REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE BORROWER. The Borrower represents, warrants and covenants that: (a) It is a duly constituted and validly existing corporation under the laws of the Commonwealth, has elected to be treated as a special partnership in accordance with the provisions of the Puerto Rico Internal Revenue Code of 1994, as amended, and Act No. 0 xx xxx Xxxxxxxxxxx xx Xxxxxx Xxxx, xxproved September 27, 1985, and its proposed operations qualify under the above provisions for treatment as a special partnership. (b) It has the power and authority to enter into and perform its obligations under this Agreement and the Collateral Documents. (c) It has the necessary power and authority to develop, construct and operate the Project, and to conduct its operations as presently conducted or proposed to be conducted. (d) It has duly authorized by proper corporate action the execution, delivery and performance of this Agreement and the Collateral Documents. (e) The execution and delivery of this Agreement and the Collateral Documents by the Borrower, and the consummation of the transactions contemplated hereby and thereby and the fulfillment of or compliance with the terms and conditions hereof and thereof do not and will not conflict with the provisions of the certificate of incorporation or by-laws of the Borrower and do not and will not conflict with, or constitute on the part of the Borrower a breach of or default under any indenture, deed of trust, mortgage, agreement or other instrument to which the Borrower is a party or by which the Borrower or any of its property is bound or conflict with, violate or result in a breach of any existing law, public administrative rule or regulation, judgment, court order or consent decree to which the Borrower or any of its property is now a party or by which it is bound, or result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the property or assets of the Borrower under the terms of any instrument or agreement other than this Agreement or the Trust Agreement. (f) It will cause the Project to be operated as Industrial Facilities within the meaning of the Act. (g) At all times during each of the last three taxable years (or for such part of such period as may be applicable) and up to and including the date of execution and delivery of this Agreement, except for the receipt of lease payments with respect to the Minor Parcels (as defined in the Pledge Agreement) commencing on October 22, 1999, (i) the Borrower has not been engaged in any trade or business in or outside the Commonwealth; and (ii) the Borrower has not derived any gross income from sources within or without the Commonwealth, as determined under the general source of income rules of the Code. (h) Except as set forth in Exhibit B hereto, all consents, approvals, licenses and permits of any governmental authority having jurisdiction, or of any other Person, that are required for the construction of the Project are, and shall remain, in full force and effect. (i) All consents, approvals, licenses and permits of any governmental authority having jurisdiction, or of any other Person, that are required for the development and construction of the Project and which are not in effect on the date hereof or for the proposed operation of the Project shall be obtained and, once obtained, shall remain in full force and effect. (j) To the best of Borrower's knowledge: (i) the Project is not in violation of any applicable Environmental Law and (ii) the Project has not received any Environmental Claims or threatened Environmental Claims.
Appears in 2 contracts
Samples: Loan and Guaranty Agreement (Doral Financial Corp), Loan and Guaranty Agreement (Doral Properties Inc)
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE BORROWER. The Borrower represents, represents and warrants and covenants that:
(a) It is a duly constituted on the date of delivery to the Bank of any Pledged Bonds described herein, neither the Remarketing Agent (as defined in the Indenture) nor the Trustee will have any right, title or interest in and validly existing corporation under to the laws of the Commonwealth, has elected to be treated as a special partnership in accordance with the provisions of the Puerto Rico Internal Revenue Code of 1994, as amended, and Act No. 0 xx xxx Xxxxxxxxxxx xx Xxxxxx Xxxx, xxproved September 27, 1985, and its proposed operations qualify under the above provisions for treatment as a special partnership.Pledged Bonds;
(b) It has it has, and on the power date of delivery to the Bank of any Pledged Bonds will have, full power, authority and authority legal right to enter into pledge all of its right, title and perform its obligations under interest in and to the Pledged Bonds pursuant to this Agreement and the Collateral Documents.Pledge Agreement;
(c) It this Pledge Agreement has been duly authorized, executed and delivered by the necessary power Borrower and authority to developconstitutes a legal, construct valid and operate binding obligation of the Project, and to conduct Borrower enforceable in accordance with its operations as presently conducted or proposed to be conducted.terms;
(d) It has duly authorized no consent of any other party (including, without limitation, creditors of the Borrower) and no consent, license, permit, approval or authorization of, exemption by, notice or report to, or registration, filing or declaration with, any governmental authority, domestic or foreign is required to be obtained by proper corporate action the Borrower in connection with the execution, delivery or performance of this Pledge Agreement;
(e) the execution, delivery and performance of this Pledge Agreement and the Collateral Documents.
(e) The execution and delivery of this Agreement and the Collateral Documents by the Borrower, and the consummation of the transactions contemplated hereby and thereby and the fulfillment of or compliance with the terms and conditions hereof and thereof do not and will not conflict with the provisions violate any provision of the certificate any applicable law or regulation or of incorporation any order, judgment, writ, award or by-laws decree of the Borrower and do not and will not conflict withany court, arbitrator or governmental authority, domestic or foreign, or constitute on the part of the Borrower a breach of or default under any mortgage, indenture, deed of trustlease, mortgagecontract, agreement or other agreement, instrument or undertaking to which the Borrower is a party or by which purports to be binding upon the Borrower or any of upon its property is bound or conflict with, violate or result in a breach of any existing law, public administrative rule or regulation, judgment, court order or consent decree to which the Borrower or any of its property is now a party or by which it is bound, or assets and will not result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon on or security interest in any of the assets of the Borrower except as contemplated by this Pledge Agreement; and
(f) the pledge, assignment and delivery of such Pledged Bonds pursuant to this Pledge Agreement will create a lien on and a security interest in, all right, title or interest of the Borrower in or to such Pledged Bonds, and the proceeds thereof, subject to no prior pledge, lien, mortgage, hypothecation, security interest, charge, option or encumbrance or to any agreement purporting to grant to any third party a security interest in the property or assets of the Borrower under which would include the terms Pledged Bonds. The Borrower covenants and agrees that it will defend the Bank's right, title and security interest in and to the Pledged Bonds and the proceeds thereof against the claims and demands of any instrument or agreement other than this Agreement or the Trust Agreement.
(f) It all persons whomsoever; and covenants and agrees that it will cause the Project to be operated as Industrial Facilities within the meaning of the Act.
(g) At all times during each of the last three taxable years (or for such part of such period as may be applicable) and up have like title to and including the date of execution and delivery of this Agreement, except for the receipt of lease payments with respect right to pledge any other property at any time hereafter pledged to the Minor Parcels (Bank as defined in collateral hereunder and will likewise defend the Pledge Agreement) commencing on October 22, 1999, (i) the Borrower has not been engaged in any trade or business in or outside the Commonwealth; Bank's right thereto and (ii) the Borrower has not derived any gross income from sources within or without the Commonwealth, as determined under the general source of income rules of the Codesecurity interest therein.
(h) Except as set forth in Exhibit B hereto, all consents, approvals, licenses and permits of any governmental authority having jurisdiction, or of any other Person, that are required for the construction of the Project are, and shall remain, in full force and effect.
(i) All consents, approvals, licenses and permits of any governmental authority having jurisdiction, or of any other Person, that are required for the development and construction of the Project and which are not in effect on the date hereof or for the proposed operation of the Project shall be obtained and, once obtained, shall remain in full force and effect.
(j) To the best of Borrower's knowledge: (i) the Project is not in violation of any applicable Environmental Law and (ii) the Project has not received any Environmental Claims or threatened Environmental Claims.
Appears in 2 contracts
Samples: Letter of Credit Agreement (Exactech Inc), Pledge and Security Agreement (Exactech Inc)
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE BORROWER. The Borrower represents, warrants and covenants that:
(a) It The Borrower is a duly constituted limited partnership, organized and validly existing corporation under the laws of the CommonwealthState, is in good standing in the State, and has elected to be treated as a special partnership in accordance with full legal right, power and authority under the provisions laws of the Puerto Rico Internal Revenue Code United States of 1994, as amended, America and Act No. 0 xx xxx Xxxxxxxxxxx xx Xxxxxx Xxxx, xxproved September 27, 1985, the State (i) to enter into this Borrower Loan Agreement and the other Loan Documents to which it is a party; (ii) to perform its proposed operations qualify under obligations hereunder and thereunder; and (iii) to consummate the above provisions for treatment as a special partnershiptransactions on its part contemplated by the Loan Documents.
(b) It has The Loan Documents to which it is a party have been duly executed and delivered by the power Borrower and, upon the execution thereof by the other respective parties thereto, constitute valid and authority to enter into and perform its binding obligations under this Agreement and of the Collateral DocumentsBorrower, enforceable in accordance with their respective terms, except as limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws or judicial decisions affecting the rights of creditors generally.
(c) It has the necessary power and authority to develop, construct and operate the Project, and to conduct its operations as presently conducted or proposed to be conducted.
(d) It has duly authorized by proper corporate action the execution, delivery and performance of this Agreement and the Collateral Documents.
(e) The execution and delivery of this Agreement and the Collateral Loan Documents to which it is a party, the performance by the Borrower, Borrower of its obligations hereunder and thereunder and the consummation of the transactions contemplated hereby and thereby and the fulfillment of or compliance with the terms and conditions hereof and thereof do not require the consent or approval of any other person, regulatory agency or governmental body (other than the other parties to the Loan Documents) and will not conflict with violate the provisions Borrower’s Partnership Agreement, or any law, regulation, rule or ordinance or any order, judgment or decree of the certificate of incorporation any federal, state or by-laws of the Borrower local court and do not and will not conflict with, or constitute on the part of the Borrower a breach of of, or a default under under, any indenturedocument, deed of trust, mortgage, agreement instrument or other instrument commitment to which the Borrower is a party or by which the Borrower or any of its property is bound bound.
(d) There is no action, suit, proceeding, inquiry or conflict withinvestigation by or before any court, violate governmental agency or result in a breach public board or body pending or threatened against the Borrower which (i) affects or seeks to prohibit, restrain or enjoin the loaning of any existing law, public administrative rule or regulation, judgment, court order or consent decree the amounts set forth herein to which the Borrower or any of its property is now a party or by which it is bound, or result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the property or assets of the Borrower under the terms of any instrument or agreement other than this Agreement or the Trust Agreement.
(f) It will cause the Project to be operated as Industrial Facilities within the meaning of the Act.
(g) At all times during each of the last three taxable years (or for such part of such period as may be applicable) and up to and including the date of execution and delivery of this AgreementBorrower Loan Agreement or the other Loan Documents, except for the receipt of lease payments with respect to the Minor Parcels (as defined in the Pledge Agreement) commencing on October 22, 1999, (i) the Borrower has not been engaged in any trade or business in or outside the Commonwealth; and (ii) affects or questions the validity or enforceability of this Borrower has not derived any gross income from sources within Loan Agreement or without the Commonwealthother Loan Documents, as determined under the general source of income rules of the Code.
(h) Except as set forth in Exhibit B hereto, all consents, approvals, licenses and permits of any governmental authority having jurisdiction, or of any other Person, that are required for the construction of the Project are, and shall remain, in full force and effect.
(i) All consents, approvals, licenses and permits of any governmental authority having jurisdiction, or of any other Person, that are required for the development and construction of the Project and which are not in effect on the date hereof or for the proposed operation of the Project shall be obtained and, once obtained, shall remain in full force and effect.
(j) To the best of Borrower's knowledge: (i) the Project is not in violation of any applicable Environmental Law and (ii) the Project has not received any Environmental Claims or threatened Environmental Claims.or
Appears in 1 contract
Samples: Borrower Loan Agreement
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE BORROWER. The Borrower ---------------------------------------------------------- represents, warrants and covenants thatthat as of the Closing, and at all times thereafter until the Amended Notes are paid and satisfied in full:
(a) It a. The Borrower is and shall be a corporation duly constituted and organized, validly existing corporation and in good standing under the laws of the Commonwealth, has elected to be treated as a special partnership in accordance with the provisions State of the Puerto Rico Internal Revenue Code of 1994, as amendedDelaware, and Act No. 0 xx xxx Xxxxxxxxxxx xx Xxxxxx Xxxx, xxproved September 27, 1985, has and its proposed operations qualify under will have the above provisions for treatment as a special partnership.
(b) It has the requisite corporate power and authority to enter into execute and deliver this Rollover Agreement and to perform its obligations under this Agreement and the Collateral Documentshereunder.
(c) It has the necessary power and authority to develop, construct and operate the Project, and to conduct its operations as presently conducted or proposed to be conducted.
(d) It has duly authorized by proper corporate action the b. The execution, delivery and performance of this Rollover Agreement and the Collateral Documents.
(e) The execution and delivery of this Agreement and the Collateral Documents by the Borrower, and the consummation of the transactions contemplated hereby and thereby and the fulfillment of or compliance with the terms and conditions hereof and thereof do not have been and will not conflict with continue to be duly authorized by all necessary corporate action on the provisions of the certificate of incorporation or by-laws part of the Borrower and do not and will not conflict with, or constitute on the part of the Borrower a breach of or default under violate any indenture, deed of trust, mortgage, covenant contained in any agreement or other instrument to which the Borrower is a party party.
c. The Warrant Shares and the Conversion Shares, when issued upon exercise of the Warrants and payment therefor or by which upon conversion of Amended Notes, as the case may be, will be legally and validly issued, fully paid and nonassessable.
d. The Borrower owns all right title and interest in and to the Judgment and the Proceeds; and except as otherwise set forth in this Rollover Agreement and the Collateral Agreement, the Borrower has not created or any of its property is bound suffered to exist and will not create or conflict with, violate or result in a breach of any existing law, public administrative rule or regulation, judgment, court order or consent decree suffer to which the Borrower or any of its property is now a party or by which it is bound, or result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the property or assets of the Borrower under the terms of any instrument or agreement other than this Agreement or the Trust Agreement.
(f) It will cause the Project to be operated as Industrial Facilities within the meaning of the Act.
(g) At all times during each of the last three taxable years (or for such part of such period as may be applicable) and up to and including the date of execution and delivery of this Agreement, except for the receipt of lease payments exist with respect to the Minor Parcels Judgment or the Proceeds any security interest, pledge, assignment, encumbrance, lien (as defined in the Pledge Agreementstatutory or otherwise) commencing on October 22, 1999, (i) the Borrower has not been engaged in or other security agreement or preferential arrangement or transfer of any trade kind or business in or outside the Commonwealth; and (ii) the Borrower has not derived any gross income from sources within or without the Commonwealth, as determined under the general source of income rules of the Codenature whatsoever.
(h) Except as set forth in Exhibit B hereto, all consents, approvals, licenses and permits of any governmental authority having jurisdiction, or of any other Person, that are required for the construction of the Project are, and shall remain, in full force and effect.
(i) All consents, approvals, licenses and permits of any governmental authority having jurisdiction, or of any other Person, that are required for the development and construction of the Project and which are not in effect on the date hereof or for the proposed operation of the Project shall be obtained and, once obtained, shall remain in full force and effect.
(j) To the best of Borrower's knowledge: (i) the Project is not in violation of any applicable Environmental Law and (ii) the Project e. The Borrower has not received any Environmental Claims payment or threatened Environmental ClaimsProceeds nor realized all or any part of the Judgment; and if the Borrower hereafter receives any payment or Proceeds or realizes all or any part of the Judgment, it shall hold the same in trust for the benefit of the Lenders and deliver the same to the Collateral Agent in the form received immediately upon the Borrower's receipt thereof.
f. The Judgment has not been reversed, dismissed, modified or vacated by any court; and the Borrower will notify the Lenders immediately of any such reversal, dismissal, modification or vacation.
g. The Borrower will notify the Lenders immediately of any raising of debt or equity financing that has or potentially may result in proceeds to the Borrower in excess of $2,250,000, net of transaction expenses related to such offering and any such excess shall be paid to Lenders, pro rata, --- ---- immediately upon Borrower's receipt thereof.
Appears in 1 contract
Samples: Rollover and Assignment Agreement (Penn Octane Corp)
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE BORROWER. The Borrower represents, warrants and covenants that:
(a) It The Borrower is a duly constituted limited partnership, organized and validly existing corporation under the laws of the CommonwealthState, is in good standing in the State, and has elected to be treated as a special partnership in accordance with full legal right, power and authority under the provisions laws of the Puerto Rico Internal Revenue Code United States of 1994, as amended, America and Act No. 0 xx xxx Xxxxxxxxxxx xx Xxxxxx Xxxx, xxproved September 27, 1985, the State (i) to enter into this Borrower Loan Agreement and the other Loan Documents to which it is a party; (ii) to perform its proposed operations qualify under obligations hereunder and thereunder; and (iii) to consummate the above provisions for treatment as a special partnershiptransactions on its part contemplated by the Loan Documents.
(b) It has The Loan Documents to which it is a party have been duly executed and delivered by the power Borrower and, upon the execution thereof by the other respective parties thereto, constitute valid and authority to enter into and perform its binding obligations under this Agreement and of the Collateral DocumentsBorrower, enforceable in accordance with their respective terms, except as limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws or judicial decisions affecting the rights of creditors generally.
(c) It has the necessary power and authority to develop, construct and operate the Project, and to conduct its operations as presently conducted or proposed to be conducted.
(d) It has duly authorized by proper corporate action the execution, delivery and performance of this Agreement and the Collateral Documents.
(e) The execution and delivery of this Agreement and the Collateral Loan Documents to which it is a party, the performance by the Borrower, Borrower of its obligations hereunder and thereunder and the consummation of the transactions contemplated hereby and thereby and the fulfillment of or compliance with the terms and conditions hereof and thereof do not require the consent or approval of any other person, regulatory agency or governmental body (other than the other parties to the Loan Documents) and will not conflict with violate the provisions Borrower’s Partnership Agreement, or any law, regulation, rule or ordinance or any order, judgment or decree of the certificate of incorporation any federal, state or by-laws of the Borrower local court and do not and will not conflict with, or constitute on the part of the Borrower a breach of of, or a default under under, any indenturedocument, deed of trust, mortgage, agreement instrument or other instrument commitment to which the Borrower is a party or by which the Borrower or any of its property is bound bound.
(d) There is no action, suit, proceeding, inquiry or conflict withinvestigation by or before any court, violate governmental agency or result public board or body pending or threatened against the Borrower which (i) affects or seeks to prohibit, restrain or enjoin the loaning of the amounts set forth herein to the Borrower or the execution and delivery of this Borrower Loan Agreement or the other Loan Documents, (ii) affects or questions the validity or enforceability of this Borrower Loan Agreement or the other Loan Documents, or (iii) questions the power or authority of the Borrower to carry out the transactions contemplated by, or to perform its obligations under, this Borrower Loan Agreement or the other Loan Documents to which it is a party, or the powers of the Borrower to own, acquire, construct or operate the Project; and no other event has occurred which may materially adversely affect the Borrower’s financial condition or its properties.
(e) The Borrower is not in default (and no event has occurred and is continuing which with the giving of notice or the passage of time or both could constitute a breach of default) under any existing lawdocument, public administrative rule instrument or regulation, judgment, court order or consent decree commitment to which the Borrower is a party or to which it or any of its T-29649.004\1790693 property is now a party subject which default would or by which it is bound, or result in could affect the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the property or assets ability of the Borrower to carry out its obligations under the terms of any instrument or agreement other than this Borrower Loan Agreement or the Trust Agreementother Loan Documents.
(f) It Any certificate signed by a Borrower Representative and delivered pursuant to this Borrower Loan Agreement or the other Loan Documents shall be deemed a representation and warranty by the Borrower as to the statements made therein.
(g) The Project is located wholly within the City.
(h) The Borrower will obtain all necessary certificates, approvals, permits and authorizations with respect to the acquisition, construction and operation of the Project from applicable local governmental agencies and agencies of the State of California and the federal government.
(i) The Borrower shall make no changes to the Project or to the operation thereof which would affect the qualification of the Project under the Act or impair the exclusion from gross income for federal income tax purposes of the interest on the Governmental Lender Note. The Borrower intends to utilize the Project as multifamily rental housing during the Qualified Project Period.
(j) Not in excess of two percent (2%) of the proceeds of the Borrower Loan will be used to pay Costs of Issuance.
(k) The acquisition of an interest in the Project Site (as defined in the Regulatory Agreement) and the construction and operation of the Project, all in the manner presently contemplated and as described herein and in the Regulatory Agreement will not conflict with any zoning, water or air pollution or other ordinance, order, law or regulation applicable thereto. The Borrower will cause the Project to be operated in all material respects in accordance with all applicable federal, state and local laws or ordinances (including rules and regulations) relating to zoning, building, safety and environmental quality.
(l) The Borrower acknowledges, represents and warrants that it understands the nature and structure of the Project; that it is familiar with the provisions of all of the documents and instruments relating to the financing of the Project to which it or the Governmental Lender is a party or of which it is a beneficiary; and that it understands the risks inherent in such transactions, including without limitation the risk of loss of the Project.
(m) The Borrower intends to hold the Project for its own account, has no current plans to sell and has not entered into any agreement to sell the Project, except in accordance with the terms of the Regulatory Agreement and a possible sale to a partner of the Borrower as Industrial Facilities reflected in the Partnership Agreement.
(n) The Borrower has contacted all “related persons” thereof (within the meaning of Section 147(a) of the ActCode); and none of them shall, at any time, pursuant to any arrangement, formal or informal, acquire any interest in the Governmental Lender Note.
(go) At all times during each In the event the Borrower Loan proceeds and equity contributions and other loan proceeds are not sufficient to complete the acquisition and construction of the last three taxable years Project, the T-29649.004\1790693 Borrower will furnish any additional moneys necessary to complete the acquisition and construction of the Project.
(p) All of the proceeds from the Borrower Loan plus the income from the investment of the proceeds of the Borrower Loan will be used to pay or reimburse the Borrower for such part Project Costs, and at least 95% of such period as may the proceeds of the Borrower Loan will be applicable) used to pay or reimburse the Borrower for Qualified Project Costs and up less than 25% of the proceeds of the Borrower Loan will be used to and including pay or reimburse the date of execution and delivery of this Agreement, except Borrower for the receipt cost of lease payments land or any interest therein. The Borrower shall assure that the proceeds of the Borrower Loan are expended so as to cause the Governmental Lender Note to constitute a “qualified residential rental bond” within the meaning of Section 142(d) of the Code.
(q) The estimated total cost of the financing of the acquisition and construction of the Project is equal to or in excess of the maximum principal amount of the Borrower Loan.
(r) The Borrower has not knowingly taken or permitted to be taken and will not knowingly take or permit to be taken any action which would have the effect, directly or indirectly, of causing interest on the Governmental Lender Note to be included in the gross income of the owner thereof for purposes of federal income taxation.
(s) The Borrower covenants that it shall not take, or permit or suffer to be taken by the Funding Lender or otherwise, any action with respect to the Minor Parcels proceeds of the Governmental Lender Note which, if such action had been reasonably expected to have been taken, or had been deliberately and intentionally taken on the Closing Date, would have caused the Governmental Lender Note to be an “arbitrage bond” within the meaning of Section 148(a) of the Code.
(t) The Borrower has examined and is familiar with all the easements, covenants, conditions, restrictions, reservations, building laws, regulations, zoning ordinances, and federal, state, and local requirements affecting the Project. The Project will at all times and in all respects conform to and comply with the requirements of such easements, covenants, conditions, restrictions and reservations.
(u) Each financial statement of Borrower supplied to the Governmental Lender or the Funding Lender truly and completely disclosed Borrower’s financial condition as defined of the date of the statement, and there has been no material adverse change in Borrower’s financial condition subsequent to the date of the most recent financial statement supplied to the Funding Lender. Borrower has no material contingent obligations except as disclosed in such financial statements.
(v) The Project costs as set forth by the Borrower to the Governmental Lender and the Funding Lender in writing prior to the date of the first disbursement of the Borrower Loan are true and accurate estimates of the costs necessary to complete the acquisition and construction of the Project. the Project.
(w) All utility services appropriate to the use of the Project are being provided to
(x) The Project is contiguous to publicly dedicated streets, roads, or highways providing access to the Project. T-29649.004\1790693
(y) The Borrower Loan is requested by the Borrower for commercial purposes and is not primarily intended for personal, family, or household purposes.
(z) The Borrower has filed all federal, state and local tax returns and reports that are or were required to be filed, have been filed, and all taxes, assessments and other governmental charges have been paid in full, except those presently being or to be contested by the Borrower in good faith in the Pledge Agreementordinary course of business and for which adequate reserves have been provided.
(aa) commencing The Borrower possesses all necessary trademarks, servicemarks, patents, copyrights, licenses, permits and franchises to conduct its business as now operated without any known conflict with the valid trademarks, servicemarks, patents, copyrights, and licenses, permits or franchise rights of others.
(bb) The Borrower is in substantial compliance with all laws, regulations, ordinances and rules applicable to the Borrower and its businesses, operations, properties and assets, including without limitation all applicable federal, state and local laws pertaining to occupational safety and employment and seismic standards.
(cc) No written information, certificate, statement, exhibit or report furnished by or on October 22behalf of the Borrower to the Funding Lender in connection with the Loan Documents contains any material misstatement of fact or, 1999when taken as a whole, omits to state a material fact or any fact necessary to make the statements contained therein not misleading.
(idd) Except as contemplated by this Borrower Loan Agreement or as previously disclosed in the Borrower’s financial statements or in writing to the Funding Lender and as accepted by the Funding Lender (the “Permitted Encumbrances”), and except for property tax liens for taxes not presently due and payable, the Borrower owns and has good leasehold title to all of the Borrower’s properties free and clear of all security interests, and has not executed any security documents or financing statements relating to such properties.
(ee) The Borrower is familiar with all governmental and other applicable restrictions to the Property and Improvements and has obtained, or will be able to obtain, all permits, approvals, consents, and other authorizations necessary for the construction, use and occupancy of the Project and as of the date hereof, there is no known violation or asserted violation of any restrictions concerning the Project or the existing or contemplated use thereof.
(ff) Unless otherwise previously disclosed to the Funding Lender in writing, the Borrower has not been engaged entered into any security agreements, or permitted the filing or attachment of any security interests on or affecting any of the Collateral directly or indirectly securing repayment of the Borrower Note, that would be prior to or that may in any trade way be superior to any security interests granted to the Governmental Lender or business the Funding Lender and rights in or outside and to such Collateral.
(gg) Each employee benefit plan as to which the Commonwealth; Borrower may have any liability complies in all material respects with all applicable requirements of law and regulations, and (i) no Reportable Event nor Prohibited Transaction (as such terms are used in the Employee Retirement Income Security Act, as amended) has occurred with respect to any such plan, (ii) the Borrower has not derived withdrawn from any gross income from sources such plan or initiated steps to do so, (iii) no steps have been taken to terminate any such plan or to appoint a trustee to administer such a plan, and (iv) there are not unfunded liabilities other than those previously disclosed to the Funding Lender in writing. T-29649.004\1790693
(hh) The Borrower is not an “investment company” or a company “controlled” by an “investment company”, within or without the Commonwealthmeaning of the Investment Company Act of 1940, as determined under the general source of income rules of the Codeamended.
(hii) Except as set forth in Exhibit B hereto, all consents, approvals, licenses and permits of any governmental authority having jurisdictionThe Borrower is not a “holding company”, or a “subsidiary company” of any other Persona “holding company”, that are required for or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company”, within the construction meaning of the Project arePublic Utility Holding Company Act of 1935, and shall remain, in full force and effectas amended.
(ijj) All consents, approvals, licenses and permits of any governmental authority having jurisdictionThe Borrower is not engaged principally, or as one of any other Personits important activities, that are required in the business of extending credit for the development purpose of purchasing or carrying margin stock (within the meaning of Regulations T and construction U of the Project and which are not in effect on Board of Governors of the date hereof Federal Reserve System). No proceeds of the Borrower Loan will be used by the Borrower to purchase or carry any such margin stock or to extend credit to others for the proposed operation purpose of the Project shall be obtained and, once obtained, shall remain in full force and effectpurchasing or carrying such margin stock.
(jkk) To the best of Borrower's knowledge: (i) the Project is not in violation There are no defenses or counterclaims, offsets or other adverse claims, demands or actions of any applicable Environmental Law and (ii) kind, personal or otherwise, that the Project has not received Borrower could assert with respect to the Borrower Note, the Borrower Loan, this Borrower Loan Agreement, or any Environmental Claims or threatened Environmental Claimsof the other Loan Documents.
Appears in 1 contract
Samples: Borrower Loan Agreement
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE BORROWER. The Borrower represents, represents and warrants and covenants that:
: (a) It is on the date of delivery to the Bank or the Pledged Bonds Custodian of any Pledged Bonds described herein, neither the Remarketing Agent, the Pledged Bonds Custodian (in its capacity as Pledged Bonds Custodian) nor the Trustee (in its capacity as Trustee) nor any other person, firm or corporation (other than the Borrower, the Bank and the Pledged Bonds Custodian) will have any right, title or interest in and to the Pledged Bonds; (b) the Borrower presently has, and on the date of each delivery to the Bank or the Pledged Bonds Custodian of any Pledged Bonds, the Borrower will have, full power, authority and legal right to pledge all of its right, title and interest in and to, the Pledged Bonds pursuant to this Pledge and Security Agreement; (c) this Pledge and Security Agreement has been duly authorized, executed and delivered by the Borrower and constitutes a duly constituted legal, valid and validly existing corporation under the laws binding obligation of the Commonwealth, has elected to be treated as a special partnership Borrower enforceable in accordance with the provisions its terms, except as enforcement may be limited by general principles of the Puerto Rico Internal Revenue Code of 1994equity, as amendedbankruptcy, and Act No. 0 xx xxx Xxxxxxxxxxx xx Xxxxxx Xxxx, xxproved September 27, 1985, and its proposed operations qualify under the above provisions for treatment as a special partnership.
(b) It has the power and authority to enter into and perform its obligations under this Agreement and the Collateral Documents.
(c) It has the necessary power and authority to develop, construct and operate the Project, and to conduct its operations as presently conducted insolvency or proposed to be conducted.
other similar laws affecting creditors’ rights generally; (d) It has duly authorized no consent of any other party (including, without limitation, creditors of the Borrower) and no consent, license, permit, approval or authorization of, exemption by, notice,or report to, or registration, filing or declaration with, any governmental authority, domestic or foreign, is required to be obtained by proper corporate action the Borrower in connection with the execution, delivery or performance of this Pledge and Security Agreement; (e) the execution, delivery and performance of this Pledge and Security Agreement and the Collateral Documents.
(e) The execution and delivery of this Agreement and the Collateral Documents by the Borrower, and the consummation of the transactions contemplated hereby and thereby and the fulfillment of or compliance with the terms and conditions hereof and thereof do not and will not conflict with the provisions violate any provision of the certificate any applicable law or regulation or of incorporation any order, judgment, writ, award or by-laws decree of the Borrower and do not and will not conflict withany court, arbitrator or governmental authority, domestic or foreign, or constitute on the part of the Borrower a breach of or default under any mortgage, indenture, deed of trustlease, mortgagecontract, agreement or other agreement, instrument or undertaking to which the Borrower is a party or by which is or purports to be binding upon the Borrower Borrower, or upon any of its property is bound or conflict with, violate or result in a breach of any existing law, public administrative rule or regulation, judgment, court order or consent decree to which the Borrower or any of its property is now a party or by which it is bound, or assets and will not result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon on or security interest In any of the assets of the Borrower except as specifically contemplated by this Pledge and Security Agreement; and (f) the pledge, assignment and delivery of such Pledged Bonds pursuant to this Pledge and Security Agreement will create a valid first, lien on and first perfected security interest in all right, title and interest of the Borrower in or to such Pledged Bonds, and the proceeds thereof, in favor of the Bank, subject to no prior pledge, lien, mortgage, hypothecation, security interest, charge, option or encumbrance or to any agreement purporting to grant to any third party a security interest in the property or assets of the Borrower under which would include the terms of any instrument or agreement other than this Agreement or the Trust Agreement.
(f) Pledged Bonds. The Borrower covenants and agrees that It will cause defend the Project to be operated as Industrial Facilities within the meaning of the Act.
(g) At all times during each of the last three taxable years (or for such part of such period as may be applicable) Bank’s right, title and up to security interest in and including the date of execution and delivery of this Agreement, except for the receipt of lease payments with respect to the Minor Parcels (as defined in Pledged Bonds and the Pledge Agreement) commencing on October 22, 1999, (i) proceeds thereof against the Borrower has not been engaged in any trade or business in or outside the Commonwealthclaims and demands of all persons whomsoever; and (ii) the Borrower has not derived any gross income from sources within or without the Commonwealth, as determined under the general source of income rules of the Code.
(h) Except as set forth in Exhibit B hereto, all consents, approvals, licenses covenants and permits of any governmental authority having jurisdiction, or of agrees that it will have like title io and right to pledge any other Person, that are required for property at any time hereafter pledged to the construction of Bank as Pledged Collateral hereunder and will likewise defend the Project are, Bank’s right thereto and shall remain, in full force and effectsecurity interest therein.
(i) All consents, approvals, licenses and permits of any governmental authority having jurisdiction, or of any other Person, that are required for the development and construction of the Project and which are not in effect on the date hereof or for the proposed operation of the Project shall be obtained and, once obtained, shall remain in full force and effect.
(j) To the best of Borrower's knowledge: (i) the Project is not in violation of any applicable Environmental Law and (ii) the Project has not received any Environmental Claims or threatened Environmental Claims.
Appears in 1 contract
Samples: Pledge and Security Agreement (Avalon Pharmaceuticals Inc)
