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, 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 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. The Borrower warrants represents and represents warrants, for the benefit of Lender and the Authority, that (such representations and warranties to Lender, as remain operative and in full effect regardless of the date hereof and as funding of the date Loan or any investigations by or on behalf of any Loan made hereunder, that:
(a) the Lender or the Authority or the results thereof): The Borrower is and at all times hereafter shall be a Person having that legal name and organizational structure as set forth above, nonprofit [public benefit/religious] corporation duly organized and existing incorporated and in good standing under the laws of the state of its organization State, has or had, as set forth above appropriate, the requisite corporate right, power and qualified or licensed authority to do business in enter into this Master Loan Agreement, the Tax Certificate and Agreement, [list other Borrower documents] (collectively, the "Borrower Loan Documents") and to carry out and consummate all other states in which transactions contemplated with respect to the laws require Borrower to be so qualified and/or licensedhereby and thereby, except where the failure to be qualified or licensed could not reasonably be expected to have a material adverse effect;
(b) Borrower is and by proper corporate action has duly authorized the execution and empowered delivery of the Borrower Loan Documents. The officer[s] of the Borrower executing the Borrower Loan Documents are duly and properly in office and fully authorized to enter intoexecute the same. The Borrower has duly executed and delivered each of the Borrower Loan Documents. Each of the Borrower Loan Documents constitutes the legal, executevalid and binding agreement of the Borrower, deliver enforceable against the Borrower in accordance with its terms, except, in each case, as enforcement may be limited by bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, moratorium 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 notother laws relating to or affecting creditors’ rights, by the lapse application of timeequitable principles, regardless of whether such enforceability is considered in a proceeding in equity or at law, and by the giving exercise of judicial discretion in appropriate cases. The execution and delivery of the Borrower Loan Documents and the consummation of the transactions herein and therein contemplated [and the fulfillment of or compliance with the terms and conditions thereof] will not (1) conflict with or constitute a breach or violation of or default (with due notice or otherwisepassage of time or both) under the articles of incorporation or the bylaws of the Borrower, constitute a violation of any applicable law or a breach of administrative rule or regulation or any provision contained in Borrower’s organizational documents applicable court 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, administrative decree or order, or any indenture, mortgage, deed of trust, loan agreement, bond, debenture, note or other evidence of indebtedness or any contract, agreement, lease or other instrument to which might the Borrower is a party or to which or by which the Borrower or any of the Borrower’s property is bound, or (2) result in the creation or imposition of any material lien, charge or encumbrance of any nature whatsoever upon any of the property or assets of the Borrower, which conflict, breach, violation, default, lien, charge or encumbrance might have consequences that would materially and adverse change in its financial condition or materially adversely affect its assets the consummation of the transactions contemplated by the Borrower Loan Documents or the Collateralfinancial condition, nor is assets, properties or operations of the Borrower. No consent or approval of any trustee or holder of any indebtedness of the Borrower in default or any guarantor of indebtedness of or other provider of credit or liquidity of the Borrower, and no consent, permission, authorization, order or license of, or filing or registration with, any governmental authority (except with respect to any material indenturestate securities or “blue sky” laws) is necessary in connection with the execution and delivery of the Borrower Loan Documents or the consummation of any transaction herein or therein contemplated, security agreementor the fulfillment of or compliance with the terms and conditions hereof or thereof, mortgage[except as have been obtained or made and as are in full force and effect and except as may be required to acquire, deed construct and/or complete the Project,] all of which are expected to be obtained in the ordinary course. There is no action, suit, proceeding, inquiry or investigation, before or by any court or federal, state, municipal or other similar agreement relating governmental authority, pending or, to the borrowing knowledge of monies to which it is a party the Borrower, after reasonable investigation, threatened against or by which it is bound;
(d) To Borrower’s knowledge, affecting the 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 properties or 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: Loan Agreement, Loan Agreement
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 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, 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, 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. 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. The Borrower warrants represents and represents warrants, for the benefit of Lender and the Authority, that (such representations and warranties to Lender, as remain operative and in full effect regardless of the date hereof and as funding of the date Loan or any investigations by or on behalf of any Loan made hereunder, that:
(a) the Lender or the Authority or the results thereof): The Borrower is and at all times hereafter shall be a Person having that legal name and organizational structure as set forth above, nonprofit public benefit/religious corporation duly organized and existing incorporated and in good standing under the laws of the state of its organization State, has or had, as set forth above appropriate, the requisite corporate right, power and qualified or licensed authority to do business in enter into this Master Loan Agreement, the Tax Certificate and Agreement, [list other Borrower documents] (collectively, the "Borrower Loan Documents") and to carry out and consummate all other states in which transactions contemplated with respect to the laws require Borrower to be so qualified and/or licensedhereby and thereby, except where the failure to be qualified or licensed could not reasonably be expected to have a material adverse effect;
(b) Borrower is and by proper corporate action has duly authorized the execution and empowered delivery of the Borrower Loan Documents. The officer[s] of the Borrower executing the Borrower Loan Documents are duly and properly in office and fully authorized to enter intoexecute the same. The Borrower has duly executed and delivered each of the Borrower Loan Documents. Each of the Borrower Loan Documents constitutes the legal, executevalid and binding agreement of the Borrower, deliver enforceable against the Borrower in accordance with its terms, except, in each case, as enforcement may be limited by bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, moratorium 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 notother laws relating to or affecting creditors’ rights, by the lapse application of timeequitable principles, regardless of whether such enforceability is considered in a proceeding in equity or at law, and by the giving exercise of judicial discretion in appropriate cases. The execution and delivery of the Borrower Loan Documents and the consummation of the transactions herein and therein contemplated [and the fulfillment of or compliance with the terms and conditions thereof] will not (1) conflict with or constitute a breach or violation of or default (with due notice or otherwisepassage of time or both) under the articles of incorporation or the bylaws of the Borrower, constitute a violation of any applicable law or a breach of administrative rule or regulation or any provision contained in Borrower’s organizational documents applicable court 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, administrative decree or order, or any indenture, mortgage, deed of trust, loan agreement, bond, debenture, note or other evidence of indebtedness or any contract, agreement, lease or other instrument to which might the Borrower is a party or to which or by which the Borrower or any of the Borrower’s property is bound, or (2) result in the creation or imposition of any material lien, charge or encumbrance of any nature whatsoever upon any of the property or assets of the Borrower, which conflict, breach, violation, default, lien, charge or encumbrance might have consequences that would materially and adverse change in its financial condition or materially adversely affect its assets the consummation of the transactions contemplated by the Borrower Loan Documents or the Collateralfinancial condition, nor is assets, properties or operations of the Borrower. No consent or approval of any trustee or holder of any indebtedness of the Borrower in default or any guarantor of indebtedness of or other provider of credit or liquidity of the Borrower, and no consent, permission, authorization, order or license of, or filing or registration with, any governmental authority (except with respect to any material indenturestate securities or “blue sky” laws) is necessary in connection with the execution and delivery of the Borrower Loan Documents or the consummation of any transaction herein or therein contemplated, security agreementor the fulfillment of or compliance with the terms and conditions hereof or thereof, mortgage[except as have been obtained or made and as are in full force and effect and except as may be required to acquire, deed construct and/or complete the Project,] all of which are expected to be obtained in the ordinary course. There is no action, suit, proceeding, inquiry or investigation, before or by any court or federal, state, municipal or other similar agreement relating governmental authority, pending or, to the borrowing knowledge of monies to which it is a party the Borrower, after reasonable investigation, threatened against or by which it is bound;
(d) To Borrower’s knowledge, affecting the 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 properties or 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 1 contract
Sources: Master Loan Agreement
Borrower Representations. Borrower warrants represents, warrants, acknowledges, and represents to Lender, agrees with GTA-IB that as of the date hereof Effective Date, after due inquiry and as of the date of any Loan made hereunder, thatinvestigation:
(a) Borrower (i) is and at all times hereafter shall be a Person having that legal name and organizational structure as set forth above, duly organized and validly existing and corporation in good standing under the laws of the state of its organization Colorado, (ii) is duly qualified as set forth above and qualified or licensed to do business a foreign entity in all other states the jurisdiction in which the laws require Borrower Property is located, (iii) has the requisite entity power and authority to be so qualified and/or licensedcarry on its business as now being conducted, except where and (iv) has the failure requisite entity power to be qualified or licensed could not reasonably be expected to have a material adverse effect;execute and deliver, and perform its obligations hereunder.
(b) The execution and delivery by Borrower is duly authorized and empowered to enter into, execute, deliver and perform of this Loan Agreement and the Other Agreements performance of its obligations hereunder and consummation of the transactions contemplated herein (i) have been duly authorized by all requisite corporate action on the part of Borrower, (ii) will not violate any provision of any applicable legal requirements, any order, writ, decree, injunction or demand of any court or other applicable governmental authority with jurisdiction over Borrower or the Property, any organizational document of Borrower or any indenture or agreement or other instrument to which Borrower is a party, or by which Borrower is bound, (iii) will not be in conflict with, result in a breach of, or constitute (with due notice or lapse of time or both) a default under, or result in the creation or imposition of any lien other than to Lender in connection with the Loan of any nature whatsoever upon any of the property or assets of Borrower pursuant to any indenture or agreement or instrument, and (iv) has been duly executed and delivered by Borrower. This Agreement is enforceable against Borrower according to its terms. Except for those mentioned in Section 5.6(a) and except for those obtained or filed on or prior to the date hereof, Borrower is not required to obtain any consent, approval or authorization from, or to file any declaration or statement with, any governmental authority or other agency in connection with or as a condition to the execution, delivery and/or or performance by Borrower of this Loan Agreement and or consummate any 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 have a material adverse effect;transactions contemplated hereunder.
(c) Except Borrower owns a fee simple estate in and to the Innisbrook Real Property, subject only to Innisbrook Permitted Exceptions.
(d) Condo LLC owns a fee simple estate in and to the Condo Property, subject only to the Condo Property Permitted Exceptions.
(e) Borrower has full right, title and interest in and to the GTA Stock Interests and has not transferred, pledged or hypothecated the GTA Stock Interests other than pursuant to the Pledge Agreement.
(f) The Vested Rights (including, without limitation, the right to develop 139 residential units on the Resort Property or such greater number of units, if any, to which Borrower, Guarantor, GH Management and/or Condo Owner may have vested rights to develop, including, without limitation, the Unused Parcel F Units) shall be assigned to GTA-IB by Borrower, Guarantor, GH Management and Condo Owner, pursuant to that certain assignment agreement, a form of which is attached hereto as disclosed Exhibit J-3, (the “Vested Rights Assignment”), and none of Borrower, Guarantor, GH Management and Condo Owner, or their affiliates, shall impair or in any way diminish the Vested Rights, including, without limitation, GTA-IB’s legal standing, if any, to Lender enforce the Vested Rights without qualification or condition. Notwithstanding the foregoing, it shall not be considered an impairment or diminishment of the Vested Rights under this Agreement if the following occur: (i) if there is a final, non-appealable, judicially imposed reduction of the Vested Rights; or (ii) if the number of residential units permitted to be developed in writingconnection with Vested Rights is decreased by ten percent (10%) or less (i.e., if the 139 units permitted to be developed is decreased by 13 or fewer units).
(g) To Borrower’s knowledge, there are no actions permits, approvals, and allocations relating to the Real Property or proceedings which are pendingother similar documents other than the Permits.
(h) To Borrower’s knowledge, there exist no surveys, plans, maps, specifications, drawings and other similar documents, relating to the Real Property and owned by or in the possession of Borrower or its affiliates other than the Plans and Specifications.
(i) There exist no employment agreements, commitments, equipment leases, guarantees, contracts, undertakings, and arrangements entered into by Borrower or anyone on Borrower’s behalf, whether written and oral, relating to the Property other than the Contracts.
(j) To Borrower’s knowledge, there exist no rental agreements and leases entered into by Borrower or anyone on Borrower’s behalf, whether written and oral, relating to the Property other than the Leases.
(k) Borrower has delivered to Lender true, correct and complete originals or copies of all Contracts, Permits, Leases, Pinellas County Contracts, Wall Springs Contracts, Plans and Specifications, Warranties and Guaranties, and Insurance Policies in Borrower’s or its knowledge threatenedaffiliates’, against Borroweragents’, nor consultants’, employees’ or contractors’ possession.
(l) Borrower is Borrower not a party to any contract or agreement with Resort Manager or subject to ▇▇▇, or any chargeof their respective affiliates, restriction, judgment, decree or order, which might result in any material and adverse change in its financial condition or materially affect its assets other than the Current Management Contract 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;Westin Management Agreement.
(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;
(em) The Financials fairly Closing Date Balance Sheet (as defined below) shall reflect a true, correct and accurately present complete presentation, in all material respects (i.e., material respects shall mean an amount exceeding Twenty Thousand Dollars ($20,000) in the assetsaggregate), of the assets and liabilities relating to Borrower and financial conditions and results of operations of Borrower the Property as of the date when Closing Date, including, without limitation, the Financials were prepared amount of real property taxes and real property tax appeal consequences (including, without limitation, all related reasonably and actually incurred legal fees, penalties, interest and other directly related reasonably and actually incurred third-party costs, which amounts shall not exceed, in the aggregate, One Million Thirty Thousand Nine Hundred Dollars ($1,030,900) respecting the Property which have accrued or become payable as of the Closing Date.
(n) Borrower and Guarantor are represented by legal counsel of their choice, are fully aware of the terms contained in this Agreement, and have been prepared voluntarily and without coercion or duress entered into this Agreement and the documents executed in accordance connection with generally accepted accounting principlesthis Agreement.
(o) Neither Borrower nor Guarantor shall at any time solicit, consistently applieddirectly or indirectly, any person or persons employed at the Property for a period of five (5) years after the Closing Date; provided, however, that if a sale or refinancing of the Innisbrook Real Property is being marketed or pending at the expiration of that period, the five (5) year period shall be automatically extended for an additional one (1) year.
(p) After giving effect to the Borrower Release and the Resort Manager Release and excluding any potential liability arising from the Lawsuits, the transfers of the Property and the GTA-Stock Interests to GTA-IB and the assumption of liabilities by GTA-IB will not render Borrower insolvent.
(q) Borrower has made adequate provision for the payment of all liabilities of Borrower (including, without limitation, the liabilities of Borrower to Resort Manager) other than its liabilities to Lender and those liabilities to be assumed by GTA-IB pursuant to the terms of this Agreement.
(r) Neither Borrower nor Guarantor have entered into this transaction to provide preferential treatment to Lender, GTA-IB or any other creditor of Borrower or Guarantor in anticipation of seeking relief under the Bankruptcy Code, as amended.
(s) The only individuals employed by Borrower and Condo Owner and their affiliates with respect to the Property (including the officers of Borrower and Condo Owner and those individuals on leave of absence or layoff status) are those listed on Schedule 6.1(s) attached hereto (the “Employees”).
(t) Other than those rights and benefits listed on Schedule 1.1(r), there are no other contractual, real property or other rights or benefits of Borrower or Guarantor or their respective affiliates that exist in any form respecting Parcels J-1, J-2 or K. Other than those consents and notices listed on Schedule 6.1(t)-1, there are no Consents or Notices (defined below) required to be executed or delivered in connection with an assignment of any Property to GTA-IB. Other than those agreements and contracts set forth in Schedule 6.1(t)-2, there are no other agreements or contracts or understandings, written or otherwise, relating to the sale of Parcels J-1, J-2 and K by Borrower (the “Parcel J and K Contracts”). For the purposes of this paragraph, “Consents and Notices” shall mean those consents and notices required under those certain contracts, agreements or understandings, excepting those contracts, agreements or understandings which: (i) shall have a commercial value or cost of less than Ten Thousand Dollars ($10,000) individually, provided that monthly financial statements are subject to year-end adjustments the collective commercial value or cost of all such contracts, agreements and understandings meeting the absence of footnotes and there has been no material adverse change aforesaid monetary criterion shall not exceed Fifty Thousand Dollars ($50,000) in the assets, liabilities aggregate; 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 may be terminated at all times hereafter shall have good, indefeasible and merchantable title to and ownership of the Equipment described and/or listed on any certificate time with no cost 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 Lienspenalty; or (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 term 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 less than thirty (30) days and may be cancelled without cost or penalty at the expiration of that period. Notwithstanding anything contained in this Section 6.1(t), in no event shall Borrower have any liability with respect to any contract or obligation which requires a Consent or Notice if GTA-IB does not terminate or attempt to terminate such contract or obligation.
(u) All amounts required to be funded to the retirement accounts relating to the Targeted Employees and Other Employees (the “Retirement Accounts”) are fully funded and no Retirement Account or amount contained there has been pledged, encumbered or hypothecated.
(v) Any Parcel F Contract delivered to GTA-IB on or prior to the Closing Date, (together with true, correct and complete copies of all attachments thereto) is (1) a true, correct and complete original thereof, enforceable against the parties thereto, and (2) no side letters or other modifications thereto exist.
(w) There is no action, suit or proceeding, or any governmental investigation or any arbitration, in each case pending or, to the knowledge of Borrower, threatened against Borrower, GH Securities or the Property before any governmental or administrative body, agency or official which if adversely determined would affect the use and operation of the Property or the business, financial condition or results of operations of Borrower, GH Securities or the Property except for the ▇▇▇▇▇▇▇▇▇▇ Litigation or as set forth on Schedule 6.1(w) hereof. In addition, none of Borrower, Guarantor, GH Securities, GH Management or the Condo Owner, nor their respective affiliates, are aware of any right to commence, have commenced, or intend to commence any legal action, administrative proceeding, arbitration, or mediation before any governmental or administrative body, agency or official in any way relating to the Property or the business, financial condition or results of operations of the Property, except for the ▇▇▇▇▇▇▇▇▇▇ Litigation or as set forth on Schedule 6.1(w) hereof (all such matters listed on Schedule 6.1(w) are collectively the “Litigation”). Any future legal actions, administrative proceedings, arbitrations, or mediations commenced by such parties in any way relating to the Property or the business, financial condition or results of operations of the Property shall be referred to as the “Future Litigation.” Borrower has delivered true, correct and complete copies of all existing pleadings, court documents, deposition transcripts, legal memoranda and settlement proposals in respect of the Lawsuits, the ▇▇▇▇▇▇▇▇▇▇ Litigation and the same Litigation to GTA-IB and its counsel, unless such delivery would waive attorney-client privilege (and Borrower has informed GTA-IB and its counsel in writing when it has asserted such attorney-client privilege).
(x) Borrower is within not aware of any payments in the contiguous forty-eight nature of Termination Payments which Borrower has not disclosed in writing to Lender, and such writing shall make specific reference to this Agreement.
(48y) states The Current Troon Agreement (i) is the only agreement relating to the management and/or operation of the United States of America; Innisbrook Golf Courses, other than the Troon Management Agreement, (ii) has not been modified or amended, and (iii) has not been extended or renewed by Borrower, except insofar as it is currently being extended on a month to month basis.
(z) Neither Borrower nor Resort Manager has, since January 1, 2001, applied any revenues, assets and/or credit capacities of the addresses identified Resort Property other than to costs, expenses and improvements specifically relating to the Resort Property.
(aa) As of the Effective Date, Schedule 6.1(aa)-1 attached hereto is a true, correct and complete description of the job titles, employment dates and aggregate annual cash compensation (all such information shall be accurate as of the Effective date) for each of the Employees. As of the Effective Date, except as specifically set forth on Schedule 6.1(aa)-1 attached hereto, (a) Borrower does not have any outstanding loan from or to any affiliate, or any agent or Employee, and (b) no material representations, warranties or covenants have been made to, or agreements have been reached with, any Employee in material variance with the provisions of the employee manual with respect to their employment, compensation or benefits. No Employee has given written notice as of the Effective Date of their plans to terminate employment with Borrower during the twelve (12) months subsequent to the Effective Date. Schedule 6.1(aa)-2 attached hereto sets forth a list of each Employee who has a management, employment or bonus contract, or contract for personal services with Borrower.
(bb) Schedule 6.1(bb) attached hereto contains a true, correct and complete list of all employee benefit, bonus, auto allowance, consulting, change in control, fringe benefit plans and collective bargaining, employment or severance agreements or other similar arrangements, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether formal or informal, oral or written, legally binding or not, under which any Employee or Other Employee has any present or future right to benefits sponsored or maintained by Borrower or to which Borrower is a party, is required to make any contribution, or by which any of them is bound, or with respect to which any of them has any liability or obligation, including, without limitation, (i) any profit-sharing, deferred compensation, bonus, stock option, stock purchase, or other equity-based compensation, pension, retainer, consulting, retirement, severance, plant closing, loan or loan guarantee, change in control, welfare or incentive plan, agreement or arrangement, (ii) any plan, agreement or arrangement providing for “fringe benefits” or perquisites to any Employee or Other Employee officers, directors or agents, including, without limitation, benefits relating to automobiles, clubs, vacation, child care, parenting, sabbatical, sick leave, medical, dental, hospitalization, life insurance and other types of insurance, (iii) any written employment agreement, or (iv) any other “employee benefit plan” (within the meaning of Sections 3(3) and 3(37) of ERISA, including, without limitation, multiemployer plans) (each, a “GHR Employee Plan,” and collectively, the “GHR Employee Plans”). There has been no amendment to the GHR Employee Plans since January 1, 2001, which is the date on which Borrower delivered copies of the GHR Employee Plans to GTA-IB. Other than those rights and obligations contained in the GHR Employee Plans as of the Closing Date, notwithstanding anything to the contrary, nothing in this Agreement or otherwise shall create any additional rights (or expand any existing rights) of any person or beneficiary in connection with the GHR Employee Plans.
(cc) Borrower has made available to Lender in writing as Borrower’s chief executive office true, correct and principal place(scomplete copies of (i) of business are Borrower’s principal offices all material documents and place(s) of business, and Borrower, by existing written notice delivered to Lender at least thirty summary plan descriptions (30) days prior thereto, shall advise Lender of any change thereto.and
Appears in 1 contract
Sources: Settlement Agreement (Gta-Ib, 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 '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 represents and warrants and represents to Lender, as of the date hereof and as of the date of any Loan made hereunder, thatfollows:
(a) The execution and delivery by Borrower is of this Amendment 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 the transactions herein contemplated (i) are and the Other Agreements shall notwill be within each Borrower's corporate powers, (ii) have been authorized by the lapse of timeall necessary corporate action, the giving of notice or otherwise, constitute a violation and (iii) are not and will not be in contravention of any applicable order of any court or other agency or government, of law or a breach of any provision contained in Borrower’s organizational documents other indenture, agreement or contained in any material agreement, instrument or document undertaking to which any 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 the property of any Borrower is bound;, or in conflict with, or result in a breach of or constitute (with due notice and/or lapse of time) a default under any such indenture, agreement or undertaking or result in the imposition of any lien, charge or incumbrance of any nature on any Property of any Borrower.
b) This Amendment and any other agreements, instruments and documents executed and/or delivered in connection herewith or shall be valid, binding and enforceable against each Borrower in accordance with their respective terms.
c) After giving effect to this Amendment, (di) To Borrower’s knowledgethe representations and warranties herein, Borrower has in the Loan Agreement and is in good standing with respect each other Loan Document and certificate or other writing delivered to all licenses, patents, copyrights, trademarks, the Agent or the Lenders on or prior to the date hereof shall be correct and trade names accurate on 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 hereof as though made on and as of such date (subject to the Financials were prepared provisions of Section 7.2 of the Loan Agreement); and have been prepared (ii) no Default or Event of Default has occurred and is continuing on the date hereof or would result from this Amendment becoming effective in accordance with generally accepted accounting principlesits terms.
d) No authorization or approval or other action by, consistently appliedand no notice to or filing with, provided that monthly financial statements are subject to year-end adjustments any governmental authority or other regulatory body is required in connection with the due execution, delivery and performance by any Borrower of this Amendment or the absence of footnotes and there has been no material adverse change in the assets, liabilities or financial condition of performance by such Borrower since the date of the FinancialsLoan Agreement, as amended hereby.
(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
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. 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”).
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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