Borrower Representations. Borrower warrants and represents to Lender, as of the date hereof and as of the date of any Loan made hereunder, that: (a) Borrower is and at all times hereafter shall be a Person having that legal name and organizational structure as set forth above, duly organized and existing and in good standing under the laws of the state of its organization as set forth above and qualified or licensed to do business in all other states in which the laws require Borrower to be so qualified and/or licensed, except where the failure to be qualified or licensed could not reasonably be expected to have a material adverse effect; (b) Borrower is duly authorized and empowered to enter into, execute, deliver and perform this Loan Agreement and the Other Agreements and the execution, delivery and/or performance by Borrower of this Loan Agreement and the Other Agreements shall not, by the lapse of time, the giving of notice or otherwise, constitute a violation of any applicable law or a breach of any provision contained in Borrower’s organizational documents or contained in any material agreement, instrument or document to which Borrower is now or hereafter a party or by which it is or may become bound, except where such violation or breach could not reasonably be expected to have a material adverse effect; (c) Except as disclosed to Lender in writing, there are no actions or proceedings which are pending, or to its knowledge threatened, against Borrower, nor is Borrower a party to any contract or agreement or subject to any charge, restriction, judgment, decree or order, which might result in any material and adverse change in its financial condition or materially affect its assets or the Collateral, nor is Borrower in default with respect to any material indenture, security agreement, mortgage, deed or other similar agreement relating to the borrowing of monies to which it is a party or by which it is bound; (d) To Borrower’s knowledge, Borrower has and is in good standing with respect to all licenses, patents, copyrights, trademarks, and trade names and Borrower has all governmental permits, certificates, consents and franchises necessary to continue to conduct its business as previously conducted by it and to own or lease and operate its properties as now owned or leased by it, except where the failure to have such permits, certificates, consents and franchises could not reasonably be expected to have a material adverse effect; (e) The Financials fairly and accurately present in all material respects the assets, liabilities and financial conditions and results of operations of Borrower as of the date when the Financials were prepared and have been prepared in accordance with generally accepted accounting principles, consistently applied, provided that monthly financial statements are subject to year-end adjustments and the absence of footnotes and there has been no material adverse change in the assets, liabilities or financial condition of Borrower since the date of the Financials. (f) As to the Equipment and Collateral, (i) Borrower has and at all times hereafter shall have good, indefeasible and merchantable title to and ownership of the Collateral free and clear of all liens, claims, security interests and encumbrances except Permitted Liens; (ii) Borrower has and at all times hereafter shall have good, indefeasible and merchantable title to and ownership of the Equipment described and/or listed on any certificate or schedule relating to Equipment and delivered to Lender, free and clear of all liens, claims, security interests and encumbrances except under subsections 2, 3 and 7 of the definition of Permitted Liens; (iii) the Equipment and Collateral shall be kept and/or maintained solely at the addresses identified in writing to Lender; (iv) Borrower, immediately on demand by Lender, shall deliver to Lender any and all evidence of ownership of, including without limitation, vendor invoices and proofs of payment thereof, certificates of title to and applications for title to, any of the Equipment and Collateral; (v) Borrower shall keep and maintain the Equipment and Collateral in good operating condition and repair and shall make all necessary replacements thereof and renewals thereto so that the value and operating efficiency thereof shall at all times be maintained and preserved; and (vi) Borrower shall not permit any such items to become a fixture to real estate or accession to other personal property. (g) As to Lender’s security interest, (i) Subject to all required filings and Permitted Liens, Lender’s security interest in the Collateral is now and at all times hereafter shall be perfected and have a first priority, and subject to all required filings, Lender’s security interest in the Equipment described and/or listed on any certificate or schedule relating to Equipment and delivered to Lender is now and at all times hereafter shall be perfected and have a first priority except under subsections 2, 3, 7, 8, 10, 11, and 12 of the definition of Permitted Liens; (ii) the offices and/or locations where Borrower keeps the Collateral and Borrower’s books and records concerning the Collateral are at the locations identified to Lender in writing and Borrower shall not remove such books and records and/or the Collateral therefrom to any other location unless Borrower gives Lender written notice thereof at least thirty (30) days prior thereto and the same is within the contiguous forty-eight (48) states of the United States of America; and (iii) the addresses identified to Lender in writing as Borrower’s chief executive office and principal place(s) of business are Borrower’s principal offices and place(s) of business, and Borrower, by written notice delivered to Lender at least thirty (30) days prior thereto, shall advise Lender of any change thereto.
Appears in 2 contracts
Sources: Equipment Loan and Security Agreement, Equipment Loan and Security Agreement (Alien Technology Corp)
Borrower Representations. Borrower warrants and represents to Lender, as of the date hereof and as of the date of any Loan made hereunder, that:
(a) Each Borrower is subject to civil and at all times hereafter shall be a Person having that legal name and organizational structure as set forth above, duly organized and existing and in good standing commercial Laws with respect to its obligations under the laws of the state of its organization as set forth above and qualified or licensed to do business in all other states in which the laws require Borrower to be so qualified and/or licensed, except where the failure to be qualified or licensed could not reasonably be expected to have a material adverse effect;
(b) Borrower is duly authorized and empowered to enter into, execute, deliver and perform this Loan Agreement and the Other Agreements and the execution, delivery and/or performance by Borrower of this other Loan Agreement and the Other Agreements shall not, by the lapse of time, the giving of notice or otherwise, constitute a violation of any applicable law or a breach of any provision contained in Borrower’s organizational documents or contained in any material agreement, instrument or document to which Borrower is now or hereafter a party or by which it is or may become bound, except where such violation or breach could not reasonably be expected to have a material adverse effect;
(c) Except as disclosed to Lender in writing, there are no actions or proceedings which are pending, or to its knowledge threatened, against Borrower, nor is Borrower a party to any contract or agreement or subject to any charge, restriction, judgment, decree or order, which might result in any material and adverse change in its financial condition or materially affect its assets or the Collateral, nor is Borrower in default with respect to any material indenture, security agreement, mortgage, deed or other similar agreement relating to the borrowing of monies Documents to which it is a party (collectively as to such Borrower, the “Applicable Borrower Documents”), and the execution, delivery and performance by such Borrower of the Applicable Borrower Documents constitute and will constitute private and commercial acts and not public or by governmental acts. Neither such Borrower nor any of its property has any immunity from jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) under the laws of the jurisdiction in which it such Borrower is bound;organized and existing in respect of its obligations under the Applicable Borrower Documents.
(b) The Applicable Borrower Documents are in proper legal form under the Laws of the jurisdiction in which such Borrower is organized and existing for the enforcement thereof against such Borrower under the Laws of such jurisdiction, and are sufficient to ensure the legality, validity, enforceability, priority or admissibility in evidence of the Applicable Borrower Documents.
(c) It is not necessary to ensure the legality, validity, enforceability, priority or admissibility in evidence of the Applicable Borrower Documents that the Applicable Borrower Documents be filed, registered or recorded with, or executed or notarized before, any court or other authority in the jurisdiction in which such Borrower is organized and existing or that any registration charge or stamp or similar tax be paid on or in respect of the Applicable Borrower Documents or any other document, except for (A) any such filing, registration, recording, execution, translation or notarization as has been made or is not required to be made until the Applicable Borrower Document or any other document is sought to be enforced and (B) any charge or tax as has been timely paid.
(d) To Borrower’s knowledgeThere is no tax, levy, impost, duty, fee, assessment or other governmental charge, or any deduction or withholding, imposed by any Governmental Authority in or of the jurisdiction in which such Borrower has is organized and is in good standing with respect existing either (A) on or by virtue of the execution or delivery or enforcement of or performance by the parties of their respective obligations under the Applicable Borrower Documents or (B) on any payment to all licenses, patents, copyrights, trademarks, and trade names and be made by such Borrower has all governmental permits, certificates, consents and franchises necessary pursuant to continue to conduct its business as previously conducted by it and to own or lease and operate its properties as now owned or leased by itthe Applicable Borrower Documents, except where as has been disclosed in writing to the failure to have such permits, certificates, consents and franchises could not reasonably be expected to have Initial Lender. None of the Borrowers is a material adverse effect;foreign financial institution as defined in section 1471(d)(4) of the Code.
(e) The Financials fairly execution, delivery and accurately present in all material respects the assets, liabilities and financial conditions and results of operations of Borrower as performance of the date when Applicable Borrower Documents executed by such Borrower are, under applicable foreign exchange control regulations of the Financials were prepared jurisdiction in which such Borrower is organized and existing, not subject to any notification or authorization except (A) such as have been prepared in accordance with generally accepted accounting principles, consistently applied, made or obtained or (B) such as cannot be made or obtained until a later date (provided that monthly financial statements are subject to year-end adjustments and the absence of footnotes and there has been no material adverse change any notification or authorization described in the assets, liabilities clause (b) shall be made or financial condition of Borrower since the date of the Financialsobtained as soon as is reasonably practicable).
(f) As to the Equipment The execution, delivery and Collateral, (i) Borrower has and at all times hereafter shall have good, indefeasible and merchantable title to and ownership performance of the Collateral free Applicable Borrower Documents executed by such Borrower and clear of all liens, claims, security interests and encumbrances except Permitted Liens; (ii) Borrower has and at all times hereafter shall have good, indefeasible and merchantable title to and ownership the making of the Equipment described and/or listed on applicable Loans will not violate or result in a default under any certificate indenture or schedule relating to Equipment and delivered to Lenderany other agreement, free and clear of all liens, claims, security interests and encumbrances except under subsections 2, 3 and 7 of the definition of Permitted Liens; (iii) the Equipment and Collateral shall be kept and/or maintained solely at the addresses identified in writing to Lender; (iv) Borrower, immediately on demand by Lender, shall deliver to Lender any and all instrument or other evidence of ownership ofMaterial Indebtedness, including without limitation, vendor invoices and proofs of payment thereof, certificates of title to and applications for title to, any of the Equipment and Collateral; (v) Borrower shall keep and maintain the Equipment and Collateral in good operating condition and repair and shall make all necessary replacements thereof and renewals thereto so that the value and operating efficiency thereof shall at all times be maintained and preserved; and (vi) Borrower shall not permit any such items to become a fixture to real estate or accession to other personal property.
(g) As to Lender’s security interest, (i) Subject to all required filings and Permitted Liens, Lender’s security interest in the Collateral is now and at all times hereafter shall be perfected and have a first priority, and subject to all required filings, Lender’s security interest in the Equipment described and/or listed on any certificate or schedule relating to Equipment and delivered to Lender is now and at all times hereafter shall be perfected and have a first priority except under subsections 2, 3, 7, 8, 10, 11, and 12 of the definition of Permitted Liens; (ii) the offices and/or locations where Borrower keeps the Collateral and Borrower’s books and records concerning the Collateral are at the locations identified to Lender in writing and Borrower shall not remove such books and records and/or the Collateral therefrom to any other location unless material instrument binding upon any Borrower gives Lender written notice thereof at least thirty (30) days prior thereto and the same is within the contiguous forty-eight (48) states of the United States of America; and (iii) the addresses identified or its assets, or give rise to Lender in writing as a right thereunder to require any payment to be made by any Borrower’s chief executive office and principal place(s) of business are Borrower’s principal offices and place(s) of business, and Borrower, by written notice delivered to Lender at least thirty (30) days prior thereto, shall advise Lender of any change thereto.
Appears in 2 contracts
Sources: Credit Agreement, Credit Agreement (American Apparel, Inc)
Borrower Representations. Borrower warrants and represents to Lender, as of the date hereof and as of the date of any the Term Loan made hereunder, and agrees and covenants to Lender that:
(a) Borrower’s legal name is “Bioheart, Inc.” Borrower is and at all times hereafter shall be a Person having that legal name and organizational structure as set forth above, corporation (i) duly organized and existing and in good standing under the laws of the state of its organization as set forth above and (ii) qualified or licensed to do business in all other states in which the laws require Borrower to be so qualified and/or licensed, except where the failure to be qualified or licensed could not reasonably be expected to have a material adverse effect;
(b) Borrower is duly authorized and empowered to enter into, execute, deliver and perform this Loan Agreement and the Other Agreements and the execution, delivery and/or performance by Borrower of this Loan Agreement and the Other Agreements Agreements, and the use by Borrower of the proceeds of the Loans hereunder, shall not, by the lapse of time, the giving of notice or otherwise, conflict with or constitute a violation of any applicable law (including, without limitation, Regulation U or Regulation X of the Board of Governors of the Federal Reserve System or any other regulation thereof) or a breach of any provision contained in Borrower’s organizational documents or contained in any material agreement, instrument or document Material Agreement to which Borrower is now or hereafter a party or by which it is bound or may become bound, except where such violation give rise to or breach could not reasonably be expected to have a material adverse effectresult in any default thereunder;
(c) This Loan Agreement is (and when executed or delivered, each Other Agreement will be) the legally valid and binding obligation of Borrower, enforceable against Borrower in accordance with its respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles (whether enforcement is sought in equity or at law).
(d) Except as disclosed to Lender in writingwriting prior to the date hereof, there are no actions or proceedings which are pending, or to its knowledge threatened, against BorrowerBorrower which, nor if adversely determined, could reasonably be expected to have a Material Adverse Effect. Borrower is Borrower a party to not in breach of any contract or agreement Material Agreement or subject to any charge, restriction, judgment, decree or order, order which might result in any material and adverse change in its financial condition has or materially affect its assets or the Collateralcould reasonably be expected to have a Material Adverse Effect, nor is Borrower in default with respect to any material indenture, security agreement, mortgage, deed or other similar agreement relating to the borrowing of monies to which it is a party or by which it is bound;
(de) To Borrower’s knowledgeExcept as disclosed to Lender in writing prior to the date hereof, Borrower has and is in good standing with respect to all licenses, patents, copyrights, trademarks, and trade names and Borrower has all names, governmental permits, certificates, consents and franchises necessary to continue to conduct its business as previously conducted by it and to own or lease and operate its properties as now owned or leased by it, except where the failure to have such permits, certificates, consents and franchises could not reasonably be expected to have a material adverse effect;
(ef) The Financials financial statements delivered by Borrower to Lender prior to the date hereof and the date of the Term Loan fairly and accurately present in all material respects the assets, liabilities and financial conditions and results of operations of Borrower as of the date when dates and for the Financials were prepared periods stated therein and have been prepared in accordance with generally accepted accounting principlesGAAP, consistently appliedand no event, provided condition or change that monthly financial statements are subject has had, or could reasonably be expected to year-end adjustments and the absence of footnotes and there have, a Material Adverse Effect has been no material adverse change in the assets, liabilities or financial condition of Borrower occurred since the date of the Financials.this Loan Agreement;
(fg) As to the Equipment Accounts and other Collateral, (i) Borrower has and at all times hereafter shall have good, indefeasible and merchantable title to and ownership of the Collateral free and clear of all liens, claims, security interests and encumbrances except Permitted Liens; (ii) Borrower has and at all times hereafter shall have good, indefeasible and merchantable title to and ownership of the Equipment Accounts described and/or listed on any certificate or schedule relating to Equipment and the Accounts delivered to Lender, free and clear of all liens, claims, security interests and encumbrances encumbrances, except under subsections 2, 3 those of Lender and 7 of the definition of Permitted Liens; (iii) the Equipment and Collateral shall be kept and/or maintained solely at the addresses identified in writing to Lender; (iv) Borrower, immediately on demand by Lender, shall deliver to Lender any and all evidence of ownership of, including without limitation, vendor invoices and proofs of payment thereof, certificates of title to and applications for title to, any of the Equipment and Collateral; (v) Borrower shall keep and maintain the Equipment and Collateral in good operating condition and repair and shall make all necessary replacements thereof and renewals thereto so that the value and operating efficiency thereof shall at all times be maintained and preserved; and (vi) Borrower shall not permit any such items to become a fixture to real estate or accession to other personal property.
(gh) As to Lender’s security interest, (i) Subject to all required filings and Permitted Liens, Lender’s security interest in the Collateral is now and at all times hereafter shall be perfected and have a is of first priority, and priority (subject to all required filings, Lender’s security interest in the Equipment described and/or listed on any certificate or schedule relating to Equipment and delivered to Lender is now and at all times hereafter shall be perfected and have a first priority except under subsections 2, 3, 7, 8, 10, 11, and 12 of the definition of Permitted Liens); (ii) the offices and/or locations where Borrower keeps the Collateral and Borrower’s books and records concerning the Collateral are at the locations identified to Lender in writing and Borrower shall not remove such books and records and/or the Collateral therefrom to any other location unless Borrower gives Lender written notice thereof at least thirty (30) days prior thereto and the same is within the contiguous forty-eight (48) states of the United States of Americawriting; and (iii) the addresses identified to Lender in writing as Borrower’s chief executive office and principal place(s) of business are Borrower’s principal sole offices and place(s) of business.
(i) Borrower is not an “investment company” or a company “controlled” by an “investment company” as such terms are defined in the Investment Company Act of 1940, as amended.
(j) All income and other tax returns and reports required to be filed by Borrower have been timely filed, and all taxes shown on such tax returns to be due and payable and all other assessments, fees and governmental charges upon Borrower and its properties, assets, income, businesses and franchises have been paid when due and payable except to the extent that (A) such taxes, assessments, charges or claims (i) are being contested in good faith by appropriate proceedings (promptly instituted and diligently conducted) so long as such reserve or other appropriate provision, if any, as shall be required in conformity with GAAP shall have been made therefor and (ii) such proceeding shall stay the attachment, sale, disposition, foreclosure or forfeiture of any asset of Borrower in connection with any such contested tax, assessment, charge or claim or, (B) the failure to timely pay such taxes, assessments, charges or claims could not reasonably be expected to have a Material Adverse Effect. All necessary and appropriate estimated payments (including any interest and penalties) in respect of assessed tax liability under Borrower’s state and federal tax returns have been made on a timely basis.
(k) As of the date hereof and of the Term Loan (i) the sum of Borrower’s debt (including contingent liabilities) does not exceed the present fair saleable value of Borrower’s present assets; (ii) Borrower’s capital is not unreasonably small in relation to its business as it exists and as is contemplated at such time; and (iii) Borrower has not incurred and does not intend to incur, or believe that it will incur, debts beyond its ability to pay such debts as they become due.
(l) No information furnished in writing to Lender by or on behalf of Borrower for use in connection with the transactions contemplated hereby contains or will contain, any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained herein or therein not misleading in light of the circumstances in which the same were made. Any projections contained in such materials are based upon good faith estimates and assumptions believed by Borrower to be reasonable at the time made. There are no facts known to Borrower that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect.
(m) Borrower has provided to Lender on or prior to the date hereof a schedule that correctly identifies the ownership interest (including all options, warrants and other rights to acquire capital stock) of Borrower and each of its Subsidiaries as of the date hereof.
(n) (i) Borrower (A) has been and is in compliance in all material respects with all applicable Environmental Laws; (B) has not received any communication, whether from a governmental authority or otherwise, alleging that Borrower is not in such compliance, and there are no past or present actions, activities, circumstances conditions, events or incidents that may prevent or interfere with such compliance in the future; (ii) there is no Environmental Claim pending or, to the best knowledge of Borrower, threatened against Borrower or against any Person whose liability for any Environmental Claim Borrower has or may have retained or assumed either contractually or by written notice delivered to Lender at least thirty operation of law; and (30iii) days prior theretothere are no past or present actions, shall advise Lender activities, circumstances, conditions, events or incidents, including, without limitation, the release, threatened release or presence of any change theretoHazardous Material, which could reasonably be expected to form the basis of any Environmental Claim against Borrower or, to the best knowledge of Borrower, against any Person whose liability for any Environmental Claim Borrower has or may have retained or assumed either contractually or by operation of law.
(i) Borrower is an “operating company” within the meaning of the regulations of the United States Department of Labor included within 29 CFR Section 2510.3-101 (the “DOL Regulations”) or is in compliance with such other exception as may be available under such regulations to prevent the assets of Borrower from being treated as the assets of any employee benefit plan for purposes of the DOL Regulations and (ii) neither Borrower nor any subsidiary of Borrower maintains or is obligated to make contributions to any employee benefit plan that is subject to Title IV of the Employee Retirement Income Security Act of 1974, as amended from time to time, and any successor statute (“ERISA”).
Appears in 2 contracts
Sources: Loan and Security Agreement (Bioheart, Inc.), Loan and Security Agreement (Bioheart, Inc.)
Borrower Representations. Borrower warrants and represents to Lender, as of the date hereof and as of the date of any Loan made hereunder, and agrees and covenants to Lender that:
(a) Borrower is and at all times hereafter shall be (i) a Person having that legal name and organizational structure as set forth above, duly organized and existing and in good standing under the laws of the state of its organization as set forth above and (ii) qualified or licensed to do business in all other states in which the laws require Borrower to be so qualified and/or licensed, except in such states where the failure to be so qualified or licensed could would not reasonably be expected to have a material adverse effectMaterial Adverse Effect;
(b) Borrower is duly authorized and empowered to enter into, execute, deliver and perform this Loan Agreement and the Other Agreements and the execution, delivery and/or performance by Borrower of this Loan Agreement and the Other Agreements Agreements, and the use by Borrower of the proceeds of the Loans hereunder, shall not, by the lapse of time, the giving of notice or otherwise, conflict with or constitute a violation of any applicable law (including, without limitation, Regulation U or Regulation X of the Board of Governors of the Federal Reserve System or any other regulation thereof) or a breach of any provision contained in Borrower’s organizational documents or contained in any material agreement, instrument or document to which Borrower is now or hereafter a party or by which it is give rise to or may become bound, except where such violation or breach could not reasonably be expected to have a material adverse effectresult in any default thereunder;
(c) This Loan Agreement is (and when executed or delivered, each Other Agreement will be) the legally valid and binding obligation of Borrower, enforceable against Borrower in accordance with its respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles (whether enforcement is sought in equity or at law);
(d) Except as disclosed to Lender in writingwriting prior to the date hereof, there are no actions or proceedings which are pending, or to its knowledge threatened, against Borrower, nor Borrower which could reasonably be expected to have a Material Adverse Effect. Borrower is Borrower not in breach of or a party to any contract or agreement or subject to any charge, restriction, judgment, decree or order, order which might result in any material and adverse change in its financial condition has or materially affect its assets or the Collateralcould reasonably be expected to have a Material Adverse Effect, nor is Borrower in default with respect to any material indenture, security agreement, mortgage, deed or other similar agreement relating to the borrowing of monies to which it is a party or by which it is bound;
(de) To Borrower’s knowledge, Borrower has and is in good standing with respect to all licenses, patents, copyrights, trademarks, and trade names and Borrower has all names, governmental permits, certificates, consents and franchises necessary to continue to conduct its business as previously conducted by it and to own or lease and operate its properties as now owned or leased by itit except, except in each case, where the failure to have be in good standing or to obtain such licenses, permits, certificates, consents and or franchises could not reasonably be expected to have a material adverse effectMaterial Adverse Effect;
(ef) The financial statements delivered by Borrower to Lender prior to the date hereof and the Financials delivered by Borrower to Lender pursuant to Section 7.3 fairly and accurately present in all material respects the assets, liabilities and financial conditions and results of operations of Borrower as of the date when dates and for the Financials were prepared periods stated therein and have been prepared in accordance with generally accepted accounting principlesGAAP (subject to, consistently appliedin the case of interim financial statements, provided that monthly financial statements are subject to year-end adjustments and the absence of footnotes and there normal year-end adjustments in connection with the audited financial statements for the periods covered by such interim financial statements), and no event, condition or change that has been no material adverse change in the assetshad, liabilities or financial condition of Borrower could reasonably be expected to have, a Material Adverse Effect has occurred since the date of the Financials.this Loan Agreement;
(fg) As to the Equipment Accounts and other Collateral, (i) Borrower has and at all times hereafter shall have good, indefeasible and merchantable title to and ownership of the Collateral free and clear of all liens, claims, security interests and encumbrances except Permitted Liens; (ii) Borrower has and at all times hereafter shall have good, indefeasible and merchantable title to and ownership of the Equipment Accounts described and/or listed on any certificate or schedule relating to Equipment and the Accounts delivered to Lender, free and clear of all liens, claims, security interests and encumbrances except under subsections 2, 3 those of Lender and 7 of the definition of Permitted Liens; (iii) the Equipment and Collateral shall be kept and/or maintained solely at the addresses identified in writing to Lender; (ivii) Borrower, immediately promptly on demand by Lender, shall deliver to Lender any and all evidence of ownership of, including without limitation, vendor invoices and proofs of payment thereof, certificates of title to and applications for title to, any of the Equipment and Collateral; (viii) Borrower shall keep and maintain the Equipment and Collateral in good operating condition and repair repair, ordinary wear and tear excepted, and shall make all necessary replacements thereof and renewals thereto so that the value and operating efficiency thereof shall at all times be maintained and preserved; and (viiv) Borrower shall not permit any such items to become a fixture to real estate or accession to any other Person’s personal property.
(gh) As to Lender’s security interest, (i) Subject to all required filings and Permitted Liens, Lender’s security interest in the Collateral is now and at all times hereafter shall be perfected and have a first priority, and priority (subject to all required filings, Lender’s security interest in the Equipment described and/or listed on any certificate or schedule relating to Equipment and delivered to Lender is now and at all times hereafter shall be perfected and have a first priority except under subsections 2, 3, 7, 8, 10, 11, and 12 of the definition of Permitted Liens); (ii) the offices and/or locations where Borrower keeps the Collateral and Borrower’s books and records concerning the Collateral are at the locations identified to Lender in writing and Borrower shall not remove such books and records and/or the Collateral therefrom to any other location unless Borrower gives Lender written notice thereof at least thirty (30) days prior thereto and the same is within the contiguous forty-eight (48) states of the United States of America; and (iii) the addresses identified to Lender in writing as Borrower’s chief executive office and principal place(s) of business are Borrower’s principal sole offices and place(s) of business, and Borrower, by written notice delivered to Lender at least thirty (30) days prior thereto, shall advise Lender of any change thereto.
(i) Borrower is not an “investment company” or a company “controlled” by an “investment company”, as such terms are defined in the Investment Company Act of 1940.
(j) All income and other tax returns and reports required to be filed by Borrower have been timely filed, and all taxes shown on such tax returns to be due and payable and all other assessments, fees and governmental charges upon Borrower and its properties, assets, income, businesses and franchises have been paid when due and payable, except to the extent that such taxes, assessments, charges or claims (i) are being contested in good faith by appropriate proceedings (promptly instituted and diligently conducted) so long as such reserve or other appropriate provision, if any, as shall be required in conformity with GAAP shall have been made therefor and (ii) such proceeding shall stay the attachment, sale, disposition, foreclosure or forfeiture of any asset of Borrower in connection with any such contested tax, assessment, charge or claim. All necessary and appropriate estimated payments (including any interest and penalties) in respect of assessed tax liability under Borrower’s state and federal tax returns have been made on a timely basis.
(k) As of the date hereof and of each Loan (i) the sum of Borrower’s debt (including contingent liabilities) does not exceed the present fair saleable value of Borrower’s present assets; (ii) Borrower’s capital is not unreasonably small in relation to its business as it exists and as is contemplated at such time; and (iii) Borrower has not incurred and does not intend to incur, or believe that it will incur, debts beyond its ability to pay such debts as they become due.
(l) No information furnished to Lender by or on behalf of Borrower for use in connection with the transactions contemplated hereby, taken as a whole for the relevant period, contains, any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained herein or therein not materially misleading in light of the circumstances in which the same were made. Any projections contained in such materials are based upon good faith estimates and assumptions believed by Borrower to be reasonable at the time made. There are no facts known to Borrower that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect.
(m) Borrower has provided to Lender on or prior to the date hereof a schedule that correctly identifies the ownership interest (including all options, warrants and other rights to acquire capital stock) of Borrower and each of its Subsidiaries as of the date hereof.
(n) (i) Borrower (A) has been and is in compliance in all material respects with all applicable Environmental Laws;
Appears in 2 contracts
Sources: Loan and Security Agreement (Genocea Biosciences, Inc.), Loan and Security Agreement (Genocea Biosciences, Inc.)
Borrower Representations. Borrower hereby represents and warrants and represents to Lender, as of the date hereof and as of the date of any Loan made hereunder, Lender that:
(a) The Persons executing the Sixth Amendment on behalf of the Borrower have full authority to execute the Sixth Amendment on behalf of Borrower and to bind Borrower thereby;
(b) The execution and delivery by Borrower of the Sixth Amendment and the performance thereunder by Borrower has not and will not result in a breach of or constitute a default under any mortgage, lease, bank loan, credit arrangement or other instrument or agreement to which either Borrower or the Collateral securing the Loans may be bound or affected;
(c) Borrower is and at all times hereafter shall be a Person having that legal name and organizational structure as set forth abovecorporation duly formed, duly organized and validly existing and in good standing under the laws of the state State of its organization as set forth above and qualified or licensed to do business in all other states in which the laws require Borrower to be so qualified and/or licensed, except where the failure to be qualified or licensed could not reasonably be expected to have a material adverse effectTexas;
(bd) Borrower is duly authorized and empowered to enter into, execute, deliver and perform this Loan Agreement and the Other Agreements and the The execution, delivery and/or and performance by the Borrower of this the Sixth Amendment and other Loan Agreement Documents as amended as of the date hereof, have been duly and validly authorized and all consents and approvals which are necessary for authorization, binding affect, performance, and enforceability of the Other Agreements shall not, by the lapse of time, the giving of notice or otherwise, constitute a violation of any applicable law or a breach of any provision contained in Borrower’s organizational documents or contained in any material agreement, instrument or document to which Borrower is now or hereafter a party or by which it is or may become bound, except where such violation or breach could not reasonably be expected to Sixth Amendment and all other Loan Documents have a material adverse effect;been received; and
(ce) Except as disclosed to Lender in writingBorrower will not be, there are no actions on or proceedings which are pendingafter the date hereof, or to its knowledge threatened, against Borrower, nor is Borrower a party to any contract or agreement which prohibits Borrower's execution of the Sixth Amendment or subject the Fourth Amendment to Amended and Restated Receivables Loan Agreement, or compliance with the terms of the Loan Agreement, the Loan Documents or the Receivables Loan Agreement. Except as set forth in the Fourth Amendment to Amended and Restated Revolving Credit Agreement dated of even date herewith, by and among Borrower, Sovereign and Liberty Bank, Borrower has not agreed or consent to cause or permit in the future (upon the happening of a contingency or otherwise) any charge, restriction, judgment, decree or order, which might result in any material and adverse change in its financial condition or materially affect its assets or of the Collateral, nor is Borrower in default with respect to any material indenture, security agreement, mortgage, deed or other similar agreement relating to the borrowing of monies to which it is a party or by which it is bound;
(d) To Borrower’s knowledge, Borrower has and is in good standing with respect to all licenses, patents, copyrights, trademarks, and trade names and Borrower has all governmental permits, certificates, consents and franchises necessary to continue to conduct its business as previously conducted by it and to own or lease and operate its properties as whether now owned or leased by ithereafter acquired, except where the failure to have such permits, certificates, consents and franchises could not reasonably be expected to have a material adverse effect;
(e) The Financials fairly and accurately present in all material respects the assets, liabilities and financial conditions and results of operations of Borrower as of the date when the Financials were prepared and have been prepared in accordance with generally accepted accounting principles, consistently applied, provided that monthly financial statements are subject to year-end adjustments and the absence a Lien except in favor of footnotes and there has been no material adverse change in the assets, liabilities or financial condition of Borrower since the date of the FinancialsLender as provided herein.
(f) As Except as disclosed on the attached Schedule 25, there are no actions, suits, proceedings, orders or injunctions pending or, to the Equipment and Collateralbest of Borrower's knowledge, (i) threatened against or affecting Borrower any Resort or the Intervals, at law or in equity, or before or by any governmental authority, in any case individually in which the claim exceeds or would reasonably be expected to exceed $50,000 or all cases for which claims in the aggregate exceed or could reasonably be expected to exceed $250,000. Borrower has and at all times hereafter shall have good, indefeasible and merchantable title to and ownership of the Collateral free and clear of all liens, claims, security interests and encumbrances except Permitted Liens; (ii) received no notice from any court or governmental authority alleging that Borrower has and at all times hereafter shall have good, indefeasible and merchantable title to and ownership of the Equipment described and/or listed on violated any certificate or schedule relating to Equipment and delivered to Lender, free and clear of all liens, claims, security interests and encumbrances except under subsections 2, 3 and 7 of the definition of Permitted Liens; (iii) the Equipment and Collateral shall be kept and/or maintained solely at the addresses identified in writing to Lender; (iv) Borrower, immediately on demand by Lender, shall deliver to Lender any and all evidence of ownership of, including without limitation, vendor invoices and proofs of payment thereof, certificates of title to and applications for title toapplicable timeshare act, any of the Equipment and Collateral; (v) Borrower shall keep and maintain the Equipment and Collateral in good operating condition and repair and shall make all necessary replacements thereof and renewals thereto so that the value and operating efficiency thereof shall at all times be maintained and preserved; and (vi) Borrower shall not permit rules or regulations thereunder, or any such items to become a fixture to real estate or accession to other personal propertyapplicable laws.
(g) As to Lender’s security interest, (i) Subject to all required filings and Permitted Liens, Lender’s security interest in Except as otherwise disclosed by the Collateral is now and at all times hereafter shall be perfected and have a first priority, and subject to all required filings, Lender’s security interest in the Equipment described and/or listed on any certificate or schedule relating to Equipment and delivered to Lender is now and at all times hereafter shall be perfected and have a first priority except under subsections 2, 3, 7, 8, 10, 11, and 12 of the definition of Permitted Liens; (ii) the offices and/or locations where Borrower keeps the Collateral and Borrower’s books and records concerning the Collateral are at the locations identified to Lender in writing and Borrower shall not remove such books and records and/or writing, since September 30, 2003, there has occurred no materially adverse change in the Collateral therefrom to any other location unless Borrower gives Lender written notice thereof at least thirty (30) days prior thereto and the same is within the contiguous forty-eight (48) states financial condition or business of the United States Borrower and its subsidiaries as shown on or reflected in the consolidated balance sheet of America; the Borrower and (iii) its subsidiaries as of September 30, 2003, or the addresses identified to Lender consolidated statement of income as of such date, other than changes in writing as Borrower’s chief executive office and principal place(s) the ordinary course of business are Borrower’s principal offices and place(s) that have not had any materially adverse effect either individually or in the aggregate on the business or financial condition of businessthe Borrower or any of its subsidiaries. Since September 30, and Borrower2003, by written notice delivered to Lender at least thirty (30) days prior thereto, shall advise Lender of the Borrower has not made any change theretoDistribution.
Appears in 1 contract
Sources: Inventory Loan and Security Agreement (Silverleaf Resorts Inc)
Borrower Representations. The Borrower warrants and represents to Lender, as of the date hereof and as of the date of any Loan made hereunder, that:
(a) The Borrower is and at all times hereafter shall be a Person having that legal name and organizational structure as set forth above, limited liability company duly organized and validly existing and in good standing under the laws of the state of its organization as set forth above State and is duly qualified or licensed to do business in the State, has the power and authority to own its properties and assets and to carry on its business as now being conducted (and as now contemplated by the Borrower) and has the corporate power to perform all the undertakings of the Loan Documents, to borrow hereunder and to execute and deliver the Loan Documents.
(b) The execution, delivery and performance by the Borrower of the Loan Documents and other states instruments required by this Loan Agreement:
(i) have been duly authorized by all requisite corporate action;
(ii) do not and will not in which any material respect conflict with or violate any provision of law, rule or regulation, any order of any court or other agency of government applicable to the laws require Borrower;
(iii) do not and will not conflict with or violate any provision of any organizational documents of the Borrower;
(iv) do not and will not violate or result in a default under any provision of any indenture, agreement or other instrument material to the Borrower;
(v) do not and will not result in the creation or imposition of any Lien, charge or encumbrance of any nature, other than the Liens created by the Loan Documents.
(c) The Borrower has or will have a leasehold interest to the Project Facilities, free and clear of any lien or encumbrance, except for the Permitted Encumbrances.
(d) Except as set forth in Schedule A hereto, there is no action, suit or proceeding at law or in equity or by or before any governmental instrumentality or other agency now pending or, to the knowledge of the Borrower, threatened against or affecting it or any of its properties or rights which, if adversely determined, would (i) materially affect the transactions contemplated hereby, (ii) affect the validity or enforceability of the Loan Documents, (iii) affect the ability of the Borrower to be so qualified and/or licensedmaterially perform its obligations under the Loan Documents, except where (iv) materially impair the failure value of the Collateral, (v) materially impair the Borrower’s right to be qualified carry on its business substantially as now conducted (and as now contemplated by the Borrower) or licensed could not reasonably be expected to (vi) have a material adverse effect;effect on the Borrower’s financial condition.
(be) The Borrower has filed or caused to be filed all Federal, State and local tax returns which are required to be filed, and has paid or caused to be paid all taxes as shown on said returns or on any assessment received by it, to the extent that such taxes have become due except such taxes are as being contested by the Borrower in appropriate proceedings.
(f) Except as set forth in Schedule A hereto, the Borrower is duly authorized and empowered to enter intonot in default in the performance, execute, deliver and perform this Loan Agreement and the Other Agreements and the execution, delivery and/or performance by Borrower of this Loan Agreement and the Other Agreements shall not, by the lapse of time, the giving of notice observance or otherwise, constitute a violation fulfillment of any applicable law of the obligations, covenants or a breach of any provision contained in Borrower’s organizational documents or conditions contained in any material agreement, instrument or document to which Borrower is now or hereafter a party or by which it is or may become bound, except where such violation or breach could not reasonably be expected to have a material adverse effect;
(c) Except as disclosed to Lender in writing, there are no actions or proceedings which are pending, or to its knowledge threatened, against Borrower, nor is Borrower a party to any contract or agreement or subject to any charge, restriction, judgment, decree or order, which might result in any material and adverse change in its financial condition or materially affect its assets or the Collateral, nor is Borrower in default with respect to any material indenture, security agreement, mortgage, deed or other similar agreement relating to the borrowing of monies instrument to which it is a party or by which it is bound;.
(dg) To Borrower’s knowledgeExcept as set forth in Schedule A hereto, Borrower has and is in good standing with respect to all licenses, patents, copyrights, trademarks, and trade names and Borrower has all governmental permits, certificates, consents and franchises necessary to continue to conduct its business as previously conducted by it and to own or lease and operate its properties as now owned or leased by it, except where the failure to have such permits, certificates, consents and franchises could not reasonably be expected to have a material adverse effect;
(e) The Financials fairly and accurately present in all material respects the assets, liabilities and financial conditions and results of operations of Borrower as of the date when the Financials were prepared and have been prepared in accordance with generally accepted accounting principles, consistently applied, provided that monthly financial statements are subject to year-end adjustments and the absence of footnotes and there has been no material adverse change in Project or the assets, liabilities or financial condition of the Borrower since the dated date of the Private Placement Memorandum.
(h) The Loan Documents have been duly executed and delivered and are legal, valid and binding obligations of the Borrower enforceable against it in accordance with their respective terms.
(i) The Private Placement Memorandum, Loan Documents, the Application, the Bond Placement Agreement, or any other document, certificate or statement furnished to the Purchaser, the Authority or the Trustee by the Borrower do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained herein and therein regarding the Borrower not misleading or incomplete. It is specifically represented that the Borrower is not involved in any litigation required to be disclosed in the Application nor is it the subject of any investigation or administrative proceeding except, in each case, as disclosed in the Application or as disclosed in the Private Placement Memorandum. It is specifically understood by the Borrower that all such statements, representations and warranties shall be deemed to have been relied upon by the Authority as an inducement to make the Loan and that if any such statements, representations and warranties were false at the time they were made, the Authority may, in its sole discretion, consider any such misrepresentation or breach of warranty an Event of Default as defined in Section 901 and exercise the remedies provided for in this Agreement.
(j) The operation of the Project Facilities in the manner presently contemplated and as described in the Application will not conflict with any current zoning, water, air pollution or other ordinances, orders, laws or regulations applicable thereto. The Borrower will cause the Project Facilities to be designed in accordance with all applicable Federal, State and local laws or ordinances (including rules and regulations) relating to zoning, building, safety and environmental quality.
(k) The Borrower did not incur any expense prior to the date of the FinancialsResolution for which it sought reimbursement, other than a Proper Charge.
(fl) As The Borrower has complied with and is in compliance with, in all material respects, all required Federal, State, county and local environmental law, rules and regulations applicable to the Equipment and Collateral, (i) Borrower has and at all times hereafter shall have good, indefeasible and merchantable title to and ownership of the Collateral free and clear of all liens, claims, security interests and encumbrances except Permitted Liens; (ii) Borrower has and at all times hereafter shall have good, indefeasible and merchantable title to and ownership of the Equipment described and/or listed on any certificate or schedule relating to Equipment and delivered to Lender, free and clear of all liens, claims, security interests and encumbrances except under subsections 2, 3 and 7 of the definition of Permitted Liens; (iii) the Equipment and Collateral shall be kept and/or maintained solely at the addresses identified in writing to Lender; (iv) Borrower, immediately on demand by Lender, shall deliver to Lender any and all evidence of ownership of, including without limitation, vendor invoices and proofs of payment thereof, certificates of title to and applications for title to, any of the Equipment and Collateral; (v) Borrower shall keep and maintain the Equipment and Collateral in good operating condition and repair and shall make all necessary replacements thereof and renewals thereto so that the value and operating efficiency thereof shall at all times be maintained and preserved; and (vi) Borrower shall not permit any such items to become a fixture to real estate or accession to other personal property’s operations.
(gm) As The availability of financial assistance from the Authority as provided for herein has been an important inducement to Lender’s security interest, (i) Subject the Borrower to all required filings undertake the Project and Permitted Liens, Lender’s security interest to locate the Project Facilities in the Collateral is now and at all times hereafter shall be perfected and have a first priority, and subject to all required filings, Lender’s security interest in the Equipment described and/or listed on any certificate or schedule relating to Equipment and delivered to Lender is now and at all times hereafter shall be perfected and have a first priority except under subsections 2, 3, 7, 8, 10, 11, and 12 of the definition of Permitted Liens; (ii) the offices and/or locations where Borrower keeps the Collateral and Borrower’s books and records concerning the Collateral are at the locations identified to Lender in writing and Borrower shall not remove such books and records and/or the Collateral therefrom to any other location unless Borrower gives Lender written notice thereof at least thirty (30) days prior thereto and the same is within the contiguous forty-eight (48) states of the United States of America; and (iii) the addresses identified to Lender in writing as Borrower’s chief executive office and principal place(s) of business are Borrower’s principal offices and place(s) of business, and Borrower, by written notice delivered to Lender at least thirty (30) days prior thereto, shall advise Lender of any change theretoState.
Appears in 1 contract
Sources: Mortgage (Converted Organics Inc.)
Borrower Representations. Borrower hereby represents and warrants and represents to Lender, as of the date hereof and as of the date of any Loan made hereunder, Lender that:
(a) The Persons executing the Fourth Amendment on behalf of the Borrower have full authority to execute the Fourth Amendment on behalf of Borrower and to bind Borrower thereby;
(b) The execution and delivery by Borrower of the Fourth Amendment and the performance thereunder by Borrower has not and will not result in a breach of or constitute a default under any mortgage, lease, bank loan, credit arrangement or other instrument or agreement to which either Borrower or the Collateral securing the Loans may be bound or affected;
(c) Borrower is and at all times hereafter shall be a Person having that legal name and organizational structure as set forth abovecorporation duly formed, duly organized and validly existing and in good standing under the laws of the state State of its organization as set forth above and qualified or licensed to do business in all other states in which the laws require Borrower to be so qualified and/or licensed, except where the failure to be qualified or licensed could not reasonably be expected to have a material adverse effectTexas;
(bd) Borrower is duly authorized and empowered to enter into, execute, deliver and perform this Loan Agreement and the Other Agreements and the The execution, delivery and/or and performance by the Borrower of this the Fourth Amendment and other Loan Agreement Documents as amended as of the date hereof, have been duly and validly authorized and all consents and approvals which are necessary for authorization, binding affect, performance, and enforceability of the Other Agreements shall not, by the lapse of time, the giving of notice or otherwise, constitute a violation of any applicable law or a breach of any provision contained in Borrower’s organizational documents or contained in any material agreement, instrument or document to which Borrower is now or hereafter a party or by which it is or may become bound, except where such violation or breach could not reasonably be expected to Fourth Amendment and all other Loan Documents have a material adverse effect;been received; and
(ce) Except as disclosed to Lender in writingBorrower will not be, there are no actions on or proceedings which are pendingafter the date hereof, or to its knowledge threatened, against Borrower, nor is Borrower a party to any contract or agreement which restricts its right or subject ability to incur indebtedness or prohibits Borrower's execution of the Inventory Loan or the Supplemental Loan, or compliance with the terms of the Loan Agreement, the Loan Documents, the Receivables Loan Agreement, the Textron Documents, the Bond Holder Exchange Documents, the Sovereign Documents or the DZ Documents. Borrower has not agreed or consent to cause or permit in the future (upon the happening of a contingency or otherwise) any charge, restriction, judgment, decree or order, which might result in any material and adverse change in its financial condition or materially affect its assets or of the Collateral, nor is Borrower whether now owned or hereafter acquired, to be subject to a Lien except in default favor of Lender as provided herein, and, with respect to any material indenture, security agreement, mortgage, deed or other similar agreement relating to the borrowing of monies to which it is a party or by which it is bound;
(d) To Borrower’s knowledge, Borrower has and is in good standing with respect to all licenses, patents, copyrights, trademarks, and trade names and Borrower has all governmental permits, certificates, consents and franchises necessary to continue to conduct its business as previously conducted by it and to own or lease and operate its properties as now owned or leased by it, except where the failure to have such permits, certificates, consents and franchises could not reasonably be expected to have a material adverse effect;
(e) The Financials fairly and accurately present in all material respects the assets, liabilities and financial conditions and results of operations of Borrower as of the date when the Financials were prepared and have been prepared in accordance with generally accepted accounting principles, consistently applied, provided that monthly financial statements are subject to year-end adjustments Real Estate Collateral and the absence Ineligible Note Portfolio, in favor of footnotes Textron and there has been no material adverse change in the assets, liabilities or financial condition of Borrower since the date of the FinancialsSovereign.
(f) As Except as disclosed on SCHEDULE 23(f) hereto, there are no actions, suits, proceedings, orders or injunctions pending or, to the Equipment and Collateralbest of Borrower's knowledge, (i) threatened against or affecting Borrower any Resort or the Intervals, at law or in equity, or before or by any governmental authority, in any case individually in which the claim exceeds or would reasonably be expected to exceed $50,000 or all cases for which claims in the aggregate exceed or could reasonably be expected to exceed $250,000. Borrower has and at all times hereafter shall have good, indefeasible and merchantable title to and ownership of the Collateral free and clear of all liens, claims, security interests and encumbrances except Permitted Liens; (ii) received no notice from any court or governmental authority alleging that Borrower has and at all times hereafter shall have good, indefeasible and merchantable title to and ownership of the Equipment described and/or listed on violated any certificate or schedule relating to Equipment and delivered to Lender, free and clear of all liens, claims, security interests and encumbrances except under subsections 2, 3 and 7 of the definition of Permitted Liens; (iii) the Equipment and Collateral shall be kept and/or maintained solely at the addresses identified in writing to Lender; (iv) Borrower, immediately on demand by Lender, shall deliver to Lender any and all evidence of ownership of, including without limitation, vendor invoices and proofs of payment thereof, certificates of title to and applications for title toapplicable timeshare act, any of the Equipment and Collateral; (v) Borrower shall keep and maintain the Equipment and Collateral in good operating condition and repair and shall make all necessary replacements thereof and renewals thereto so that the value and operating efficiency thereof shall at all times be maintained and preserved; and (vi) Borrower shall not permit rules or regulations thereunder, or any such items to become a fixture to real estate or accession to other personal propertyapplicable laws.
(g) As to Lender’s security interest, (i) Subject to all required filings and Permitted Liens, Lender’s security interest in Since the Collateral is now and at all times hereafter shall be perfected and have a first priority, and subject to all required filings, Lender’s security interest in the Equipment described and/or listed on any certificate or schedule relating to Equipment and delivered to Lender is now and at all times hereafter shall be perfected and have a first priority except under subsections 2, 3, 7, 8, 10, 11, and 12 date of the definition of Permitted Liens; (ii) Inventory Loan and the offices and/or locations where Receivables Loan, except as otherwise disclosed by the Borrower keeps the Collateral and Borrower’s books and records concerning the Collateral are at the locations identified to Lender in writing and Borrower shall not remove such books and records and/or writing, since September 30, 2001, there has occurred no materially adverse change in the Collateral therefrom to any other location unless Borrower gives Lender written notice thereof at least thirty (30) days prior thereto and the same is within the contiguous forty-eight (48) states financial condition or business of the United States Borrower and its subsidiaries as shown on or reflected in the consolidated balance sheet of America; the Borrower and (iii) its subsidiaries as of September 30, 2001, or the addresses identified to Lender consolidated statement of income as of such date, other than changes in writing as Borrower’s chief executive office and principal place(s) the ordinary course of business are that have not had any materially adverse effect either individually or in the aggregate on the business or financial condition of the Borrower or any of its subsidiaries. Following Lender's receipt and approval of the Borrower’s principal offices 's financial statements for the fiscal year ended on December 31, 2001, there has occurred no materially adverse change in the financial condition or business of the Borrower and place(s) its subsidiaries as shown on or reflected in the consolidated balance sheet of businessthe Borrower and its subsidiaries as of December 31, and Borrower2001, by written notice delivered to Lender at least thirty (or the consolidated statement of income as of such date, other than changes in the ordinary course of business that have not had any materially adverse effect either individually or in the aggregate on the business or financial condition of the Borrower or any of its Subsidiaries. Since September 30) days prior thereto, shall advise Lender of 2001, the Borrower has not made any change theretoDistribution.
Appears in 1 contract
Sources: Inventory Loan and Security Agreement (Silverleaf Resorts Inc)
Borrower Representations. The Borrower represents, warrants and represents to Lender, agrees as of the date hereof and as of the date of any Loan made hereunder, thatfollows:
(a) the Borrower has been duly organized, validly exists and is and at all times hereafter shall be a Person having that legal name and organizational structure as set forth above, duly organized and existing and in good standing as a limited liability company under the laws of the state State of its organization as set forth above and Nebraska, is duly qualified or licensed to do business in all other states in which Nebraska, and is duly qualified to enter into the laws require Borrower transactions contemplated by and necessary or incident to be so qualified and/or licensed, except where the failure to be qualified or licensed could not reasonably be expected to have a material adverse effectexecution and delivery of the Loan Documents;
(b) attached hereto as Exhibit C is a resolution of the Borrower is duly authorized and empowered to enter into, execute, deliver and perform this Loan Agreement and authorizing the Other Agreements and the execution, delivery and/or performance by Borrower of this Loan Agreement and the Other Agreements shall not, transactions contemplated by the lapse of time, the giving of notice or otherwise, constitute a violation of any applicable law or a breach of any provision contained in Borrower’s organizational documents or contained in any material agreement, instrument or document to which Borrower is now or hereafter a party or by which it is or may become bound, except where such violation or breach could not reasonably be expected to have a material adverse effectLoan Documents;
(c) Except as disclosed since the date of the last delivery of financial information to Lender in writingthe Lead Lender, there are no actions or proceedings which are pending, or to its knowledge threatened, against Borrower, nor is Borrower a party to any contract or agreement or subject to any charge, restriction, judgment, decree or order, which might result in has not been any material and adverse change in its financial condition or materially affect its assets or the Collateral, nor is Borrower in default with respect to any material indenture, security agreement, mortgage, deed or other similar agreement relating to business of the borrowing of monies to which it is a party or by which it is boundBorrower;
(d) To there is no action, suit, proceeding, or to the Borrower’s knowledge, any inquiry or investigation at law or in equity or before or by any public board or body pending or, to our knowledge, threatened against or affecting the Borrower has or its property or, to Borrower’s knowledge, any basis therefore, wherein an unfavorable decision, ruling or finding would adversely affect the transaction contemplated by or necessary or incident to the execution and is in good standing with respect to all licenses, patents, copyrights, trademarks, and trade names and Borrower has all governmental permits, certificates, consents and franchises necessary to continue to conduct its business as previously conducted by it and to own delivery of the Redevelopment Contract or lease and operate its properties as now owned the Loan Documents or leased by it, except where the failure to have such permits, certificates, consents and franchises could not reasonably be expected to have a material adverse effectvalidity or enforceability of the Redevelopment Contract or the Loan Documents;
(e) The Financials fairly and accurately present there are no valid material security interests in all material respects or liens against the assets, liabilities and financial conditions and results interest of operations of the Borrower in the Redevelopment Project as of the date when hereof, except those created by the Financials were prepared and have been prepared in accordance with generally accepted accounting principles, consistently applied, provided that monthly financial statements are subject to year-end adjustments and the absence of footnotes and there has been no material adverse change in the assets, liabilities or financial condition of Borrower since the date of the Financials.Permitted Encumbrances;
(f) As to the Equipment and Collateral, (i) Borrower has duly authorized, by all necessary company action, the execution, delivery and at all times hereafter shall have good, indefeasible and merchantable title to and ownership due performance of the Collateral free and clear of all liens, claims, security interests and encumbrances except Permitted Liens; (ii) Borrower has and at all times hereafter shall have good, indefeasible and merchantable title to and ownership of the Equipment described and/or listed on any certificate or schedule relating to Equipment and delivered to Lender, free and clear of all liens, claims, security interests and encumbrances except under subsections 2, 3 and 7 of the definition of Permitted Liens; (iii) the Equipment and Collateral shall be kept and/or maintained solely at the addresses identified in writing to Lender; (iv) Borrower, immediately on demand by Lender, shall deliver to Lender any and all evidence of ownership of, including without limitation, vendor invoices and proofs of payment thereof, certificates of title to and applications for title to, any of the Equipment and Collateral; (v) Borrower shall keep and maintain the Equipment and Collateral in good operating condition and repair and shall make all necessary replacements thereof and renewals thereto so that the value and operating efficiency thereof shall at all times be maintained and preserved; and (vi) Borrower shall not permit any such items to become a fixture to real estate or accession to other personal property.Loan Documents;
(g) As the Loan Documents have been duly executed and delivered by proper officers of the Borrower. Each of the Loan Documents was executed in substantially the form in which approved by the Borrower;
(h) the execution and delivery of the Loan Documents by the Borrower and the performance by the Borrower of its obligations thereunder do not and will not violate or constitute a default under the Articles of Organization or Operating Agreement of the Borrower or any court order, and do not and will not violate or constitute a default under any agreement, indenture, mortgage, lease or any other obligation or instrument to Lender’s security interestwhich the Borrower is bound, and no approval or other action by any governmental authority or agency is required in connection therewith, other than those which have been received;
(i) Subject to there is no action or proceedings pending or threatened looking toward the dissolution, liquidation or sale of substantially all required filings and Permitted Liensof the assets of the Borrower;
(j) Borrower certifies that it has incurred Qualified Project Costs, Lender’s security interest as defined in the Collateral Redevelopment Contract, in an amount in excess of $5,035,000. Attached to this Agreement is a true and correct listing of expenditures incurred with respect to the Project to date, all of which Borrower represents, warrants and agrees are Qualified Project Costs;
(k) the names and addresses of the persons, firms or corporations to whom the payments requested hereby are due, the amounts to be disbursed and the general classification and description of the Qualified Project Costs, or to reimburse the Borrower for any Qualified Project Costs paid by the Borrower for which each obligation requested to be paid hereby was incurred are as set forth on Exhibit A attached hereto and incorporated herein by this reference;
(l) such Qualified Project Costs have been made or incurred by the Borrower and have been paid by the Borrower, if payment to the Borrower is requested, or, if payment to the Borrower is not requested, are presently due to the persons to whom payment is requested, are valid Qualified Project Costs under the Redevelopment Contract and proper charges against the Loan Proceeds as set forth herein and no part thereof was included in any other request previously filed with the Lead Lender under the provisions thereof;
(m) except for Qualified Project Costs for which payment has or will be requested and except as set forth on Exhibit A attached hereto, there are no outstanding statements which are now due and at payable for labor, wages, materials, supplies or services in connection with the purchase, construction and installation of the Project which, if unpaid, might become the basis of a vendors’, mechanics’, laborers or materialmen’s statutory or other similar lien upon the Project or any part thereof. Set forth below is a description of (1) all times hereafter disputed statements and the reasons for such disputes, and (2) all statements in process but not yet presented to the Lead Lender for payment;
(n) all Qualified Project Costs incurred or to be incurred by the Borrower are qualified costs and/or expenditures under the Nebraska Community Development Law, R.R.S. Neb. §§ 18-2101, et. seq.;
(o) unless previously provided to Lead Lender, an executed copy of the construction contract with respect to the Project is attached hereto;
(p) proceeds of the Notes in the amount of $513,800.00 shall be perfected and have a first priority, and subject to all required filings, Lender’s security interest retained by Lead Lender in the Equipment described and/or listed fund established for the Borrower with respect to the Project to pay interest on any certificate or schedule relating to Equipment the Loan due in 2008 and delivered to 2009. The Lead Lender is now and at all times hereafter shall retain the amount of $2,000.00 as payment for its Origination Fee. Proceeds in the amount of $503,500.00 shall be perfected retained by the Lead Lender and have a first priority except under subsections 2deposited in the Debt Service Reserve Fund. Proceeds in the amount of $95,700.00 shall be paid to the Placement Agent, 3S▇▇▇▇ ▇▇▇▇▇ Financial Services Corporation as payment for placement agent services. Proceeds in the amount of $55,000.00 shall be used to pay Closing Costs to Bond Counsel;
(q) Borrower indemnifies, 7protects, 8holds harmless and discharges Issuer and Lead Lender from any and all damages, 10costs, 11, and 12 claims or causes of action related to distribution of amounts to Borrower pursuant hereto;
(r) Borrower hereby requests that Lead Lender distribute the definition Closing Costs in the amount of Permitted Liens; $152,700 as follows: Origination Fees: $ 2,000.00 Bond Counsel: $ 55,000.00 Placement Agent: (ii$100,700 — 5,000 paid out of new money) the offices and/or locations where Borrower keeps the Collateral and Borrower’s books and records concerning the Collateral are at the locations identified to Lender in writing $ 95,700.00 (s) and Borrower shall not remove such books indemnifies, protects, holds harmless and records and/or the Collateral therefrom discharges Issuer and Lead Lender from any and all damages, costs, claims or causes of action related to any other location unless distribution of amounts to Borrower gives Lender written notice thereof at least thirty (30) days prior thereto and the same is within the contiguous forty-eight (48) states of the United States of America; and (iii) the addresses identified to Lender in writing as Borrower’s chief executive office and principal place(s) of business are Borrower’s principal offices and place(s) of business, and Borrower, by written notice delivered to Lender at least thirty (30) days prior thereto, shall advise Lender of any change theretopursuant hereto.
Appears in 1 contract
Sources: Loan Agreement (E Energy Adams LLC)
Borrower Representations. The Borrower represents, warrants and represents to Lender, agrees as of the date hereof and as of the date of any Loan made hereunder, thatfollows:
(a) the Borrower has been duly organized, validly exists and is and at all times hereafter shall be a Person having that legal name and organizational structure as set forth above, duly organized and existing and in good standing as a limited liability company under the laws of the state State of its organization as set forth above and Nebraska, is duly qualified or licensed to do business in all other states in which Nebraska, and is duly qualified to enter into the laws require Borrower transactions contemplated by and necessary or incident to be so qualified and/or licensed, except where the failure to be qualified or licensed could not reasonably be expected to have a material adverse effectexecution and delivery of the Loan Documents;
(b) attached hereto as Exhibit B are the Resolutions of the Borrower is duly authorized and empowered to enter into, execute, deliver and perform this Loan Agreement and (“Borrower’s Resolutions”) authorizing the Other Agreements and the execution, delivery and/or performance by Borrower of this Loan Agreement and the Other Agreements shall not, transactions contemplated by the lapse of time, the giving of notice or otherwise, constitute a violation of any applicable law or a breach of any provision contained in Borrower’s organizational documents or contained in any material agreement, instrument or document to which Borrower is now or hereafter a party or by which it is or may become bound, except where such violation or breach could not reasonably be expected to have a material adverse effectLoan Documents;
(c) Except as disclosed since the date of the last delivery of financial information to Lender in writingthe Lead Lender, there are no actions or proceedings which are pending, or to its knowledge threatened, against Borrower, nor is Borrower a party to any contract or agreement or subject to any charge, restriction, judgment, decree or order, which might result in has not been any material and adverse change in its financial condition or materially affect its assets or the Collateral, nor is Borrower in default with respect to any material indenture, security agreement, mortgage, deed or other similar agreement relating to business of the borrowing of monies to which it is a party or by which it is boundBorrower;
(d) To there is no action, suit, proceeding, or to the Borrower’s knowledge, any inquiry or investigation at law or in equity or before or by any public board or body pending or, to Borrower’s knowledge, threatened against or affecting the Borrower has or its property or, to Borrower’s knowledge, any basis therefor, wherein an unfavorable decision, ruling or finding CHIDMS1/2522835.12/NEDAK/Oppenheimer Taxable Tax Increment Revenue Loan Agreement would adversely affect the transaction contemplated by or necessary or incident to the execution and is in good standing with respect to all licenses, patents, copyrights, trademarks, and trade names and Borrower has all governmental permits, certificates, consents and franchises necessary to continue to conduct its business as previously conducted by it and to own delivery of the Redevelopment Contract or lease and operate its properties as now owned the Loan Documents or leased by it, except where the failure to have such permits, certificates, consents and franchises could not reasonably be expected to have a material adverse effectvalidity or enforceability of the Redevelopment Contract or the Loan Documents;
(e) The Financials fairly and accurately present there are no valid material security interests in all material respects or liens against the assets, liabilities and financial conditions and results interest of operations of the Borrower in the Redevelopment Project as of the date when hereof, except those created by the Financials were prepared and have been prepared in accordance with generally accepted accounting principles, consistently applied, provided that monthly financial statements are subject to year-end adjustments and the absence of footnotes and there has been no material adverse change in the assets, liabilities or financial condition of Borrower since the date of the Financials.Permitted Encumbrances;
(f) As to the Equipment and Collateral, (i) Borrower has duly authorized, by all necessary company action, the execution, delivery and at all times hereafter shall have good, indefeasible and merchantable title to and ownership due performance of the Collateral free and clear of all liens, claims, security interests and encumbrances except Permitted Liens; (ii) Borrower has and at all times hereafter shall have good, indefeasible and merchantable title to and ownership of the Equipment described and/or listed on any certificate or schedule relating to Equipment and delivered to Lender, free and clear of all liens, claims, security interests and encumbrances except under subsections 2, 3 and 7 of the definition of Permitted Liens; (iii) the Equipment and Collateral shall be kept and/or maintained solely at the addresses identified in writing to Lender; (iv) Borrower, immediately on demand by Lender, shall deliver to Lender any and all evidence of ownership of, including without limitation, vendor invoices and proofs of payment thereof, certificates of title to and applications for title to, any of the Equipment and Collateral; (v) Borrower shall keep and maintain the Equipment and Collateral in good operating condition and repair and shall make all necessary replacements thereof and renewals thereto so that the value and operating efficiency thereof shall at all times be maintained and preserved; and (vi) Borrower shall not permit any such items to become a fixture to real estate or accession to other personal property.Loan Documents;
(g) As the Loan Documents have been duly executed and delivered by proper officers of the Borrower. Each of the Loan Documents was executed in substantially the form in which approved by the Borrower;
(h) the execution and delivery of the Loan Documents by the Borrower and the performance by the Borrower of its obligations thereunder do not and will not violate or constitute a default under the Amended and Restated Articles of Organization or Amended and Restated Operating Agreement of the Borrower or any court order, and do not and will not violate or constitute a default under any agreement, indenture, mortgage, lease or any other obligation or instrument to Lender’s security interestwhich the Borrower is bound, and no approval or other action by any governmental authority or agency is required in connection therewith, other than those which have been received;
(i) Subject there is no action or proceedings pending or threatened looking toward the dissolution, liquidation or sale of substantially all of the assets of the Borrower;
(j) Borrower certifies that it has incurred Qualified Project Costs, as defined in the Redevelopment Contract, in an amount in excess of $6,822,180.00. Attached to this Agreement is a true and correct listing of expenditures incurred with respect to the Project to date, all required filings of which Borrower represents, warrants and Permitted Liensagrees are Qualified Project Costs;
(k) the names and addresses of the persons, firms or corporations to whom the payments requested hereby are due, the amounts to be disbursed and the general classification and description of the Qualified Project Costs, or to reimburse the Borrower for any Qualified Project Costs paid by the Borrower for which each obligation requested to be paid hereby was incurred are as set forth on Exhibit A attached hereto and incorporated herein by this reference;
(l) such Qualified Project Costs have been made or incurred by the Borrower and have been paid by the Borrower, if payment to the Borrower is requested, or, if payment to the Borrower is not requested, are presently due to the persons to whom payment is requested, are valid Qualified Project Costs under the Redevelopment Contract and proper charges against the Loan Proceeds as set forth herein and no part thereof was included in any other request previously filed with the Lead Lender under the provisions thereof;
(m) except for Qualified Project Costs for which payment has or will be requested and except as set forth on Exhibit A attached hereto, there are no outstanding statements which are now due and payable for labor, wages, materials, supplies or services in connection with the CHIDMS1/2522835.12/NEDAK/Oppenheimer Taxable Tax Increment Revenue Loan Agreement purchase, construction and installation of the Project which, if unpaid, might become the basis of a vendors’, mechanics’, laborers or materialmen’s statutory or other similar lien upon the Project or any part thereof. Set forth below is a description of (1) all disputed statements and the reasons for such disputes, and (2) all statements in process but not yet presented to the Lead Lender for payment;
(n) all Qualified Project Costs incurred or to be incurred by the Borrower are qualified costs and/or expenditures under the Nebraska Community Development Law, R.R.S. Neb. §§ 18-2101, et. seq.;
(o) unless previously provided to Lead Lender, an executed copy of the construction contract with respect to the Project is attached hereto;
(p) Borrower hereby requests Lead Lender shall retain the following amounts from the Loan Proceeds:
i. the Capitilized Interest Amount in the amount of $870,850.00 shall be retained from the Loan Proceeds and deposited by Lead Lender in the Capitalized Interest Fund established for the Borrower with respect to the Project to pay interest on the Loan due through December 1, 2008, pursuant to Section 9 of this Agreement;
ii. the Debt Service Reserve Fund Requirement in the amount of $686,400.00 shall be retained from the Loan Proceeds by the Lead Lender and deposited in the Debt Service Reserve Fund, pursuant to Section 8 of this Agreement;
(q) Borrower hereby requests Lead Lender shall retain the amount of $380,240 from the Loan Proceeds for the payment of the Closing Costs, as follows:
i. Lead Lender shall distribute $34,320 (“Origination Fees”), as origination fees, to itself and each participating bank on a pro rata basis as per participation in the Loan;
ii. Lead Lender shall distribute $205,920 to the Placement Agent, ▇▇▇▇▇▇▇▇▇▇▇ & Co. Inc. as its total payment for placement agent services (“Placement Agent Services Fee”);
iii. Lead Lender shall distribute $135,000 to pay Legal Fees as follows: Issuer’s Counsel ($50,000), Placement Agent’s Counsel ($50,000), Borrower’s Counsel ($30,000) and Lead Lender’s security interest in Counsel ($5,000); and
iv. Lead Lender shall retain or distribute an additional $5,000 for miscellaneous charges (the Collateral is now “Miscellaneous Charges”), as necessary, and at all times hereafter funds not used for Miscellaneous Charges shall be perfected returned to Borrower;
(r) Borrower hereby requests that Lead Lender distribute directly to Borrower upon Closing the amount of Four Million Nine Hundred Twenty-Six Thousand Five Hundred Ten and have a first priorityCHIDMS1/2522835.12/NEDAK/Oppenheimer Taxable Tax Increment Revenue Loan Agreement CHIDMS1/2522835.12/NEDAK/Oppenheimer Taxable Tax Increment Revenue Loan Agreement no/100 Dollars ($4,926,510.00), and subject to all required filings, Lender’s security interest in which constitutes the Equipment described and/or listed on any certificate or schedule relating to Equipment and delivered to Lender is now and at all times hereafter shall be perfected and have a first priority except under subsections 2, 3, 7, 8, 10, 11, and 12 difference of the definition entire Loan Proceeds ($6,864,000.00), less the sum of Permitted Liens; the Capitalized Interest Amount (ii$870,850.00), the Debt Service Reserve Fund Requirement ($686,400.00) the offices and/or locations where Borrower keeps the Collateral and Borrower’s books and records concerning the Collateral are at the locations identified to Lender in writing and Borrower shall not remove such books and records and/or the Collateral therefrom to any other location unless Borrower gives Lender written notice thereof at least thirty (30) days prior thereto and the same is within Closing Costs ($380,240);
(s) Borrower indemnifies, protects, holds harmless and discharges Issuer and Lead Lender from any and all damages, costs, claims or causes of action related to distribution of amounts to Borrower pursuant hereto, provided such parties have carried out their duties without gross negligence or willful misconduct; and
(t) Borrower has been capitalized through equity contributions of its members in excess of $49,975,000.00 which, together with the contiguous forty-eight (48) states proceeds of the United States of America; Senior Credit Facility and (iii) the addresses identified Loan, represents sufficient capitalization for Borrower to Lender in writing as Borrower’s chief executive office complete and principal place(s) of business are Borrower’s principal offices and place(s) of business, and Borrower, by written notice delivered to Lender at least thirty (30) days prior thereto, shall advise Lender of any change theretooperate the Facility.
Appears in 1 contract
Sources: Loan Agreement (Nedak Ethanol, LLC)
Borrower Representations. Borrower hereby represents and warrants and represents to Lender, as of the date hereof and as of the date of any Loan made hereunder, Lender that:
(a) The Persons executing the Fifth Amendment on behalf of the Borrower have full authority to execute the Fifth Amendment on behalf of Borrower and to bind Borrower thereby;
(b) The execution and delivery by Borrower of the Fifth Amendment and the performance thereunder by Borrower has not and will not result in a breach of or constitute a default under any mortgage, lease, bank loan, credit arrangement or other instrument or agreement to which either Borrower or the Collateral securing the Loans may be bound or affected;
(c) Borrower is and at all times hereafter shall be a Person having that legal name and organizational structure as set forth abovecorporation duly formed, duly organized and validly existing and in good standing under the laws of the state State of its organization as set forth above and qualified or licensed to do business in all other states in which the laws require Borrower to be so qualified and/or licensed, except where the failure to be qualified or licensed could not reasonably be expected to have a material adverse effectTexas;
(bd) Borrower is duly authorized and empowered to enter into, execute, deliver and perform this Loan Agreement and the Other Agreements and the The execution, delivery and/or and performance by the Borrower of this the Fifth Amendment and other Loan Agreement Documents as amended as of the date hereof, have been duly and validly authorized and all consents and approvals which are necessary for authorization, binding affect, performance, and enforceability of the Other Agreements shall not, by the lapse of time, the giving of notice or otherwise, constitute a violation of any applicable law or a breach of any provision contained in Borrower’s organizational documents or contained in any material agreement, instrument or document to which Borrower is now or hereafter a party or by which it is or may become bound, except where such violation or breach could not reasonably be expected to Fifth Amendment and all other Loan Documents have a material adverse effect;been received; and
(ce) Except as disclosed to Lender in writingBorrower will not be, there are no actions on or proceedings which are pendingafter the date hereof, or to its knowledge threatened, against Borrower, nor is Borrower a party to any contract or agreement which restricts its right or subject ability to incur indebtedness or prohibits Borrower's execution of the Fifth Amendment or the Third Amendment to Amended and Restated Receivables Loan Agreement, or compliance with the terms of the Loan Agreement, the Loan Documents or the Receivables Loan Agreement. Borrower has not agreed or consent to cause or permit in the future (upon the happening of a contingency or otherwise) any charge, restriction, judgment, decree or order, which might result in any material and adverse change in its financial condition or materially affect its assets or of the Collateral, nor is Borrower whether now owned or hereafter acquired, to be subject to a Lien except in default favor of Lender as provided herein, and, with respect to any material indenture, security agreement, mortgage, deed or other similar agreement relating to the borrowing of monies to which it is a party or by which it is bound;
(d) To Borrower’s knowledge, Borrower has and is in good standing with respect to all licenses, patents, copyrights, trademarks, and trade names and Borrower has all governmental permits, certificates, consents and franchises necessary to continue to conduct its business as previously conducted by it and to own or lease and operate its properties as now owned or leased by it, except where the failure to have such permits, certificates, consents and franchises could not reasonably be expected to have a material adverse effect;
(e) The Financials fairly and accurately present in all material respects the assets, liabilities and financial conditions and results of operations of Borrower as of the date when the Financials were prepared and have been prepared in accordance with generally accepted accounting principles, consistently applied, provided that monthly financial statements are subject to year-end adjustments Real Estate Collateral and the absence Ineligible Note Portfolio, in favor of footnotes Textron and there has been no material adverse change in the assets, liabilities or financial condition of Borrower since the date of the FinancialsSovereign.
(f) As Except as disclosed on the attached Schedule 25, there are no actions, suits, proceedings, orders or injunctions pending or, to the Equipment and Collateralbest of Borrower's knowledge, (i) threatened against or affecting Borrower any Resort or the Intervals, at law or in equity, or before or by any governmental authority, in any case individually in which the claim exceeds or would reasonably be expected to exceed $50,000 or all cases for which claims in the aggregate exceed or could reasonably be expected to exceed $250,000. Borrower has and at all times hereafter shall have good, indefeasible and merchantable title to and ownership of the Collateral free and clear of all liens, claims, security interests and encumbrances except Permitted Liens; (ii) received no notice from any court or governmental authority alleging that Borrower has and at all times hereafter shall have good, indefeasible and merchantable title to and ownership of the Equipment described and/or listed on violated any certificate or schedule relating to Equipment and delivered to Lender, free and clear of all liens, claims, security interests and encumbrances except under subsections 2, 3 and 7 of the definition of Permitted Liens; (iii) the Equipment and Collateral shall be kept and/or maintained solely at the addresses identified in writing to Lender; (iv) Borrower, immediately on demand by Lender, shall deliver to Lender any and all evidence of ownership of, including without limitation, vendor invoices and proofs of payment thereof, certificates of title to and applications for title toapplicable timeshare act, any of the Equipment and Collateral; (v) Borrower shall keep and maintain the Equipment and Collateral in good operating condition and repair and shall make all necessary replacements thereof and renewals thereto so that the value and operating efficiency thereof shall at all times be maintained and preserved; and (vi) Borrower shall not permit rules or regulations thereunder, or any such items to become a fixture to real estate or accession to other personal propertyapplicable laws.
(g) As to Lender’s security interest, (i) Subject to all required filings and Permitted Liens, Lender’s security interest in Except as otherwise disclosed by the Collateral is now and at all times hereafter shall be perfected and have a first priority, and subject to all required filings, Lender’s security interest in the Equipment described and/or listed on any certificate or schedule relating to Equipment and delivered to Lender is now and at all times hereafter shall be perfected and have a first priority except under subsections 2, 3, 7, 8, 10, 11, and 12 of the definition of Permitted Liens; (ii) the offices and/or locations where Borrower keeps the Collateral and Borrower’s books and records concerning the Collateral are at the locations identified to Lender in writing and Borrower shall not remove such books and records and/or writing, since September 30, 2003, there has occurred no materially adverse change in the Collateral therefrom to any other location unless Borrower gives Lender written notice thereof at least thirty (30) days prior thereto and the same is within the contiguous forty-eight (48) states financial condition or business of the United States Borrower and its subsidiaries as shown on or reflected in the consolidated balance sheet of America; the Borrower and (iii) its subsidiaries as of September 30, 2003, or the addresses identified to Lender consolidated statement of income as of such date, other than changes in writing as Borrower’s chief executive office and principal place(s) the ordinary course of business are that have not had any materially adverse effect either individually or in the aggregate on the business or financial condition of the Borrower or any of its subsidiaries. Following Lender's receipt and approval of the Borrower’s principal offices and place(s) of business's financial statements for the fiscal year ended on December 31, 2002, and Borrowerexcept for the Allowance Increase, by written notice delivered to Lender at least thirty (there has occurred no materially adverse change in the financial condition or business of the Borrower and its subsidiaries as shown on or reflected in the consolidated balance sheet of the Borrower and its subsidiaries as of December 31, 2002, or the consolidated statement of income as of such date, other than changes in the ordinary course of business that have not had any materially adverse effect either individually or in the aggregate on the business or financial condition of the Borrower or any of its Subsidiaries. Since September 30) days prior thereto, shall advise Lender of 2003, the Borrower has not made any change theretoDistribution.
Appears in 1 contract
Sources: Inventory Loan and Security Agreement (Silverleaf Resorts Inc)
Borrower Representations. Borrower warrants and represents to Lender, as of the date hereof and as of the date of any Loan made hereunder, and agrees and covenants to Lender that:
(a) Borrower is and at all times hereafter shall be (i) a Person having that legal name and organizational structure as set forth above, duly organized and existing and in good standing under the laws of the state of its organization as set forth above and (ii) qualified or licensed to do business in all other states in which the laws require Borrower to be so qualified and/or licensed, except where the failure to be qualified or licensed could not reasonably be expected to have a material adverse effect;
(b) Borrower is duly authorized and empowered to enter into, execute, deliver and perform this Loan Agreement and the Other Agreements and the execution, delivery and/or performance by Borrower of this Loan Agreement and the Other Agreements Agreements, and the use by Borrower of the proceeds of the Loans hereunder, shall not, by the lapse of time, the giving of notice or otherwise, conflict with or constitute a violation of any applicable law (including, without limitation, Regulation U or Regulation X of the Board of Governors of the Federal Reserve System or any other regulation thereof) or a breach of any provision contained in Borrower’s 's organizational documents or contained in any material agreement, instrument or document to which Borrower is now or hereafter a party or by which it is or may become bound, except where such violation bound or breach could not reasonably be expected give rise to have a material adverse effector result in any default thereunder;
(c) This Loan Agreement is (and when executed or delivered, each Other Agreement will be) the legally valid and binding obligation of Borrower, enforceable against Borrower in accordance with its respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors' rights generally or by equitable principles (whether enforcement is sought in equity or at law);
(d) Except as disclosed to Lender in writingwriting prior to the date hereof, there are no actions or proceedings which are pending, or to its knowledge threatened, against Borrower, nor . Borrower is Borrower not in breach of or a party to any contract or agreement or subject to any charge, restriction, judgment, decree or order, order which might result in any material and adverse change in its financial condition has or materially affect its assets or the Collateralcould reasonably be expected to have a Material Adverse Effect, nor is Borrower in default with respect to any material indenture, security agreement, mortgage, deed or other similar agreement relating to the borrowing of monies to which it is a party or by which it is bound;
(de) To Borrower’s knowledge, Borrower has and is in good standing with respect to all licenses, patents, copyrights, trademarks, and trade names and Borrower has all names, governmental permits, certificates, consents and franchises necessary to continue to conduct its business as previously conducted by it and to own or lease and operate its properties as now owned or leased by it, except where the failure to have such permits, certificates, consents and franchises could not reasonably be expected to have a material adverse effect;
(ef) The financial statements delivered by Borrower to Lender prior to the date hereof and the Financials delivered by Borrower to Lender pursuant to Section 7.3 hereof fairly and accurately present in all material respects the assets, liabilities and financial conditions and results of operations of Borrower as of the date when dates and for the Financials were prepared periods stated therein and have been prepared in accordance with generally accepted accounting principlesGAAP, consistently appliedand no event, provided condition or change that monthly financial statements are subject has had, or could reasonably be expected to year-end adjustments and the absence of footnotes and there have, a Material Adverse Effect has been no material adverse change in the assets, liabilities or financial condition of Borrower occurred since the date of the Financials.this Loan Agreement;
(fg) As to the Equipment Accounts and other Collateral, (i) Borrower has and at all times hereafter shall have good, indefeasible and merchantable title to and ownership of the Collateral free and clear of all liens, claims, security interests and encumbrances except Permitted Liens; (ii) Borrower has and at all times hereafter shall have good, indefeasible and merchantable title to and ownership of the Equipment described and/or listed on any certificate or schedule relating to Equipment and delivered to LenderCollateral, free and clear of all liens, claims, security interests and encumbrances except under subsections 2, 3 those of Lender and 7 of the definition of Permitted Liens; (iiiii) the Equipment and Collateral shall be kept and/or maintained solely at the addresses identified in writing to Lender; (iviii) Borrower, immediately on demand by Lender, shall deliver to Lender any and all evidence of ownership of, including without limitation, vendor invoices and proofs of payment thereof, certificates of title to and applications for title to, any of the Equipment and Collateral; (viv) Borrower shall keep and maintain the Equipment and Collateral in good operating condition and repair and shall make all necessary replacements thereof and renewals thereto so that the value and operating efficiency thereof shall at all times be maintained and preserved; and (viv) Borrower shall not permit any such items to become a fixture to real estate or accession to other personal property.;
(gh) As to Lender’s 's security interest, (i) Subject to all required filings and Permitted Liens, Lender’s 's security interest in the Collateral is now and at all times hereafter shall be perfected and have a first priority, and priority (subject to all required filings, Lender’s security interest in the Equipment described and/or listed on any certificate or schedule relating to Equipment Permitted Liens and delivered to Lender is now and at all times hereafter shall be perfected and have a first priority except under subsections 2, 3, 7, 8, 10, 11, and 12 of the definition of Permitted Liensas otherwise provided herein); (ii) the offices and/or locations where Borrower keeps the Collateral and Borrower’s 's books and records concerning the Collateral are at the locations identified to Lender in writing and Borrower shall not remove such books and records and/or the Collateral therefrom to any other location unless Borrower gives Lender written notice thereof at least thirty (30) days prior thereto and the same is within the contiguous forty-eight (48) states of the United States of America; and (iii) the addresses identified to Lender in writing as Borrower’s 's chief executive office and principal place(s) of business are Borrower’s principal 's sole offices and place(s) of business, and Borrower, by written notice delivered to Lender at least thirty (30) days prior thereto, shall advise Lender of any change thereto;
(i) Borrower is not an "investment company" or a company "controlled" by an "investment company" as such terms are defined in the Investment Company Act of 1940;
(j) All income and other tax returns and reports required to be filed by Borrower have been timely filed, and all taxes shown on such tax returns to be due and payable and all other assessments, fees and governmental charges upon Borrower and its properties, assets, income, businesses and franchises have been paid when due and payable except to the extent that (A) such taxes, assessments, charges or claims (i) are being contested in good faith by appropriate proceedings (promptly instituted and diligently conducted) so long as such reserve or other appropriate provision, if any, as shall be required in conformity with GAAP shall have been made therefor and (ii) such proceeding shall stay the attachment, sale, disposition, foreclosure or forfeiture of any asset of Borrower in connection with any such contested tax, assessment, charge or claim or, (B) the failure to timely pay such taxes, assessments, charges or claims could not reasonably be expected to have a Material Adverse Effect. All necessary and appropriate estimated payments (including any interest and penalties) in respect of assessed tax liability under Borrower's state and federal tax returns have been made on a timely basis;
(k) As of the date hereof and of each Loan (i) the sum of Borrower's debt (including contingent liabilities) does not exceed the present fair saleable value of Borrower's present assets; (ii) Borrower's capital is not unreasonably small in relation to its business as it exists and as is contemplated at such time; and (iii) Borrower has not incurred and does not intend to incur, or believe that it will incur, debts beyond its ability to pay such debts as they become due;
(l) No information furnished to Lender by or on behalf of Borrower for use in connection with the transactions contemplated hereby contains or will contain, any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained herein or therein not misleading in light of the circumstances in which the same were made. Any projections contained in such materials are based upon good faith estimates and assumptions believed by Borrower to be reasonable at the time made. There are no facts known to Borrower that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect.
(m) Borrower has provided to Lender on or prior to the date hereof a schedule that correctly identifies the ownership interest (including all options, warrants and other rights to acquire capital stock) of Borrower and each of its Subsidiaries as of the date hereof;
(i) Borrower (A) has been and is in compliance in all material respects with all applicable Environmental Laws; (B) has not received any communication, whether from a governmental authority or otherwise, alleging that Borrower is not in such compliance, and there are no past or present actions, activities, circumstances conditions, events or incidents that may prevent or interfere with such compliance in the future; (ii) there is no Environmental Claim pending or, to the best knowledge of Borrower, threatened against Borrower or against any Person whose liability for any Environmental Claim Borrower has or may have retained or assumed either contractually or by operation of law; and (iii) there are no past or present actions, activities, circumstances, conditions, events or incidents, including, without limitation, the release, threatened release or presence of any Hazardous Material, which could reasonably be expected to form the basis of any Environmental Claim against Borrower or, to the best knowledge of Borrower, against any Person whose liability for any Environmental Claim Borrower has or may have retained or assumed either contractually or by operation of law.
(i) Borrower is an "operating company" within the meaning of the regulations of the United States Department of Labor included within 29 CFR Section 2510.3-101 (the "DOL Regulations") or is in compliance with such other exception as may be available under such regulations to prevent the assets of Borrower from being treated as the assets of any employee benefit plan for purposes of the DOL Regulations and (ii) neither Borrower nor any subsidiary of Borrower maintains or is obligated to make contributions to any employee benefit plan that is subject to Title IV of the Employee Retirement Income Security Act of 1974, as amended from time to time, and any successor statute ("ERISA").
Appears in 1 contract
Borrower Representations. Borrower warrants and represents to Lender, Lender as of the date hereof and as of the date of any Loan made hereunder, and agrees and covenants to Lender that:
(a) Borrower is and at all times hereafter shall be (i) a Person having that legal name and organizational structure as set forth aboveabove (or as set forth in any notice delivered by Borrower to Lender pursuant to Section 7.2(i) hereof), duly organized and existing and in good standing under the laws of the state of its organization as set forth above (or as set forth in any notice delivered by Borrower to Lender pursuant to Section 7.2(i) hereof) and (ii) qualified or licensed to do business in all other states in which the laws require Borrower to be so qualified and/or licensed, except where the failure to be so qualified or and/or licensed has not had and could not reasonably be expected to have a material adverse effect;Material Adverse Effect.
(b) Borrower is duly authorized and empowered to enter into, execute, deliver and perform this Loan Agreement Agreement, the Warrants and the Other Agreements and the execution, delivery and/or performance by Borrower of this Loan Agreement Agreement, the Warrants and the Other Agreements Agreements, and the use by Borrower of the proceeds of the Loans hereunder, shall not, by the lapse of time, the giving of notice or otherwise, conflict with or constitute a violation of any applicable law (including, without limitation, Regulation U or Regulation X of the Board of Governors of the Federal Reserve System or any other regulation thereof) or a breach of any provision contained in Borrower’s organizational documents or contained in any material agreement, instrument or document to which Borrower is now or hereafter a party or by which it is or may become bound, except where such violation bound or breach could not reasonably be expected give rise to have a material adverse effect;or result in any default thereunder.
(c) This Loan Agreement and the Warrants are (and when executed and delivered, each Other Agreement will be) the legally valid and binding obligation of Borrower, enforceable against Borrower in accordance with its respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles (whether enforcement is sought in equity or at law).
(d) Except as disclosed to Lender in writingwriting prior to the date hereof, there are no actions or proceedings which are pending, or to its knowledge threatened, against Borrower, nor other than actions or proceedings which have not had and could not reasonably be expected to have a Material Adverse Effect. Borrower is Borrower not in breach of or a party to any contract or agreement or subject to any charge, restriction, judgment, decree or order, order which might result in any material and adverse change in its financial condition has had or materially affect its assets or the Collateralcould reasonably be expected to have a Material Adverse Effect, nor is Borrower in default with respect to in any material respect under any indenture, security agreement, mortgage, deed or other similar agreement relating to the borrowing of monies to which it is a party or by which it is bound;.
(de) To Borrower’s knowledge, Borrower has and is in good standing with respect to all licenses, patents, copyrights, trademarks, and trade names and Borrower has all governmental permits, certificates, consents and franchises necessary to continue to conduct its business as previously conducted by it and to own or lease and operate its properties as now owned or leased by it, it (except where the failure to have such permits, certificates, consents the same or to maintain the same in good standing has not had and franchises could not reasonably be expected to have a material adverse effectMaterial Adverse Effect);
(ef) The financial statements delivered by Borrower to Lender prior to the date hereof and the Financials delivered by Borrower to Lender pursuant to Section 7.3 hereof fairly and accurately present in all material respects the assets, liabilities and financial conditions and results of operations of Borrower as of the date when dates and for the Financials were prepared periods stated therein and have been prepared in accordance with generally accepted accounting principles, consistently appliedapplied (except, provided that monthly in the case of interim financial statements are subject to statements, for normal year-end adjustments and the absence of footnotes footnote disclosures), and there no event, condition or change that has been no material adverse change in the assetshad, liabilities or financial condition of Borrower could reasonably be expected to have, a Material Adverse Effect has occurred since the date of the Financials.this Loan Agreement;
(fg) As to the Equipment Accounts and other Collateral, (i) Borrower has and at all times hereafter shall have good, indefeasible and merchantable title to and ownership of the Collateral and the Accounts described and/or listed on any certificate or schedule relating to the Accounts delivered to Lender, free and clear of all liens, claims, security interests and encumbrances except Permitted Liens; (ii) Borrower has and at all times hereafter shall have good, indefeasible and merchantable title to and ownership of the Equipment described and/or listed on any certificate or schedule relating to Equipment and delivered to Lender, free and clear of all liens, claims, security interests and encumbrances except under subsections 2, 3 and 7 of the definition of Permitted Liens; (iii) the Equipment and Collateral shall be kept and/or maintained solely at the addresses identified in writing to Lender; (iviii) Borrower, immediately on demand by Lender, shall deliver to Lender any and all evidence of ownership of, including without limitation, vendor invoices and proofs of payment thereof, certificates of title to and applications for title to, any of the Equipment and Collateral; (viv) Borrower shall keep and maintain the Equipment and Collateral in good operating condition and repair (ordinary wear and tear excepted) and shall make all necessary replacements thereof and renewals thereto so that the value and operating efficiency thereof shall at all times be maintained and preservedpreserved in all material respects; and (viv) Borrower shall not permit any such material items to become a fixture to real estate or accession to other personal propertyproperty without notifying Lender promptly thereof.
(gh) As to Lender’s security interest, (i) Subject to all required filings and Permitted Liens, Lender’s security interest in the Collateral is now and at all times hereafter shall be perfected and have a first priority, and priority (subject to all required filings, Lender’s security interest in the Equipment described and/or listed on any certificate or schedule relating to Equipment and delivered to Lender is now and at all times hereafter shall be perfected and have a first priority except under subsections 2, 3, 7, 8, 10, 11, and 12 of the definition of Permitted Liens); (ii) the offices and/or locations where Borrower keeps the Collateral and Borrower’s books and records concerning the Collateral are at the locations identified to Lender in writing and Borrower shall not remove such books and records and/or the Collateral therefrom to any other location unless Borrower gives Lender written notice thereof at least thirty (30) days prior thereto and the same is within the contiguous forty-eight (48) states of the United States of America; and (iii) the addresses identified to Lender in writing as Borrower’s chief executive office and principal place(s) of business are Borrower’s principal sole offices and place(s) of business, and Borrower, by written notice delivered to Lender at least thirty (30) days prior thereto, shall advise Lender of any change thereto.
(i) Borrower is not an “investment company” or a company “controlled” by an “investment company” as such terms are defined in the Investment Company Act of 1940.
(j) All material income and other tax returns and reports required to be filed by Borrower have been timely filed, and all taxes shown on such tax returns to be due and payable and all other material assessments, fees and governmental charges upon Borrower and its properties, assets, income, businesses and franchises have been paid when due and payable (other than those being contested in good faith by appropriate proceedings and for which Borrower maintains adequate reserves).
(k) As of the date hereof and of each Loan (i) the sum of Borrower’s debt (including contingent liabilities) does not exceed the present fair saleable value of Borrower’s then current assets; (ii) Borrower’s capital is not unreasonably small in relation to its business as it exists and as is contemplated at such time; and (iii) Borrower has not incurred and does not intend to incur, or believe that it will incur, debts beyond its ability to pay such debts as they become due.
(l) No information furnished in writing to Lender by or on behalf of Borrower for use in connection with the transactions contemplated hereby (when taken as a whole) contains or will contain any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained herein or therein not misleading in light of the circumstances in which the same were made. Any projections contained in such materials are based upon good faith estimates and assumptions believed by Borrower to be reasonable at the time made. Except as disclosed to Lender in writing prior to the date hereof, there are no facts known to Borrower that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect.
(m) Borrower has provided to Lender on or prior to the date hereof a schedule that correctly identifies the ownership interest (including all options, warrants and other rights to acquire capital stock) of Borrower and each of its Subsidiaries as of the date hereof.
(n) (i) Borrower (A) has been and is in compliance in all material respects with all applicable Environmental Laws; (B) has not, as of the date of this Loan Agreement, received any communication, whether from a governmental authority or otherwise, alleging that Borrower is not in such compliance, and there are no past or present actions, activities, circumstances conditions, events or incidents that may prevent or interfere with such compliance in the future; (ii) there is no material Environmental Claim pending or, to the best knowledge of Borrower, threatened against Borrower or against any Person whose liability for such Environmental Claim Borrower has or may have retained or assumed either contractually or by operation of law; and (iii) there are no past or present actions, activities, circumstances, conditions, events or incidents, including, without limitation, the release, threatened release or presence of any Hazardous Material, which could reasonably be expected to form the basis of any material Environmental Claim against Borrower or, to the best knowledge of Borrower, against any Person whose liability for such Environmental Claim Borrower has or may have retained or assumed either contractually or by operation of law.
(i) Borrower is an “operating company” within the meaning of the regulations of the United States Department of Labor included within 29 CFR Section 2510.3-101 (the “DOL Regulations”) or is in compliance with such other exception as may be available under such regulations to prevent the assets of Borrower from being treated as the assets of any employee benefit plan for purposes of the DOL Regulations and (ii) neither Borrower nor any Subsidiary of Borrower maintains or is obligated to make contributions to any employee benefit plan that is subject to Title IV of the Employee Retirement Income Security Act of 1974, as amended from time to time, and any successor statute (“ERISA”).
Appears in 1 contract
Borrower Representations. Borrower warrants and represents to Lender, as of the date hereof and as of the date of any Loan made hereunder, and agrees and covenants to Lender that:
(a) Borrower is and at all times hereafter shall be (i) a Person having that legal name and organizational structure as set forth above, duly organized and existing and in good standing under the laws of the state of its organization as set forth above and (ii) qualified or licensed to do business in all other states in which the laws require Borrower to be so qualified and/or licensed, except where the failure to be qualified or licensed could not reasonably be expected to have a material adverse effect;
(b) Borrower is duly authorized and empowered to enter into, execute, deliver and perform this Loan Agreement and the Other Agreements and the execution, delivery and/or performance by Borrower of this Loan Agreement and the Other Agreements Agreements, and the use by Borrower of the proceeds of the Loans hereunder, shall not, by the lapse of time, the giving of notice or otherwise, conflict with or constitute a violation of any applicable law (including, without limitation, Regulation U or Regulation X of the Board of Governors of the Federal Reserve System or any other regulation thereof) or a breach of any provision contained in Borrower’s organizational documents or contained in any material agreement, instrument or document to which Borrower is now or hereafter a party or by which it is or may become bound, except where such violation bound or breach could not reasonably be expected give rise to have a material adverse effector result in any default thereunder;
(c) This Loan Agreement is (and when executed or delivered, each Other Agreement will be) the legally valid and binding obligation of Borrower, enforceable against Borrower in accordance with its respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles (whether enforcement is sought in equity or at law).
(d) Except as disclosed to Lender in writingwriting prior to the date hereof, there are no actions or proceedings which are pending, or to its knowledge threatened, against Borrower, nor . Borrower is Borrower not in breach of or a party to any contract or agreement or subject to any charge, restriction, judgment, decree or order, order which might result in any material and adverse change in its financial condition has or materially affect its assets or the Collateralcould reasonably be expected to have a Material Adverse Effect, nor is Borrower in default with respect to any material indenture, security agreement, mortgage, deed or other similar agreement relating to the borrowing of monies to which it is a party or by which it is bound;
(de) To Borrower’s knowledge, Borrower has and is in good standing with respect to all licenses, patents, copyrights, trademarks, and trade names and Borrower has all governmental permits, certificates, consents and franchises necessary to continue to conduct its business as previously conducted by it and to own or lease and operate its properties as now owned or leased by it, except where the failure to have such permits, certificates, consents and franchises could not reasonably be expected to have a material adverse effect;
(ef) The financial statements delivered by Borrower to Lender prior to the date hereof and the Financials delivered by Borrower to Lender pursuant to Section 7.3 hereof fairly and accurately present in all material respects the assets, liabilities and financial conditions and results of operations of Borrower as of the date when dates and for the Financials were prepared periods stated therein and have been prepared in accordance with generally accepted accounting principlesGAAP, consistently appliedand no event, provided condition or change that monthly financial statements are subject has had, or could reasonably be expected to year-end adjustments and the absence of footnotes and there have, a Material Adverse Effect has been no material adverse change in the assets, liabilities or financial condition of Borrower occurred since the date of the Financials.this Loan Agreement;
(fg) As to the Equipment Accounts and other Collateral, (i) Borrower has and at all times hereafter shall have good, indefeasible and merchantable title to and ownership of the Collateral free and clear of all liens, claims, security interests and encumbrances except Permitted Liens; (ii) Borrower has and at all times hereafter shall have good, indefeasible and merchantable title to and ownership of the Equipment Accounts described and/or listed on any certificate or schedule relating to Equipment and the Accounts delivered to Lender, free and clear of all liens, claims, security interests and encumbrances except under subsections 2, 3 those of Lender and 7 of the definition of Permitted Liens; (iiiii) the Equipment and Collateral shall be kept and/or maintained solely at the addresses identified in writing to Lender; (iviii) Borrower, immediately promptly on demand by Lender, shall deliver to Lender any and all evidence of ownership of, including without limitation, vendor invoices and proofs of payment thereof, certificates of title to and applications for title to, any of the Equipment and Collateral; (viv) Borrower shall keep and maintain the Equipment and Collateral in good operating condition and repair and shall make all necessary replacements thereof and renewals thereto so that the value and operating efficiency thereof shall at all times be maintained and preserved; and (viv) Borrower shall not permit any such items to become a fixture to real estate or accession to other personal property.
(gh) As to Lender’s security interest, (i) Subject to all required filings and Permitted Liens, Lender’s security interest in the Collateral is now and at all times hereafter shall be perfected and have a first priority, and priority (subject to all required filings, Lender’s security interest in the Equipment described and/or listed on any certificate or schedule relating to Equipment liens permitted under Section 7.2 hereof and delivered to Lender is now and at all times hereafter shall be perfected and have a first priority except under subsections 2, 3, 7, 8, 10, 11, and 12 of the definition of other Permitted Liens); (ii) the offices and/or locations where Borrower keeps the Collateral and Borrower’s books and records concerning the Collateral are at the locations identified to Lender in writing and Borrower shall not remove such books and records and/or the Collateral therefrom to any other location unless Borrower gives Lender written notice thereof at least thirty (30) days prior thereto and the same is within the contiguous forty-eight (48) states of the United States of America; and (iii) the addresses identified to Lender in writing as Borrower’s chief executive office and principal place(s) of business are Borrower’s principal sole offices and place(s) of business, and Borrower, by written notice delivered to Lender at least thirty (30) days prior thereto, shall advise Lender of any change thereto.
(i) Borrower is not an “investment company” or a company “controlled” by an “investment company” as such terms are defined in the Investment Company Act of 1940.
(j) All income and other tax returns and reports required to be filed by Borrower have been timely filed, and all taxes shown on such tax returns to be due and payable and all other assessments, fees and governmental charges upon Borrower and its properties, assets, income, businesses and franchises have been paid when due and payable, the nonpayment of which could reasonably be expected to result in a Material Adverse Effect.
(k) As of the date hereof and of each Loan (i) the sum of Borrower’s debt (including contingent liabilities) does not exceed the present fair saleable value of Borrower’s present assets; (ii) Borrower’s capital is not unreasonably small in relation to its business as it exists and as is contemplated at such time; and (iii) Borrower has not incurred and does not intend to incur, or believe that it will incur, debts beyond its ability to pay such debts as they become due.
(l) No information furnished to Lender by or on behalf of Borrower for use in connection with the transactions contemplated hereby contains or will contain, any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained herein or therein not misleading in light of the circumstances in which the same were made. Any projections contained in such materials are based upon good faith estimates and assumptions believed by Borrower to be reasonable at the time made. There are no facts known to Borrower that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect.
(m) Borrower has provided to Lender on or prior to the date hereof a schedule that correctly identifies the ownership interest (including all options, warrants and other rights to acquire capital stock) of Borrower and each of its Subsidiaries as of the date hereof.
(i) To Borrower’s knowledge, Borrower (A) has been and is in compliance in all material respects with all applicable Environmental Laws; (B) has not received any communication, whether from a governmental authority or otherwise, alleging that Borrower is not in such compliance, and there are no past or present actions, activities, circumstances conditions, events or incidents that may prevent or interfere with such compliance in the future; (ii) there is no Environmental Claim pending or, to the best knowledge of Borrower, threatened against Borrower or against any Person whose liability for any Environmental Claim Borrower has or may have retained or assumed either contractually or by operation of law; and (iii) there are no past or present actions, activities, circumstances, conditions, events or incidents, including, without limitation, the release, threatened release or presence of any Hazardous Material, which could reasonably be expected to form the basis of any Environmental Claim against Borrower or, to the best knowledge of Borrower, against any Person whose liability for any Environmental Claim Borrower has or may have retained or assumed either contractually or by operation of law.
(i) Borrower is an “operating company” within the meaning of the regulations of the United States Department of Labor included within 29 CFR Section 2510.3-101 (the “DOL Regulations”) or is in compliance with such other exception as may be available under such regulations to prevent the assets of Borrower from being treated as the assets of any employee benefit plan for purposes of the DOL Regulations and (ii) neither Borrower nor any subsidiary of Borrower maintains or is obligated to make contributions to any employee benefit plan that is subject to Title IV of the Employee Retirement Income Security Act of 1974, as amended from time to time, and any successor statute (“ERISA”).
Appears in 1 contract
Borrower Representations. Borrower warrants and represents to Lender, as of the date hereof and as of the date of any Loan made hereunder, and agrees and covenants to Lender that:
(a) Borrower is and at all times hereafter shall be (i) a Person having that legal name and organizational structure as set forth above, duly organized and existing and in good standing under the laws of the state of its organization as set forth above and (ii) qualified or licensed to do business in all other states in which the laws require Borrower to be so qualified and/or licensed, except in such states where the failure to be so qualified or licensed could would not reasonably be expected to have a material adverse effectMaterial Adverse Effect;
(b) Borrower is duly authorized and empowered to enter into, execute, deliver and perform this Loan Agreement and the Other Agreements and the execution, delivery and/or performance by Borrower of this Loan Agreement and the Other Agreements Agreements, and the use by Borrower of the proceeds of the Loans hereunder, shall not, by the lapse of time, the giving of notice or otherwise, conflict with or constitute a violation of any applicable law (including, without limitation, Regulation U or Regulation X of the Board of Governors of the Federal Reserve System or any other regulation thereof) or a breach of any provision contained in Borrower’s organizational documents or contained in any material agreement, instrument or document to which Borrower is now or hereafter a party or by which it is or may become boundbound or give rise to or result in any default thereunder, except where such violation to the extent that non-compliance either individually or breach in the aggregate could not reasonably be expected to have a material adverse effectMaterial Adverse Effect;
(c) This Loan Agreement is (and when executed or delivered, each Other Agreement will be) the legally valid and binding obligation of Borrower, enforceable against Borrower in accordance with its respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles (whether enforcement is sought in equity or at law).
(d) Except as disclosed to Lender in writingwriting prior to the date hereof, there are no actions or proceedings which are pending, or to its knowledge threatenedthreatened in writing, against Borrower, nor Borrower where such actions or proceedings could reasonably be expected to have a Material Adverse Effect. Borrower is Borrower not in breach of or a party to any contract or agreement or subject to any charge, restriction, judgment, decree or order, order which might result in any material and adverse change in its financial condition has or materially affect its assets or the Collateralcould reasonably be expected to have a Material Adverse Effect, nor is Borrower in default with respect to any material indenture, security agreement, mortgage, deed or other similar agreement relating to the borrowing of monies to which it is a party or by which it is boundbound that could reasonably be expected to have a Material Adverse Effect;
(de) To Borrower’s knowledgeExcept as disclosed to Lender in writing prior to the date hereof, Borrower has and is in good standing with respect to all licenses, patents, copyrights, trademarks, and trade names and Borrower has all names, governmental permits, certificates, consents and franchises necessary to continue to conduct its business as previously conducted by it and to own or lease and operate its properties as now owned or leased by it, except except, in each case, where the failure to have be in good standing or to obtain such permits, certificates, consents and or franchises could not reasonably be expected to have a material adverse effectMaterial Adverse Effect;
(ef) The financial statements delivered by Borrower to Lender prior to the date hereof and the Financials delivered by Borrower to Lender pursuant to Section 7.3 hereof fairly and accurately present in all material respects the assets, liabilities and financial conditions and results of operations of Borrower as of the date when dates and for the Financials were prepared periods stated therein and have been prepared in accordance with generally accepted accounting principles, consistently applied, provided that monthly financial statements are subject to year-end adjustments and GAAP (except for (i) the absence of footnotes and there subject to normal year end adjustments with respect to interim, unaudited Financials and (ii) non-compliance with GAAP that is disclosed by Borrower to Lender with such specificity as Lender may reasonably require), and, as of the date of this Loan Agreement and as of the date of funding of any Loans hereunder, no event, condition or change that has been no material adverse change in the assetshad, liabilities or financial condition of Borrower could reasonably be expected to have, a Material Adverse Effect has occurred since the date of the Financials.this Loan Agreement;
(fg) As to the Equipment Accounts and other Collateral, (i) Borrower has and at all times hereafter shall have good, indefeasible and merchantable title to and ownership of the Collateral free and clear of all liens, claims, security interests and encumbrances except Permitted Liens; (ii) Borrower has and at all times hereafter shall have good, indefeasible and merchantable title to and ownership of the Equipment Accounts described and/or listed on any certificate or schedule relating to Equipment and the Accounts delivered to Lender, free and clear of all liens, claims, security interests and encumbrances except under subsections 2, 3 those of Lender and 7 of the definition of Permitted Liens; (iiiii) except for (A) mobile equipment (including laptop computers and other similar office equipment) and (B) other property with an aggregate value of not more than $125,000, the Equipment and Collateral shall be kept and/or maintained solely at the addresses identified in writing to Lender; (iviii) Borrower, immediately on promptly upon reasonable demand by Lender, shall deliver to Lender any and all evidence of ownership of, including without limitation, vendor invoices and proofs of payment thereof, certificates of title to and applications for title to, any of the Equipment and Collateral; (viv) Borrower shall keep and maintain the Equipment and Collateral in good operating condition and repair (ordinary wear and tear excepted) and shall make all necessary replacements thereof and renewals thereto so that the value and operating efficiency thereof shall at all times be maintained and preserved; and (viv) Borrower shall not permit any such items to become a fixture to real estate or accession to other personal property.
(gh) As to Lender’s security interest, (i) Subject to all required filings and Permitted Liens, Lender’s security interest in the Collateral is now and at all times hereafter shall be perfected and have a first priority, and priority (subject to all required filings, Lender’s security interest in the Equipment described and/or listed on any certificate or schedule relating to Equipment and delivered to Lender is now and at all times hereafter shall be perfected and have a first priority except under subsections 2, 3, 7, 8, 10, 11, and 12 of the definition of Permitted Liens); (ii) except for (A) mobile equipment (including laptop computers and similar office equipment) and (B) other property with an aggregate value of not more than $125,000, the offices and/or locations where Borrower keeps the Collateral and Borrower’s books and records concerning the Collateral are at the locations identified to Lender in writing and Borrower shall not remove such books and records and/or the Collateral therefrom to any other location unless Borrower gives Lender written notice thereof at least thirty (30) days prior thereto and the same is within the contiguous forty-eight (48) states of the United States of America; and (iii) the addresses identified to Lender in writing as Borrower’s chief executive office and principal place(s) of business are Borrower’s principal sole offices and place(s) of business, and Borrower, by written notice delivered to Lender at least thirty (30) days prior thereto, shall advise Lender of any change thereto.
(i) Borrower is not an “investment company” or a company “controlled” by an “investment company” as such terms are defined in the Investment Company Act of 1940.
(j) All income and other tax returns and reports required to be filed by Borrower have been timely filed, and all taxes shown on such tax returns to be due and payable and all other assessments, fees and governmental charges upon Borrower and its properties, assets, income, businesses and franchises have been paid when due and payable except to the extent that (A) such taxes, assessments, charges or claims (i) are being contested in good faith by appropriate proceedings (promptly instituted and diligently conducted) so long as such reserve or other appropriate provision, if any, as shall be required in conformity with GAAP shall have been made therefor and (ii) such proceeding shall stay the attachment, sale, disposition, foreclosure or forfeiture of any asset of Borrower in connection with any such contested tax, assessment, charge or claim or, (B) the failure to timely pay such taxes, assessments, charges or claims could not reasonably be expected to have a Material Adverse Effect. All necessary and appropriate estimated payments (including any interest and penalties) in respect of assessed tax liability under Borrower’s state and federal tax returns have been made on a timely basis, except with respect to any tax liabilities that are being contested in good faith provided adequate reserves have been made in accordance with GAAP and such proceeding shall stay the attachment, sale, disposition, foreclosure or forfeiture of any asset of Borrower in connection with such contest of such tax, assessment, charge or claim.
(k) As of the date hereof and of each Loan (i) the sum of Borrower’s debt (including contingent liabilities) does not exceed the present fair saleable value of Borrower’s present assets; (ii) in Borrower’s reasonable belief, Borrower’s capital is not unreasonably small in relation to its business as it exists and as is contemplated at such time; and (iii) Borrower has not incurred and does not intend to incur, or believe that it will incur, debts beyond its ability to pay such debts as they become due.
(l) No information furnished to Lender by or on behalf of Borrower for use in connection with the transactions contemplated hereby contains or will contain, any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained herein or therein not misleading in light of the circumstances in which the same were made, provided, that any projections contained in such materials are based upon good faith estimates and assumptions believed by Borrower to be reasonable at the time made and such projections are not to be viewed as facts and that actual results during the period or periods covered by any such projections and forecasts may differ from the projected or forecasted results. There are no facts known to Borrower that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect.
(m) Borrower has provided to Lender on or prior to the date hereof a schedule that correctly identifies the ownership interest (including all options, warrants and other rights to acquire capital stock) of Borrower and each of its Subsidiaries as of the date hereof.
(n) (i) Borrower (A) has been and is in compliance in all material respects with all applicable Environmental Laws, except to the extent that the failure to so comply, either individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect; (B) has not received any written communication, whether from a governmental authority or otherwise, alleging that Borrower is not in such compliance, and there are no past or present actions, activities, circumstances conditions, events or incidents that may prevent or interfere with such compliance in the future; (ii) there is no Environmental Claim pending or, to the best knowledge of Borrower, threatened (in writing) against Borrower or against any Person whose liability for any Environmental Claim Borrower has or may have retained or assumed either contractually or by operation of law that individually or in the aggregate could reasonably be expected to have a Material Adverse Effect; and (iii) there are no past or present actions, activities, circumstances, conditions, events or incidents, including, without limitation, the release, threatened release or presence of any Hazardous Material, which could reasonably be expected to form the basis of any Environmental Claim against Borrower or, to the best knowledge of Borrower, against any Person whose liability for any Environmental Claim Borrower has or may have retained or assumed either contractually or by operation of law that individually or in the aggregate could reasonably be expected to have a Material Adverse Effect.
(i) Borrower is an “operating company” within the meaning of the regulations of the United States Department of Labor included within 29 CFR Section 2510.3-101 (the “DOL Regulations”) or is in compliance with such other exception as may be available under such regulations to prevent the assets of Borrower from being treated as the assets of any employee benefit plan for purposes of the DOL Regulations and (ii) neither Borrower nor any subsidiary of Borrower maintains or is obligated to make contributions to any employee benefit plan that is subject to Title IV of the Employee Retirement Income Security Act of 1974, as amended from time to time, and any successor statute (“ERISA”).
Appears in 1 contract
Borrower Representations. Borrower hereby represents and warrants and represents to Lender, as of the date hereof and as of the date of any Loan made hereunder, Lender that:
(a) The Persons executing the Fourth Amendment on behalf of the Borrower have full authority to execute the Fourth Amendment on behalf of Borrower and to bind Borrower thereby;
(b) The execution and delivery by Borrower of the Fourth Amendment and the performance thereunder by Borrower has not and will not result in a breach of or constitute a default under any mortgage, lease, bank loan, credit arrangement or other instrument or agreement to which either Borrower or the Collateral securing the Loans may be bound or affected;
(c) Borrower is and at all times hereafter shall be a Person having that legal name and organizational structure as set forth abovecorporation duly formed, duly organized and validly existing and in good standing under the laws of the state State of its organization as set forth above and qualified or licensed to do business in all other states in which the laws require Borrower to be so qualified and/or licensed, except where the failure to be qualified or licensed could not reasonably be expected to have a material adverse effectTexas;
(bd) Borrower is duly authorized and empowered to enter into, execute, deliver and perform this Loan Agreement and the Other Agreements and the The execution, delivery and/or and performance by the Borrower of this the Fourth Amendment and other Loan Agreement Documents as amended as of the date hereof, have been duly and validly authorized and all consents and approvals which are necessary for authorization, binding affect, performance, and enforceability of the Other Agreements shall not, by the lapse of time, the giving of notice or otherwise, constitute a violation of any applicable law or a breach of any provision contained in Borrower’s organizational documents or contained in any material agreement, instrument or document to which Borrower is now or hereafter a party or by which it is or may become bound, except where such violation or breach could not reasonably be expected to Fourth Amendment and all other Loan Documents have a material adverse effect;been received; and
(ce) Except as disclosed to Lender in writingBorrower will not be, there are no actions on or proceedings which are pendingafter the date hereof, or to its knowledge threatened, against Borrower, nor is Borrower a party to any contract or agreement which prohibits Borrower's execution of the Fourth Amendment or subject the Sixth Amendment to Second Amended and Restated Inventory Loan Agreement, or compliance with the terms of the Loan Agreement, the Loan Documents or the Inventory Loan or Supplemental Loan. Except as set forth in the Fourth Amendment to Amended and Restated Revolving Credit Agreement dated of even date herewith, by and among Borrower, Sovereign and Liberty Bank, Borrower has not agreed or consent to cause or permit in the future (upon the happening of a contingency or otherwise) any charge, restriction, judgment, decree or order, which might result in any material and adverse change in its financial condition or materially affect its assets or of the Collateral, nor is Borrower in default with respect to any material indenture, security agreement, mortgage, deed or other similar agreement relating to the borrowing of monies to which it is a party or by which it is bound;
(d) To Borrower’s knowledge, Borrower has and is in good standing with respect to all licenses, patents, copyrights, trademarks, and trade names and Borrower has all governmental permits, certificates, consents and franchises necessary to continue to conduct its business as previously conducted by it and to own or lease and operate its properties as whether now owned or leased by ithereafter acquired, except where the failure to have such permits, certificates, consents and franchises could not reasonably be expected to have a material adverse effect;
(e) The Financials fairly and accurately present in all material respects the assets, liabilities and financial conditions and results of operations of Borrower as of the date when the Financials were prepared and have been prepared in accordance with generally accepted accounting principles, consistently applied, provided that monthly financial statements are subject to year-end adjustments and the absence a Lien except in favor of footnotes and there has been no material adverse change in the assets, liabilities or financial condition of Borrower since the date of the FinancialsLender as provided herein.
(f) As Except as disclosed on the attached Schedule 25, there are no actions, suits, proceedings, orders or injunctions pending or, to the Equipment and Collateralbest of Borrower's knowledge, (i) threatened against or affecting Borrower any Resort or the Intervals, at law or in equity, or before or by any governmental authority, in any case individually in which the claim exceeds or would reasonably be expected to exceed $50,000 or all cases for which claims in the aggregate exceed or could reasonably be expected to exceed $250,000. Borrower has and at all times hereafter shall have good, indefeasible and merchantable title to and ownership of the Collateral free and clear of all liens, claims, security interests and encumbrances except Permitted Liens; (ii) received no notice from any court or governmental authority alleging that Borrower has and at all times hereafter shall have good, indefeasible and merchantable title to and ownership of the Equipment described and/or listed on violated any certificate or schedule relating to Equipment and delivered to Lender, free and clear of all liens, claims, security interests and encumbrances except under subsections 2, 3 and 7 of the definition of Permitted Liens; (iii) the Equipment and Collateral shall be kept and/or maintained solely at the addresses identified in writing to Lender; (iv) Borrower, immediately on demand by Lender, shall deliver to Lender any and all evidence of ownership of, including without limitation, vendor invoices and proofs of payment thereof, certificates of title to and applications for title toapplicable timeshare act, any of the Equipment and Collateral; (v) Borrower shall keep and maintain the Equipment and Collateral in good operating condition and repair and shall make all necessary replacements thereof and renewals thereto so that the value and operating efficiency thereof shall at all times be maintained and preserved; and (vi) Borrower shall not permit rules or regulations thereunder, or any such items to become a fixture to real estate or accession to other personal propertyapplicable laws.
(g) As to Lender’s security interest, (i) Subject to all required filings and Permitted Liens, Lender’s security interest in Except as otherwise disclosed by the Collateral is now and at all times hereafter shall be perfected and have a first priority, and subject to all required filings, Lender’s security interest in the Equipment described and/or listed on any certificate or schedule relating to Equipment and delivered to Lender is now and at all times hereafter shall be perfected and have a first priority except under subsections 2, 3, 7, 8, 10, 11, and 12 of the definition of Permitted Liens; (ii) the offices and/or locations where Borrower keeps the Collateral and Borrower’s books and records concerning the Collateral are at the locations identified to Lender in writing and Borrower shall not remove such books and records and/or writing, since September 30, 2003, there has occurred no materially adverse change in the Collateral therefrom to any other location unless Borrower gives Lender written notice thereof at least thirty (30) days prior thereto and the same is within the contiguous forty-eight (48) states financial condition or business of the United States Borrower and its subsidiaries as shown on or reflected in the consolidated balance sheet of America; the Borrower and (iii) its subsidiaries as of September 30, 2003, or the addresses identified to Lender consolidated statement of income as of such date, other than changes in writing as Borrower’s chief executive office and principal place(s) the ordinary course of business are Borrower’s principal offices and place(s) that have not had any materially adverse effect either individually or in the aggregate on the business or financial condition of businessthe Borrower or any of its subsidiaries. Since September 30, and Borrower2003, by written notice delivered to Lender at least thirty (30) days prior thereto, shall advise Lender of the Borrower has not made any change theretoDistribution.
Appears in 1 contract
Sources: Receivables Loan and Security Agreement (Silverleaf Resorts Inc)
Borrower Representations. The Borrower represents, warrants and represents to Lender, agrees as of the date hereof and as of the date of any Loan made hereunder, thatfollows:
(a) the Borrower has been duly organized, validly exists and is and at all times hereafter shall be a Person having that legal name and organizational structure as set forth above, duly organized and existing and in good standing as a limited liability company under the laws of the state State of its organization as set forth above and Nebraska, is duly qualified or licensed to do business in all other states in which Nebraska, and is duly qualified to enter into the laws require Borrower transactions contemplated by and necessary or incident to be so qualified and/or licensed, except where the failure to be qualified or licensed could not reasonably be expected to have a material adverse effectexecution and delivery of the Loan Documents;
(b) attached hereto as Exhibit B are the Resolutions of the Borrower is duly authorized and empowered to enter into, execute, deliver and perform this Loan Agreement and ("Borrower's Resolutions") authorizing the Other Agreements and the execution, delivery and/or performance by Borrower of this Loan Agreement and the Other Agreements shall not, transactions contemplated by the lapse of time, the giving of notice or otherwise, constitute a violation of any applicable law or a breach of any provision contained in Borrower’s organizational documents or contained in any material agreement, instrument or document to which Borrower is now or hereafter a party or by which it is or may become bound, except where such violation or breach could not reasonably be expected to have a material adverse effectLoan Documents;
(c) Except as disclosed since the date of the last delivery of financial information to Lender in writingthe Lead Lender, there are no actions or proceedings which are pending, or to its knowledge threatened, against Borrower, nor is Borrower a party to any contract or agreement or subject to any charge, restriction, judgment, decree or order, which might result in has not been any material and adverse change in its financial condition or materially affect its assets or the Collateral, nor is Borrower in default with respect to any material indenture, security agreement, mortgage, deed or other similar agreement relating to business of the borrowing of monies to which it is a party or by which it is boundBorrower;
(d) To there is no action, suit, proceeding, or to the Borrower’s 's knowledge, any inquiry or investigation at law or in equity or before or by any public board or body pending or, to Borrower's knowledge, threatened against or affecting the Borrower has or its property or, to Borrower's knowledge, any basis therefor, wherein an unfavorable decision, ruling or finding would adversely affect the transaction contemplated by or necessary or incident to the execution and is in good standing with respect to all licenses, patents, copyrights, trademarks, and trade names and Borrower has all governmental permits, certificates, consents and franchises necessary to continue to conduct its business as previously conducted by it and to own delivery of the Redevelopment Contract or lease and operate its properties as now owned the Loan Documents or leased by it, except where the failure to have such permits, certificates, consents and franchises could not reasonably be expected to have a material adverse effectvalidity or enforceability of the Redevelopment Contract or the Loan Documents;
(e) The Financials fairly and accurately present there are no valid material security interests in all material respects or liens against the assets, liabilities and financial conditions and results interest of operations of the Borrower in the Redevelopment Project as of the date when hereof, except those created by the Financials were prepared and have been prepared in accordance with generally accepted accounting principles, consistently applied, provided that monthly financial statements are subject to year-end adjustments and the absence of footnotes and there has been no material adverse change in the assets, liabilities or financial condition of Borrower since the date of the Financials.Permitted Encumbrances;
(f) As to the Equipment and Collateral, (i) Borrower has duly authorized, by all necessary company action, the execution, delivery and at all times hereafter shall have good, indefeasible and merchantable title to and ownership due performance of the Collateral free and clear of all liens, claims, security interests and encumbrances except Permitted Liens; (ii) Borrower has and at all times hereafter shall have good, indefeasible and merchantable title to and ownership of the Equipment described and/or listed on any certificate or schedule relating to Equipment and delivered to Lender, free and clear of all liens, claims, security interests and encumbrances except under subsections 2, 3 and 7 of the definition of Permitted Liens; (iii) the Equipment and Collateral shall be kept and/or maintained solely at the addresses identified in writing to Lender; (iv) Borrower, immediately on demand by Lender, shall deliver to Lender any and all evidence of ownership of, including without limitation, vendor invoices and proofs of payment thereof, certificates of title to and applications for title to, any of the Equipment and Collateral; (v) Borrower shall keep and maintain the Equipment and Collateral in good operating condition and repair and shall make all necessary replacements thereof and renewals thereto so that the value and operating efficiency thereof shall at all times be maintained and preserved; and (vi) Borrower shall not permit any such items to become a fixture to real estate or accession to other personal property.Loan Documents;
(g) As the Loan Documents have been duly executed and delivered by proper officers of the Borrower. Each of the Loan Documents was executed in substantially the form in which approved by the Borrower;
(h) the execution and delivery of the Loan Documents by the Borrower and the performance by the Borrower of its obligations thereunder do not and will not violate or constitute a default under the Amended and Restated Articles of Organization or Amended and Restated Operating Agreement of the Borrower or any court order, and do not and will not violate or constitute a default under any agreement, indenture, mortgage, lease or any other obligation or instrument to Lender’s security interestwhich the Borrower is bound, and no approval or other action by any governmental authority or agency is required in connection therewith, other than those which have been received;
(i) Subject to there is no action or proceedings pending or threatened looking toward the dissolution, liquidation or sale of substantially all required filings and Permitted Liensof the assets of the Borrower;
(j) Borrower certifies that it has incurred Qualified Project Costs, Lender’s security interest as defined in the Collateral Redevelopment Contract, in an amount in excess of $6,822,180.00. Attached to this Agreement is a true and correct listing of expenditures incurred with respect to the Project to date, all of which Borrower represents, warrants and agrees are Qualified Project Costs;
(k) the names and addresses of the persons, firms or corporations to whom the payments requested hereby are due, the amounts to be disbursed and the general classification and description of the Qualified Project Costs, or to reimburse the Borrower for any Qualified Project Costs paid by the Borrower for which each obligation requested to be paid hereby was incurred are as set forth on Exhibit A attached hereto and incorporated herein by this reference;
(l) such Qualified Project Costs have been made or incurred by the Borrower and have been paid by the Borrower, if payment to the Borrower is requested, or, if payment to the Borrower is not requested, are presently due to the persons to whom payment is requested, are valid Qualified Project Costs under the Redevelopment Contract and proper charges against the Loan Proceeds as set forth herein and no part thereof was included in any other request previously filed with the Lead Lender under the provisions thereof;
(m) except for Qualified Project Costs for which payment has or will be requested and except as set forth on Exhibit A attached hereto, there are no outstanding statements which are now due and at payable for labor, wages, materials, supplies or services in connection with the purchase, construction and installation of the Project which, if unpaid, might become the basis of a vendors', mechanics', laborers or materialmen's statutory or other similar lien upon the Project or any part thereof. Set forth below is a description of (1) all times hereafter disputed statements and the reasons for such disputes, and (2) all statements in process but not yet presented to the Lead Lender for payment;
(n) all Qualified Project Costs incurred or to be incurred by the Borrower are qualified costs and/or expenditures under the Nebraska Community Development Law, R.R.S. Neb. ss.ss. 18-2101, et. seq.;
(o) unless previously provid▇▇ ▇▇ Lead Lender, an executed copy of the construction contract with respect to the Project is attached hereto;
(p) Borrower hereby requests Lead Lender shall retain the following amounts from the Loan Proceeds:
i. the Capitilized Interest Amount in the amount of $870,850.00 shall be perfected retained from the Loan Proceeds and have deposited by Lead Lender in the Capitalized Interest Fund established for the Borrower with respect to the Project to pay interest on the Loan due through December 1, 2008, pursuant to Section 9 of this Agreement;
ii. the Debt Service Reserve Fund Requirement in the amount of $686,400.00 shall be retained from the Loan Proceeds by the Lead Lender and deposited in the Debt Service Reserve Fund, pursuant to Section 8 of this Agreement;
(q) Borrower hereby requests Lead Lender shall retain the amount of $380,240 from the Loan Proceeds for the payment of the Closing Costs, as follows:
i. Lead Lender shall distribute $34,320 ("Origination Fees"), as origination fees, to itself and each participating bank on a first prioritypro rata basis as per participation in the Loan;
ii. Lead Lender shall distribute $205,920 to the Placement Agent, Oppenheimer & Co. Inc. as its total payment for placemen▇ ▇▇▇▇▇ services ("Placement Agent Services Fee");
iii. Lead Lender shall distribute $135,000 to pay Legal Fees as follows: Issuer's Counsel ($50,000), Placement Agent's Counsel ($50,000), Borrower's Counsel ($30,000) and Lead Lender's Counsel ($5,000); and
iv. Lead Lender shall retain or distribute an additional $5,000 for miscellaneous charges (the "Miscellaneous Charges"), as necessary, and subject to all required filings, Lender’s security interest in the Equipment described and/or listed on any certificate or schedule relating to Equipment and delivered to Lender is now and at all times hereafter funds not used for Miscellaneous Charges shall be perfected returned to Borrower;
(r) Borrower hereby requests that Lead Lender distribute directly to Borrower upon Closing the amount of Four Million Nine Hundred Twenty-Six Thousand Five Hundred Ten and have a first priority except under subsections 2no/100 Dollars ($4,926,510.00), 3, 7, 8, 10, 11, and 12 which constitutes the difference of the definition entire Loan Proceeds ($6,864,000.00), less the sum of Permitted Liens; the Capitalized Interest Amount (ii$870,850.00), the Debt Service Reserve Fund Requirement ($686,400.00) the offices and/or locations where Borrower keeps the Collateral and Borrower’s books and records concerning the Collateral are at the locations identified to Lender in writing and Borrower shall not remove such books and records and/or the Collateral therefrom to any other location unless Borrower gives Lender written notice thereof at least thirty (30) days prior thereto and the same is within Closing Costs ($380,240);
(s) Borrower indemnifies, protects, holds harmless and discharges Issuer and Lead Lender from any and all damages, costs, claims or causes of action related to distribution of amounts to Borrower pursuant hereto, provided such parties have carried out their duties without gross negligence or willful misconduct; and
(t) Borrower has been capitalized through equity contributions of its members in excess of $49,975,000.00 which, together with the contiguous forty-eight (48) states proceeds of the United States of America; Senior Credit Facility and (iii) the addresses identified Loan, represents sufficient capitalization for Borrower to Lender in writing as Borrower’s chief executive office complete and principal place(s) of business are Borrower’s principal offices and place(s) of business, and Borrower, by written notice delivered to Lender at least thirty (30) days prior thereto, shall advise Lender of any change theretooperate the Facility.
Appears in 1 contract
Sources: Loan Agreement (Nedak Ethanol, LLC)
Borrower Representations. Borrower warrants and represents to Lender, as of the date hereof and as of the date of any Loan made hereunder, and agrees and covenants to Lender that:
(a) Borrower is and at all times hereafter shall be (i) a Person having that legal name and organizational structure as set forth above, duly organized and existing and in good standing under the laws of the state of its organization as set forth above and (ii) qualified or licensed to do business in all other states in which the laws require Borrower to be so qualified and/or licensed, except in such states where the failure to be so qualified or licensed could would not reasonably be expected to have a material adverse effect;Material Adverse Effect.
(b) Borrower is duly authorized and empowered to enter into, execute, deliver and perform this Loan Agreement and the Other Agreements and the execution, delivery and/or performance by Borrower of this Loan Agreement and the Other Agreements Agreements, and the use by Borrower of the proceeds of the Loans hereunder, shall not, by the lapse of time, the giving of notice or otherwise, conflict with or constitute a violation of any applicable law (including, without limitation, Regulation U or Regulation X of the Board of Governors of the Federal Reserve System or any other regulation thereof) or a breach of any provision contained in Borrower’s organizational documents or contained in any material agreement, instrument or document to which Borrower is now or hereafter a party or by which it is or may become bound, except where such violation bound or breach could not reasonably be expected give rise to have a material adverse effect;or result in any default thereunder.
(c) This Loan Agreement is (and when executed or delivered, each Other Agreement will be) the legally valid and binding obligation of Borrower, enforceable against Borrower in accordance with its respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles (whether enforcement is sought in equity or at law).
(d) Except as disclosed to Lender in writingwriting prior to the date hereof, there are no actions or proceedings which are pending, or to its knowledge threatened, against Borrower, nor Borrower which could reasonably be expected to have a Material Adverse Effect. Borrower is Borrower not in breach of or a party to any contract or agreement or subject to any charge, restriction, judgment, decree or order, order which might result in any material and adverse change in its financial condition has or materially affect its assets or the Collateralcould reasonably be expected to have a Material Adverse Effect, nor is Borrower in default with respect to any material indenture, security agreement, mortgage, deed or other similar agreement relating to the borrowing of monies to which it is a party or by which it is bound;
(de) To Borrower’s knowledge, Borrower has and is in good standing with respect to all licenses, patents, copyrights, trademarks, and trade names and Borrower has all names, governmental permits, certificates, consents and franchises necessary to continue to conduct its business as previously conducted by it and to own or lease and operate its properties as now owned or leased by itit except, except in each case, where the failure to have be in good standing or to obtain such permits, certificates, consents and or franchises could not reasonably be expected to have a material adverse effectMaterial Adverse Effect;
(ef) The financial statements delivered by Borrower to Lender prior to the date hereof and the Financials delivered by Borrower to Lender pursuant to Section 7.3 fairly and accurately present in all material respects the assets, liabilities and financial conditions and results of operations of Borrower as of the date when dates and for the Financials were prepared periods stated therein and have been prepared in accordance with generally accepted accounting principlesGAAP (subject to, consistently appliedin the case of interim financial statements, provided that monthly financial statements are subject to year-end adjustments and the absence of footnotes and there normal year-end adjustments in connection with the audited financial statements for the periods covered by such interim financial statements), and no event, condition or change that has been no material adverse change in the assetshad, liabilities or financial condition of Borrower could reasonably be expected to have, a Material Adverse Effect has occurred since the date of the Financials.this Loan Agreement;
(fg) As to the Equipment Accounts and other Collateral, (i) Borrower has and at all times hereafter shall have good, indefeasible and merchantable title to and ownership of the Collateral free and clear of all liens, claims, security interests and encumbrances except Permitted Liens; (ii) Borrower has and at all times hereafter shall have good, indefeasible and merchantable title to and ownership of the Equipment Accounts described and/or listed on any certificate or schedule relating to Equipment and the Accounts delivered to Lender, free and clear of all liens, claims, security interests and encumbrances except under subsections 2, 3 those of Lender and 7 of the definition of Permitted Liens; (iiiii) the Equipment and Collateral shall be kept and/or maintained solely at the addresses identified in writing to Lender; (iviii) Borrower, immediately on demand by Lender, shall deliver to Lender any and all evidence of ownership of, including without limitation, vendor invoices and proofs of payment thereof, certificates of title to and applications for title to, any of the Equipment and Collateral; (viv) Borrower shall keep and maintain the Equipment and Collateral in good operating condition and repair repair, ordinary wear and tear excepted, and shall make all necessary replacements thereof and renewals thereto so that the value and operating efficiency thereof shall at all times be maintained and preserved; and (viv) Borrower shall not permit any such items to become a fixture to real estate or accession to any other Person’s personal property.
(gh) As to Lender’s security interest, (i) Subject to all required filings and Permitted Liens, Lender’s security interest in the Collateral is now and at all times hereafter shall be perfected and have a first priority, and priority (subject to all required filings, Lender’s security interest in the Equipment described and/or listed on any certificate or schedule relating to Equipment and delivered to Lender is now and at all times hereafter shall be perfected and have a first priority except under subsections 2, 3, 7, 8, 10, 11, and 12 of the definition of Permitted Liens); (ii) the offices and/or locations where Borrower keeps the Collateral and Borrower’s books and records concerning the Collateral are at the locations identified to Lender in writing and Borrower shall not remove such books and records and/or the Collateral therefrom to any other location unless Borrower gives Lender written notice thereof at least thirty (30) days prior thereto and the same is within the contiguous forty-eight (48) states of the United States of America; and (iii) the addresses identified to Lender in writing as Borrower’s chief executive office and principal place(s) of business are Borrower’s principal sole offices and place(s) of business, and Borrower, by written notice delivered to Lender at least thirty (30) days prior thereto, shall advise Lender of any change thereto.
(i) Borrower is not an “investment company” or a company “controlled” by an “investment company”, as such terms are defined in the Investment Company Act of 1940.
(j) All income and other tax returns and reports required to be filed by Borrower have been timely filed, and all taxes shown on such tax returns to be due and payable and all other assessments, fees and governmental charges upon Borrower and its properties, assets, income, businesses and franchises have been paid when due and payable, except to the extent that such taxes, assessments, charges or claims (i) are being contested in good faith by appropriate proceedings (promptly instituted and diligently conducted) so long as such reserve or other appropriate provision, if any, as shall be required in conformity with GAAP shall have been made therefor and (ii) such proceeding shall stay the attachment, sale, disposition, foreclosure or forfeiture of any asset of Borrower in connection with any such contested tax, assessment, charge or claim. All necessary and appropriate estimated payments (including any interest and penalties) in respect of assessed tax liability under Borrower’s state and federal tax returns have been made on a timely basis.
(k) As of the date hereof and of each Loan (i) the sum of Borrower’s debt (including contingent liabilities) does not exceed the present fair saleable value of Borrower’s present assets; (ii) Borrower’s capital is not unreasonably small in relation to its business as it exists and as is contemplated at such time; and (iii) Borrower has not incurred and does not intend to incur, or believe that it will incur, debts beyond its ability to pay such debts as they become due.
(l) No information furnished to Lender by or on behalf of Borrower for use in connection with the transactions contemplated hereby contains or will contain, any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained herein or therein not misleading in light of the circumstances in which the same were made. Any projections contained in such materials are based upon good faith estimates and assumptions believed by Borrower to be reasonable at the time made. There are no facts known to Borrower that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect.
(m) Borrower has provided to Lender on or prior to the date hereof a schedule that correctly identifies the ownership interest (including all options, warrants and other rights to acquire capital stock) of Borrower and each of its Subsidiaries as of the date hereof.
(i) Borrower (A) has been and is in compliance in all material respects with all applicable Environmental Laws; (B) has not received any communication, whether from a governmental authority or otherwise, alleging that Borrower is not in such compliance, which noncompliance could reasonably be expected to have a Material Adverse Effect, and there are no past or present actions, activities, circumstances conditions, events or incidents that may prevent or interfere with such compliance in the future; (ii) there is no Environmental Claim pending or, to the best knowledge of Borrower, threatened against Borrower or against any Person whose liability for any Environmental Claim Borrower has or may have retained or assumed either contractually or by operation of law and which could reasonably be expected to have a Material Adverse Effect; and (iii) there are no past or present actions, activities, circumstances, conditions, events or incidents, including, without limitation, the release, threatened release or presence of any Hazardous Material, which could reasonably be expected to form the basis of any Environmental Claim against Borrower or, to the best knowledge of Borrower, against any Person whose liability for any Environmental Claim Borrower has or may have retained or assumed either contractually or by operation of law and which could reasonably be expected to have a Material Adverse Effect.
(ii) Borrower is an “operating company” within the meaning of the regulations of the United States Department of Labor included within 29 CFR Section 2510.3-101 (the “DOL Regulations”) or is in compliance with such other exception as may be available under such regulations to prevent the assets of Borrower from being treated as the assets of any employee benefit plan for purposes of the DOL Regulations and (ii) neither Borrower nor any Subsidiary of Borrower maintains or is obligated to make contributions to any employee benefit plan that is subject to Title IV of the Employee Retirement Income Security Act of 1974, as amended from time to time, and any successor statute (“ERISA”).
Appears in 1 contract
Borrower Representations. Borrower warrants and represents to Lender, as of the date hereof and as of the date of any Loan made hereunder, that:
(a) Borrower is and at all times hereafter shall be a Person having that legal name and organizational structure as set forth above, duly organized and existing and in good standing under the laws of the state of its organization as set forth above and qualified or licensed to do business in all other states in which the laws require Borrower to be so qualified and/or licensed, except where the failure to be qualified or licensed could not reasonably be expected to have a material adverse effect;
(b) Borrower is duly authorized and empowered to enter into, execute, deliver and perform this Loan Agreement and the Other Agreements and the execution, delivery and/or performance by Borrower of this Loan Agreement and the Other Agreements shall not, by the lapse of time, the giving of notice or otherwise, constitute a violation of any applicable law or a breach of any provision contained in Borrower’s 's organizational documents or contained in any material agreement, instrument or document to which Borrower is now or hereafter a party or by which it is or may become bound, except where such violation or breach could not reasonably be expected to have a material adverse effect;
(c) Except as disclosed to Lender in writing, there are no actions or proceedings which are pending, or to its knowledge threatened, against Borrower, nor is Borrower a party to any contract or agreement or subject to any charge, restriction, judgment, decree or order, which might result in any material and adverse change in its financial condition or materially affect its assets or the Collateral, nor is Borrower in default with respect to any material indenture, security agreement, mortgage, deed or other similar agreement relating to the borrowing of monies to which it is a party or by which it is bound;
(d) To Borrower’s knowledge, Borrower has and is in good standing with respect to all licenses, patents, copyrights, trademarks, and trade names and Borrower has all governmental permits, certificates, consents and franchises necessary to continue to conduct its business as previously conducted by it and to own or lease and operate its properties as now owned or leased by it, except where the failure to have such permits, certificates, consents and franchises could not reasonably be expected to have a material adverse effect;
(e) The Financials fairly and accurately present in all material respects the assets, liabilities and financial conditions and results of operations of Borrower as of the date when the Financials were prepared their respective dates and have been prepared in accordance with generally accepted accounting principles (or, with regard to Financials prepared prior to December 31, 2004, have been prepared in accordance with commercially reasonable accounting principles), consistently applied, provided that monthly financial statements are subject to year-end adjustments and the absence of footnotes and there has been no material adverse change in the assets, liabilities or financial condition of Borrower since the date of the Financials.
(f) As to the Equipment and Collateral, (i) Borrower has and at all times hereafter shall have good, indefeasible and merchantable title to and ownership of the Collateral free and clear of all liens, claims, security interests and encumbrances except Permitted Liens; (ii) Borrower has and at all times hereafter shall have good, indefeasible and merchantable title to and ownership of the Equipment described and/or listed on any certificate or schedule relating to Equipment and delivered to Lender, free and clear of all liens, claims, security interests and encumbrances except under subsections 2, 3 those of Lender (and 7 of the definition of except for Permitted Liens); (iiiii) the Equipment and Collateral shall be kept and/or maintained solely at the addresses identified in writing to Lender; (iviii) Borrower, immediately on demand by Lender, shall deliver to Lender any and all evidence of ownership of, including without limitation, vendor invoices and proofs of payment thereof, certificates of title to and applications for title to, any of the Equipment and Collateral; (viv) Borrower shall keep and maintain the Equipment and Collateral in good operating condition and repair and shall make all necessary replacements thereof and renewals thereto so that the value and operating efficiency thereof shall at all times be maintained and preserved; and (viv) Borrower shall not permit any such items to become a fixture to real estate or accession to other personal property.
(g) As to Lender’s 's security interest, (i) Subject to all required filings and Permitted Liens, Lender’s 's security interest in the Collateral is now and at all times hereafter shall be perfected and have a first priority, and subject to all required filings, Lender’s security interest in the Equipment described and/or listed on any certificate or schedule relating to Equipment and delivered to Lender is now and at all times hereafter shall be perfected and have a first priority except under subsections 2, 3, 7, 8, 10, 11, and 12 of the definition of for Permitted Liens; (ii) the offices and/or locations where Borrower keeps the Collateral and Borrower’s 's books and records concerning the Collateral are at the locations identified to Lender in writing and Borrower shall not remove such books and records and/or the Collateral therefrom to any other location unless Borrower gives Lender written notice thereof at least thirty (30) days prior thereto and the same is within the contiguous forty-eight (48) states of the United States of America; and (iii) the addresses identified to Lender in writing as Borrower’s 's chief executive office and principal place(s) of business are Borrower’s principal 's sole offices and place(s) of business, and Borrower, by written notice delivered to Lender at least thirty (30) days prior thereto, shall advise Lender of any change thereto.
(h) Borrower's activities in China are not connected with or in any manner related to the design, development, production, stockpiling, or use of chemical or biological weapons.
Appears in 1 contract
Borrower Representations. Borrower warrants and represents to Lender, as of the date hereof and as of the date of any Loan made hereunder, that:
(a) Borrower is and at all times hereafter shall be (i) a Person having that legal name and organizational structure as set forth above, duly organized and existing and in good standing under the laws of the state of its organization as set forth above and (ii) qualified or licensed to do business in all other states in which the laws require Borrower to be so qualified and/or licensed, except where if the failure to be qualified or licensed could do so would not reasonably be expected to have a material adverse effect;Material Adverse Effect.
(b) Borrower is duly authorized and empowered to enter into, execute, deliver and perform this Loan Agreement and the Other Agreements and the execution, delivery and/or performance by Borrower of this Loan Agreement and the Other Agreements Agreements, and the use by Borrower of the proceeds of the Loans hereunder, shall not, by the lapse of time, the giving of notice or otherwise, (i) conflict with or constitute a violation of any applicable law (including, without limitation, Regulation U or a Regulation X of the Board of Governors of the Federal Reserve System or any other regulation thereof), (ii) breach of any provision contained in Borrower’s organizational documents documents, or contained in (iii) breach any material agreement, instrument or document to which Borrower is now or hereafter a party or by which it is or may become bound, except where such violation bound or breach could not reasonably be expected give rise to have a material adverse effect;or result in any default thereunder.
(c) This Loan Agreement is (and when executed or delivered, each Other Agreement will be) the legally valid and binding obligation of Borrower, enforceable against Borrower in accordance with its respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles (whether enforcement is sought in equity or at law).
(d) Except as disclosed to Lender in writingwriting prior to the date hereof, there are no actions or proceedings which are pending, or to its knowledge threatened, against Borrower, nor Borrower which would reasonably be expected to have a Material Adverse Effect. Borrower is Borrower not in breach of or a party to any contract or agreement or subject to any charge, restriction, judgment, decree or order, order which might result in any material and adverse change in its financial condition has or materially affect its assets or the Collateralwould reasonably be expected to have a Material Adverse Effect, nor is Borrower in default with respect to any material indenture, security agreement, mortgage, deed or other similar agreement relating to the borrowing of monies to which it is a party or by which it is bound;.
(de) To Borrower’s knowledge, Borrower has and is in good standing with respect to all licenses, patents, copyrights, trademarks, and trade names and Borrower has all names, governmental permits, certificates, consents and franchises necessary to continue to conduct its business as previously conducted by it and to own or lease and operate its properties as now owned or leased by it, it except where the failure to have such permits, certificates, consents and franchises could for any which would not reasonably be expected to have a material adverse effect;Material Adverse Effect. :
(ef) The unaudited financial statements for the first quarter of 2007 and the audited financial statements for 2005 and 2006 delivered by Borrower to Lender prior to the date hereof and the Financials delivered by Borrower to Lender pursuant to Section 7.3 hereof fairly and accurately present in all material respects the assets, liabilities and financial conditions condition and results of operations of Borrower as of the date when dates and for the Financials were prepared periods stated therein and have been prepared in accordance with generally accepted accounting principles, consistently applied, provided that monthly financial statements are GAAP (subject to year-end adjustments and the absence of footnotes and there normal year end adjustments), and no event, condition or change that has been no material adverse change in the assetshad, liabilities or financial condition of Borrower would reasonably be expected to have, a Material Adverse Effect has occurred since the date of the Financialsthis Loan Agreement.
(fg) As to the Equipment Accounts and other Collateral, (i) Borrower has and at all times hereafter shall have good, indefeasible and merchantable title to and ownership of the Collateral free and clear of all liens, claims, security interests and encumbrances except Permitted Liens; (ii) Borrower has and at all times hereafter shall have good, indefeasible and merchantable title to and ownership of the Equipment Accounts described and/or listed on any certificate or schedule relating to Equipment and the Accounts delivered to Lender, free and clear of all liens, claims, security interests and encumbrances except under subsections 2, 3 those of Lender and 7 of the definition of Permitted Liens; (iiiii) the Equipment and Collateral shall be kept and/or maintained solely at the addresses identified in writing to Lender, which as of the date hereof are: (x) 2▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, (y) 2▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇, and (z) 1▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇; (iviii) Borrower, immediately on demand by Lender, shall deliver to Lender any and all evidence of ownership of, including without limitation, vendor invoices and proofs of payment thereof, certificates of title to and applications for title to, any of the Equipment and Collateral; (viv) Borrower shall keep and maintain the Equipment and Collateral in good operating condition and repair repair, ordinary wear and tear excepted, and shall make all necessary replacements thereof and renewals thereto so that the value and operating efficiency thereof shall at all times be maintained and preservedpreserved in all material respects; and (viv) Borrower shall not permit any such items of the Collateral to become a fixture to real estate or accession to other personal property.
(gh) As to Lender’s security interest, (i) Subject to all required filings and Permitted Liens, Lender’s security interest in the Collateral is now and at all times hereafter shall be perfected and have a first priority, and subject to all required filings, Lender’s security interest in the Equipment described and/or listed on any certificate or schedule relating to Equipment and delivered to Lender is now and at all times hereafter shall be perfected and have has a first priority except under subsections 2, 3, 7, 8, 10, 11, and 12 of the definition of (subject to Permitted Liens); (ii) the offices and/or locations where Borrower keeps the Collateral and Borrower’s books and records concerning the Collateral are at the locations identified to Lender in writing and Borrower shall not remove such books and records and/or the Collateral therefrom to any other location unless Borrower gives Lender written notice thereof at least thirty (30) days prior thereto and the same is within the contiguous forty-eight (48) states of the United States of America; and (iii) the addresses identified to Lender in writing as Borrower’s chief executive office and principal place(s) of business are Borrower’s principal sole offices and place(s) of business, and Borrower, by written notice delivered to Lender at least thirty (30) days prior thereto, shall advise Lender of any change thereto.
(i) Borrower is not an “investment company” or a company “controlled” by an “investment company” as such terms are defined in the Investment Company Act of 1940.
(j) All income and other tax returns and reports required to be filed by Borrower have been timely filed (subject to any applicable extensions), and all taxes shown on such tax returns to be due and payable and all other assessments, fees and governmental charges upon Borrower and its properties, assets, income, businesses and franchises have been paid when due and payable except to the extent that (A) such taxes, assessments, charges or claims (i) are being contested in good faith by appropriate proceedings (promptly instituted and diligently conducted) so long as such reserve or other appropriate provision, if any, as shall be required in conformity with GAAP shall have been made therefor and (ii) such proceeding shall stay the attachment, sale, disposition, foreclosure or forfeiture of any asset of Borrower in connection with any such contested tax, assessment, charge or claim or, (B) the failure to timely pay such taxes, assessments, charges or claims would not reasonably be expected to have a Material Adverse Effect. All necessary and appropriate estimated payments (including any interest and penalties) in respect of assessed tax liability under Borrower’s state and federal tax returns have been made on a timely basis.
(k) As of the date hereof and of each Loan (i) the sum of Borrower’s debt (including contingent liabilities) does not exceed the present fair saleable value of Borrower’s present assets; (ii) Borrower’s capital is not unreasonably small in relation to its business as it exists and as is contemplated at such time; and (iii) Borrower has not incurred and does not intend to incur, or believe that it will incur, debts beyond its ability to pay such debts as they become due.
(l) No information furnished to Lender by or on behalf of Borrower for use in connection with the transactions contemplated hereby contains or will contain, any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained herein or therein not misleading in light of the circumstances in which the same were made. Any projections contained in Borrower’s financial statements or sales projections are based upon good faith estimates and assumptions believed by Borrower to be reasonable at the time made. There are no facts known to Borrower that, individually or in the aggregate, would reasonably be expected to result in a Material Adverse Effect.
(m) Borrower has provided to Lender on or prior to the date hereof a schedule that correctly identifies, as of the date hereof, the ownership interest (including all options, warrants and other rights to acquire capital stock) of Borrower and each of its Subsidiaries as of the date hereof.
(n) (i) Borrower (A) has been and is in compliance in all material respects with all applicable Environmental Laws; (B) has not received any communication, whether from a governmental authority or otherwise, alleging that Borrower is not in such compliance, and there are no past or present actions, activities, circumstances conditions, events or incidents that would reasonably be expected to prevent or interfere with such compliance in the future; (ii) there is no Environmental Claim pending or, to the best knowledge of Borrower, threatened against Borrower or against any Person whose liability for any Environmental Claim Borrower has or would reasonably be likely to have retained or assumed either contractually or by operation of law; and (iii) there are no past or present actions, activities, circumstances, conditions, events or incidents, including, without limitation, the release, threatened release or presence of any Hazardous Material, which would reasonably be expected to result in any material Environmental Claim against Borrower or, to the best knowledge of Borrower, against any Person whose liability for any material Environmental Claim Borrower has or would reasonably be expected to have retained or assumed either contractually or by operation of law.
(i) Borrower is an “operating company” within the meaning of the regulations of the United States Department of Labor included within 29 CFR Section 2510.3-101 (the “DOL Regulations”) or is in compliance with such other exception as may be available under such regulations to prevent the assets of Borrower from being treated as the assets of any employee benefit plan for purposes of the DOL Regulations [Under review] and (ii) Borrower nor any subsidiary of Borrower complies in all material respects with any obligations to make contributions to any employee benefit plan that is subject to Title IV of the Employee Retirement Income Security Act of 1974, as amended from time to time, and any successor statute (“ERISA”).
Appears in 1 contract
Borrower Representations. Borrower warrants and represents to Lender, as of the date hereof and as of the date of any Loan made hereunder, that:
(a) Borrower is and at all times hereafter shall be a Person having that legal name and organizational structure as set forth above, duly organized and existing and in good standing under the laws of the state of its organization as set forth above and qualified or licensed to do business in all other states in which the laws require Borrower to be so qualified and/or licensed, except where the failure to be qualified or licensed could not reasonably be expected to have a material adverse effect;
(b) Borrower is duly authorized and empowered to enter into, execute, deliver and perform this Loan Agreement and the Other Agreements and the execution, delivery and/or performance by Borrower of this Loan Agreement and the Other Agreements shall not, by the lapse of time, the giving of notice or otherwise, constitute a violation of any applicable law or a breach of any provision contained in Borrower’s 's organizational documents or contained in any material agreement, instrument or document to which Borrower is now or hereafter a party or by which it is or may become bound, except where such violation or breach could not reasonably be expected to have a material adverse effect;
(c) Except as disclosed to Lender in writing, there are no actions or proceedings which are pending, or to its knowledge threatened, against Borrower, nor is Borrower a party to any contract or agreement or subject to any charge, restriction, judgment, decree or order, which might result in any material and adverse change in its financial condition or materially affect its assets or the Collateral, nor is Borrower in default with respect to any material indenture, security agreement, mortgage, deed or other similar agreement relating to the borrowing of monies to which it is a party or by which it is bound;
(d) To Borrower’s knowledge, Borrower has and is in good standing with respect to all licenses, patents, copyrights, trademarks, and trade names and Borrower has all governmental permits, certificates, consents and franchises necessary to continue to conduct its business as previously conducted by it and to own or lease and operate its properties as now owned or leased by it, except where the failure to have such permits, certificates, consents and franchises could not reasonably be expected to have a material adverse effect;
(e) The Financials fairly and accurately present in all material respects the assets, liabilities and financial conditions and results of operations of Borrower as of the date when the Financials were prepared their respective dates and have been prepared in accordance with generally accepted accounting principles (or, with regard to Financials prepared prior to December 31, 2004, have been prepared in accordance with commercially reasonable accounting principles), consistently applied, provided that monthly financial statements are subject to year-end adjustments and the absence of footnotes and there has been no material adverse change in the assets, liabilities or financial condition of Borrower since the date of the Financials.
(f) As to the Equipment and Collateral, (i) Borrower has and at all times hereafter shall have good, indefeasible and merchantable title to and ownership of the Collateral free and clear of all liens, claims, security interests and encumbrances except Permitted Liens; (ii) Borrower has and at all times hereafter shall have good, indefeasible and merchantable title to and ownership of the Equipment described and/or listed on any certificate or schedule relating to Equipment and delivered to Lender, free and clear of all liens, claims, security interests and encumbrances except under subsections 2, 3 those of Lender (and 7 of the definition of except for Permitted Liens); (iiiii) the Equipment and Collateral shall be kept and/or maintained solely at the addresses identified in writing to Lender; (iviii) Borrower, immediately on demand by Lender, shall deliver to Lender any and all evidence of ownership of, including without limitation, vendor invoices and proofs of payment thereof, certificates of title to and applications for title to, any of the Equipment and Collateral; (v) Borrower shall keep and maintain the Equipment and Collateral in good operating condition and repair and shall make all necessary replacements thereof and renewals thereto so that the value and operating efficiency thereof shall at all times be maintained and preserved; and (vi) Borrower shall not permit any such items to become a fixture to real estate or accession to other personal property.
(g) As to Lender’s security interest, (i) Subject to all required filings and Permitted Liens, Lender’s security interest in the Collateral is now and at all times hereafter shall be perfected and have a first priority, and subject to all required filings, Lender’s security interest in the Equipment described and/or listed on any certificate or schedule relating to Equipment and delivered to Lender is now and at all times hereafter shall be perfected and have a first priority except under subsections 2, 3, 7, 8, 10, 11, and 12 of the definition of Permitted Liens; (ii) the offices and/or locations where Borrower keeps the Collateral and Borrower’s books and records concerning the Collateral are at the locations identified to Lender in writing and Borrower shall not remove such books and records and/or the Collateral therefrom to any other location unless Borrower gives Lender written notice thereof at least thirty (30) days prior thereto and the same is within the contiguous forty-eight (48) states of the United States of America; and (iii) the addresses identified to Lender in writing as Borrower’s chief executive office and principal place(s) of business are Borrower’s principal offices and place(s) of business, and Borrower, by written notice delivered to Lender at least thirty (30) days prior thereto, shall advise Lender of any change thereto.;
Appears in 1 contract
Sources: Loan and Security Agreement
Borrower Representations. Each Borrower warrants and represents to Lender, as of the date hereof and as of the date of any Loan made hereunder, and agrees and covenants to Lender that:
(a) Borrower is and at all times hereafter shall be (i) a Person having that legal name and organizational structure as set forth above, duly organized and existing and in good standing under the laws of the state of its organization as set forth above and (ii) qualified or licensed to do business in all other states in which the laws require Borrower to be so qualified and/or licensed, except where the failure to be qualified or licensed could not reasonably be expected to have a material adverse effect;
(b) Borrower is duly authorized and empowered to enter into, execute, deliver and perform this Loan Agreement and the Other Agreements and the execution, delivery and/or performance by Borrower of this Loan Agreement and the Other Agreements Agreements, and the use by Borrower of the proceeds of the Loans hereunder, shall not, by the lapse of time, the giving of notice or otherwise, conflict with or constitute a violation of any applicable law (including, without limitation, Regulation U or Regulation X of the Board of Governors of the Federal Reserve System or any other regulation thereof) or a breach of any provision contained in Borrower’s 's organizational documents or contained in any material agreement, instrument or document to which Borrower is now or hereafter a party or by which it is or may become bound, except where such violation bound or breach could not reasonably be expected give rise to have a material adverse effector result in any default thereunder;
(c) This Loan Agreement is (and when executed or delivered, each Other Agreement will be) the legally valid and binding obligation of Borrower, enforceable against Borrower in accordance with its respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors' rights generally or by equitable principles (whether enforcement is sought in equity or at law).
(d) Except as disclosed to Lender in writingwriting prior to the date hereof, there are no actions or proceedings which are pending, or to its knowledge threatened, against Borrower, nor . Borrower is Borrower not in breach of or a party to any contract or agreement or subject to any charge, restriction, judgment, decree or order, order which might result in any material and adverse change in its financial condition has or materially affect its assets or the Collateralcould reasonably be expected to have a Material Adverse Effect, nor is Borrower in default with respect to any material indenture, security agreement, mortgage, deed or other similar agreement relating to the borrowing of monies to which it is a party or by which it is bound;
(de) To Borrower’s knowledge, Borrower has and is in good standing with respect to all licenses, patents, copyrights, trademarks, and trade names and Borrower has all names, governmental permits, certificates, consents and franchises necessary to continue to conduct its business as previously conducted by it and to own or lease and operate its properties as now owned or leased by it, except where the failure to have such permits, certificates, consents and franchises could not reasonably be expected to have a material adverse effect;
(ef) The financial statements delivered by Borrower to Lender prior to the date hereof and the Financials delivered by Borrower to Lender pursuant to Section 7.3 hereof fairly and accurately present in all material respects the assets, liabilities and financial conditions and results of operations of Borrower as of the date when dates and for the Financials were prepared periods stated therein and have been prepared in accordance with generally accepted accounting principles, consistently applied, provided and no event, condition or change that monthly financial statements are subject has had, or could reasonably be expected to year-end adjustments and the absence of footnotes and there have, a Material Adverse Effect has been no material adverse change in the assets, liabilities or financial condition of Borrower occurred since the date of the Financials.this Loan Agreement;
(fg) As Except as disclosed in the Schedule of Exceptions, as to the Equipment Accounts and other Collateral, (i) Borrower has and at all times hereafter shall have good, indefeasible and merchantable title to and ownership of the Collateral free and clear of all liens, claims, security interests and encumbrances except Permitted Liens; (ii) Borrower has and at all times hereafter shall have good, indefeasible and merchantable title to and ownership of the Equipment Accounts described and/or listed on any certificate or schedule relating to Equipment and the Accounts delivered to Lender, free and clear of all liens, claims, security interests and encumbrances except under subsections 2, 3 those of Lender and 7 of the definition of Permitted Liens; (iiiii) the Equipment and Collateral shall be kept and/or maintained solely at the addresses identified in writing to Lender; (iviii) Borrower, immediately on demand by Lender, shall deliver to Lender any and all evidence of ownership of, including without limitation, vendor invoices and proofs of payment thereof, certificates of title to and applications for title to, any of the Equipment and Collateral; (v) Borrower shall keep and maintain the Equipment and Collateral in good operating condition and repair and shall make all necessary replacements thereof and renewals thereto so that the value and operating efficiency thereof shall at all times be maintained and preserved; and (vi) Borrower shall not permit any such items to become a fixture to real estate or accession to other personal property.
(g) As to Lender’s security interest, (i) Subject to all required filings and Permitted Liens, Lender’s security interest in the Collateral is now and at all times hereafter shall be perfected and have a first priority, and subject to all required filings, Lender’s security interest in the Equipment described and/or listed on any certificate or schedule relating to Equipment and delivered to Lender is now and at all times hereafter shall be perfected and have a first priority except under subsections 2, 3, 7, 8, 10, 11, and 12 of the definition of Permitted Liens; (ii) the offices and/or locations where Borrower keeps the Collateral and Borrower’s books and records concerning the Collateral are at the locations identified to Lender in writing and Borrower shall not remove such books and records and/or the Collateral therefrom to any other location unless Borrower gives Lender written notice thereof at least thirty (30) days prior thereto and the same is within the contiguous forty-eight (48) states of the United States of America; and (iii) the addresses identified to Lender in writing as Borrower’s chief executive office and principal place(s) of business are Borrower’s principal offices and place(s) of business, and Borrower, by written notice delivered to Lender at least thirty (30) days prior thereto, shall advise Lender of any change thereto.;
Appears in 1 contract
Borrower Representations. Borrower warrants and represents to Lender, as of the date hereof and as of the date of any Term Loan made hereunderhereunder (“Term Loan Date”), and agrees and covenants to Lender that:
(a) Borrower’s legal name is “Bioheart, Inc.” Borrower is and at all times hereafter shall be a Person having that legal name and organizational structure as set forth above, corporation (i) duly organized and existing and in good standing under the laws of the state of its organization as set forth above and (ii) qualified or licensed to do business in all other states in which the laws require Borrower to be so qualified and/or licensed, except where the failure to be qualified or licensed could not reasonably be expected to have a material adverse effect;
(b) Borrower is duly authorized and empowered to enter into, execute, deliver and perform this Loan Agreement and the Other Agreements and the execution, delivery and/or performance by Borrower of this Loan Agreement and the Other Agreements Agreements, and the use by Borrower of the proceeds of the Loans hereunder, shall not, by the lapse of time, the giving of notice or otherwise, conflict with or constitute a violation of any applicable law (including, without limitation, Regulation U or Regulation X of the Board of Governors of the Federal Reserve System or any other regulation thereof) or a breach of any provision contained in Borrower’s organizational documents or contained in any material agreement, instrument or document Material Agreement to which Borrower is now or hereafter a party or by which it is bound or may become bound, except where such violation give rise to or breach could not reasonably be expected to have a material adverse effectresult in any default thereunder;
(c) This Loan Agreement and each Other Agreement are the legally valid and binding obligation of Borrower, enforceable against Borrower in accordance with its respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles (whether enforcement is sought in equity or at law).
(d) Except as disclosed to Lender in writingwriting prior to the Term Loan Date, there are no actions or proceedings which are pending, or to its knowledge threatened, against BorrowerBorrower which, nor if adversely determined, could reasonably be expected to have a Material Adverse Effect. Borrower is Borrower a party to not in breach of any contract or agreement Material Agreement or subject to any charge, restriction, judgment, decree or order, order which might result in any material and adverse change in its financial condition has or materially affect its assets or the Collateralcould reasonably be expected to have a Material Adverse Effect, nor is Borrower in default with respect to any material indenture, security agreement, mortgage, deed or other similar agreement relating to the borrowing of monies to which it is a party or by which it is bound;
(de) To Borrower’s knowledgeExcept as disclosed to Lender in writing prior to the Term Loan Date, Borrower has and is in good standing with respect to all licenses, patents, copyrights, trademarks, and trade names and Borrower has all names, governmental permits, certificates, consents and franchises necessary to continue to conduct its business as previously conducted by it and to own or lease and operate its properties as now owned or leased by it, except where the failure to have such permits, certificates, consents and franchises could not reasonably be expected to have a material adverse effect;
(ef) The Financials financial statements delivered by Borrower to Lender prior to the Term Loan Date Loan fairly and accurately present in all material respects the assets, liabilities and financial conditions and results of operations of Borrower as of the date when dates and for the Financials were prepared periods stated therein and have been prepared in accordance with generally accepted accounting principlesGAAP, consistently appliedand no event, provided condition or change that monthly financial statements are subject has had, or could reasonably be expected to year-end adjustments and the absence of footnotes and there have, a Material Adverse Effect has been no material adverse change in the assets, liabilities or financial condition of Borrower since occurred between the date of this Loan Agreement and the Financials.Term Loan Date;
(fg) As to the Equipment Accounts and other Collateral, (i) Borrower has and at all times hereafter shall have good, indefeasible and merchantable title to and ownership of the Collateral free and clear of all liens, claims, security interests and encumbrances except Permitted Liens; (ii) Borrower has and at all times hereafter shall have good, indefeasible and merchantable title to and ownership of the Equipment Accounts described and/or listed on any certificate or schedule relating to Equipment and the Accounts delivered to Lender, free and clear of all liens, claims, security interests and encumbrances encumbrances, except under subsections 2, 3 those of Lender and 7 of the definition of Permitted Liens; (iii) the Equipment and Collateral shall be kept and/or maintained solely at the addresses identified in writing to Lender; (iv) Borrower, immediately on demand by Lender, shall deliver to Lender any and all evidence of ownership of, including without limitation, vendor invoices and proofs of payment thereof, certificates of title to and applications for title to, any of the Equipment and Collateral; (v) Borrower shall keep and maintain the Equipment and Collateral in good operating condition and repair and shall make all necessary replacements thereof and renewals thereto so that the value and operating efficiency thereof shall at all times be maintained and preserved; and (vi) Borrower shall not permit any such items to become a fixture to real estate or accession to other personal property.
(gh) As to Lender’s security interest, (i) Subject to all required filings and Permitted Liens, Lender’s security interest in the Collateral is now and at all times hereafter shall be perfected and have a is of first priority, and priority (subject to all required filings, Lender’s security interest in the Equipment described and/or listed on any certificate or schedule relating to Equipment and delivered to Lender is now and at all times hereafter shall be perfected and have a first priority except under subsections 2, 3, 7, 8, 10, 11, and 12 of the definition of Permitted Liens); (ii) the offices and/or locations where Borrower keeps the Collateral and Borrower’s books and records concerning the Collateral are at the locations identified to Lender in writing and Borrower shall not remove such books and records and/or the Collateral therefrom to any other location unless Borrower gives Lender written notice thereof at least thirty (30) days prior thereto and the same is within the contiguous forty-eight (48) states of the United States of Americawriting; and (iii) the addresses identified to Lender in writing as Borrower’s chief executive office and principal place(s) of business are Borrower’s principal sole offices and place(s) of business.
(i) Borrower is not an “investment company” or a company “controlled” by an “investment company” as such terms are defined in the Investment Company Act of 1940, as amended.
(j) All income and other tax returns and reports required to be filed by Borrower have been timely filed, and all taxes shown on such tax returns to be due and payable and all other assessments, fees and governmental charges upon Borrower and its properties, assets, income, businesses and franchises have been paid when due and payable except to the extent that (A) such taxes, assessments, charges or claims (i) are being contested in good faith by appropriate proceedings (promptly instituted and diligently conducted) so long as such reserve or other appropriate provision, if any, as shall be required in conformity with GAAP shall have been made therefor and (ii) such proceeding shall stay the attachment, sale, disposition, foreclosure or forfeiture of any asset of Borrower in connection with any such contested tax, assessment, charge or claim or, (B) the failure to timely pay such taxes, assessments, charges or claims could not reasonably be expected to have a Material Adverse Effect. All necessary and appropriate estimated payments (including any interest and penalties) in respect of assessed tax liability under Borrower’s state and federal tax returns have been made on a timely basis.
(k) As of the Term Loan Date (i) the sum of Borrower’s debt (including contingent liabilities) does not exceed the present fair saleable value of Borrower’s present assets; (ii) Borrower’s capital is not unreasonably small in relation to its business as it exists and as is contemplated at such time; and (iii) Borrower has not incurred and does not intend to incur, or believe that it will incur, debts beyond its ability to pay such debts as they become due.
(l) No information furnished in writing to Lender by or on behalf of Borrower for use in connection with the transactions contemplated hereby contains or will contain, any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained herein or therein not misleading in light of the circumstances in which the same were made. Any projections contained in such materials are based upon good faith estimates and assumptions believed by Borrower to be reasonable at the time made. There are no facts known to Borrower that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect.
(m) Borrower has provided to Lender on or prior to the Term Loan Date hereof a schedule that correctly identifies the ownership interest (including all options, warrants and other rights to acquire capital stock) of Borrower and each of its Subsidiaries as of the date hereof.
(n) (i) Borrower (A) has been and is in compliance in all material respects with all applicable Environmental Laws; (B) has not received any communication, whether from a governmental authority or otherwise, alleging that Borrower is not in such compliance, and there are no past or present actions, activities, circumstances conditions, events or incidents that may prevent or interfere with such compliance in the future; (ii) there is no Environmental Claim pending or, to the best knowledge of Borrower, threatened against Borrower or against any Person whose liability for any Environmental Claim Borrower has or may have retained or assumed either contractually or by written notice delivered to Lender at least thirty operation of law; and (30iii) days prior theretothere are no past or present actions, shall advise Lender activities, circumstances, conditions, events or incidents, including, without limitation, the release, threatened release or presence of any change theretoHazardous Material, which could reasonably be expected to form the basis of any Environmental Claim against Borrower or, to the best knowledge of Borrower, against any Person whose liability for any Environmental Claim Borrower has or may have retained or assumed either contractually or by operation of law.
(i) Borrower is an “operating company” within the meaning of the regulations of the United States Department of Labor included within 29 CFR Section 2510.3-101 (the “DOL Regulations”) or is in compliance with such other exception as may be available under such regulations to prevent the assets of Borrower from being treated as the assets of any employee benefit plan for purposes of the DOL Regulations and (ii) neither Borrower nor any subsidiary of Borrower maintains or is obligated to make contributions to any employee benefit plan that is subject to Title IV of the Employee Retirement Income Security Act of 1974, as amended from time to time, and any successor statute (“ERISA”).
Appears in 1 contract
Borrower Representations. Borrower hereby represents and warrants and represents to Lender, as of the date hereof and as of the date of any Loan made hereunder, Lender that:
(a) The Persons executing the Third Amendment on behalf of the Borrower have full authority to execute the Third Amendment on behalf of Borrower and to bind Borrower thereby;
(b) The execution and delivery by Borrower of the Third Amendment and the performance thereunder by Borrower has not and will not result in a breach of or constitute a default under any mortgage, lease, bank loan, credit arrangement or other instrument or agreement to which either Borrower or the Collateral securing the Loans may be bound or affected;
(c) Borrower is and at all times hereafter shall be a Person having that legal name and organizational structure as set forth abovecorporation duly formed, duly organized and validly existing and in good standing under the laws of the state State of its organization as set forth above and qualified or licensed to do business in all other states in which the laws require Borrower to be so qualified and/or licensed, except where the failure to be qualified or licensed could not reasonably be expected to have a material adverse effectTexas;
(bd) Borrower is duly authorized and empowered to enter into, execute, deliver and perform this Loan Agreement and the Other Agreements and the The execution, delivery and/or and performance by the Borrower of this the Third Amendment and other Loan Agreement Documents as amended as of the date hereof, have been duly and validly authorized and all consents and approvals which are necessary for authorization, binding affect, performance, and enforceability of the Other Agreements shall not, by the lapse of time, the giving of notice or otherwise, constitute a violation of any applicable law or a breach of any provision contained in Borrower’s organizational documents or contained in any material agreement, instrument or document to which Borrower is now or hereafter a party or by which it is or may become bound, except where such violation or breach could not reasonably be expected to Third Amendment and all other Loan Documents have a material adverse effect;been received; and
(ce) Except as disclosed to Lender in writingBorrower will not be, there are no actions on or proceedings which are pendingafter the date hereof, or to its knowledge threatened, against Borrower, nor is Borrower a party to any contract or agreement which restricts its right or subject ability to incur indebtedness or prohibits Borrower's execution of the Third Amendment or the Fifth Amendment to Second Amended and Restated Inventory Loan Agreement and Modification of Notes, or compliance with the terms of the Loan Agreement, the Loan Documents or the Inventory Loan or Supplemental Loan. Borrower has not agreed or consent to cause or permit in the future (upon the happening of a contingency or otherwise) any charge, restriction, judgment, decree or order, which might result in any material and adverse change in its financial condition or materially affect its assets or of the Collateral, nor is Borrower whether now owned or hereafter acquired, to be subject to a Lien except in default favor of Lender as provided herein, and, with respect to any material indenture, security agreement, mortgage, deed or other similar agreement relating to the borrowing of monies to which it is a party or by which it is bound;
(d) To Borrower’s knowledge, Borrower has and is in good standing with respect to all licenses, patents, copyrights, trademarks, and trade names and Borrower has all governmental permits, certificates, consents and franchises necessary to continue to conduct its business as previously conducted by it and to own or lease and operate its properties as now owned or leased by it, except where the failure to have such permits, certificates, consents and franchises could not reasonably be expected to have a material adverse effect;
(e) The Financials fairly and accurately present in all material respects the assets, liabilities and financial conditions and results of operations of Borrower as of the date when the Financials were prepared and have been prepared in accordance with generally accepted accounting principles, consistently applied, provided that monthly financial statements are subject to year-end adjustments Real Estate Collateral and the absence Ineligible Note Portfolio, in favor of footnotes Textron and there has been no material adverse change in the assets, liabilities or financial condition of Borrower since the date of the FinancialsSovereign.
(f) As Except as disclosed on the attached Schedule 25, there are no actions, suits, proceedings, orders or injunctions pending or, to the Equipment and Collateralbest of Borrower's knowledge, (i) threatened against or affecting Borrower any Resort or the Intervals, at law or in equity, or before or by any governmental authority, in any case individually in which the claim exceeds or would reasonably be expected to exceed $50,000 or all cases for which claims in the aggregate exceed or could reasonably be expected to exceed $250,000. Borrower has and at all times hereafter shall have good, indefeasible and merchantable title to and ownership of the Collateral free and clear of all liens, claims, security interests and encumbrances except Permitted Liens; (ii) received no notice from any court or governmental authority alleging that Borrower has and at all times hereafter shall have good, indefeasible and merchantable title to and ownership of the Equipment described and/or listed on violated any certificate or schedule relating to Equipment and delivered to Lender, free and clear of all liens, claims, security interests and encumbrances except under subsections 2, 3 and 7 of the definition of Permitted Liens; (iii) the Equipment and Collateral shall be kept and/or maintained solely at the addresses identified in writing to Lender; (iv) Borrower, immediately on demand by Lender, shall deliver to Lender any and all evidence of ownership of, including without limitation, vendor invoices and proofs of payment thereof, certificates of title to and applications for title toapplicable timeshare act, any of the Equipment and Collateral; (v) Borrower shall keep and maintain the Equipment and Collateral in good operating condition and repair and shall make all necessary replacements thereof and renewals thereto so that the value and operating efficiency thereof shall at all times be maintained and preserved; and (vi) Borrower shall not permit rules or regulations thereunder, or any such items to become a fixture to real estate or accession to other personal propertyapplicable laws.
(g) As to Lender’s security interest, (i) Subject to all required filings and Permitted Liens, Lender’s security interest in Except as otherwise disclosed by the Collateral is now and at all times hereafter shall be perfected and have a first priority, and subject to all required filings, Lender’s security interest in the Equipment described and/or listed on any certificate or schedule relating to Equipment and delivered to Lender is now and at all times hereafter shall be perfected and have a first priority except under subsections 2, 3, 7, 8, 10, 11, and 12 of the definition of Permitted Liens; (ii) the offices and/or locations where Borrower keeps the Collateral and Borrower’s books and records concerning the Collateral are at the locations identified to Lender in writing and Borrower shall not remove such books and records and/or writing, since September 30, 2003, there has occurred no materially adverse change in the Collateral therefrom to any other location unless Borrower gives Lender written notice thereof at least thirty (30) days prior thereto and the same is within the contiguous forty-eight (48) states financial condition or business of the United States Borrower and its subsidiaries as shown on or reflected in the consolidated balance sheet of America; the Borrower and (iii) its subsidiaries as of September 30, 2003, or the addresses identified to Lender consolidated statement of income as of such date, other than changes in writing as Borrower’s chief executive office and principal place(s) the ordinary course of business are that have not had any materially adverse effect either individually or in the aggregate on the business or financial condition of the Borrower or any of its subsidiaries. Following Lender's receipt and approval of the Borrower’s principal offices and place(s) of business's financial statements for the fiscal year ended on December 31, 2002, and Borrowerexcept for the Allowance Increase, by written notice delivered to Lender at least thirty (there has occurred no materially adverse change in the financial condition or business of the Borrower and its subsidiaries as shown on or reflected in the consolidated balance sheet of the Borrower and its subsidiaries as of December 31, 2002, or the consolidated statement of income as of such date, other than changes in the ordinary course of business that have not had any materially adverse effect either individually or in the aggregate on the business or financial condition of the Borrower or any of its Subsidiaries. Since September 30) days prior thereto, shall advise Lender of 2003, the Borrower has not made any change theretoDistribution.
Appears in 1 contract
Sources: Receivables Loan and Security Agreement (Silverleaf Resorts Inc)
Borrower Representations. Borrower hereby represents and warrants to Lender that: (a) on the Modification Closing Date (i.e., after giving effect to this Amendment), (i) no Event of Default will exist, and represents (ii) to Borrower’s knowledge, other than any Defaults that may arise from matters disclosed in letters received in connection with the Approved Franchise Agreements for the Mortgaged Properties set forth in paragraph A of Schedule 1.3 attached hereto (copies of which have been or shall be delivered to Lender), no Default will exist; (b) except as set forth on the original Exception Report and on Exhibit E attached hereto (which Exception Report shall be deemed to include the information set forth on Exhibit E attached hereto), and as otherwise specifically disclosed in this Amendment, all representations and warranties of Borrower contained in the Loan Agreement or in any of the other Loan Documents (as the Loan Documents and such other Loan Documents are amended hereby) are true and correct as of the date hereof in all material respects, except (i) to the extent such representations and warranties expressly relate to an earlier date (other than the Closing Date), such representations and warranties shall be reaffirmed as of such earlier date, and (ii) to the extent that any of such representations or warranties by their terms are limited to Borrower’s knowledge, such reaffirmation shall also be limited to Borrower’s knowledge; (c) there have been no changes to the organizational or governing documents of Borrower or any other party (other than Lender) to the Loan Documents other than any such changes that have been previously disclosed to Lender; (d) Borrower and each other party executing this Amendment or any other Loan Documents pursuant to this Amendment have obtained all required authorizations and approvals to enter into and perform their respective obligations under this Amendment and such other Loan Documents; (e) as of the date hereof, Borrower has terminated all TRS Leases in accordance with Section 2.4 of the Original Loan Agreement, and no TRS Lessees hold any Loan made hereunder, that:
interest in the Collateral; (af) Borrower is and at all times hereafter shall be a Person having that legal name and organizational structure as the agreements set forth above, duly organized and existing and in good standing under the laws paragraph B of Schedule 1.3 attached hereto are all of the state of its organization as set forth above currently effective Mezzanine A Loan Documents; and qualified or licensed to do business in (g) all other states in which the laws require Borrower to be so qualified and/or licensed, except where the failure to be qualified or licensed could not reasonably be expected to have a material adverse effect;
(b) Borrower is duly authorized and empowered to enter into, execute, deliver and perform this Mezzanine Loan Agreement and the Other Agreements and the execution, delivery and/or performance by Borrower of this Loan Agreement and the Other Agreements shall not, by the lapse of time, the giving of notice or otherwise, constitute a violation of any applicable law or a breach of any provision contained in Borrower’s organizational documents or contained in any material agreement, instrument or document to which Borrower is now or hereafter a party or by which it is or may become bound, except where such violation or breach could not reasonably be expected to have a material adverse effect;
(c) Except as disclosed to Lender in writing, there are no actions or proceedings which are pending, or to its knowledge threatened, against Borrower, nor is Borrower a party to any contract or agreement or subject to any charge, restriction, judgment, decree or order, which might result in any material and adverse change in its financial condition or materially affect its assets or the Collateral, nor is Borrower in default Documents with respect to any material indentureMezzanine Loans B through G, security agreementinclusive, mortgage, deed or other similar agreement relating have been released pursuant to the borrowing release agreements set forth in paragraph C of monies to which it is a party or by which it is bound;
(d) To Borrower’s knowledge, Borrower has and is in good standing with respect to all licenses, patents, copyrights, trademarks, and trade names and Borrower has all governmental permits, certificates, consents and franchises necessary to continue to conduct its business as previously conducted by it and to own or lease and operate its properties as now owned or leased by it, except where the failure to have such permits, certificates, consents and franchises could not reasonably be expected to have a material adverse effect;
(e) The Financials fairly and accurately present in all material respects the assets, liabilities and financial conditions and results of operations of Borrower as of the date when the Financials were prepared and have been prepared in accordance with generally accepted accounting principles, consistently applied, provided that monthly financial statements are subject to year-end adjustments and the absence of footnotes and there has been no material adverse change in the assets, liabilities or financial condition of Borrower since the date of the FinancialsSchedule 1.3 attached hereto.
(f) As to the Equipment and Collateral, (i) Borrower has and at all times hereafter shall have good, indefeasible and merchantable title to and ownership of the Collateral free and clear of all liens, claims, security interests and encumbrances except Permitted Liens; (ii) Borrower has and at all times hereafter shall have good, indefeasible and merchantable title to and ownership of the Equipment described and/or listed on any certificate or schedule relating to Equipment and delivered to Lender, free and clear of all liens, claims, security interests and encumbrances except under subsections 2, 3 and 7 of the definition of Permitted Liens; (iii) the Equipment and Collateral shall be kept and/or maintained solely at the addresses identified in writing to Lender; (iv) Borrower, immediately on demand by Lender, shall deliver to Lender any and all evidence of ownership of, including without limitation, vendor invoices and proofs of payment thereof, certificates of title to and applications for title to, any of the Equipment and Collateral; (v) Borrower shall keep and maintain the Equipment and Collateral in good operating condition and repair and shall make all necessary replacements thereof and renewals thereto so that the value and operating efficiency thereof shall at all times be maintained and preserved; and (vi) Borrower shall not permit any such items to become a fixture to real estate or accession to other personal property.
(g) As to Lender’s security interest, (i) Subject to all required filings and Permitted Liens, Lender’s security interest in the Collateral is now and at all times hereafter shall be perfected and have a first priority, and subject to all required filings, Lender’s security interest in the Equipment described and/or listed on any certificate or schedule relating to Equipment and delivered to Lender is now and at all times hereafter shall be perfected and have a first priority except under subsections 2, 3, 7, 8, 10, 11, and 12 of the definition of Permitted Liens; (ii) the offices and/or locations where Borrower keeps the Collateral and Borrower’s books and records concerning the Collateral are at the locations identified to Lender in writing and Borrower shall not remove such books and records and/or the Collateral therefrom to any other location unless Borrower gives Lender written notice thereof at least thirty (30) days prior thereto and the same is within the contiguous forty-eight (48) states of the United States of America; and (iii) the addresses identified to Lender in writing as Borrower’s chief executive office and principal place(s) of business are Borrower’s principal offices and place(s) of business, and Borrower, by written notice delivered to Lender at least thirty (30) days prior thereto, shall advise Lender of any change thereto.
Appears in 1 contract
Sources: Third Omnibus Amendment to Loan Documents (Mortgage Loan) (W2007 Grace Acquisition I Inc)