or a manufacturing, handling, storage, distribution or disposal facility for Hazardous Waste or Materials. Borrower has obtained all permits, licenses and other authorizations which are required under any 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 required permits, licenses and authorizations applicable to Borrower with respect thereto. Except as previously disclosed to 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 to 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.
(j) Borrower 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 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, 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) The Borrower has heretofore furnished to Lender the audited consolidated financial statement statements of the Borrower for its fiscal year years ended September 30December 31, 1995 2000, December 31, 2001, December 31, 2002, December 31, 2003, December 31, 2004 and the unaudited financial statement of the Borrower for the fiscal year ended September 30December 31, 19962005, and those statements fairly present in all material respects the financial condition of the Borrower and 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 principlesGAAP. Since the date of the most recent audited financial statements, there has been no material adverse change in the business, properties or condition (financial or otherwise) of the BorrowerBorrower or Guarantor.
(mk) 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, except those which are being contested in good faith by appropriate proceedings and for which adequate reserves have been provided in accordance with GAAP.
(nl) Borrower has or will have good and absolute title marketable fee simple interest to the ProjectPremises and all proceeds thereof, free and clear of all mortgages, security interests, liens liens, licenses and encumbrances except for the security interest created for pursuant to this Agreement and the benefit of Mortgage and the Bank securing the Letter of CreditPermitted Exceptions.
(om) All financial and other information provided to Lender by or on behalf of Borrower in connection with Borrower's ’s request for the Loan contemplated hereby is true and correct in all material 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.
(pn) Borrower will aid and assist Issuer in connection has authorized Lender to file a financing statement describing the Property. When such financing statements are filed with preparing and submitting to the Secretary Bureau of Conveyances of the Treasury State of Hawaii, Lender will have a Form 8038 (or other applicable information reporting statement) at the time valid and perfected security interest in the form required personal property which is described in such financing statement and the Mortgage and for which perfection may occur by the Codefiling of a financing statement with the Bureau of Conveyances of the State of Hawaii, subject to no other security interest, assignment, lien, license or encumbrance other than the liens created by this Agreement and by the Mortgage and the Permitted Exceptions. None of the Property constitutes a replacement of, substitution for or accessory to any property of Borrower subject to a lien of any kind.
(q) The representations contained in the Statement as to Tax Exempt Status are true and correct as of the date hereof. Borrower will comply fully at all times with the Statement as to Tax Exempt Status, and Borrower will not take any action, or omit to take any action, which, if taken or omitted, respectively, would violate the Statement as to Tax Exempt Status.
(r) Expenses for work done by officers or employees of Borrower in connection with the Project will be included as a Project 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 books of Borrower as a capital expenditure in conformity with generally accepted accounting principles applied on a consistent basis.
(s) Any costs incurred with respect to that part of the Project paid from the Loan Proceeds shall be treated or capable of being treated on the books of Borrower as capital expenditures in conformity with generally accepted accounting principles applied on a consistent basis.
(t) No part of the Loan Proceeds will be 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.
(uo) No person other than Borrower is in occupancy or possession of any portion of the Project, except as described in the Statement as to Tax Exempt StatusProperty.
(vp) The Project Neither Borrower nor any individual or entity owing directly or indirectly any interest in Borrower, is land an individual or entity whose property or interests are subject to being “blocked” under any of the character subject to the allowance for depreciation under Section 167 Terrorism Laws or is otherwise in violation of any of the CodeTerrorism Laws.
Appears in 1 contract
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER. Borrower represents, warrants and covenants for the benefit of Lender and Issuer, as follows:
(a) Borrower is a corporation duly organized, validly existing and in good standing under the laws of DelawareThe Commonwealth of Massachusetts, 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 StatusRegulatory Agreement. Borrower is in good standing and is duly licensed or qualified to transact business in the State and in all jurisdictions where the character of the property owned or leased or the nature of the business transacted by it makes such licensing or qualification necessary.
(b) Borrower has been fully authorized to execute and deliver this Agreement, the Escrow Agreement and the Statement as to Tax Exempt Status Regulatory Agreement under the terms and provisions of the resolution of its board of directors 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 Escrow Agreement and the Statement as to Tax Exempt Status Regulatory Agreement and this Agreement, the Escrow Agreement and the Statement as to Tax Exempt Status Regulatory Agreement have been duly authorized, executed and delivered.
(c) The officer of Borrower executing this Agreement, the Escrow Agreement and the Statement as to Tax Exempt Status Regulatory Agreement and any related documents has been duly authorized to execute and deliver this Agreement, the Escrow Agreement and the Statement as to Tax Exempt Status 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 Statement as to Tax Exempt Status Regulatory Agreement constitute 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 effecting the enforcement of creditors' rights.
(e) The execution and delivery of this Agreement, the Escrow Agreement and the Statement as to Tax Exempt StatusRegulatory Agreement, the consummation of the transactions contemplated hereby and the fulfillment of the terms and conditions hereof 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 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 contrary to the terms of any instrument or agreement.
(f) The To the best of Borrower's knowledge, the authorization, execution, delivery and performance of this Agreement or the Escrow Agreement by Borrower do not require submission to, approval of, or other action by any governmental authority or agency, which action with respect to this Agreement or the Escrow Agreement has not been taken and which is final and non-appealablenonappealable.
(g) 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, challenging Borrower's authority to enter into this Agreement or Agreement, the Escrow Agreement or to execute and deliver the Statement as to Tax Exempt Status Regulatory Agreement or any other action wherein an unfavorable ruling or finding would adversely affect the enforceability of this Agreement, the Escrow Agreement or the Statement as to Tax Exempt Status 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 transactions contemplated by this Agreement.
(h) The Project property at which the Equipment is located in an area is properly zoned for the Project's its current and anticipated use and the Project use of the Equipment will not violate any applicable zoning, land use, environmental or similar law or restrictionrestriction the violation of which would have a material adverse effect on Borrower. The Borrower has all licenses and permits for to use the Equipment. 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 the 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 the Project except building 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 the failure with which to comply would have a material adverse effect on Borrower. Except as previously disclosed to 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 the failure with which to comply would have a material adverse effect on Borrower. Except as previously disclosed to Lender in writing, Borrower expects 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 obtain in the ordinary courseany liability under, any Environmental Laws.
(i) The Project Equipment is of the type authorized and permitted to be financed under pursuant to the Act.
(j) Borrower owns or will own the Project Equipment and intends to operate the Project Equipment, or cause the Project Equipment to be operated, as a "project," 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, 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 CodeCode (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).
(l) The Borrower has heretofore furnished to Lender the audited financial statement of the Borrower Guarantor for its Guarantor's fiscal year years ended September 30December 31, 1994, December 31, 1995 and December 31, 1996 and the unaudited financial statement of the Borrower Guarantor for the fiscal year six months ended September June 30, 19961997, and those statements fairly present the financial condition of the Borrower 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 the BorrowerGuarantor.
(m) Borrower has and Guarantor have paid or caused to be paid to the proper authorities when due all federal, state and local taxes required to be withheld by itthem. Borrower has and 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.
(n) Borrower has or will have good and absolute title to the Projectall Equipment and all proceeds thereof, free and clear of all mortgages, security interests, liens and encumbrances except for the security interest created for the benefit of the Bank securing the Letter of Creditpursuant to this Agreement.
(o) All financial and other information provided to Lender by or on behalf of Borrower or Guarantor in connection with Borrower's request for the Loan contemplated hereby is true and correct in all material 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.
(p) None of the Equipment is or will become a fixture on real estate. None of the Equipment constitutes a replacement of, substitution for or accessory to any property of Borrower subject to a lien of any kind. Borrower owns the real property where the Equipment will be located subject to no liens or encumbrances of any kind except for easements and similar encumbrances that do not cover the Equipment or have a material adverse effect on the use of such real property.
(q) Upon delivery and installation of the Equipment, Borrower will provide to Issuer and Lender a completed and executed copy of the Certificate of Acceptance attached hereto as Exhibit B.
(r) 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.
(qs) The representations contained in the Statement as to Tax Exempt Status are true and correct as of the date hereof. Borrower will comply fully at all times with the Statement as to Tax Exempt StatusRegulatory Agreement, and Borrower will not take any action, or omit to take any action, which, if taken or omitted, respectively, would violate the Statement as to Tax Exempt StatusRegulatory Agreement.
(rt) Expenses for work done by officers or employees of Borrower in connection with the Project Equipment will be included as a Project 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 books of Borrower as a capital expenditure in conformity with generally accepted accounting principles applied on a consistent basis.
(su) Any costs incurred with respect to that part of the Project Equipment paid from the Loan Proceeds shall be treated or capable of being treated on the books of Borrower as capital expenditures in conformity with generally accepted accounting principles applied on a consistent basis.
(tv) No part of the Loan Proceeds will be used to finance inventory or rolling stock or will be used for working capital or to finance any other cost not constituting a Project an Acquisition Cost.
(uw) No person other than Borrower is in occupancy or possession of any portion of the Project, except as described in real property where the Statement as to Tax Exempt StatusEquipment is located.
(vx) The Project Equipment is land or property of the character subject to the allowance for depreciation under Section 167 of the Code.
Appears in 1 contract
Samples: Loan Agreement (Asahi America Inc)
