Representations, Warranties, Covenants and Agreements of the Borrower. The Borrower, by its acceptance hereof, represents, warrants, covenants and agrees with the Remarketing Agent that it: (a) is a Delaware corporation duly organized and validly existing under the laws of the State of Delaware, and qualified to do business in the State of Massachusetts, and has full legal right, power and authority to own its properties and to conduct its business as described in the Disclosure Document and to enter into and to carry out and consummate the transactions contemplated by the Financing Documents and the Disclosure Document, and is duly qualified to transact business and are in good standing wherever failure to obtain such qualification and/or standing would have a material adverse effect on the Borrower; (b) has full power and authority to take all actions required or permitted to be taken by the Borrower by or under, and to perform and observe the covenants and agreements on its part contained in, this Remarketing Agreement and any other instrument or agreement relating thereto to which the Borrower is a party; (c) has, on or before the date hereof, duly taken all action necessary to be taken by it prior to such date to authorize: (i) the execution, delivery and performance of this Remarketing Agreement, the Financing Documents to which the Borrower is a party, and any other instrument or agreement that the Borrower is a party to and that have been executed or will be executed in connection with the transactions contemplated by the foregoing documents; and (ii) the carrying out, giving effect to, consummation and performance of the transactions and obligations contemplated by the foregoing agreements; and (d) will promptly notify the Remarketing Agent by electronic means of any material adverse changes that may affect the remarketing of the Bonds, the disclosure in the then current Disclosure Document prepared pursuant to Section 6 hereof or any fact or circumstance that may constitute, or with the passage of time will constitute, an event of default under the Loan Agreement, any Financing Document, or any other reimbursement agreement or collateral agreement of a Bank.
Appears in 1 contract
Samples: Remarketing Agreement (Datum Inc)
Representations, Warranties, Covenants and Agreements of the Borrower. The BorrowerBorrower represents and warrants to, by its acceptance hereof, represents, warrants, and covenants and agrees with with, each of the Remarketing Agent that itSecured Parties as follows:
(a) is a Delaware corporation duly organized and validly existing under The Borrower has the laws of the State of Delaware, and qualified to do business in the State of Massachusetts, and has full legal right, requisite corporate power and authority to own its properties enter into this Agreement and to conduct otherwise carry out its obligations thereunder. The execution, delivery and performance by the Borrower of this Agreement and the filings contemplated therein have been duly authorized by all necessary action on the part of the Borrower and no further action is required by the Borrower.
(b) Except for the Security Interest granted hereunder and Permitted Liens, the Borrower is the sole owner of its rights in the Collateral, free and clear of any liens, security interests or encumbrances, and is fully authorized to grant the Security Interest in and to pledge the Collateral. There is not on file in any governmental or regulatory authority, agency or recording office an effective financing statement, security agreement or transfer or any notice of any of the foregoing (other than those that have been filed in favor of the Secured Parties pursuant to this Agreement or in connection with Permitted Liens) covering or affecting any of the Collateral. So long as this Agreement shall be in effect, the Borrower shall not execute and shall not authorize the filing of in any such office or agency any such financing statement or other document or instrument (except to the extent filed or recorded in favor of the Secured Parties pursuant to the terms of this Agreement or in connection with Permitted Liens) without the consent of the Secured Parties.
(c) The Company represents and warrants that it has no place of business or offices where its respective books of account and records are kept (other than temporarily at the offices of its attorneys or accountants) or places where Collateral is stored or located, except as set forth on Schedule A attached hereto.
(d) Borrower has no knowledge of any claim that any of the Collateral or the Borrower’s use of any Collateral violates the rights of any third party. There has been no adverse decision of which the Borrower is aware as to the Borrower’s exclusive (or nonexclusive, as the case may be) rights to use the Collateral in any jurisdiction, and, to the knowledge of the Borrower there is no proceeding involving said rights pending or threatened before any court, judicial body, administrative or regulatory agency, arbitrator or other governmental authority.
(e) The Borrower shall at all times maintain its books of account and records relating to the Collateral at its principal place of business and its Collateral at the locations set forth on Schedule A attached hereto and may not relocate such books of account and records unless it delivers to each of the Secured Parties at least 30 days prior to such relocation (i) written notice of such relocation and the new location thereof (which must be within the United States) and (ii) evidence that appropriate financing statements and other necessary documents have been filed and recorded and other steps have been taken to perfect the Security Interest to create in favor of each of the Secured Parties a valid, perfected and continuing first priority lien in the Collateral, subject to Permitted Liens.
(f) This Agreement creates in favor of each of the Secured Parties a valid security interest in the Collateral, securing the payment and satisfaction of the Obligations, and, upon making the filings described in the Disclosure Document immediately following sentence, a perfected first priority security interest in such Collateral that is senior to all hereinafter created security interests, other than Permitted Liens. Except for the filing of financing statements on Form UCC-1 under the UCC with the jurisdictions indicated in Schedule A, attached hereto, and registration of Security Interest in Copyrights with the Register of Copyrights at the United States Copyright Office and, as to the Borrower’s foreign intellectual property, making other filings as may be required under the applicable foreign juridisctions, no authorization or approval of or filing with or notice to any governmental authority or regulatory body is required either: (i) for the grant by the Borrower of, or the effectiveness of, the Security Interest granted hereby or for the execution, delivery and performance of this Agreement by the Borrower or (ii) for the perfection of or exercise by the Secured Parties of its rights and remedies hereunder.
(g) On the date of execution of this Agreement, the Borrower authorizes each Secured Party to file one or more financing statements under the UCC with respect to the Security Interest for filing with the jurisdictions indicated on Schedule A, attached hereto and in such other jurisdictions as the Secured Parties deem necessary.
(h) The execution, delivery and performance of this Agreement does not conflict with or cause a breach or default, or an event that with or without the passage of time or notice, shall constitute a breach or default, under any agreement to which the Borrower is a party or by which the Borrower is bound. No consent (including, without limitation, from stock holders or creditors of the Borrower) is required for the Borrower to enter into and to carry out and consummate the transactions contemplated perform its obligations hereunder, other than consents already obtained by the Financing Documents Borrower.
(i) The Borrower shall at all times maintain the liens and Security Interest provided for hereunder as valid and perfected first priority liens and security interests in the Collateral (subject to Permitted Liens) in favor of each of the Secured Parties and insure that such liens and Security Interests are and remain senior to all not existing and hereafter created security interests and liens, other than Permitted Liens. The Borrower shall safeguard and protect all Collateral. The Borrower hereby agrees to defend the same against any and all persons. At the request of the Agent and/or Secured Parties, the Borrower will sign and deliver to the Secured Parties at any time or from time to time one or more financing statements pursuant to the UCC in form reasonably satisfactory to the Secured Parties and will pay the cost of filing the same in all public offices wherever filing is, or is deemed by the Secured Parties to be, necessary to effect the rights and obligations provided for herein. Without limiting the generality of the foregoing, the Borrower shall pay all fees, taxes and other amounts necessary to maintain the Security Interest hereunder, and the Disclosure DocumentBorrower shall obtain and furnish to the Secured Parties from time to time, upon demand, such releases and/or subordinations of claims and liens which may be required to maintain the priority of the Security Interest hereunder.
(j) The Borrower will not allow any material Collateral to be abandoned, forfeited or dedicated to the public without the prior written consent of the Secured Parties. Except pursuant to Section 13 hereof and other than Permitted Transfers, the Borrower will not transfer, pledge, hypothecate, encumber, license, sell or otherwise dispose of any of the Collateral without the prior written consent of the Secured Parties.
(k) The Borrower shall keep and preserve its Equipment, Inventory and other tangible Collateral in good condition, repair and order, and is duly qualified shall not knowingly operate or locate any such Collateral (or cause to transact business and are be operated or located) in good standing wherever any area excluded from insurance coverage, unless, in each case, where the failure to obtain such qualification and/or standing comply with the foregoing provisions does not result in an adverse effect on the value of the Collateral or on the Secured Parties’ security interest therein.
(l) The Borrower shall, within ten (10) days of obtaining knowledge thereof, advise the Agent, in sufficient detail, of any substantial change in the Collateral, and of the occurrence of any event which would have a material adverse effect on the Borrower;value of the Collateral or on the Secured Parties’ security interest therein.
(bm) The Borrower shall promptly execute and deliver to the Secured Party such further deeds, mortgages, assignments, security agreements, financing statements or other instruments, documents, certificates and assurances and take such further action as necessary to perfect, protect or enforce its security interest in the Collateral including, without limitation, the execution and delivery of a separate security agreement with respect to the Company’s intellectual property (“Intellectual Property Security Agreement”) in which the Secured Party has full power been granted a security interest hereunder, substantially in a form acceptable to the Secured Party, which Intellectual Property Security Agreement, other than as stated therein, shall be subject to all of the terms and authority conditions hereof.
(n) The Borrower shall permit the Secured Parties and its representatives and agents upon prior written consent and at the expense of the Secured Parties to inspect the Collateral at any time during normal business hours, and to make copies of records pertaining to any material item of Collateral as may be reasonably requested by the Secured Parties from time to time.
(o) The Borrower will take all actions required steps it considers reasonably necessary to diligently pursue and seek to preserve, enforce and collect any rights, claims, causes of action and accounts receivable in respect of the Collateral.
(p) The Borrower shall promptly notify the Agent in sufficient detail upon becoming aware of any attachment, garnishment, execution or permitted to be taken other legal process levied against any Collateral and of any other information received by the Borrower by that reasonably would be expected to substantially affect the value of the Collateral, the Security Interest or underthe rights and remedies of the Secured Parties hereunder.
(q) The Borrower shall not use or permit any Collateral to be used unlawfully or in violation of any provision of this Agreement or any applicable statute, and regulation or ordinance or any policy of insurance covering the Collateral where violation is reasonably likely to perform and observe have a material adverse effect on the covenants and agreements Secured Parties’ rights in the Collateral or Secured Parties’ ability to foreclose on its part contained inthe Collateral.
(r) Other than Permitted Liens, this Remarketing Agreement and any other instrument or agreement relating thereto to which the Borrower is a party;shall not grant to any person or entity any rights or interest in or to any of the Collateral that are senior to, or pari passu with, the Secured Parties.
(cs) has, on or before the date hereof, duly taken all action necessary to be taken by it prior to such date to authorize:
(i) the execution, delivery and performance of this Remarketing Agreement, the Financing Documents to which the The Borrower is a party, and any other instrument or agreement that the Borrower is a party to and that have been executed or will be executed in connection with the transactions contemplated by the foregoing documents; and
(ii) the carrying out, giving effect to, consummation and performance of the transactions and obligations contemplated by the foregoing agreements; and
(d) will promptly shall notify the Remarketing Agent by electronic means of any material adverse changes that may affect the remarketing of the Bonds, the disclosure change in the then current Disclosure Document prepared pursuant to Section 6 hereof Borrower’s name, identity, chief place of business, chief executive office or any fact or circumstance that may constitute, or with the passage residence within 30 days of time will constitute, an event of default under the Loan Agreement, any Financing Document, or any other reimbursement agreement or collateral agreement of a Banksuch change.
Appears in 1 contract
Samples: Loan and Securities Purchase Agreement (Aerogen Inc)
Representations, Warranties, Covenants and Agreements of the Borrower. The BorrowerBorrower represents and warrants to, by its acceptance hereof, represents, warrants, and covenants and agrees with with, each of the Remarketing Agent that itSecured Parties as follows:
(a) is a Delaware corporation duly organized and validly existing under The Borrower has the laws of the State of Delaware, and qualified to do business in the State of Massachusetts, and has full legal right, requisite corporate power and authority to own its properties enter into this Agreement and to conduct otherwise carry out its obligations thereunder. The execution, delivery and performance by the Borrower of this Agreement and the filings contemplated therein have been duly authorized by all necessary action on the part of the Borrower and no further action is required by the Borrower.
(b) Except for the Security Interest granted hereunder and Permitted Liens, the Borrower is the sole owner of its rights in the Collateral, free and clear of any liens, security interests or encumbrances, and is fully authorized to grant the Security Interest in and to pledge the Collateral. There is not on file in any governmental or regulatory authority, agency or recording office an effective financing statement, security agreement or transfer or any notice of any of the foregoing (other than those that have been filed in favor of the Secured Parties pursuant to this Agreement or in connection with Permitted Liens) covering or affecting any of the Collateral. So long as this Agreement shall be in effect, the Borrower shall not execute and shall not authorize the filing of in any such office or agency any such financing statement or other document or instrument (except to the extent filed or recorded in favor of the Secured Parties pursuant to the terms of this Agreement or in connection with Permitted Liens) without the consent of the Secured Parties.
(c) The Borrower represents and warrants that it has no place of business or offices where its respective books of account and records are kept (other than temporarily at the offices of its attorneys or accountants) or places where Collateral is stored or located, except as set forth on Schedule A attached hereto.
(d) Borrower has no knowledge of any claim that any of the Collateral or the Borrower’s use of any Collateral violates the rights of any third party. There has been no adverse decision of which the Borrower is aware as to the Borrower’s exclusive (or nonexclusive, as the case may be) rights to use the Collateral in any jurisdiction, and, to the knowledge of the Borrower there is no proceeding involving said rights pending or threatened before any court, judicial body, administrative or regulatory agency, arbitrator or other governmental authority.
(e) The Borrower shall at all times maintain its books of account and records relating to the Collateral at its principal place of business and its Collateral at the locations set forth on Schedule A attached hereto and may not relocate such books of account and records unless it delivers to each of the Secured Parties at least 30 days prior to such relocation (i) written notice of such relocation and the new location thereof (which must be within the United States) and (ii) evidence that appropriate financing statements and other necessary documents have been filed and recorded and other steps have been taken to perfect the Security Interest to create in favor of each of the Secured Parties a valid, perfected and continuing first priority lien in the Collateral, subject to Permitted Liens.
(f) This Agreement creates in favor of each of the Secured Parties a valid security interest in the Collateral, securing the payment and satisfaction of the Obligations, and, upon making the filings described in the Disclosure Document immediately following sentence, a perfected security interest in such Collateral that is senior to all hereinafter created security interests, other than Permitted Liens. Except for the filing of financing statements on Form UCC-1 under the UCC with the jurisdictions indicated in Schedule A, attached hereto, and registration of Security Interest in Copyrights with the Register of Copyrights at the United States Copyright Office and, as to the Borrower’s foreign intellectual property, making other filings as may be required under the applicable foreign jurisdictions, no authorization or approval of or filing with or notice to any governmental authority or regulatory body is required either: (i) for the grant by the Borrower of, or the effectiveness of, the Security Interest granted hereby or for the execution, delivery and performance of this Agreement by the Borrower or (ii) for the perfection of or exercise by the Secured Parties of its rights and remedies hereunder.
(g) On the date of execution of this Agreement, the Borrower authorizes each Secured Party to file one or more financing statements under the UCC with respect to the Security Interest for filing with the jurisdictions indicated on Schedule A, attached hereto and in such other jurisdictions as the Secured Parties deem necessary.
(h) The execution, delivery and performance of this Agreement does not conflict with or cause a breach or default, or an event that with or without the passage of time or notice, shall constitute a breach or default, under any agreement to which the Borrower is a party or by which the Borrower is bound. No consent (including, without limitation, from stock holders or creditors of the Borrower) is required for the Borrower to enter into and to carry out and consummate the transactions contemplated perform its obligations hereunder, other than consents already obtained by the Financing Documents Borrower.
(i) The Borrower shall at all times maintain the liens and Security Interest provided for hereunder as valid and perfected liens and security interests in the Collateral (subject to Permitted Liens) in favor of each of the Secured Parties and insure that such liens and Security Interests are and remain senior to all not existing and hereafter created security interests and liens, other than Permitted Liens. The Borrower shall safeguard and protect all Collateral. The Borrower hereby agrees to defend the same against any and all persons. At the request of the Agent and/or Secured Parties, the Borrower will sign and deliver to the Secured Parties at any time or from time to time one or more financing statements pursuant to the UCC in form reasonably satisfactory to the Secured Parties and will pay the cost of filing the same in all public offices wherever filing is, or is deemed by the Secured Parties to be, necessary to effect the rights and obligations provided for herein. Without limiting the generality of the foregoing, the Borrower shall pay all fees, taxes and other amounts necessary to maintain the Security Interest hereunder, and the Disclosure DocumentBorrower shall obtain and furnish to the Secured Parties from time to time, upon demand, such releases and/or subordinations of claims and liens which may be required to maintain the priority of the Security Interest hereunder.
(j) The Borrower will not allow any material Collateral to be abandoned, forfeited or dedicated to the public without the prior written consent of the Secured Parties. Except pursuant to Section 13 hereof and other than Permitted Transfers, the Borrower will not transfer, pledge, hypothecate, encumber, license, sell or otherwise dispose of any of the Collateral without the prior written consent of the Secured Parties.
(k) The Borrower shall keep and preserve its Equipment, Inventory and other tangible Collateral in good condition, repair and order, and is duly qualified shall not knowingly operate or locate any such Collateral (or cause to transact business and are be operated or located) in good standing wherever any area excluded from insurance coverage, unless, in each case, where the failure to obtain such qualification and/or standing comply with the foregoing provisions does not result in an adverse effect on the value of the Collateral or on the Secured Parties’ security interest therein.
(l) The Borrower shall, within ten (10) days of obtaining knowledge thereof, advise the Agent, in sufficient detail, of any substantial change in the Collateral, and of the occurrence of any event which would have a material adverse effect on the Borrower;value of the Collateral or on the Secured Parties’ security interest therein.
(bm) The Borrower shall promptly execute and deliver to the Secured Party such further deeds, mortgages, assignments, security agreements, financing statements or other instruments, documents, certificates and assurances and take such further action as necessary to perfect, protect or enforce its security interest in the Collateral including, without limitation, at Secured Party’s request, the execution and delivery of a separate security agreement with respect to the Borrower’s intellectual property (“Intellectual Property Security Agreement”) in which the Secured Party has full power been granted a security interest hereunder, substantially in a form acceptable to the Secured Party, which Intellectual Property Security Agreement, other than as stated therein, shall be subject to all of the terms and authority conditions hereof.
(n) The Borrower shall permit the Secured Parties and its representatives and agents upon prior written consent and at the expense of the Secured Parties to inspect the Collateral at any time during normal business hours, and to make copies of records pertaining to any material item of Collateral as may be reasonably requested by the Secured Parties from time to time.
(o) The Borrower will take all actions required steps it considers reasonably necessary to diligently pursue and seek to preserve, enforce and collect any rights, claims, causes of action and accounts receivable in respect of the Collateral.
(p) The Borrower shall promptly notify the Agent in sufficient detail upon becoming aware of any attachment, garnishment, execution or permitted to be taken other legal process levied against any Collateral and of any other information received by the Borrower by that reasonably would be expected to substantially affect the value of the Collateral, the Security Interest or underthe rights and remedies of the Secured Parties hereunder.
(q) The Borrower shall not use or permit any Collateral to be used unlawfully or in violation of any provision of this Agreement or any applicable statute, and regulation or ordinance or any policy of insurance covering the Collateral where violation is reasonably likely to perform and observe have a material adverse effect on the covenants and agreements Secured Parties’ rights in the Collateral or Secured Parties’ ability to foreclose on its part contained inthe Collateral.
(r) Other than Permitted Liens, this Remarketing Agreement and any other instrument or agreement relating thereto to which the Borrower is a party;shall not grant to any person or entity any rights or interest in or to any of the Collateral that are senior to, or pari passu with, the Secured Parties.
(cs) has, on or before the date hereof, duly taken all action necessary to be taken by it prior to such date to authorize:
(i) the execution, delivery and performance of this Remarketing Agreement, the Financing Documents to which the The Borrower is a party, and any other instrument or agreement that the Borrower is a party to and that have been executed or will be executed in connection with the transactions contemplated by the foregoing documents; and
(ii) the carrying out, giving effect to, consummation and performance of the transactions and obligations contemplated by the foregoing agreements; and
(d) will promptly shall notify the Remarketing Agent by electronic means of any material adverse changes that may affect the remarketing of the Bonds, the disclosure change in the then current Disclosure Document prepared pursuant to Section 6 hereof Borrower’s name, identity, chief place of business, chief executive office or any fact or circumstance that may constitute, or with the passage residence within 30 days of time will constitute, an event of default under the Loan Agreement, any Financing Document, or any other reimbursement agreement or collateral agreement of a Banksuch change.
Appears in 1 contract
Samples: Loan and Securities Purchase Agreement (Aerogen Inc)
Representations, Warranties, Covenants and Agreements of the Borrower. The BorrowerBorrower represents and warrants to, by its acceptance hereof, represents, warrants, and covenants and agrees with with, the Remarketing Agent that itSecured Party as follows:
(a) The Borrower represents and warrants that it has no place of business or offices where its respective books of account and records are kept (other than temporarily at the offices of its attorneys or accountants) or places where Collateral is a Delaware corporation duly organized and validly existing under stored or located, except as set forth on Exhibit A attached hereto.
(b) The Borrower is the laws sole owner of the State Collateral, free and clear from encumbrances, except Permitted Liens and is fully authorized to grant the Security Interest in and to pledge the Collateral. Except for financing statements evidencing Permitted Liens and the Financing Statements filed pursuant to this Security Agreement, there is not on file with any Governmental Authority an effective financing statement, security agreement, license or transfer or any notice of Delawareany of the foregoing covering or affecting any of the Collateral. So long as this Security Agreement shall be in effect, the Borrower shall not execute and shall not knowingly permit to be on file in any such office or agency any such financing statement or other document or instrument, except to the extent filed or recorded in favor of the Secured Party pursuant to the terms of this Security Agreement or filed or recorded in connection with any Permitted Liens.
(c) No part of the Collateral has been judged invalid or enforceable. No written claim has been received that any Collateral or the Borrower’s use of any Collateral violates the rights of any third party. There has been no adverse decision to the Borrower’s claim of ownership rights in or exclusive rights to use the Collateral in any jurisdiction or to the Borrower’s right to keep and maintain such Collateral in full force and effect, and qualified there is no proceeding involving said rights pending or threatened before any court, judicial body, administrative or regulatory agency, arbitrator or other Governmental Authority.
(d) The Borrower shall at all times maintain its books of account and records relating to do the Collateral at its principal place of business and its Collateral at the locations set forth on Exhibit A attached hereto and may not relocate such books of account and records or tangible Collateral unless it notifies Secured Party of such intent to relocate and the place of relocation and it obtains prior written consent of the Secured Party prior to such relocation.
(e) The Borrower shall notify the Secured Party at least ten (10) days in advance of any change in the State state of Massachusettsincorporation or formation or any change in the Borrower’s name(s) and the Borrower shall provide evidence that appropriate financing statements and other necessary documents have been filed and recorded and other steps have been taken to perfect the Security Interest to create in favor of the Secured Party valid, perfected and has full legal rightcontinuing Liens in the Collateral.
(f) This Agreement creates in favor of the Secured Party a valid first priority security interest in the Collateral securing the payment and performance of the Obligations and, power and authority to own its properties and to conduct its business as upon making the filings described in the Disclosure Document and immediately following sentence, a perfected first priority security interest in such Collateral. Except for the filing of financing statements on Form UCC-1 under the UCC with the jurisdictions indicated on Exhibit B, attached hereto, no authorization or approval of or filing with or notice to enter into and to carry out and consummate any Governmental Authority is required either (i) for the transactions contemplated grant by the Financing Documents Borrower of, or the effectiveness of, the Security Interest granted hereby or for the execution, delivery and performance of this Security Agreement by the Borrower of (ii) for the perfection of or exercise by the Secured Party of its rights and remedies hereunder to the extent such rights and remedies with respect to the Collateral can be perfected by making such filings.
(g) The Borrower shall take all such actions requested by the Secured Party so as to maintain the Liens and Security Interest provided for hereunder as valid and perfected Liens and security interests in the Collateral in favor of the Secured Party until this Security Agreement and the Disclosure DocumentSecurity Interest hereunder shall terminate pursuant to Section 11. The Borrower hereby agrees to defend the same against any and all persons. The Borrower shall safeguard and protect all Collateral for the account of the Secured Party. At the request of the Secured Party, the Borrower will deliver to the Secured Party at any time or from time to time one or more Financing Statements pursuant to the UCC (or any other applicable statute) in form reasonably satisfactory to the Secured Party and will pay the cost of filing the same in all public offices wherever filing is, or is deemed by the Secured Party to be, necessary or desirable to effect the rights and obligations provided for herein. Without limiting the generality of the foregoing, the Borrower shall pay all fees, taxes and other amounts necessary to maintain the Collateral and the Security Interest hereunder, and is duly qualified the Borrower shall obtain and furnish to transact business the Secured Party from time to time, upon demand, such releases and/or subordinations of claims and are Liens which may be required to maintain the priority of the Security Interest hereunder, except with respect to the Permitted Liens.
(h) The Borrower hereby authorizes the Secured Party to file any UCC financing or continuation statement without the signature of the Borrower to the extent permitted by applicable law, including, but not limited to, a filing of a Form UCC-1 financing statement with an appropriate description for the Collateral. The Borrower hereby ratifies any filing by the Secured Party of financing statements prior to the date hereof with respect to the Collateral. A carbon, photographic, facsimile or any reproduction of this Security Agreement shall be sufficient as a financing statement for filing in good standing wherever failure any jurisdiction.
(i) The Borrower will not sell, lease, transfer, or otherwise dispose of any of the Collateral or create, incur, assume or suffer to obtain such qualification and/or standing exist any Lien upon any of the Collateral, except for Permitted Liens and as otherwise permitted under the Loan Agreement, without the prior written consent of the Secured Party.
(j) The Borrower shall, within ten (10) days of obtaining knowledge thereof, advise the Secured Party promptly, in sufficient detail, of any substantial change in the Collateral, and of the occurrence of any event which would have a material adverse effect on the Borrower;value of the Collateral or on the Secured Party’s security interest therein.
(bk) has full power The Borrower shall promptly execute and authority deliver to the Secured Party such further deeds, mortgages, assignments, security agreements, financing statements or other instruments, documents, certificates and assurances and take such further action as the Secured Party may from time to time reasonably request and may in its sole discretion deem necessary to perfect, protect or enforce its security interest in the Collateral, other than as stated therein, shall be subject to all actions required of the terms and conditions hereof. Where Collateral is in the possession of a third party, the Borrower will join with the Secured Party in notifying the third party of the Secured Party’s security interest and obtaining an acknowledgement from the third party that it is holding the Collateral for the benefit of the Secured Party as may be reasonably requested by the Secured Party. The Borrower will use reasonable efforts to cooperate with the Secured Party in obtaining control with respect to Collateral consisting of (i) deposit accounts; (ii) investment property; (iii) letter-of-credit rights; and (iv) electronic chattel paper.
(l) The Borrower shall permit the Secured Party and its employees and agents to inspect the Collateral during regular business hours, and to make copies of records pertaining to the Collateral, all in accordance with the Loan Agreement.
(m) The Borrower shall promptly, and in any case, in no less than five (5) days, notify the Secured Party in sufficient detail upon becoming aware of any attachment, garnishment, execution or permitted to be taken other legal process levied against any Collateral and of any other information received by the Borrower that may have a material adverse effect on the Collateral, the Security Interest or the rights and remedies of the Secured Party hereunder.
(n) All information heretofore, herein or hereafter supplied to the Secured Party by or underon behalf of the Borrower with respect to the Collateral is accurate and complete in all material respects as of the date furnished.
(o) The Borrower shall notify the Secured Party as soon as practicable after acquiring or creating a new Subsidiary, and cause such new Subsidiary to perform execute and observe deliver to the covenants and agreements on its part contained in, Secured Party joinders to this Remarketing Agreement and any other instrument or agreement relating thereto to which the Borrower is a party;
(c) has, on or before the date hereof, duly taken all action necessary to be taken by it prior to such date to authorize:
(i) the execution, delivery and performance of this Remarketing Security Agreement, the Financing Documents to which the Borrower is a party, and any other instrument or agreement that documents as may be reasonably requested by the Secured Party in form and substance satisfactory to the Borrower is to which such Subsidiary shall grant a party security interest to and the Secured Party in its assets that have been executed or will be executed in connection with constitute Property as additional Collateral for the transactions contemplated by the foregoing documents; and
(ii) the carrying out, giving effect to, consummation and performance of the transactions and obligations contemplated by the foregoing agreements; and
(d) will promptly notify the Remarketing Agent by electronic means of any material adverse changes that may affect the remarketing of the Bonds, the disclosure in the then current Disclosure Document prepared pursuant to Section 6 hereof or any fact or circumstance that may constitute, or with the passage of time will constitute, an event of default under the Loan Agreement, any Financing Document, or any other reimbursement agreement or collateral agreement of a BankObligations.
Appears in 1 contract
Representations, Warranties, Covenants and Agreements of the Borrower. The BorrowerBorrower hereby represents and warrants to, by its acceptance hereof, represents, warrants, and covenants and agrees with the Underwriter, the Remarketing Agent that itand the Issuer as follows:
(a) is a Delaware corporation The Borrower has been duly organized and validly existing is in good standing under the laws of the State of Delaware, and is qualified to do business in The Commonwealth of Massachusetts and, in all respects material to the State of MassachusettsBorrower as a whole, and has full legal right, power and authority to own its properties and to conduct its business as described in and possesses all material licenses and approvals necessary for the Disclosure Document and to enter into and to carry out and consummate the transactions contemplated by the Financing Documents and the Disclosure Document, and is duly qualified to transact business and are in good standing wherever failure to obtain such qualification and/or standing would have a material adverse effect on the Borrower;conduct of its business.
(b) The Borrower has full power and authority to take all actions required or permitted to be taken by the Borrower by it or under, and to perform and observe the covenants and agreements on its part contained in, this Bond Purchase Agreement, the Loan Agreement, and the Remarketing Agreement Agreement, (collectively, the "Borrower Documents"), and any other instrument or agreement relating thereto to which the Borrower it is a party;.
(c) The Borrower has, on or before the date hereof, duly taken all action necessary to be taken by it prior to such date to authorize:
for: (i) the execution, delivery and performance of this Remarketing Agreement, the Financing Documents to which the Borrower is a party, and any other instrument or agreement that the Borrower is a party to and Documents that have been executed or will be executed in connection with the transactions contemplated by the foregoing documents; and
, and (ii) the carrying out, giving effect to, consummation and performance of the transactions transaction and obligations contemplated hereby and by the foregoing agreementsOfficial Statement; andprovided, however, that no representation is made with respect to compliance with the securities or "Blue Sky" laws of any jurisdiction.
(d) will promptly notify The Borrower has duly authorized and approved distribution by the Remarketing Agent by electronic means Underwriter of all Official Statements delivered to the Underwriter for use in connection with the initial offering, issuance and sale of the Bonds, and hereby authorizes the Underwriter to use the most recent Official Statement and the current forms of any or all Borrower Documents in connection with the placement of the Bonds.
(e) The Borrower Documents that have been or will be executed in connection with the consummation of the transactions described herein and by the Official Statement, when executed and delivered by the parties thereto will constitute valid and binding obligations of the Borrower, enforceable against it in accordance with their respective terms, except as the binding effect and enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors rights and except to the extent that the enforceability thereof may be limited by the application of general principles of equity.
(f) The execution and delivery of the Borrower Documents that have been or will be executed in connection with the consummation of the transactions described herein and in the Official Statement, the compliance with the terms, conditions or provisions thereof, and the consummation of the transactions therein described herein do not and will not violate any law, regulation, order, writ, injunction or decree of any court or governmental body or result in a breach of any of the terms, conditions or provisions of, or constitute a default under, or result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Borrower, pursuant to any mortgage, resolution, agreement or instrument to which the Borrower is a part or by which it or any of its properties is bound other than those described in the Borrower Documents; provided, however, that no representation is made with respect to compliance with the securities or "Blue Sky" laws of any jurisdiction.
(g) All authorizations, consents and approvals of, notices to, registrations or filings with, or actions in respect of any governmental body, agency or other instrumentality or court required in connection with the execution, delivery and performance by the Borrower of the Borrower Documents that have been or will be executed in connection with the consummation of the transactions described herein and in the Official Statement have been obtained, given or taken and will be in full force and effect or, if not required to have been obtained, given or taken as of the date hereof, will be obtained, given or taken and will be in full force and effect by such time as may be required; provided that no representation is made with respect to compliance with the securities or "Blue Sky" laws of any jurisdiction.
(h) Except as described in the Official Statement, there is no action, suit, proceeding, inquiry or investigation at law or in equity before or by any court or governmental or public entity pending or threatened against or affecting the Borrower (nor is there any basis therefor) that (i) is likely to have a material adverse changes that may affect effect on the remarketing financial condition or solvency of the Borrower; (ii) affects or seeks to prohibit, restrain or enjoin the issuance, sale or delivery of the Bonds, the disclosure use of the Official Statement or the execution or delivery by the Borrower, respectively, of the Borrower Documents; (iii) affects or questions the validity or enforceability of the Bonds, the Borrower Documents or this Bond Purchase Agreement; (iv) questions the tax-exempt status of the interest payable on the Bonds or the completeness or accuracy of the Official Statement; or (v) questions the powers of the Borrower to enter into or perform its obligations under any of the foregoing or the existence or powers of the Borrower, or the title to office of any representative, officer or official of the Borrower. The Borrower shall promptly advise the Underwriter of the institution of any such action, suit, proceeding, inquiry or investigation.
(i) The information contained in the then current Disclosure Document prepared pursuant Official Statement does not (and any supplement or amendment thereto as of the date of such supplement or amendment will not) contain any untrue statement of a material fact and does not (and any supplement or amendment thereto as of the date of such supplement or amendment will not) omit to Section 6 hereof state a material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading. No representation is made in this paragraph, however, with respect to any information in the Official Statement relating to the Bank, the Issuer, the Underwriter or any fact or circumstance that may constitute, or with the passage Remarketing Agent.
(j) The proceeds from the sale of time the Bonds to the initial purchasers thereof will constitute, an event of default under be applied for the purposes specified in the Loan Agreement.
(k) The Borrower is not in violation of its Certificate of Incorporation or Bylaws.
(l) Any certificate signed by a representative, officer or official of the Borrower and delivered in connection with the transaction described in the Official Statement and this Bond Purchase Agreement shall be deemed to be a representation and warranty by the Borrower to the Underwriter and the Issuer as to the statements made therein.
(m) The Borrower will cooperate with the Underwriter in the qualification of the Bonds for offering and sale and the determination of the eligibility of the Bonds for investment under the laws of such jurisdictions as the Underwriter shall designate and will use its best efforts to continue any Financing Documentsuch qualification in effect so long as required for the distribution of the Bonds by the Underwriter; provided, however, that the Borrower shall not be required to consent to service of process or qualify to do business in any other reimbursement agreement or collateral agreement of a Bankjurisdiction where it is not now so subject.
Appears in 1 contract
Samples: Bond Purchase Agreement (Datum Inc)
Representations, Warranties, Covenants and Agreements of the Borrower. The Borrower, by its acceptance hereof, hereof represents, warrants, covenants and agrees with the Remarketing Agent that itas follows:
(a) is a Delaware corporation duly organized and validly existing under The Borrower has the laws of the State of Delaware, and qualified to do business in the State of Massachusetts, and has full legal right, power and authority to own its properties and to conduct its business as described in the Disclosure Document and to enter into and to carry out and consummate the transactions contemplated by the Financing Documents and the Disclosure Document, and is duly qualified to transact business and are in good standing wherever failure to obtain such qualification and/or standing would have a material adverse effect on the Borrower;
(b) has full requisite power and authority to take all actions required or permitted to be taken by the Borrower by or under, and to perform and observe the covenants and agreements on its part contained in, this Remarketing Agreement and any other instrument or agreement relating thereto to which the Borrower is a party;.
(cb) The Borrower has, on or before as of the date hereof, duly taken all action necessary to be taken by it prior to such date to authorize:
date, for (i) the execution, delivery and performance of this Remarketing Agreement, the Financing Documents Agreement and any other instrument or agreement to which the Borrower is a party, party and any other instrument or agreement that the Borrower is a party to and that have which has been executed or will be executed in connection with the transactions contemplated by the foregoing documents; and
documents and (ii) the carrying out, giving effect to, consummation and performance of of, the transactions and obligations contemplated hereby and by the Official Statement.
(c) This Agreement and any other instrument or agreement to which the Borrower is a party and which have been or will be executed in connection with the consummation of the transactions contemplated by the foregoing agreements; anddocuments, when executed and delivered by the parties hereto and thereto, constitute or will constitute valid and binding obligations of the Borrower, enforceable against the Borrower in accordance with their respective terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws, judicial decisions or principles of equity relating to or affecting the enforcement of creditors’ rights generally.
(d) The execution and delivery of this Agreement and any other instrument or agreement to which the Borrower is a party and which have been or will promptly notify be executed in connection with the Remarketing Agent consummation of the transactions contemplated by electronic means the foregoing documents, the compliance with the terms, conditions or provisions hereof and thereof, and the consummation of the transactions herein and therein contemplated do not upon the date of execution and delivery hereof and thereof, and xxxx not, violate any law or any regulation, order, writ, injunction or decree of any court or governmental instrumentality applicable to the Borrower which violation would have a material adverse changes that effect on the Borrower, or result in a breach of any of the terms, conditions or provisions of, or constitute default under, any mortgage, indenture, agreement or instrument to which the Borrower is a party or by which it or any of its property is bound.
(e) All authorizations, consents and approvals of notices to, registrations or filings with, or actions in respect to any governmental body, agency or other instrumentality or court required in connection with the execution, delivery and performance by the Borrower of this Agreement and any other agreement or instrument to which the Borrower is a party and which has been or will be executed in connection with the consummation of the transactions contemplated by the foregoing documents, have been obtained, given or taken and are in full force and effect, except for such licenses, certificates, approvals, ordinances or permits which may affect be necessary for the use of the proceeds of the Bonds as described in the Official Statement and for which the Borrower has applied or will apply and which it expects to receive and except as may be required under the state securities or blue sky laws in connection with the remarketing of the Bonds, Bonds by the disclosure Remarketing Agent pursuant to this Agreement.
(f) Except as disclosed by the Borrower and described in the then current Disclosure Document prepared pursuant to Section 6 hereof Official Statement or any fact or circumstance that may constitutesupplements thereto delivered to the Remarketing Agent, there is no action, suit, investigation, proceeding, or arbitration, at law or in equity or before or by any foreign or domestic court or other governmental entity, pending or, to the knowledge of the Borrower, threatened against or affecting the Borrower wherein an unfavorable decision, ruling or finding could have a material adverse effect on the transactions contemplated by this Agreement or by the Official Statement, or which would materially and adversely affect the validity or enforceability of or the authority or ability of the Borrower to perform its obligations under, this Agreement or any other agreement or instrument to which the Borrower is a party and which is used or contemplated for use in consummation of the transactions contemplated by this Agreement or the Official Statement.
(g) The Borrower is not in default under any indenture or other agreement or instrument governing outstanding indebtedness to which the Borrower is a party or by which it is bound, which default would have a material adverse effect on the transactions contemplated by this Agreement or by the Official Statement, nor has any event occurred which with notice or the passage of time will constitute, an event of or both would constitute such a default under any such document.
(h) The Borrower xxxx cooperate with the Loan Remarketing Agent in the qualification of the Bonds for sale and the determination of the eligibility of the Bonds for investment under the laws of such jurisdictions as the Remarketing Agent shall designate and will use its best efforts to continue any such qualification in effect so long as required for the distribution of the Bonds by the Remarketing Agent; provided, that the Borrower shall not be required to qualify to do business in any jurisdiction where they are not so qualified or to take any action which would subject them to general service of process in any jurisdiction where they are not now so subject.
(i) The Borrower has no knowledge or reason to believe that any information relating to the Borrower contained in the Official Statement, contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements made therein, in the light of the circumstances under which they are made, not misleading.
(j) The Borrower shall, consistent with the terms of the Indenture, if the Remarketing Agent deems it advisable as a means of facilitating its performance under this Agreement, any Financing Document, cooperate with the Issuer and the Remarketing Agent to secure or any other reimbursement agreement or collateral agreement maintain a rating of a Bankthe Bonds from Standard & Poor’s.
Appears in 1 contract
Samples: Remarketing Agreement (Steadfast Income REIT, Inc.)
Representations, Warranties, Covenants and Agreements of the Borrower. The Borrower, by its acceptance hereof, Borrower represents, warrants, covenants and agrees with the Remarketing Agent that itthat:
(a) the Borrower is a Delaware corporation limited liability company duly organized and organized, validly existing and in good standing under the laws of the State of Delaware, California and qualified to do business in the State of Massachusetts, and Borrower has full legal right, all requisite power and authority to own and operate its properties and to conduct carry on its business as described in the Disclosure Document now conducted and to enter into and to carry out and consummate the transactions as contemplated by the Financing Documents Loan Agreement;
(b) the Borrower has all requisite power and authority to enter into, execute, deliver and perform its obligations under the Loan Agreement, this Remarketing Agreement, the Reimbursement Agreement, the Purchase Contract, and to approve the Official Statement and the Disclosure DocumentPurchase Contract;
(c) The Purchase Contract has been validly authorized, executed and delivered by the Borrower and constitutes a legal, valid and binding agreement of the Borrower enforceable against the Borrower in accordance with its terms, except as enforceability of the indemnification provisions thereof may be limited by applicable securities law or public policy and except as enforcement thereof may be limited by bankruptcy, insolvency, moratorium and other laws affecting the enforcement of creditors' rights generally and to the application of such equitable principles as the court having jurisdiction may impose, regardless of whether such enforceability is considered in a proceeding in equity or at law;
(d) the Loan Agreement, this Remarketing Agreement, the Reimbursement Agreement and the Purchase Contract have been validly authorized, executed and delivered by the Borrower and constitute the legal, valid and binding agreements of the Borrower, enforceable against the Borrower in accordance with their respective terms, except as enforcement thereof may be limited by bankruptcy, insolvency, moratorium and other laws affecting the enforcement of creditors' rights generally and to the application of such equitable principles as the court having jurisdiction may impose, regardless of whether such enforceability is considered in a proceeding in equity or at law;
(e) the Purchase Contract, this Remarketing Agreement and the Official Statement (and its distribution in preliminary final form) have been duly qualified to transact business and are in good standing wherever failure to obtain such qualification and/or standing would have a material adverse effect on authorized by the Borrower;
(bf) has full power with respect to the Borrower or the Project, or otherwise to the Borrower's actual knowledge, the Official Statement does not include any untrue statement of a material fact and authority does not omit to take all actions required or permitted state any material fact necessary to make the statements therein in the light of the circumstances under which they were made, not misleading in any material respect. The Borrower authorizes the Official Statement to be taken used by the Remarketing Agent in connection with the offering and sale from time to time of the Bonds in the secondary market in compliance with applicable law;
(g) except as have been obtained, no consent, approval, authorization or order of any court or governmental body is required to be obtained by the Borrower for the consummation by the Borrower of the transactions contemplated herein except such as may be required under the state securities or underBlue Sky laws, in connection with the distribution of the Bonds by the Underwriter;
(h) the execution and to perform and observe delivery of the covenants and agreements on its part contained inLoan Agreement, this Remarketing Agreement, the Reimbursement Agreement and the Purchase Contract by the Borrower and performance by the Borrower of its obligations thereunder, (i) will not conflict with or result in a breach of any other of the material terms, conditions or provisions of any material agreement or instrument or agreement relating thereto to which the Borrower is party, or constitute a party;
default thereunder and (cii) hasto the best of Borrower's knowledge, based on due inquiry, will not violate any order, decree, judgment, action, suit, proceeding, inquiry or investigation at law or in equity by or before any court or any provision of any statute, rule or regulation applicable to or binding on the date hereof, duly taken all action necessary to be taken by it prior to such date to authorize:Borrower or affecting any of its property;
(i) except as set forth in the executionOfficial Statement, delivery and performance there is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, government agency, public board or body, pending or, to the best of this Remarketing Agreementsuch Borrower's knowledge, threatened against the Borrower or involving any of the property or assets under the control of the Borrower including, without limitation, the Financing Documents to Project, that involves the possibility of any judgment or uninsured liability which may result in any materially adverse change in the business, properties, assets or in the condition, financial, physical, legal or otherwise, of the Borrower or of the Project; and
(j) the Borrower will diligently and reasonably cooperate with the Remarketing Agent to qualify the Bonds and/or the related obligations of the Borrower for offer and sale under the securities or "Blue Sky" laws of such states as the Remarketing Agent may request; provided that in no event shall the Borrower be obligated to qualify to do business in any state where it is a party, and not now so qualified or to take any other instrument or agreement action which would subject it to general service of process in any state where it is not now so subject. It is understood that the Borrower is a party not responsible for compliance with or the consequences of failure to and that have been executed comply with such securities or will be executed in connection with the transactions contemplated by the foregoing documents; and
(ii) the carrying out, giving effect to, consummation and performance of the transactions and obligations contemplated by the foregoing agreements; and
(d) will promptly notify the Remarketing Agent by electronic means of any material adverse changes that may affect the remarketing of the Bonds, the disclosure in the then current Disclosure Document prepared pursuant to Section 6 hereof or any fact or circumstance that may constitute, or with the passage of time will constitute, an event of default under the Loan Agreement, any Financing Document, or any other reimbursement agreement or collateral agreement of a BankBlue Sky laws.
Appears in 1 contract
Representations, Warranties, Covenants and Agreements of the Borrower. The Borrower, by its acceptance hereof, Borrower represents, warrants, covenants and agrees with the Remarketing Agent that itas follows:
(a) is a Delaware corporation This Agreement has been duly organized authorized, executed and validly existing under the laws of the State of Delaware, and qualified to do business in the State of Massachusetts, and has full legal right, power and authority to own its properties and to conduct its business as described in the Disclosure Document and to enter into and to carry out and consummate the transactions contemplated by the Financing Documents and the Disclosure Document, and is duly qualified to transact business and are in good standing wherever failure to obtain such qualification and/or standing would have a material adverse effect on the Borrower;
(b) has full power and authority to take all actions required or permitted to be taken delivered by the Borrower and performance by the Borrower hereunder will not conflict with, or result in a breach of any of the provisions of, or constitute a default (or an event which with the giving of notice or the lapse of time or both would constitute a default) under, and to perform and observe any agreement or instrument by which the covenants and agreements on its part contained inBorrower is bound or violate any law, this Remarketing Agreement and any other instrument administrative regulation or agreement relating thereto court order to which the Borrower is a party;subject.
(b) The Borrower will diligently cooperate with the Remarketing Agent to qualify the Bonds to be remarketed by the Remarketing Agent pursuant to this Agreement under the securities or "Blue Sky" laws of such jurisdictions as the Remarketing Agent may request; provided that in doing so the Borrower shall not be obligated to qualify to do business in any jurisdiction where it is not now so qualified or take any action which would subject it to the general service of process in any jurisdiction where it is not now so subject.
(c) has, on The information set forth in the Disclosure Materials under the caption "THE BORROWER" does not contain an untrue statement of a material fact or before the date hereof, duly taken all action omit to state a material fact necessary to be taken by it prior to such date to authorize:
(i) make the executionstatements therein, delivery and performance of this Remarketing Agreement, the Financing Documents to which the Borrower is a party, and any other instrument or agreement that the Borrower is a party to and that have been executed or will be executed in connection with the transactions contemplated by the foregoing documents; and
(ii) the carrying out, giving effect to, consummation and performance light of the transactions circumstances under which they were made not misleading. Furthermore, nothing has come to the Borrower's attention that leads it to believe the Disclosure Materials contain and obligations contemplated by (after being amended or supplemented, if appropriate) will contain any untrue statement of a material fact or omit to state a material fact necessary to make the foregoing agreements; andstatements therein, in the light of the circumstances under which they were made, not misleading, except that no representation is made with respect to the information set forth under the caption "THE ISSUER" (relating to the Issuer) and in Appendix A thereto (relating to the Bank).
(d) will promptly notify There is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, agency, department, board or body or before any arbitrator, pending or, to the Remarketing Agent by electronic means of any material adverse changes that may affect the remarketing knowledge of the BondsBorrower, threatened against or affecting the disclosure Borrower: (i) which would be required to be disclosed in any Disclosure Materials in order that they not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the then current light of the circumstances under which they are made, not misleading and which is not disclosed in such Disclosure Document prepared pursuant to Section 6 hereof or any fact or circumstance that may constitute, or with the passage of time will constitute, an event of default under the Loan Agreement, any Financing Document, or any other reimbursement agreement or collateral agreement of a Bank.Materials; or
Appears in 1 contract
