Additional Representations, Warranties and Covenants. Borrower represents and warrants (each of which such representations and warranties shall be deemed repeated upon the making of a request for a Revolving Credit Advance and made as of the time of each Revolving Credit Advance made hereunder), and covenants that: (a) Saba and Santa Maria is each a corporation duly o▇▇▇▇▇zed and validly existing under the laws of the State of California and Greka is a corporation duly organized and validly existing under the laws of the State of Colorado and each Borrower is duly qualified and in good standing in every other state or jurisdiction in which the nature of Borrower's business requires such qualification except where the failure to qualify would not have a material adverse effect on the Borrower=s business.; (b) the execution, delivery and performance of this Agreement and the Ancillary Agreements (i) have been duly authorized, (ii) are not in contravention of Borrower's certificate of incorporation, by-laws or of any indenture, agreement or undertaking to which Borrower is a party or by which Borrower is bound and (iii) are within Borrower's corporate powers; (c) this Agreement and the Ancillary Agreements executed and delivered by Borrower are Borrower's legal, valid and binding obligations, enforceable in accordance with their terms; (d) it keeps and will continue to keep all of its books and records concerning the Collateral at Borrower's executive offices located at the address set forth in the introductory paragraph of this Agreement and will not move such books and records without giving Lender at least thirty (30) days prior written notice; (i) the operation of Borrower's business is and will continue to be in compliance in all material respects with all applicable federal, state and local laws, including but not limited to all applicable environmental laws and regulations and Sanction/Embargo Programs. (ii) Borrower has established and maintained and will continue to maintain a system to assure and monitor continued compliance with all applicable environmental laws, and Sanction/Embargo Programs, which system shall include periodic reviews of such compliance. (iii) in the event the Borrower obtains, gives or receives notice of any release or threat of release of a reportable quantity of any Hazardous Substances on its property (any such event being hereinafter referred to as a "Hazardous Discharge") or receives any notice of violation, request for information or notification that it is potentially responsible for investigation or cleanup of environmental conditions on its property, demand letter or complaint, order, citation, or other written notice with regard to any Hazardous Discharge or violation of any environmental laws affecting its property or Borrower's interest therein (any of the foregoing is referred to herein as an "Environmental Complaint") from any Person or entity, including any state agency responsible in whole or in part for environmental matters in the state in which such property is located or the United States Environmental Protection Agency (any such person or entity hereinafter the "Authority"), then the Borrower shall, within five (5) Business Days, give written notice of same to the Lender detailing facts and circumstances of which the Borrower is aware giving rise to the Hazardous Discharge or Environmental Complaint and periodically inform Lender of the status of the matter. Such information is to be provided to allow the Lender to protect its security interest in the Collateral and is not intended to create nor shall it create any obligation upon the Lender with respect thereto. (iv) Borrower shall respond promptly to any Hazardous Discharge or Environmental Complaint and take all necessary action in order to safeguard the health of any Person and to avoid subjecting the Collateral to any lien, charge, claim or encumbrance. If Borrower shall fail to respond promptly to any Hazardous Discharge or Environmental Complaint or Borrower shall fail to comply with any of the requirements of any environmental laws, the Lender may, but without the obligation to do so, for the sole purpose of protecting the Lender's interest in Collateral: (A) give such notices or (B) enter onto Borrower's property (or authorize third parties to enter onto such property) and take such actions as the Lender (or such third parties as directed by the Lender) deem reasonably necessary or advisable, to clean up, remove, mitigate or otherwise deal with any such Hazardous Discharge or Environmental Complaint. All reasonable costs and expenses directly incurred by the Lender (or such third parties) in the exercise of any such rights, including any sums paid in connection with any judicial or administrative investigation or proceedings, fines and penalties, together with interest thereon from the date expended at the Default Rate for Revolving Credit Advances shall be paid upon demand by the Borrower, and until paid shall be added to and become a part of the Obligations secured by the liens created by the terms of this Agreement or any other agreement between Lender and Borrower. (v) Borrower shall defend and indemnify the Lender and hold the Lender harmless from and against all loss, liability, damage and expense, claims, costs, fines and penalties, including attorney's fees, directly suffered or incurred by the Lender under or on account of A. any environmental laws, including, without limitation, the assertion of any lien thereunder, with respect to any Hazardous Discharge, the presence of any Hazardous Substances affecting Borrower's property, whether or not the same originates or emerges from Borrower's property or any contiguous real estate, including any loss of value of the Collateral as a result of the foregoing except to the extent such loss, liability, damage and expense is attributable to any Hazardous Discharge resulting from actions on the part of the Lender, and B. any Sanction/Embargo Program. The Borrower's obligations under Section 12(e)(v) A. shall arise upon the discovery of the presence of any Hazardous Substances on the Borrower's property, whether or not any federal, state, or local environmental agency has taken or threatened any action in connection with the presence of any Hazardous Substances, and under Section 12(e)(v) B on failure to comply with any Sanction/Embargo Program. The Borrower's obligation and the indemnifications hereunder shall survive the termination of this Agreement. (vi) For purposes of Section 12
Appears in 1 contract
Additional Representations, Warranties and Covenants. Borrower ---------------------------------------------------- represents and warrants (each of which such representations and warranties shall be deemed repeated upon the making of a request for a Revolving Credit Advance and made as of the time of each Revolving Credit Advance made hereunder), and covenants that:
(a) Saba Borrower is duly incorporated and Santa Maria is each a corporation duly o▇▇▇▇▇zed and validly existing in good standing under the laws of the State of California Delaware and Greka is a corporation duly organized qualified to do business and validly existing under the laws of the State of Colorado and each Borrower is duly qualified and in good standing in every other state or jurisdiction the states listed on Schedule 12(a)(ii) which constitute all states in which the nature of Borrower's ------------------ qualification and good standing are necessary for Borrower to conduct its business requires such qualification except and own its property and where the failure to so qualify would not have a material adverse effect on the Borrower=s Borrower or its business.. Borrower has delivered to Agent true and complete copies of its certificate of incorporation and by-laws and will promptly notify Agent of any amendment or changes thereto;
(b) the only Subsidiaries of Borrower are listed on Schedule 12(b); --------------
(c) the execution, delivery and performance of this Agreement and the Ancillary Agreements (i) have been duly authorized, (ii) are not in contravention of Borrower's certificate of incorporation, by-laws or of any indenture, agreement or undertaking to which Borrower is a party or by which Borrower is bound and (iii) are within Borrower's corporate powers;
(cd) this Agreement and the Ancillary Agreements executed and delivered by Borrower are Borrower's legal, valid and binding obligations, enforceable in accordance with their terms;
(de) it Borrower keeps and will continue to keep all of its books and records concerning the Collateral at Borrower's executive offices located at the address addresses set forth in the introductory paragraph of this Agreement on Schedule 12(e) and will not move such books and records -------------- without giving Lender Agent at least thirty (30) days prior written notice;
(i) the operation of Borrower's business is and will continue to be in compliance in all material respects with all applicable federal, state and local laws, including but not limited to all applicable environmental laws and regulations and Sanction/Embargo Programs.regulations;
(ii) Borrower has established will establish and maintained and will continue to maintain a system to assure and monitor continued compliance with all applicable environmental laws, and Sanction/Embargo Programs, which system shall include periodic reviews of such compliance.
(iii) in In the event the Borrower obtains, gives or receives notice of any release or threat of release of a reportable quantity of any Hazardous Substances on its property (any such event being hereinafter referred to as a "Hazardous Discharge") or receives any notice of violation, request for information or notification that it is potentially responsible for investigation or cleanup of environmental conditions on its property, demand letter or complaint, order, citation, or other written notice with regard to any Hazardous Discharge or violation of any environmental laws affecting its property or Borrower's interest therein (any of the foregoing is referred to herein as an "Environmental Complaint") from any Person or entity, including any state agency responsible in whole or in part for environmental matters in the state in which such property is located or the United States Environmental Protection Agency (any such person or entity hereinafter the "Authority"), then the Borrower shall, within five (5) Business Days, give written notice of same to the Lender Agent detailing facts and circumstances of which the Borrower is aware giving rise to the Hazardous Discharge or Environmental Complaint and periodically inform Lender Agent of the status of the matter. Such information is to be provided to allow the Lender Agent to protect its security interest in the Collateral and is not intended to create nor shall it create any obligation upon the Lender Agent or Lenders with respect thereto.
(iv) Borrower shall respond promptly to any Hazardous Discharge or Environmental Complaint and take all necessary action in order to safeguard the health of any Person and to avoid subjecting the Collateral to any lien, charge, claim or encumbrance. If Borrower shall fail to respond promptly to any Hazardous Discharge or Environmental Complaint or Borrower shall fail to comply with any of the requirements of any environmental laws, the Lender Agent may, but without the obligation to do so, for the sole purpose of protecting the LenderAgent's interest in Collateral: (A) give such notices or (B) enter onto Borrower's property (or authorize third parties to enter onto such property) and take such actions as the Lender Agent (or such third parties as directed by the LenderAgent) deem reasonably necessary or advisable, to clean up, remove, mitigate or otherwise deal with any such Hazardous Discharge or Environmental Complaint. All reasonable costs and expenses directly incurred by the Lender Agent (or such third parties) in the exercise of any such rights, including any sums paid in connection with any judicial or administrative investigation or proceedings, fines and penalties, together with interest thereon from the date expended at the Default Rate for Revolving Credit Advances shall be paid upon demand by the Borrower, and until paid shall be added to and become a part of the Obligations secured by the liens created by the terms of this Agreement or any other agreement between Lender Agent and Borrower.
(v) Borrower shall defend and indemnify the Lender Agent and Lenders and hold the Lender Agent and Lenders harmless from and against all loss, liability, damage and expense, claims, costs, fines and penalties, including attorney's fees, directly suffered or incurred by the Agent or any Lender under or on account of A. any environmental laws, including, without limitation, the assertion of any lien thereunder, with respect to any Hazardous Discharge, the presence of any Hazardous Substances hazardous substances affecting Borrower's property, whether or not the same originates or emerges from Borrower's property or any contiguous real estate, including any loss of value of the Collateral as a result of the foregoing except to the extent such loss, liability, damage and expense is attributable to any Hazardous Discharge resulting from actions on the part of the Agent or any Lender, and B. any Sanction/Embargo Program. The Borrower's obligations under this Section 12(e)(v12(f) A. shall arise upon the discovery of the presence of any Hazardous Substances on the Borrower's property, whether or not any federal, state, or local environmental agency has taken or threatened any action in connection with the presence of any Hazardous Substances, and under Section 12(e)(v) B on failure to comply with any Sanction/Embargo Programhazardous substances. The Borrower's obligation and the indemnifications hereunder shall survive the termination of this Agreement.
(vi) For purposes of this Section 12
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (World Wrestling Federation Entertainment Inc)
Additional Representations, Warranties and Covenants. Each Borrower represents and represents, warrants (each of which such representations and warranties shall be deemed repeated upon the making of a request for a Revolving Credit Advance and made as of the time of each Revolving Credit Advance made hereunder), and covenants thatas follows:
(a) Saba and Santa Maria is each a corporation duly o▇▇▇▇▇zed and validly existing under the laws of the State of California and Greka Each Borrower is a corporation or limited liability company, as applicable, duly organized and validly existing under the laws of the State jurisdiction of Colorado its incorporation, organization or formation and each Borrower is duly qualified and in good standing in every other state or jurisdiction in which the nature of such Borrower's business requires such qualification except where the failure to qualify would could not reasonably be expected to have a material adverse effect on the Borrower=s businessMaterial Adverse Effect.;
(b) the The execution, delivery and performance of this Agreement and the Ancillary Agreements (i) have been duly authorized, (ii) are not in contravention of such Borrower's certificate of incorporationincorporation or formation, by-laws laws, operating agreement or of any material indenture, agreement or undertaking to which such Borrower is a party or by which Borrower is bound and (iii) are within such Borrower's corporate powers;.
(c) this This Agreement and the Ancillary Agreements executed and delivered by each Borrower are such Borrower's legal, valid and binding obligations, enforceable in accordance with their terms;.
(d) EXHIBIT 12(d) sets forth each Borrower's name as it keeps and will continue to keep all appears in official filing in the state of its books and records concerning incorporation or organization, the Collateral at type of entity of such Borrower, the organizational identification number issued by such Borrower's state of incorporation or organization or a statement that no such number has been issued, such Borrower's state of organization or incorporation, and the location of such Borrower's chief executive offices located at office, corporate offices, warehouses, other locations of Collateral and locations where records with respect to Collateral are kept (including in each case the address county of such locations) and, except as set forth in such EXHIBIT 12(d), such locations have not changed during the introductory paragraph preceding twelve months. As of this Agreement and the Closing Date, during the prior five years, except as set forth in EXHIBIT 12(D), no Borrower has been known as or conducted business in any other name (including trade names). Each Borrower has only one state of incorporation or organization.
(e) No Borrower will not move such books and records without giving change (i) its name as it appears in the official filings in the state of its incorporation or formation, (ii) the type of legal entity it is, (iii) its organization identification number, if any, issued by its state of incorporation or organization, (iv) its state of incorporation or organization or (v) amend its certificate of incorporation, by-laws, certificate of formation, operating agreement or other organizational document; provided, however that any Borrower may do any of the foregoing so long as it gives Lender at least thirty fifteen (3015) days prior written notice;notice and none of the foregoing changes will have any effect on the priority of Liens in favor of Lender, the value of the assets in which Lender has a Lien or the enforceability of this Agreement.
(i) the Borrowers have delivered to Lender all environmental assessments, audits, reports, permits, licenses and other material documents describing or relating in any way to Borrowers' business or its property.
(ii) The operation of each Borrower's business is and will continue to be in compliance in all material respects with all applicable federal, state and local laws, rules and ordinances, including but not limited to all applicable environmental laws and laws, rules, regulations and Sanction/Embargo Programs.
(ii) Borrower has established orders relating to taxes, payment and maintained withholding of payroll taxes, employer and employee contributions and similar items, securities, employee retirement and welfare benefits, employee health safety and environmental matters. Borrowers will continue to establish and maintain a system to assure and monitor continued compliance with all applicable environmental laws, and Sanction/Embargo Programs, which system shall include periodic reviews of such compliance.
(iii) in the event the Borrower obtains, gives or receives notice of any release or threat of release of a reportable quantity of any Hazardous Substances on its property (any such event being hereinafter referred to as a "Hazardous Discharge") or receives any notice of violation, request for information or notification that it is potentially responsible for investigation or cleanup of environmental conditions on its property, demand letter or complaint, order, citation, or other written notice with regard to any Hazardous Discharge or violation of any environmental laws affecting its property or Borrower's interest therein (any of the foregoing is referred to herein as an "Environmental Complaint") from any Person or entity, including any state agency responsible in whole or in part for environmental matters in the state in which such property is located or the United States Environmental Protection Agency (any such person or entity hereinafter the "Authority"), then the Borrower shall, within five (5) Business Days, give written notice of same to the Lender detailing facts and circumstances of which the Borrower is aware giving rise to the Hazardous Discharge or Environmental Complaint and periodically inform Lender of the status of the matter. Such information is to be provided to allow the Lender to protect its security interest in the Collateral and is not intended to create nor shall it create any obligation upon the Lender with respect thereto.
(iv) Borrower shall respond promptly to any Hazardous Discharge or Environmental Complaint and take all necessary action in order to safeguard the health of any Person and to avoid subjecting the Collateral to any lien, charge, claim or encumbrance. If Borrower shall fail to respond promptly to any Hazardous Discharge or Environmental Complaint or Borrower shall fail to comply with any of the requirements of any environmental laws, the Lender may, but without the obligation to do so, for the sole purpose of protecting the Lender's interest in Collateral: (A) give such notices or (B) enter onto Borrower's property (or authorize third parties to enter onto such property) and take such actions as the Lender (or such third parties as directed by the Lender) deem reasonably necessary or advisable, to clean up, remove, mitigate or otherwise deal with any such Hazardous Discharge or Environmental Complaint. All reasonable costs and expenses directly incurred by the Lender (or such third parties) in the exercise of any such rights, including any sums paid in connection with any judicial or administrative investigation or proceedings, fines and penalties, together with interest thereon from the date expended at the Default Rate for Revolving Credit Advances shall be paid upon demand by the Borrower, and until paid shall be added to and become a part of the Obligations secured by the liens created by the terms of this Agreement or any other agreement between Lender and Borrower.
(v) Borrower shall defend and indemnify the Lender and hold the Lender harmless from and against all loss, liability, damage and expense, claims, costs, fines and penalties, including attorney's fees, directly suffered or incurred by the Lender under or on account of A. any environmental laws, including, without limitation, the assertion of any lien thereunder, with respect to any Hazardous Discharge, the presence of any Hazardous Substances affecting Borrower's property, whether or not the same originates or emerges from Borrower's property or any contiguous real estate, including any loss of value of the Collateral as a result of the foregoing except to the extent such loss, liability, damage and expense is attributable to any Hazardous Discharge resulting from actions on the part of the Lender, and B. any Sanction/Embargo Program. The Borrower's obligations under Section 12(e)(v) A. shall arise upon the discovery of the presence of any Hazardous Substances on the Borrower's property, whether or not any federal, state, or local environmental agency has taken or threatened any action in connection with the presence of any Hazardous Substances, and under Section 12(e)(v) B on failure to comply with any Sanction/Embargo Program. The Borrower's obligation and the indemnifications hereunder shall survive the termination of this Agreement.
(vi) For purposes of Section 12
Appears in 1 contract
Additional Representations, Warranties and Covenants. Each Borrower represents represents, warrants and warrants (each covenants with and to Lender as follows, which representations, warranties and covenants are continuing and shall survive the execution and delivery hereof, and the truth and accuracy of, or compliance with each, together with the representations, warranties and covenants in the other Financing Agreements, being a continuing condition of which such representations and warranties shall be deemed repeated upon the making of a request for a Revolving Credit Advance and made as of the time of each Revolving Credit Advance made hereunder), and covenants thatLoans by Lender to Borrower:
(a) Saba and Santa Maria is each a corporation duly o▇▇▇▇▇zed and validly existing under the laws All of the State of California representations and Greka is a corporation duly organized warranties set forth in the Loan Agreement and validly existing under the laws other Financing Agreements, each as amended hereby, are true and correct in all material respects on and as of the State date hereof as if made on the date hereof, except to the extent any such representation or warranty is made as of Colorado and each Borrower is duly qualified and in good standing in every other state or jurisdiction a specified date, in which the nature case such representation or warranty shall have been true and correct as of Borrower's business requires such qualification except where the failure to qualify would not have a material adverse effect on the Borrower=s businessdate.;
(b) No Event of Default or act, condition or event which with notice or passage of time or both would constitute an Event of Default exists or has occurred as of the execution, delivery and performance date of this Agreement Amendment (after giving effect to the amendments to the Financing Agreements made by this Amendment).
(c) This Amendment and the Ancillary Sun Stock Purchase Agreements (i) have has been duly authorizedexecuted and delivered by each Borrower and each is in full force and effect as of the date hereof and the agreements and obligations of each Borrower contained herein and therein constitute legal, valid and binding obligations of such Borrower enforceable against such Borrower in accordance with their respective terms.
(iid) are Each Borrower and One Price VI do not have and shall not have any property or other interest in contravention the Second ERF Letter of BorrowerCredit or in any funds available or drawn thereunder.
(e) Borrowers and One Price VI shall take such steps and execute and deliver, and cause to be executed and delivered, to Lender, such additional UCC financing statements and termination statements, and other and further agreements, documents and instruments as Lender may require in order to more fully evidence, perfect and protect Lender's certificate security interest in the Collateral of incorporationOne Price VI.
(f) None of the transactions contemplated by this Amendment and the Sun Stock Purchase Agreements violate or will violate any applicable law or regulation, by-laws or of do or will give rise to a default or breach under any indenture, agreement or undertaking to which any Borrower or One Price VI is a party or by which Borrower any of their property is bound and (iiiexcept for the defaults created by the failure to obtain the consents described in Section 5(g) are within Borrower's corporate powers;
(c) this Agreement and the Ancillary Agreements executed and delivered by Borrower are Borrower's legal, valid and binding obligations, enforceable in accordance with their terms;
(d) it keeps and will continue to keep all of its books and records concerning the Collateral at Borrower's executive offices located at the address set forth in the introductory paragraph of this Agreement and will not move such books and records without giving Lender at least thirty (30) days prior written notice;
(i) the operation of Borrower's business is and will continue to be in compliance in all material respects with all applicable federal, state and local laws, including but not limited to all applicable environmental laws and regulations and Sanction/Embargo Programsbelow).
(iig) Borrower has established Borrowers have delivered true, correct and maintained complete copies of any and will continue all consents, waivers or approvals to maintain a system to assure or of this Amendment and monitor continued compliance with all applicable environmental laws, and Sanction/Embargo Programsthe Sun Stock Purchase Agreements, which system any Borrower or One Price VI is required to obtain from any other Person (other than the consents required under certain lease agreements, for which the Borrowers shall include periodic reviews of such complianceuse reasonable commercial efforts to obtain).
(iiih) in Borrowers and One Price VI are not aware of the event the Borrower obtains, gives existence or receives notice occurrence of any release act, condition or threat event which would permit the beneficiary under the Designated Letter of release of Credit identified on Exhibit A hereto to make a reportable quantity of any Hazardous Substances draw thereunder and such beneficiary has not advised Borrowers or One Price VI on its property (any such event being hereinafter referred or prior to as a "Hazardous Discharge") or receives any notice of violation, request for information or notification the date hereof that it is potentially responsible for investigation or cleanup of environmental conditions on its property, demand letter or complaint, order, citation, or other written notice with regard intends to make any Hazardous Discharge or violation of any environmental laws affecting its property or Borrower's interest therein (any of the foregoing is referred to herein as an "Environmental Complaint") from any Person or entity, including any state agency responsible in whole or in part for environmental matters in the state in which such property is located or the United States Environmental Protection Agency (any such person or entity hereinafter the "Authority"), then the Borrower shall, within five (5) Business Days, give written notice of same to the Lender detailing facts and circumstances of which the Borrower is aware giving rise to the Hazardous Discharge or Environmental Complaint and periodically inform Lender of the status of the matter. Such information is to be provided to allow the Lender to protect its security interest in the Collateral and is not intended to create nor shall it create any obligation upon the Lender with respect theretodraw thereunder.
(iv) Borrower shall respond promptly to any Hazardous Discharge or Environmental Complaint and take all necessary action in order to safeguard the health of any Person and to avoid subjecting the Collateral to any lien, charge, claim or encumbrance. If Borrower shall fail to respond promptly to any Hazardous Discharge or Environmental Complaint or Borrower shall fail to comply with any of the requirements of any environmental laws, the Lender may, but without the obligation to do so, for the sole purpose of protecting the Lender's interest in Collateral: (A) give such notices or (B) enter onto Borrower's property (or authorize third parties to enter onto such property) and take such actions as the Lender (or such third parties as directed by the Lender) deem reasonably necessary or advisable, to clean up, remove, mitigate or otherwise deal with any such Hazardous Discharge or Environmental Complaint. All reasonable costs and expenses directly incurred by the Lender (or such third parties) in the exercise of any such rights, including any sums paid in connection with any judicial or administrative investigation or proceedings, fines and penalties, together with interest thereon from the date expended at the Default Rate for Revolving Credit Advances shall be paid upon demand by the Borrower, and until paid shall be added to and become a part of the Obligations secured by the liens created by the terms of this Agreement or any other agreement between Lender and Borrower.
(v) Borrower shall defend and indemnify the Lender and hold the Lender harmless from and against all loss, liability, damage and expense, claims, costs, fines and penalties, including attorney's fees, directly suffered or incurred by the Lender under or on account of A. any environmental laws, including, without limitation, the assertion of any lien thereunder, with respect to any Hazardous Discharge, the presence of any Hazardous Substances affecting Borrower's property, whether or not the same originates or emerges from Borrower's property or any contiguous real estate, including any loss of value of the Collateral as a result of the foregoing except to the extent such loss, liability, damage and expense is attributable to any Hazardous Discharge resulting from actions on the part of the Lender, and B. any Sanction/Embargo Program. The Borrower's obligations under Section 12(e)(v) A. shall arise upon the discovery of the presence of any Hazardous Substances on the Borrower's property, whether or not any federal, state, or local environmental agency has taken or threatened any action in connection with the presence of any Hazardous Substances, and under Section 12(e)(v) B on failure to comply with any Sanction/Embargo Program. The Borrower's obligation and the indemnifications hereunder shall survive the termination of this Agreement.
(vi) For purposes of Section 12
Appears in 1 contract
Sources: Continuing Commercial Credit Agreement (One Price Clothing Stores Inc)
Additional Representations, Warranties and Covenants. Borrower represents and warrants (each of which such representations and warranties shall be deemed repeated upon the making of a request for a Revolving Credit Advance and made as of the time of each Revolving Credit Advance made hereunder), and covenants that:
(a) Saba and Santa Maria is each a corporation duly o▇▇▇▇▇zed and validly existing under the laws of the State of California and Greka Borrower is a corporation duly organized and validly existing under the laws of the State of Colorado New York and each Borrower is duly qualified and in good standing in every other state or jurisdiction in which the nature of Borrower's business requires such qualification except where the failure to qualify would not have a material adverse effect on the Borrower=s business.qualification;
(b) the execution, delivery and performance of this Agreement and the Ancillary Agreements (i) have been duly authorized, (ii) are not in contravention of Borrower's certificate of incorporationincor-poration, by-laws or of any indenture, agreement or undertaking to which Borrower is a party or by which Borrower is bound and (iii) are within Borrower's corporate powers;
(c) this Agreement and the Ancillary Agreements executed and delivered by Borrower are Borrower's legal, valid and binding obligations, enforceable in accordance with their terms;
(d) it keeps and will continue to keep all of its books and records concerning the Collateral at Borrower's executive offices located at the address set forth in the introductory paragraph of this Agreement and will not move such books and records without giving Lender at least thirty (30) days prior written notice;
(i) the operation of Borrower's business is and will continue to be in compliance in all material respects with all applicable federal, state and local laws, including but not limited to all applicable environmental laws and regulations and Sanction/Embargo Programs.regulations;
(ii) Borrower has established will establish and maintained and will continue to maintain a system to assure and monitor continued compliance with all applicable environmental laws, and Sanction/Embargo Programs, which system shall include periodic reviews of such compliance.;
(iii) in In the event the Borrower obtains, gives or receives notice of any release or threat of release of a reportable quantity of any Hazardous Substances hazardous substances on its property (any such event being hereinafter referred to as a "Hazardous Discharge") or receives any notice of violation, request for information or notification that it is potentially responsible for investigation or cleanup of environmental conditions on its property, demand letter or complaint, order, citation, or other written notice with regard to any Hazardous Discharge or violation of any environmental laws affecting its property or Borrower's interest therein (any of the foregoing is referred to herein as an "Environmental Complaint") from any Person or entity, including any state agency responsible in whole or in part for environmental matters in the state in which such property is located or the United States Environmental Protection Agency (any such person or entity hereinafter the "Authority"), then the Borrower shall, within five seven (57) Business Daysdays, give written notice of same to the Lender detailing facts and circumstances of which the Borrower is aware giving rise to the Hazardous Discharge or Environmental Complaint and periodically inform Lender of the status of the matter. Such information is to be provided to allow the Lender to protect its security interest in the Collateral and is not intended to create nor shall it create any obligation upon the Lender with respect thereto.;
(iv) Borrower shall respond promptly to any Hazardous Discharge or Environmental Complaint and take all necessary action in order to safeguard the health of any Person and to avoid subjecting the Collateral to any lien, charge, claim or encumbrance. If Borrower shall fail to respond promptly to any Hazardous Discharge or Environmental Complaint or Borrower shall fail to comply with any of the requirements of any environmental laws, the Lender may, but without the obligation to do so, for the sole purpose of protecting the Lender's interest in Collateral: (A) give such notices or (B) enter onto Borrower's property (or authorize third parties to enter onto such property) and take such actions as the Lender (or such third parties as directed by the Lender) deem deems reasonably necessary or advisable, to clean up, remove, mitigate or otherwise deal with any such Hazardous Discharge or Environmental Complaint. All reasonable costs and expenses directly incurred by the Lender (or such third parties) in the exercise of any such rights, including any sums paid in connection with any judicial or administrative investigation or proceedings, fines and penalties, together with interest thereon from the date expended at the Default Rate for Revolving Credit Advances shall be paid upon demand by the Borrower, and until paid shall be added to and become a part of the Obligations secured by the liens created by the terms of this Agreement or any other agreement between Lender and Borrower.;
(v) Borrower shall defend and indemnify the Lender and hold the Lender harmless from and against all loss, liability, damage and expense, claims, costs, fines and penalties, including attorney's fees, directly suffered or incurred by the Lender under or on account of A. any environmental laws, including, without limitation, the assertion of any lien thereunder, with respect to any Hazardous Discharge, the presence of any Hazardous Substances hazardous substances affecting Borrower's property, whether or not the same originates or emerges from Borrower's property or any contiguous real estate, including any loss of value of the Collateral as a result of the foregoing except to the extent such loss, liability, damage and expense is attributable to any Hazardous Discharge resulting from actions on the part of the Lender, and B. any Sanction/Embargo Program. The Borrower's obligations under Section 12(e)(vthis paragraph 12(e) A. shall arise upon the discovery of the presence of any Hazardous Substances hazardous substances on the Borrower's property, whether or not any federal, state, or local environmental agency has taken or threatened any action in connection with the presence of any Hazardous Substances, and under Section 12(e)(v) B on failure to comply with any Sanction/Embargo Programhazardous substances. The Borrower's obligation and the indemnifications hereunder shall survive the termination of this Agreement.;
(vi) For purposes of Section paragraph 12
(e) all references to Borrower's property shall be deemed to include all of Borrower's right, title and interest in and to all owned and/or leased premises.
(f) based upon the Employee Retirement Income Security Act of 1974 ("ERISA"), and the regulations and published interpretations thereunder: (i) Borrower has not engaged in any Prohibited Transactions as defined in paragraph 406 of ERISA and paragraph 4975 of the Internal Revenue Code, as amended; (ii) Borrower has met all applicable minimum funding requirements under paragraph 302 of ERISA in respect of its plans; (iii) Borrower has no knowledge of any event or occurrence which would cause the Pension Benefit Guaranty Corporation to institute proceedings under Title IV of ERISA to terminate any employee benefit plan(s); (iv) Borrower has no fiduciary responsibility for investments with respect to any plan existing for the benefit of persons other than Borrower's employees; and
Appears in 1 contract
Sources: Loan and Security Agreement (Creative Technologies Corp)
Additional Representations, Warranties and Covenants. Each Borrower represents and warrants (each of which such representations and warranties shall be deemed repeated upon the making of a request for a Revolving Credit Advance and made as of the time of each Revolving Credit Advance made hereunder), and covenants that:
(a) Saba Such Borrower is duly incorporated and Santa Maria is each a corporation duly o▇▇▇▇▇zed and validly existing in good standing under the laws of the State of California states listed on Schedule 12(a) and Greka is a corporation duly organized qualified to do business and validly existing under the laws of the State of Colorado and each Borrower is duly qualified and in good standing in every other state or jurisdiction the states listed on Schedule 12(a), which constitute all states in which the nature of Borrower's qualification and good standing are necessary for Borrower to conduct its business requires such qualification except and own its property and where the failure to so qualify would not have a material adverse effect on the Borrower=s such Borrower or its business; and such Borrower has delivered to Lender true and complete copies of its certificate of incorporation and by-laws and will promptly notify Lender of any amendment or changes thereto.
(b) Except as set forth on Schedule 12(b) hereof, such Borrower has no Subsidiaries;
(bc) the execution, delivery and performance of this Agreement and the Ancillary Agreements (i) have been duly authorized, (ii) are not in contravention of such Borrower's certificate of incorporation, by-laws or of any material indenture, material agreement or material undertaking to which such Borrower is a party or by which such Borrower is bound and (iii) are within such Borrower's corporate powers;
(cd) this Agreement and the Ancillary Agreements executed and delivered by such Borrower are such Borrower's legal, valid and binding obligations, enforceable in accordance with their terms;
(de) it such Borrower keeps and will continue to keep all of its books and records concerning the Collateral at such Borrower's executive offices located at the address addresses set forth in the introductory paragraph of this Agreement on Schedule 12(e) and will not move such books and records without giving Lender at least thirty (30) days prior written notice;
(i) the operation of such Borrower's business is and will continue to be in compliance in all material respects with all applicable federal, state and local laws, including but not limited to all applicable environmental laws and regulations and Sanction/Embargo Programs.regulations;
(ii) such Borrower has established will establish and maintained and will continue to maintain a system to assure and monitor continued compliance with all applicable environmental laws, and Sanction/Embargo Programs, which system shall include periodic reviews of such compliance.
(iii) in In the event the such Borrower obtains, gives or receives notice of any release or threat of release of a reportable quantity of any Hazardous Substances on its property (any such event being hereinafter referred to as a "Hazardous Discharge") or receives any notice of violation, request for information or notification that it is potentially responsible for investigation or cleanup of environmental conditions on its property, demand letter or complaint, order, citation, or other written notice with regard to any Hazardous Discharge or violation of any environmental laws affecting its property or such Borrower's interest therein (any of the foregoing is referred to herein as an "Environmental Complaint") from any Person or entity, including any state agency responsible in whole or in part for environmental matters in the state in which such property is located or the United States Environmental Protection Agency (any such person or entity hereinafter the "Authority"), then the such Borrower shall, within five (5) Business Days, give written notice of same to the Lender detailing facts and circumstances of which the any Borrower is aware giving rise to the Hazardous Discharge or Environmental Complaint and periodically inform Lender of the status of the matter. Such information is to be provided to allow the Lender to protect its security interest in the Collateral and is not intended to create nor shall it create any obligation upon the Lender with respect thereto.
(iv) such Borrower shall respond promptly to any Hazardous Discharge for which such Borrower is or may be responsible or liable or Environmental Complaint directed at such Borrower alleging such Borrower's responsibility or liability and take all necessary action in order to safeguard the health of any Person and to avoid subjecting the Collateral to any lien, charge, claim or encumbrance. If such Borrower shall fail to respond promptly to any such Hazardous Discharge or Environmental Complaint or such Borrower shall fail to comply with any of the requirements of any environmental lawslaws to which such Borrower is subject, the Lender may, but without the obligation to do so, to the extent reasonably required to protect, and for the sole purpose of protecting the protecting, Lender's interest in Collateral: (A) give such notices or (B) enter onto such Borrower's property (or authorize third parties to enter onto such property) and take such actions as the Lender (or such third parties as directed by the Lender) deem reasonably necessary or advisable, to clean up, remove, mitigate or otherwise deal with any such Hazardous Discharge or Environmental Complaint. All reasonable costs and expenses directly incurred by the Lender (or such third parties) in the exercise of any such rights, including any sums paid in connection with any judicial or administrative investigation or proceedings, fines and penalties, together with interest thereon from the date expended at the Default Rate for Revolving Credit Advances shall be paid upon demand by the such Borrower, and until paid shall be added to and become a part of the Obligations secured by the liens created by the terms of this Agreement or any other agreement between Lender and Borrowerany or all Borrowers.
(v) Borrower Borrowers shall defend and indemnify the Lender and hold the Lender harmless from and against all loss, liability, damage and expense, claims, costs, fines and penalties, including attorney's fees, directly suffered or incurred by the Lender under or on account of A. any environmental laws, laws (including, without limitation, the assertion of any lien thereunder, ) with respect to any Hazardous Discharge, the presence of any Hazardous Substances hazardous substances affecting any Borrower's property, property (whether or not the same originates or emerges from any Borrower's property or any contiguous real estate, ) including any loss of value of the Collateral as a result of the foregoing foregoing, except to the extent such loss, liability, damage and expense is attributable to any Hazardous Discharge resulting from actions on the part of the Lender, and B. any Sanction/Embargo Program. The Each Borrower's obligations under this Section 12(e)(v12(f) A. shall arise upon the discovery of the presence of any Hazardous Substances on the any Borrower's property, whether or not any federal, state, or local environmental agency has taken or threatened any action in connection with the presence of any Hazardous Substances, and under Section 12(e)(v) B on failure to comply with any Sanction/Embargo Programhazardous substances. The Each Borrower's obligation and the indemnifications hereunder shall survive the termination of this Agreement.
(vi) For purposes of this Section 12
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Spar Group Inc)
Additional Representations, Warranties and Covenants. Borrower represents and warrants (each of which such representations and warranties shall be deemed repeated upon the making of a request for a Revolving Credit Advance and made as of the time of each Revolving Credit Advance made hereunder), and covenants that:
(a) Saba and Santa Maria is each a corporation duly o▇▇▇▇▇zed and validly existing under the laws of the State of California and Greka Borrower is a corporation duly organized and validly existing under the laws of the State of Colorado Indiana and each Borrower is duly qualified and in good standing in every other state or jurisdiction in which the nature of Borrower's business requires such qualification qualification, except where the failure to so qualify would not have a material adverse effect affect on Borrower or the Borrower=s business.Collateral;
(b) the execution, delivery and performance of this Agreement and the Ancillary Agreements (i) have been duly authorized, (ii) are not in contravention of Borrower's certificate of incorporation, by-laws or of any indenture, agreement or undertaking to which Borrower is a party or by which Borrower is bound and (iii) are within Borrower's corporate powers;
(c) this Agreement and the Ancillary Agreements executed and delivered by Borrower are Borrower's legal, valid and binding obligations, enforceable in accordance with their terms;
(d) it keeps and will continue to keep all of its books and records concerning the Collateral at Borrower's executive offices located at the address set forth in the introductory paragraph of this Agreement and will not move such books and records without giving Lender at least thirty (30) days prior written notice;
(i) the operation of Borrower's business is and will continue to be in compliance in all material respects with all applicable federal, state and local laws, including but not limited to all applicable environmental laws and regulations and Sanction/Embargo Programs.
(ii) Borrower has established and maintained and will continue to maintain a system to assure and monitor continued compliance with all applicable environmental laws, and Sanction/Embargo Programs, which system shall include periodic reviews of such compliance.
(iii) in the event the Borrower obtains, gives or receives notice of any release or threat of release of a reportable quantity of any Hazardous Substances on its property (any such event being hereinafter referred to as a "Hazardous Discharge") or receives any notice of violation, request for information or notification that it is potentially responsible for investigation or cleanup of environmental conditions on its property, demand letter or complaint, order, citation, or other written notice with regard to any Hazardous Discharge or violation of any environmental laws affecting its property or Borrower's interest therein (any of the foregoing is referred to herein as an "Environmental Complaint") from any Person or entity, including any state agency responsible in whole or in part for environmental matters in the state in which such property is located or the United States Environmental Protection Agency (any such person or entity hereinafter the "Authority"), then the Borrower shall, within five (5) Business Days, give written notice of same to the Lender detailing facts and circumstances of which the Borrower is aware giving rise to the Hazardous Discharge or Environmental Complaint and periodically inform Lender of the status of the matter. Such information is to be provided to allow the Lender to protect its security interest in the Collateral and is not intended to create nor shall it create any obligation upon the Lender with respect thereto.
(iv) Borrower shall respond promptly to any Hazardous Discharge or Environmental Complaint and take all necessary action in order to safeguard the health of any Person and to avoid subjecting the Collateral to any lien, charge, claim or encumbrance. If Borrower shall fail to respond promptly to any Hazardous Discharge or Environmental Complaint or Borrower shall fail to comply with any of the requirements of any environmental laws, the Lender may, but without the obligation to do so, for the sole purpose of protecting the Lender's interest in Collateral: (A) give such notices or (B) enter onto Borrower's property (or authorize third parties to enter onto such property) and take such actions as the Lender (or such third parties as directed by the Lender) deem reasonably necessary or advisable, to clean up, remove, mitigate or otherwise deal with any such Hazardous Discharge or Environmental Complaint. All reasonable costs and expenses directly incurred by the Lender (or such third parties) in the exercise of any such rights, including any sums paid in connection with any judicial or administrative investigation or proceedings, fines and penalties, together with interest thereon from the date expended at the Default Rate for Revolving Credit Advances shall be paid upon demand by the Borrower, and until paid shall be added to and become a part of the Obligations secured by the liens created by the terms of this Agreement or any other agreement between Lender and Borrower.
(viii) Borrower shall defend and indemnify the Lender and hold the Lender harmless from and against all loss, liability, damage and expense, claims, costs, fines and penalties, including reasonable attorney's fees, directly suffered or incurred by the Lender under or on account of A. any environmental laws, including, without limitation, the assertion of any lien thereunder, with respect to any Hazardous Discharge, the presence of any Hazardous Substances hazardous substances affecting Borrower's property, whether or not the same originates or emerges from Borrower's property or any contiguous real estate, including any loss of value of the Collateral as a result of the foregoing except to the extent such loss, liability, damage and expense is attributable to any Hazardous Discharge resulting from actions on the part of the Lender, and B. any Sanction/Embargo Program. The Borrower's obligations under Section 12(e)(v) A. shall arise upon the discovery of the presence of any Hazardous Substances on the Borrower's property, whether or not any federal, state, or local environmental agency has taken or threatened any action in connection with the presence of any Hazardous Substanceshazardous substances, and under Section 12(e)(v) B on failure to comply with any Sanction/Embargo Program. The Borrower's obligation and the indemnifications hereunder shall survive the termination of this Agreement.
(viiv) For purposes of Section 12
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Morgan Group Inc)
Additional Representations, Warranties and Covenants. Each Borrower represents and warrants (each of which such representations and warranties shall be deemed repeated upon the making of a request for a Revolving Credit Advance and made as of the time of each Revolving Credit Advance made hereunder, excluding, however, those events subject to an express written waiver or consent from Lender or those expressly permitted or not prohibited by the covenants), and covenants that:
(a) Saba Such Borrower is duly incorporated and Santa Maria is each a corporation duly o▇▇▇▇▇zed and validly existing in good standing under the laws of the State of California states listed on Schedule 12(a) and Greka is a corporation duly organized qualified to do business and validly existing under the laws of the State of Colorado and each Borrower is duly qualified and in good standing in every other state or jurisdiction the states listed on Schedule 12(a), which constitute all states in which the nature of Borrower's qualification and good standing are necessary for Borrower to conduct its business requires such qualification except and own its property and where the failure to so qualify would not have a material adverse effect on the Borrower=s such Borrower or its business; and such Borrower has delivered to Lender true and complete copies of its certificate of incorporation and by-laws and will promptly notify Lender of any amendment or changes thereto.
(b) Except as set forth on Schedule 12(b) hereof, such Borrower has no Subsidiaries;
(bc) the execution, delivery and performance of this Agreement and the Ancillary Agreements (i) have been duly authorized, (ii) are not in contravention of such Borrower's certificate of incorporation, by-laws or of any material indenture, material agreement or material undertaking to which such Borrower is a party or by which such Borrower is bound and (iii) are within such Borrower's corporate powers;
(cd) this Agreement and the Ancillary Agreements executed and delivered by such Borrower are such Borrower's legal, valid and binding obligations, enforceable in accordance with their terms;
(de) it such Borrower keeps and will continue to keep all of its books and records concerning the Collateral at such Borrower's executive offices located at the address addresses set forth in the introductory paragraph of this Agreement on Schedule 12(e) and will not move such books and records without giving Lender at least thirty (30) days prior written notice;
(i) the operation of such Borrower's business is and will continue to be in compliance in all material respects with all applicable federal, state and local laws, including but not limited to all applicable environmental laws and regulations and Sanction/Embargo Programs.regulations;
(ii) Borrower has established and maintained and will continue to maintain a system to assure and monitor continued compliance with all applicable environmental laws, and Sanction/Embargo Programs, which system shall include periodic reviews of such compliance.
(iii) in the event the such Borrower obtains, gives or receives notice of any release or threat of release of a reportable quantity of any Hazardous Substances on its property in violation of any applicable law (any such event being hereinafter referred to as a "Hazardous Discharge") or receives any notice of violation, request for information or notification that it is potentially responsible for investigation or cleanup of environmental conditions on its property, demand letter or complaint, order, citation, or other written notice with regard to any Hazardous Discharge or violation of any environmental laws affecting its property or such Borrower's interest therein (any of the foregoing is referred to herein as an "Environmental Complaint") from any governmental Person or entity, including any state agency responsible in whole or in part for environmental matters in the state in which such property is located or the United States Environmental Protection Agency (any such person governmental Person or entity hereinafter the "Authority"), then the such Borrower shall, within five (5) Business Days, give written notice of same to the Lender detailing facts and circumstances of which the any Borrower is aware giving rise to the Hazardous Discharge or Environmental Complaint and periodically inform Lender of the status of the matter. Such information is to be provided to allow the Lender to protect its security interest in the Collateral and is not intended to create nor shall it create any obligation upon the Lender with respect thereto.;
(iviii) such Borrower shall respond promptly to any Hazardous Discharge for which such Borrower is or may be responsible or liable or Environmental Complaint directed at such Borrower alleging such Borrower's responsibility or liability and take all necessary action in order to safeguard the health of any Person and to avoid subjecting the Collateral to any lien, charge, claim or encumbrance. If such Borrower shall fail to respond promptly to any such Hazardous Discharge or Environmental Complaint or such Borrower shall fail to comply with any of the requirements of any environmental lawslaws to which such Borrower is subject, the Lender may, but without the obligation to do so, to the extent reasonably required to protect, and for the sole purpose of protecting the protecting, Lender's interest in Collateral: (A) give such notices or (B) enter onto such Borrower's property (or authorize third parties to enter onto such property) and take such actions as the Lender (or such third parties as directed by the Lender) deem reasonably necessary or advisable, to clean up, remove, mitigate or otherwise deal with any such Hazardous Discharge or Environmental Complaint. Lender shall endeavor to give notice thereof to the Borrowers; provided, however Lender shall have no liability for the failure to so notify. All reasonable costs and expenses directly incurred by the Lender (or such third parties) in the exercise of any such rights, including any sums paid in connection with any judicial or administrative investigation or proceedings, fines and penalties, together with interest thereon from the date expended at the Default Rate for Domestic Rate Loans constituting Revolving Credit Advances shall be paid upon demand by the such Borrower, and until paid shall be added to and become a part of the Obligations secured by the liens created by the terms of this Agreement or any other agreement between Lender and Borrower.any or all Borrowers;
(viv) Borrower Borrowers shall defend and indemnify the Lender and hold the Lender harmless from and against all loss, liability, damage and expense, claims, costs, fines and penalties, including attorney's fees, directly suffered or incurred by the Lender under or on account of A. any environmental laws, laws (including, without limitation, the assertion of any lien thereunder, ) with respect to any Hazardous Discharge, the presence of any Hazardous Substances hazardous substances affecting any Borrower's property, property (whether or not the same originates or emerges from any Borrower's property or any contiguous real estate, ) including any loss of value of the Collateral as a result of the foregoing foregoing, except to the extent such loss, liability, damage and expense is attributable to any Hazardous Discharge resulting from actions on the part of the Lender, and B. any Sanction/Embargo Program. The Each Borrower's obligations under this Section 12(e)(v12(f) A. shall arise upon the discovery of the presence of any Hazardous Substances on the any Borrower's property, whether or not any federal, state, or local environmental agency has taken or threatened any action in connection with the presence of any Hazardous Substances, and under Section 12(e)(v) B on failure to comply with any Sanction/Embargo Programhazardous substances. The Each Borrower's obligation and the indemnifications hereunder shall survive the termination of this Agreement.
(vi) For purposes of Section 12; and
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Spar Group Inc)
Additional Representations, Warranties and Covenants. Borrower represents (a) The Licensor and warrants (Licensee as applicable represent, warrant and covenant to each of which such representations and warranties shall be deemed repeated upon the making of a request for a Revolving Credit Advance and made other as of the time of each Revolving Credit Advance made hereunder), and covenants thatfollows:
(ai) Saba each is duly incorporated and Santa Maria is each a corporation duly o▇▇▇▇▇zed and validly existing subsisting under the laws of the State of California and Greka is a corporation duly organized and validly existing under the laws of the State of Colorado and each Borrower is duly qualified and in good standing in every other state or jurisdiction in which the nature of Borrower's business requires such qualification except where the failure to qualify would not have a material adverse effect on the Borrower=s business.;
(b) the execution, delivery and performance of this Agreement and the Ancillary Agreements (i) have been duly authorized, (ii) are not in contravention of Borrower's certificate its place of incorporation, by-laws or of any indenture, agreement or undertaking to which Borrower is a party or by which Borrower is bound and (iii) are within Borrower's corporate powers;
(c) this Agreement and the Ancillary Agreements executed and delivered by Borrower are Borrower's legal, valid and binding obligations, enforceable in accordance with their terms;
(d) it keeps and will continue to keep all of its books and records concerning the Collateral at Borrower's executive offices located at the address set forth in the introductory paragraph of this Agreement and will not move such books and records without giving Lender at least thirty (30) days prior written notice;
(i) the operation of Borrower's business is and will continue to be in compliance in all material respects with all applicable federal, state and local laws, including but not limited to all applicable environmental laws and regulations and Sanction/Embargo Programs.
(ii) Borrower each has established the power to and maintained and will continue is authorized to maintain a system to assure and monitor continued compliance with all applicable environmental laws, and Sanction/Embargo Programs, which system shall include periodic reviews of such compliance.enter into this Agreement;
(iii) in the event the Borrower obtains, gives carrying out of this Agreement will not breach or receives notice of interfere with any release or threat of release of a reportable quantity of any Hazardous Substances on its property (any such event being hereinafter referred to as a "Hazardous Discharge") or receives any notice of violation, request for information or notification that it is potentially responsible for investigation or cleanup of environmental conditions on its property, demand letter or complaint, order, citation, or other written notice with regard to any Hazardous Discharge or violation of any environmental laws affecting its property or Borrower's interest therein (any of the foregoing is referred to herein as an "Environmental Complaint") from any Person or entity, including any state agency responsible in whole or in part for environmental matters in the state in which such property is located or the United States Environmental Protection Agency (any such person or entity hereinafter the "Authority"), then the Borrower shall, within five (5) Business Days, give written notice of same to the Lender detailing facts and circumstances of agreement which the Borrower is aware giving rise to the Hazardous Discharge or Environmental Complaint and periodically inform Lender of the status of the matter. Such information is to be provided to allow the Lender to protect its security interest in the Collateral and is not intended to create nor shall it create any obligation upon the Lender with respect thereto.respective party has entered into;
(iv) Borrower shall respond promptly to neither will enter into another agreement, or initiate any Hazardous Discharge act or Environmental Complaint and take all necessary action in order to safeguard the health of any Person and to avoid subjecting the Collateral to any lien, charge, claim or encumbrance. If Borrower shall fail to respond promptly to any Hazardous Discharge or Environmental Complaint or Borrower shall fail to comply with any of the requirements of any environmental lawsomission, the Lender may, but without the obligation to do so, for the sole purpose carrying out of protecting the Lender's interest in Collateral: (A) give such notices or (B) enter onto Borrower's property (or authorize third parties to enter onto such property) and take such actions as the Lender (or such third parties as directed by the Lender) deem reasonably necessary or advisable, to clean up, remove, mitigate or otherwise deal with any such Hazardous Discharge or Environmental Complaint. All reasonable costs and expenses directly incurred by the Lender (or such third parties) in the exercise of any such rights, including any sums paid in connection with any judicial or administrative investigation or proceedings, fines and penalties, together with interest thereon from the date expended at the Default Rate for Revolving Credit Advances shall be paid upon demand by the Borrower, and until paid shall be added to and become which may cause a part of the Obligations secured by the liens created by the terms of material breach under this Agreement or any other agreement between Lender and Borrower.Agreement;
(v) Borrower shall defend and indemnify the Lender and hold Licensee will assume responsibility for determining the Lender harmless from and against all loss, liability, damage and expense, claims, costs, fines and penalties, including attorney's fees, directly suffered or incurred by legality of using the Lender under or on account of A. any environmental lawsSoftware, including, without limitation, the assertion of any lien thereunder, with respect accepting ▇▇▇▇▇▇ in whichever jurisdictions they choose to any Hazardous Discharge, the presence of any Hazardous Substances affecting Borrower's property, whether or not the same originates or emerges from Borrower's property or any contiguous real estate, including any loss of value of the Collateral as a result of the foregoing except market to the extent such loss, liability, damage and expense is attributable to any Hazardous Discharge resulting from actions on the part of the Lender, and B. any Sanction/Embargo Program. The Borrower's obligations under Section 12(e)(v) A. shall arise upon the discovery of the presence of any Hazardous Substances on the Borrower's property, whether or not any federal, state, or local environmental agency has taken or threatened any action in connection with the presence of any Hazardous Substances, and under Section 12(e)(v) B on failure to comply with any Sanction/Embargo Program. The Borrower's obligation and the indemnifications hereunder shall survive the termination of this Agreement.receive ▇▇▇▇▇▇ from;
(vi) For purposes the Licensee will undertake all reasonable efforts to prevent persons from using the Software for use as a money-laundering vehicle;
(vii) neither will conduct any activity which can be deemed unlawful in their operating jurisdiction;
(viii) the Licensee will not make use of Section 12any of the Software to power an Affiliate who operates a web-site, without the express prior written consent of the Licensor. The Licensor will provide its written consent within 24 hours of notice of same, such consent not to be unreasonably withheld;
(ix) The Licensee will not make use of a URL or domain name which is substantially similar or confusing with those owned by the Licensor;
(x) operate the Software in a fair and reasonable manner, consistent with the odds, payouts and general fairness used and approved by reputable gaming commissions and regulatory bodies around the world. Should the Licensee operate the Software pursuant to a standard which is inconsistent with the odds, payouts and general fairness used and approved by reputable gaming commissions and regulatory bodies around the world, Licensee agrees to post on its website a notice to its players, identifying specifically the odds, changes to playing methodologies and general fairness policies employed;
(xi) The Licensor and the Licensee shall not make use of any trademark, trade name, copyright or other intellectual property owned or licensed by the Licensee or Licensor, without the express written consent of the other party
(xii) No employee of the Licensee, in the jurisdiction in which it operates, shall have a criminal record.
(b) The Licensor warrants as follows:
(i ) the Software will perform and function in accordance with the Related Materials:
(ii) it is the owner of the Software together with the Related Materials and Intellectual Property;
(iii) subject to the Licensee's responsibility for determining the legality of using the Software pursuant to this Agreement, the Licensor has the right to license the Software together with the Related Materials and Intellectual Property pursuant to the provisions hereof and the same are free of any liens or encumbrances;
(iv) subject to the Licensee's responsibility for determining the legality of using the Software pursuant to this Agreement, there are no existing or, to the best of the Licensor's knowledge, threatened legal proceedings brought against the Licensor, in respect of its ownership of the Software; and
(v) the Software does not contain any programs undisclosed to the Licensee which are intended to permit unauthorized access, or cause damage to other programs, data or hardware, nor does the Software contain any feature designed for the destruction of such data.
Appears in 1 contract
Sources: Software License Agreement (Dot Com Entertainment Group Inc)
Additional Representations, Warranties and Covenants. Borrower represents and represents, warrants (each of which such representations and warranties shall be deemed repeated upon the making of a request for a Revolving Credit Advance and made as of the time of each Revolving Credit Advance made hereunder), and covenants thatas follows:
(a) Saba and Santa Maria is each a corporation duly o▇▇▇▇▇zed and validly existing under the laws of the State of California and Greka Borrower is a corporation duly organized and validly existing under the laws of the State jurisdiction of Colorado its incorporation and each Borrower is duly qualified and in good standing in every other state or jurisdiction in which the nature of Borrower's business requires such qualification except where the failure to qualify would not have a material adverse effect on the Borrower=s businessqualification.;
(b) the The execution, delivery and performance of this Agreement and the Ancillary Agreements (i) have been duly authorized, (ii) are not in contravention of Borrower's certificate of incorporation, by-laws or of any indenture, agreement or undertaking to which Borrower is a party or by which Borrower is bound and (iii) are within Borrower's corporate powers;.
(c) this This Agreement and the Ancillary Agreements executed and delivered by Borrower are Borrower's legal, valid and binding obligations, enforceable in accordance with their terms;.
(d) Exhibit 12(d) sets forth Borrower's name as it keeps and will continue to keep all appears in official filing in the state of its books and records concerning incorporation, the Collateral at type of entity of Borrower, the organizational identification number issued by Borrower's state of incorporation or a statement that no such number has been issued, Borrower's state of incorporation, and the location of Borrower's chief executive offices located at office, corporate offices, warehouses, other locations of Collateral and locations where records with respect to Collateral are kept (including in each case the address county of such locations) and, except as set forth in such Exhibit 12(d), such locations have not changed during the introductory paragraph preceding twelve months. As of this Agreement and the Closing Date, during the prior five years, except as set forth in Exhibit 12(d), Borrower has not been known as or conducted business in any other name (including trade names). Borrower has only one state of incorporation or organization.
(e) Borrower will not move such books and records without giving Lender at least thirty change (30i) days prior written notice;its name as it appears in the official filings in the state of its incorporation, (ii) the type of legal entity it is, (iii) its organization identification number, if any, issued by its state of incorporation, (iv) its state of incorporation or (v) amend its certificate of incorporation, by-laws or other organizational document.
(i) the Borrower has delivered to Lender all environmental assessments, audits, reports, permits, licenses and other documents describing or relating in any way to Borrower's business or its property.
(ii) The operation of each Borrower's business is and will continue to be in compliance in all material respects with all applicable federal, state and local laws, rules and ordinances, including but not limited to all applicable environmental laws and laws, rules, regulations and Sanction/Embargo Programsorders relating to taxes, payment and withholding of payroll taxes, employer and employee contributions and similar items, securities, employee retirement and welfare benefits, employee health safety and environmental matters.
(iiiii) Borrower has established will establish and maintained and will continue to maintain a system to assure and monitor continued compliance with all applicable environmental laws, and Sanction/Embargo Programs, which system shall include periodic reviews of such compliance.
(iiiiv) in In the event the Borrower obtains, gives or receives notice of any release or threat of release of a reportable quantity of any Hazardous Substances hazardous substances on its property (any such event being hereinafter referred to as a "Hazardous Discharge") or receives any notice of violation, request for information or notification that it is potentially responsible for investigation or cleanup of environmental conditions on its property, demand letter or complaint, order, citation, or other written notice with regard to any Hazardous Discharge or violation of any environmental laws affecting its property or Borrower's interest therein (any of the foregoing is referred to herein as an "Environmental Complaint") from any Person or entity, including any state agency Governmental Authority responsible in whole or in part for environmental matters in the state in which such property is located or the United States Environmental Protection Agency (any such person or entity hereinafter the "Authority")Agency, then the Borrower shall, within five seven (57) Business Daysdays, give written notice of same to the Lender detailing facts and circumstances of which the Borrower is aware giving rise to the Hazardous Discharge or Environmental Complaint and periodically inform Lender of the status of the matter. Such information is to be provided to allow the Lender to protect its security interest in the Collateral and is not intended to create nor shall it create any obligation upon the Lender with respect thereto.
(ivv) Borrower shall respond promptly to any Hazardous Discharge or Environmental Complaint and take all necessary action in order to safeguard the health of any Person and to avoid subjecting the Collateral to any lien, charge, claim or encumbranceLien. If Borrower shall fail to respond promptly to any Hazardous Discharge or Environmental Complaint or Borrower shall fail to comply with any of the requirements of any environmental laws, the Lender may, but without the obligation to do so, for the sole purpose of protecting the Lender's interest in Collateral: (A) give such notices or (B) enter onto Borrower's property (or authorize third parties to enter onto such property) and take such actions as the Lender (or such third parties as directed by the Lender) deem deems reasonably necessary or advisable, to clean up, remove, mitigate or otherwise deal with any such Hazardous Discharge or Environmental Complaint. All reasonable costs and expenses directly incurred by the Lender (or such third parties) in the exercise of any such rights, including any sums paid in connection with any judicial or administrative investigation or proceedings, fines and penalties, together with interest thereon from the date expended at the Default Rate for Revolving Credit Advances shall be paid upon demand by the Borrower, and until paid shall be added to and become a part of the Obligations secured by the liens Liens created by the terms of this Agreement or any other agreement between Lender and Borrower.
(vvi) Borrower shall defend and indemnify the Lender and hold the Lender harmless from and against all loss, liability, damage and expense, claims, costs, fines and penalties, including attorney's fees, directly suffered or incurred by the Lender under or on account of A. any environmental laws, including, without limitation, the assertion of any lien Lien thereunder, with respect to any Hazardous Discharge, the presence of any Hazardous Substances hazardous substances affecting Borrower's property, whether or not the same originates or emerges from Borrower's property or any contiguous real estate, including any loss of value of the Collateral as a result of the foregoing except to the extent such loss, liability, damage and expense is attributable to any Hazardous Discharge resulting from actions on the part of the Lender, and B. any Sanction/Embargo Program. The Borrower's obligations under this Section 12(e)(v12(f) A. shall arise upon the discovery of the presence of any Hazardous Substances hazardous substances on the Borrower's property, whether or not any federal, state, or local environmental agency has taken or threatened any action in connection with the presence of any Hazardous Substances, and under Section 12(e)(v) B on failure to comply with any Sanction/Embargo Programhazardous substances. The Borrower's obligation and the indemnifications hereunder shall survive the termination of this Agreement.;
(vivii) For purposes of Section 1212(f), all references to Borrower's property shall be deemed to include all of Borrower's right, title and interest in and to all owned and/or leased premises.
(viii) Based upon the Employee Retirement Income Security Act of 1974 ("ERISA"), and the regulations and published interpretations thereunder: (i) Borrower has not engaged in any Prohibited Transactions as defined in Section 406 of ERISA and Section 4975 of the Internal Revenue Code, as amended; (ii) Borrower has met all applicable minimum funding requirements under Section 302 of ERISA in respect of its plans; (iii) Borrower has no knowledge of any event or occurrence which would cause the Pension Benefit Guaranty Corporation to institute proceedings under Title IV of ERISA to terminate any employee benefit plan(s); (iv) Borrower has no fiduciary responsibility for investments with respect to any plan existing for the benefit of persons other than Borrower's employees; and
Appears in 1 contract
Sources: Loan and Security Agreement (Ventures National Inc)
Additional Representations, Warranties and Covenants. Borrower represents A. Representations, Warranties and Covenants of TRIMARK. TRIMARK ---------------------------------------------------- represents, warrants (each of which such representations and warranties shall be deemed repeated upon the making of a request for a Revolving Credit Advance and made as of the time of each Revolving Credit Advance made hereunder), and covenants thatto NISC as follows:
(a) Saba 1. TRIMARK is and Santa Maria is each a corporation will remain during the term of this Agreement duly o▇▇▇▇▇zed and validly existing under the laws of the State of California and Greka is a corporation duly organized and validly existing under the laws of the State of Colorado and each Borrower is duly qualified registered and in good standing as a broker-dealer with the SEC, a member firm in good standing of the NASD, and a member in good standing of every other state or jurisdiction national securities exchange and association of which it is a member.
2. TRIMARK has all requisite authority in which conformity with all Laws and Rules to enter into and perform this Agreement and has taken all necessary actions to authorize the nature of Borrower's business requires such qualification except where the failure to qualify would not have a material adverse effect on the Borrower=s business.;
(b) the execution, delivery and performance execution of this Agreement and the Ancillary Agreements (i) have been duly authorized, (ii) are not in contravention of Borrower's certificate of incorporation, by-laws or of any indenture, agreement or undertaking to which Borrower is a party or by which Borrower is bound and (iii) are within Borrower's corporate powers;
(c) this Agreement and the Ancillary Agreements executed and delivered by Borrower are Borrower's legal, valid and binding obligations, enforceable in accordance with their terms;
(d) it keeps and will continue to keep all performance of its books obligations hereunder.
3. TRIMARK and records concerning each of the Collateral at Borrower's executive offices located at other TRIMARK Parties is and during the address set forth in the introductory paragraph term of this Agreement and will not move such books and records without giving Lender at least thirty (30) days prior written notice;
(i) the operation of Borrower's business is and will continue to be remain in compliance in all material respects with all applicable federal, state the Laws and local lawsRules, including but not limited to all applicable environmental laws the registration, qualification, capital, financial reporting, customer protection, and regulations similar requirements of the SEC, the NASD, any other securities exchange or association of which it is a member, and Sanction/Embargo Programsevery state to which jurisdiction it is subject.
(ii) Borrower has established 4. TRIMARK will at all times during the term of this Agreement maintain minimum net capital equal to or greater than the amount required under the Law and maintained and will continue to maintain a system to assure and monitor continued compliance with all applicable environmental laws, and Sanction/Embargo Programs, which system shall include periodic reviews of such complianceRules.
5. All orders and instructions transmitted to NISC by TRIMARK shall be valid and shall have been duly and properly authorized.
6. There is no action, suit, investigation, inquiry or proceeding (iiiformal or informal) in the event the Borrower obtains, gives pending or receives notice of any release threatened against or threat of release of a reportable quantity of any Hazardous Substances on its property (any such event being hereinafter referred to as a "Hazardous Discharge") affecting TRIMARK or receives any notice of violation, request for information or notification that it is potentially responsible for investigation or cleanup of environmental conditions on its property, demand letter or complaint, order, citation, or other written notice with regard to any Hazardous Discharge or violation of any environmental laws affecting its property or Borrower's interest therein (any of the foregoing is referred other TRIMARK Parties, by or before any court or other tribunal, arbitrator , governmental agency, instrumentality or authority or any self- regulatory or clearing organization, as to herein as an "Environmental Complaint") from any Person or entity, including any state agency responsible in whole or in part for environmental matters in which NISC has not been informed and provided with copies of relevant documents. In the state in which such property is located or the United States Environmental Protection Agency (event any such person action, suit, investigation, inquiry or entity hereinafter proceeding is initiated or threatened at any time during the "Authority")term of this Agreement, then the Borrower shall, within five (5) Business Days, give written notice TRIMARK will promptly notify NISC in writing and provide it with copies of same to the Lender detailing facts and circumstances of which the Borrower is aware giving rise to the Hazardous Discharge or Environmental Complaint and periodically inform Lender of the status of the matter. Such information is to be provided to allow the Lender to protect its security interest in the Collateral and is not intended to create nor shall it create any obligation upon the Lender with respect all relevant documents related thereto.
(iv) Borrower shall respond promptly 7. TRIMARK will maintain blanket bond insurance policies satisfactory to NISC covering any Hazardous Discharge or Environmental Complaint and take all necessary action in order to safeguard the health acts, errors, and omissions of any Person and to avoid subjecting the Collateral to any lien, charge, claim or encumbrance. If Borrower shall fail to respond promptly to any Hazardous Discharge or Environmental Complaint or Borrower shall fail to comply with any of the requirements of any environmental laws, the Lender may, but without the obligation TRIMARK Parties and adequate fully to do so, for the sole purpose of protecting the Lender's interest in Collateral: (A) give such notices or (B) enter onto Borrower's property (or authorize third parties to enter onto such property) and take such actions as the Lender (or such third parties as directed by the Lender) deem reasonably necessary or advisable, to clean up, remove, mitigate or otherwise deal with any such Hazardous Discharge or Environmental Complaint. All reasonable costs and expenses directly incurred by the Lender (or such third parties) in the exercise of any such rights, including any sums paid in connection with any judicial or administrative investigation or proceedings, fines and penalties, together with interest thereon from the date expended at the Default Rate for Revolving Credit Advances shall be paid upon demand by the Borrower, and until paid shall be added to and become a part of the Obligations secured by the liens created by the terms of this Agreement or any other agreement between Lender and Borrower.
(v) Borrower shall defend protect and indemnify the Lender and hold the Lender harmless from and NISC against all any loss, liability, damage and expensedamage, claimsclaim, costs, fines and penalties, cost or expense (including attorney's but not limited to attorneys' fees, ) which NISC may suffer or incur directly suffered or incurred by the Lender under or on account of A. any environmental laws, including, without limitation, the assertion of any lien thereunder, with respect to any Hazardous Discharge, the presence of any Hazardous Substances affecting Borrower's property, whether or not the same originates or emerges from Borrower's property or any contiguous real estate, including any loss of value of the Collateral indirectly as a result of the foregoing except to the extent any such lossact, liability, damage and expense is attributable to any Hazardous Discharge resulting from actions on the part of the Lender, and B. any Sanction/Embargo Program. The Borrower's obligations under Section 12(e)(v) A. shall arise upon the discovery of the presence of any Hazardous Substances on the Borrower's property, whether or not any federal, stateerror, or local environmental agency has taken or threatened any action in connection with the presence of any Hazardous Substances, and under Section 12(e)(v) B on failure to comply with any Sanction/Embargo Program. The Borrower's obligation and the indemnifications hereunder shall survive the termination of this Agreementomission.
(vi) For purposes of Section 12
Appears in 1 contract
Additional Representations, Warranties and Covenants. Borrower represents and ---------------------------------------------------- represents, warrants (each of which such representations and warranties shall be deemed repeated upon the making of a request for a Revolving Credit Advance and made as of the time of each Revolving Credit Advance made hereunder), and covenants that:
(a) Saba and Santa Maria is each a corporation duly o▇▇▇▇▇zed and validly existing under the laws of the State of California and Greka Borrower is a corporation duly organized and validly existing under the laws of the State of Colorado New York and each Borrower is duly qualified and in good standing in every other state or jurisdiction in which the nature of Borrower's business requires such qualification except where the failure to qualify would not have a material adverse effect on the Borrower=s business.qualification;
(b) the execution, delivery and performance of this Agreement and the Ancillary Agreements (i) have been duly authorized, (ii) are not in contravention of Borrower's certificate of incorporation, by-laws or of any indenture, agreement or undertaking to which Borrower is a party or by which Borrower is bound and (iii) are within Borrower's corporate powers;
(c) this Agreement and the Ancillary Agreements executed and delivered by Borrower are Borrower's legal, valid and binding obligations, enforceable in accordance with their terms;
(d) it keeps and will continue to keep all of its books and records concerning the Collateral at Borrower's executive offices located at the address set forth in the introductory paragraph of this Agreement and will not move such books and records without giving Lender at least thirty (30) days prior written notice;
(i) the operation of Borrower's business is and will continue to be in compliance in all material respects with all applicable federal, state and local laws, including but not limited to all applicable environmental laws and regulations and Sanction/Embargo Programs.regulations;
(ii) Borrower has established will establish and maintained and will continue to maintain a system to assure and monitor continued compliance with all applicable environmental laws, and Sanction/Embargo Programs, which system shall include periodic reviews of such compliance.;
(iii) in In the event the Borrower obtains, gives or receives notice of any release or threat of release of a reportable quantity of any Hazardous Substances hazardous substances on its property (any such event being hereinafter referred to as a "Hazardous Discharge") or receives any notice of violation, request for information or notification that it is potentially responsible for investigation or cleanup of environmental conditions on its property, demand letter or complaint, order, citation, or other written notice with regard to any Hazardous Discharge or violation of any environmental laws affecting its property or Borrower's interest therein (any of the foregoing is referred to herein as an "Environmental Complaint") from any Person or entity, including any state agency responsible in whole or in part for environmental matters in the state in which such property is located or the United States Environmental Protection Agency (any such person or entity hereinafter the "Authority"), then the Borrower shall, within five seven (57) Business Daysdays, give written notice of same to the Lender detailing facts and circumstances of which the Borrower is aware giving rise to the Hazardous Discharge or Environmental Complaint and periodically inform Lender of the status of the matter. Such information is to be provided to allow the Lender to protect its security interest in the Collateral and is not intended to create nor shall it create any obligation upon the Lender with respect thereto.;
(iv) Borrower shall respond promptly to any Hazardous Discharge or Environmental Complaint and take all necessary action in order to safeguard the health of any Person and to avoid subjecting the Collateral to any lien, charge, claim or encumbrance. If Borrower shall fail to respond promptly to any Hazardous Discharge or Environmental Complaint or Borrower shall fail to comply with any of the requirements of any environmental laws, the Lender may, but without the obligation to do so, for the sole purpose of protecting the Lender's interest in Collateral: (A) give such notices or (B) enter onto Borrower's property (or authorize third parties to enter onto such property) and take such actions as the Lender (or such third parties as directed by the Lender) deem deems reasonably necessary or advisable, to clean up, remove, mitigate or otherwise deal with any such Hazardous Discharge or Environmental Complaint. All reasonable costs and expenses directly incurred by the Lender (or such third parties) in the exercise of any such rights, including any sums paid in connection with any judicial or administrative investigation or proceedings, fines and penalties, together with interest thereon from the date expended at the Default Rate for Revolving Credit Advances shall be paid upon demand by the Borrower, and until paid shall be added to and become a part of the Obligations secured by the liens created by the terms of this Agreement or any other agreement between Lender and Borrower.;
(v) Borrower shall defend and indemnify the Lender and hold the Lender harmless from and against all loss, liability, damage and expense, claims, costs, fines and penalties, including attorney's fees, directly suffered or incurred by the Lender under or on account of A. any environmental laws, including, without limitation, the assertion of any lien thereunder, with respect to any Hazardous Discharge, the presence of any Hazardous Substances hazardous substances affecting Borrower's property, whether or not the same originates or emerges from Borrower's property or any contiguous real estate, including any loss of value of the Collateral as a result of the foregoing except to the extent such loss, liability, damage and expense is attributable to any Hazardous Discharge resulting from actions on the part of the Lender, and B. any Sanction/Embargo Program. The Borrower's obligations under Section 12(e)(vthis paragraph 12(e) A. shall arise upon the discovery of the presence of any Hazardous Substances hazardous substances on the Borrower's property, whether or not any federal, state, or local environmental agency has taken or threatened any action in connection with the presence of any Hazardous Substances, and under Section 12(e)(v) B on failure to comply with any Sanction/Embargo Programhazardous substances. The Borrower's obligation and the indemnifications hereunder shall survive the termination of this Agreement.;
(vi) For purposes of Section paragraph 12
(e) all references to Borrower's property shall be deemed to include all of Borrower's right, title and interest in and to all owned and/or leased premises.
(f) based upon the Employee Retirement Income Security Act of 1974 ("ERISA"), and the regulations and published interpretations thereunder: (i) Borrower has not engaged in any Prohibited Transactions as defined in paragraph 406 of ERISA and paragraph 4975 of the Internal Revenue Code, as amended; (ii) Borrower has met all applicable minimum funding requirements under paragraph 302 of ERISA in respect of its plans; (iii) Borrower has no knowledge of any event or occurrence which would cause the Pension Benefit Guaranty Corporation to institute proceedings under Title IV of ERISA to terminate any employee benefit plan(s); (iv) Borrower has no fiduciary responsibility for investments with respect to any plan existing for the benefit of persons other than Borrower's employees; and
Appears in 1 contract
Additional Representations, Warranties and Covenants. Borrower represents represents, warrants and warrants (each covenants with and to Lender as follows, which representations, warranties and covenants are continuing and shall survive the execution and delivery hereof, and the truth and accuracy of, or compliance with each, together with the representations, warranties and covenants in the other Financing Agreements, being a continuing condition of which such representations and warranties shall be deemed repeated upon the making of a request for a Revolving Credit Advance and made as of the time of each Revolving Credit Advance made hereunder), and covenants thatLoans by Lender to Borrower:
(a) Saba The Merger is valid and Santa Maria effective in accordance with the terms of the Merger Agreements, and the corporation statutes of the State of Delaware and Borrower is each a the surviving corporation duly opursuant to the Merger.
(b) All actions and proceedings required by the Merger Agreements, applicable law and regulation (including, but not limited to, compliance with the ▇▇▇▇-▇▇▇▇▇zed and validly existing under the laws -▇▇▇▇▇▇ Anti-Trust Improvements Act of the State of California and Greka is a corporation duly organized and validly existing under the laws of the State of Colorado and each Borrower is duly qualified and in good standing in every other state or jurisdiction in which the nature of Borrower's business requires such qualification except where the failure to qualify would not have a material adverse effect on the Borrower=s business.;
(b) the execution1976, delivery and performance of this Agreement and the Ancillary Agreements (ias amended) have been taken and the transactions required thereunder have been duly authorized, (ii) are not in contravention of Borrower's certificate of incorporation, by-laws or of any indenture, agreement or undertaking to which Borrower is a party or by which Borrower is bound and (iii) are within Borrower's corporate powers;validly taken and consummated.
(c) this Agreement No court of competent jurisdiction has issued any injunction, restraining order or other order which prohibits consummation of the transactions described in the Merger Agreements and no governmental action or proceeding has been threatened or commenced seeking any injunction, restraining order or other order which seeks to void or otherwise modify the transactions described in the Merger Agreements.
(d) Contemporaneously with the Merger, Borrower, as survivor pursuant to the Merger, is and shall continue to be liable in all respects for all of the Obligations and the Ancillary Agreements Obligations are unconditionally owing to Lender by Borrower as survivor pursuant to the Merger, without offset, defense or counterclaim of any kind, nature or description whatsoever. The security interests in and liens upon the assets and properties of Borrower in favor of Lender shall continue upon such assets and properties to which Borrower shall succeed pursuant to the Merger, and such security interests and liens and their perfection and priority shall continue in all respects in full force and effect. Without limiting the generality of the foregoing, the Merger shall in no way limit, impair or adversely affect the Obligations, howsoever arising, or any security interest or liens securing the same.
(e) Borrower has delivered, or caused to be delivered, to Lender, true, correct and complete copies of the Merger Agreements.
(f) All projected financial statements provided to Lender by Borrower including, but not limited to, the projected financial statements delivered in accordance with Section 17(k) hereto, represent Borrower’s reasonable best estimate of the future financial performance of Borrower for the periods set forth therein and have been prepared on the assumptions set forth therein which Borrower believes are fair and reasonable in light of current and reasonably foreseeable business conditions.
(g) Borrower shall provide to Lender, in form and substance satisfactory to Lender, each month, a report outlining the payments made by Borrower with respect to the restructuring costs and charges of the Merger during the immediately preceding month, until such time as all such costs and charges incurred by Borrower in connection with the Merger have been paid in full.
(h) After giving effect to Section 14 above and the amendments to the Loan Agreement provided for herein, no Event of Default exists or has occurred as of the date of this Amendment No. 3.
(i) This Amendment No. 3 has been duly executed and delivered by Borrower are each of Borrower's , Guarantor and International Vitamin Overseas Sales Corp. and is in full force and effect as of the date hereof and the agreements and obligations of each of Borrower, Guarantor and International Vitamin Overseas Sales Corp. contained herein constitute legal, valid and binding obligationsobligations of each of Borrower, Guarantor and International Vitamin Overseas Sales Corp. enforceable against each of them in accordance with their respective terms;
(d) it keeps and will continue to keep all of its books and records concerning the Collateral at Borrower's executive offices located at the address set forth in the introductory paragraph of this Agreement and will not move such books and records without giving Lender at least thirty (30) days prior written notice;
(i) the operation of Borrower's business is and will continue to be in compliance in all material respects with all applicable federal, state and local laws, including but not limited to all applicable environmental laws and regulations and Sanction/Embargo Programs.
(ii) Borrower has established and maintained and will continue to maintain a system to assure and monitor continued compliance with all applicable environmental laws, and Sanction/Embargo Programs, which system shall include periodic reviews of such compliance.
(iii) in the event the Borrower obtains, gives or receives notice of any release or threat of release of a reportable quantity of any Hazardous Substances on its property (any such event being hereinafter referred to as a "Hazardous Discharge") or receives any notice of violation, request for information or notification that it is potentially responsible for investigation or cleanup of environmental conditions on its property, demand letter or complaint, order, citation, or other written notice with regard to any Hazardous Discharge or violation of any environmental laws affecting its property or Borrower's interest therein (any of the foregoing is referred to herein as an "Environmental Complaint") from any Person or entity, including any state agency responsible in whole or in part for environmental matters in the state in which such property is located or the United States Environmental Protection Agency (any such person or entity hereinafter the "Authority"), then the Borrower shall, within five (5) Business Days, give written notice of same to the Lender detailing facts and circumstances of which the Borrower is aware giving rise to the Hazardous Discharge or Environmental Complaint and periodically inform Lender of the status of the matter. Such information is to be provided to allow the Lender to protect its security interest in the Collateral and is not intended to create nor shall it create any obligation upon the Lender with respect thereto.
(iv) Borrower shall respond promptly to any Hazardous Discharge or Environmental Complaint and take all necessary action in order to safeguard the health of any Person and to avoid subjecting the Collateral to any lien, charge, claim or encumbrance. If Borrower shall fail to respond promptly to any Hazardous Discharge or Environmental Complaint or Borrower shall fail to comply with any of the requirements of any environmental laws, the Lender may, but without the obligation to do so, for the sole purpose of protecting the Lender's interest in Collateral: (A) give such notices or (B) enter onto Borrower's property (or authorize third parties to enter onto such property) and take such actions as the Lender (or such third parties as directed by the Lender) deem reasonably necessary or advisable, to clean up, remove, mitigate or otherwise deal with any such Hazardous Discharge or Environmental Complaint. All reasonable costs and expenses directly incurred by the Lender (or such third parties) in the exercise of any such rights, including any sums paid in connection with any judicial or administrative investigation or proceedings, fines and penalties, together with interest thereon from the date expended at the Default Rate for Revolving Credit Advances shall be paid upon demand by the Borrower, and until paid shall be added to and become a part of the Obligations secured by the liens created by the terms of this Agreement or any other agreement between Lender and Borrower.
(v) Borrower shall defend and indemnify the Lender and hold the Lender harmless from and against all loss, liability, damage and expense, claims, costs, fines and penalties, including attorney's fees, directly suffered or incurred by the Lender under or on account of A. any environmental laws, including, without limitation, the assertion of any lien thereunder, with respect to any Hazardous Discharge, the presence of any Hazardous Substances affecting Borrower's property, whether or not the same originates or emerges from Borrower's property or any contiguous real estate, including any loss of value of the Collateral as a result of the foregoing except to the extent such loss, liability, damage and expense is attributable to any Hazardous Discharge resulting from actions on the part of the Lender, and B. any Sanction/Embargo Program. The Borrower's obligations under Section 12(e)(v) A. shall arise upon the discovery of the presence of any Hazardous Substances on the Borrower's property, whether or not any federal, state, or local environmental agency has taken or threatened any action in connection with the presence of any Hazardous Substances, and under Section 12(e)(v) B on failure to comply with any Sanction/Embargo Program. The Borrower's obligation and the indemnifications hereunder shall survive the termination of this Agreement.
(vi) For purposes of Section 12
Appears in 1 contract
Sources: Loan and Security Agreement (Inverness Medical Innovations Inc)
Additional Representations, Warranties and Covenants. Borrower represents represents, warrants and warrants (each covenants with and to Lender as follows, which representations, warranties and covenants are continuing and shall survive the execution and delivery hereof, and the truth and accuracy of, or compliance with each, together with the representations, warranties and covenants in the other Financing Agreements, being a continuing condition of which such representations and warranties shall be deemed repeated upon the making of a request for a Revolving Credit Advance any and made as of the time of each Revolving Credit Advance made hereunder), and covenants thatall Loans by Lender to Borrower:
(a) Saba and Santa Maria is each a corporation duly o▇▇▇▇▇zed and validly existing under the laws No Event of Default or act, condition or event which with notice or passage of time or both would constitute an Event of Default exists or has occurred as of the State date of California this Amendment (after giving effect to the amendments made and Greka is a corporation duly organized and validly existing under the laws of the State of Colorado and each Borrower is duly qualified and in good standing in every other state or jurisdiction in which the nature of Borrower's business requires such qualification except where the failure consents granted by Lender pursuant to qualify would not have a material adverse effect on the Borrower=s businessthis Amendment).;
(b) This Amendment has been duly executed and delivered by Borrower and is in full force and effect as of the executiondate hereof, delivery and performance the agreements and obligations of this Borrower contained herein and therein constitute legal, valid and binding obligations of Borrower enforceable against Borrower in accordance with their terms.
(c) Borrower has delivered, or caused to be delivered, to Lender, true, correct and complete copies of the Reunion Series A Preferred Stock Subscription Agreement and the Ancillary Agreements Restated Certificate of Incorporation, dated December 26, 1996, of Borrower and filed on December 27, 1996 with the New York Department of State.
(id) have been duly authorizedNeither the execution and delivery of the Reunion Series A Preferred Subscription Agreement and the Restated Certificate of Incorporation of Borrower nor the consummation of the transactions therein contemplated, (ii) are not in contravention of Borrower's certificate of incorporationnor compliance with the provisions thereof, by-has violated or shall violate any federal or state securities laws or any other law or regulation or any order or decree of any court or governmental instrumentality in any respect or does or shall conflict with or result in the breach of, or constitute a default in any respect under, any indenture, mortgage, deed of trust, security agreement, lease, agreement or undertaking instrument to which Borrower is a party or by which Borrower is bound and (iii) are within Borrower's corporate powers;
(c) this Agreement and the Ancillary Agreements executed and delivered by Borrower are Borrower's legalmay be bound, valid and binding obligationsor, enforceable in accordance with their terms;
(d) it keeps and will continue to keep all of its books and records concerning the Collateral at Borrower's executive offices located at the address set forth in the introductory paragraph of this Agreement and will not move such books and records without giving Lender at least thirty (30) days prior written notice;
(i) the operation of Borrower's business is and will continue to be in compliance in all material respects with all applicable federal, state and local laws, including but not limited to all applicable environmental laws and regulations and Sanction/Embargo Programs.
(ii) Borrower has established and maintained and will continue to maintain a system to assure and monitor continued compliance with all applicable environmental laws, and Sanction/Embargo Programs, which system shall include periodic reviews of such compliance.
(iii) in the event the Borrower obtains, gives or receives notice of any release or threat of release of a reportable quantity of any Hazardous Substances on its property (any such event being hereinafter referred to as a "Hazardous Discharge") or receives any notice of violation, request for information or notification that it is potentially responsible for investigation or cleanup of environmental conditions on its property, demand letter or complaint, order, citation, or other written notice with regard to any Hazardous Discharge or violation of any environmental laws affecting its property or Borrower's interest therein (any case of the foregoing is referred to herein as an "Environmental Complaint") from Reunion Series A Preferred Stock Subscription Agreement, violate any Person or entity, including any state agency responsible in whole or in part for environmental matters in the state in which such property is located or the United States Environmental Protection Agency (any such person or entity hereinafter the "Authority"), then the Borrower shall, within five (5) Business Days, give written notice of same to the Lender detailing facts and circumstances of which the Borrower is aware giving rise to the Hazardous Discharge or Environmental Complaint and periodically inform Lender provision of the status Restated Certificate of the matter. Such information is to be provided to allow the Lender to protect its security interest in the Collateral and is not intended to create nor shall it create any obligation upon the Lender with respect thereto.
(iv) Borrower shall respond promptly to any Hazardous Discharge Incorporation or Environmental Complaint and take all necessary action in order to safeguard the health By-Laws of any Person and to avoid subjecting the Collateral to any lien, charge, claim or encumbrance. If Borrower shall fail to respond promptly to any Hazardous Discharge or Environmental Complaint or Borrower shall fail to comply with any of the requirements of any environmental laws, the Lender may, but without the obligation to do so, for the sole purpose of protecting the Lender's interest in Collateral: (A) give such notices or (B) enter onto Borrower's property (or authorize third parties to enter onto such property) and take such actions as the Lender (or such third parties as directed by the Lender) deem reasonably necessary or advisable, to clean up, remove, mitigate or otherwise deal with any such Hazardous Discharge or Environmental Complaint. All reasonable costs and expenses directly incurred by the Lender (or such third parties) in the exercise of any such rights, including any sums paid in connection with any judicial or administrative investigation or proceedings, fines and penalties, together with interest thereon from the date expended at the Default Rate for Revolving Credit Advances shall be paid upon demand by the Borrower, and until paid shall be added to and become a part of the Obligations secured by the liens created by the terms of this Agreement or any other agreement between Lender and Borrower.
(ve) Borrower shall defend All of the issued and indemnify outstanding shares of the Lender Series A Preferred Stock are directly and hold the Lender harmless from beneficially owned and against held by Reunion and all lossof such shares have been duly authorized and are fully paid and non-assessable, liability, damage free and expense, clear of all claims, costsliens, fines pledges and penalties, including attorney's fees, directly suffered or incurred by the Lender under or on account of A. any environmental laws, including, without limitation, the assertion encumbrances of any lien thereunder, with respect to any Hazardous Discharge, the presence of any Hazardous Substances affecting Borrower's property, whether or not the same originates or emerges from Borrower's property or any contiguous real estate, including any loss of value of the Collateral as a result of the foregoing except to the extent such loss, liability, damage and expense is attributable to any Hazardous Discharge resulting from actions on the part of the Lender, and B. any Sanction/Embargo Program. The Borrower's obligations under Section 12(e)(v) A. shall arise upon the discovery of the presence of any Hazardous Substances on the Borrower's property, whether or not any federal, state, or local environmental agency has taken or threatened any action in connection with the presence of any Hazardous Substances, and under Section 12(e)(v) B on failure to comply with any Sanction/Embargo Program. The Borrower's obligation and the indemnifications hereunder shall survive the termination of this Agreementkind.
(vif) For purposes Upon issuance to Reunion of Section 12the 55,000 shares of Series A Preferred Stock and payment in full of the accrued interest in the amount of $101,800.04 under the Reunion Converted Notes, Borrower shall deliver, or cause to be delivered to Lender a photocopy of each of the Reunion Converted Notes marked "paid in full" or "cancelled."
Appears in 1 contract
Sources: Loan and Security Agreement (Reunion Industries Inc)
Additional Representations, Warranties and Covenants. Borrower represents and warrants (each of which such representations and warranties shall be deemed repeated upon the making of a request for a Revolving Credit Advance and made as of the time of each Revolving Credit Advance made hereunder), and covenants that:
(a) Saba and Santa Maria is each a corporation duly o▇▇▇▇▇zed and validly existing under the laws of the State of California and Greka Borrower is a corporation duly organized and validly existing under the laws of the State of Colorado Delaware and each Borrower is duly qualified and in good standing in every other state or jurisdiction in which the nature of Borrower's business requires such qualification except where the failure to qualify would not have a material adverse effect on the Borrower=s business.qualification;
(b) the execution, delivery and performance of this Agreement and the Ancillary Agreements (i) have been duly authorized, (ii) are not in contravention of Borrower's certificate of incorporation, by-laws or of any indenture, agreement or undertaking to which Borrower is a party or by which Borrower is bound and (iii) are within Borrower's corporate powers;
(c) this Agreement and the Ancillary Agreements executed and delivered by Borrower are Borrower's legal, valid and binding obligations, enforceable in accordance with their terms;
(d) it keeps and will continue to keep all of its books and records concerning the Collateral at Borrower's executive offices located at the address addresses set forth in the introductory paragraph of this Agreement on Schedule 12(d) hereof and will not move such books and records to any location other than as set forth on Schedule 12(d) without giving Lender Agent at least thirty (30) days prior written notice;
(i) the operation of Borrower's business is and will continue to be in compliance in all material respects with all applicable federal, state and local laws, including but not limited to all applicable environmental laws and regulations and Sanction/Embargo ProgramsBorrower shall not engage in any business activity which has been adjudicated to have violated an applicable state or federal statute relative to health, safety or public morals.
(ii) Borrower has established will establish and maintained and will continue to maintain a system to assure and monitor continued compliance with all applicable environmental laws, and Sanction/Embargo Programs, which system shall include include, if applicable, periodic reviews of such compliance.
(iii) in In the event the Borrower obtains, gives or receives notice of any release or threat of release of a reportable quantity of any Hazardous Substances on its property (any such event being hereinafter referred to as a "Hazardous Discharge") or receives any notice of violation, request for information or notification that it is potentially responsible for investigation or cleanup of environmental conditions on its property, demand letter or complaint, order, citation, or other written notice with regard to any Hazardous Discharge or violation of any environmental laws affecting its property or Borrower's interest therein (any of the foregoing is referred to herein as an "Environmental Complaint") from any Person or entity, including any state agency responsible in whole or in part for environmental matters in the state in which such property is located or the United States Environmental Protection Agency (any such person or entity hereinafter the "Authority"), then the Borrower shall, within five (5) Business Days, give written notice of same to the Lender Agent detailing facts and circumstances of which the Borrower is aware giving rise to the Hazardous Discharge or Environmental Complaint and periodically inform Lender Agent of the status of the matter. Such information is to be provided to allow the Lender Agent to protect its security interest in the Collateral and is not intended to create nor shall it create any obligation upon the Lender Agent with respect thereto.
(iv) Borrower shall respond promptly to any Hazardous Discharge or Environmental Complaint and take all necessary action in order to safeguard the health of any Person and to avoid subjecting the Collateral to any lien, charge, claim or encumbrance. If Borrower shall fail to respond promptly to any Hazardous Discharge or Environmental Complaint or Borrower shall fail to comply with any of the requirements of any environmental laws, the Lender Agent may, but without the obligation to do so, for the sole purpose of protecting the LenderAgent's interest in Collateral: (A) give such notices or (B) enter onto Borrower's property (or authorize third parties to enter onto such property) and take such actions as the Lender Agent (or such third parties as directed by the LenderAgent) deem reasonably necessary or advisable, to clean up, remove, mitigate or otherwise deal with any such Hazardous Discharge or Environmental Complaint. All reasonable costs and expenses directly incurred by the Lender Agent (or such third parties) in the exercise of any such rights, including any sums paid in connection with any judicial or administrative investigation or proceedings, fines and penalties, together with interest thereon from the date expended at the Default Rate for Revolving Credit Advances shall be paid upon demand by the Borrower, and until paid shall be added to and become a part of the Obligations secured by the liens Liens created by the terms of this Agreement or any other agreement between Lender Agent and Borrower.
(v) Borrower shall defend and indemnify the Lender Lenders and hold the Lender Lenders harmless from and against all loss, liability, damage and expense, claims, costs, fines and penalties, including attorney's fees, directly suffered or incurred by the Lender Agent under or on account of A. any environmental laws, including, without limitation, the assertion of any lien thereunder, with respect to any Hazardous Discharge, the presence of any Hazardous Substances hazardous substances affecting Borrower's property, whether or not the same originates or emerges from Borrower's property or any contiguous real estate, including any loss of value of the Collateral as a result of the foregoing except to the extent such loss, liability, damage and expense is attributable to any Hazardous Discharge resulting from actions on the part of the Lender, and B. any Sanction/Embargo ProgramAgent. The Borrower's obligations under Section 12(e)(vthis paragraph 12(e) A. shall arise upon the discovery of the presence of any Hazardous Substances on the Borrower's property, whether or not any federal, state, or local environmental agency has taken or threatened any action in connection with the presence of any Hazardous Substances, and under Section 12(e)(v) B on failure to comply with any Sanction/Embargo Programhazardous substances. The Borrower's obligation and the indemnifications hereunder shall survive the termination of this Agreement.
(vi) For purposes of Section paragraph 12
Appears in 1 contract
Sources: Accounts Receivable Management and Security Agreement (TMP Worldwide Inc)
Additional Representations, Warranties and Covenants. Borrower represents Borrowers and warrants (each Guarantors, jointly and severally, represent, warrant and covenant with and to Agent and Lenders as follows, which representations, warranties and covenants are continuing and shall survive the execution and delivery hereof, and the truth and accuracy of, or compliance with each, together with the representations, warranties and covenants in the other Financing Agreements, being a continuing condition of which such representations and warranties shall be deemed repeated upon the making of a request for a Revolving Credit Advance and made as of the time of each Revolving Credit Advance made hereunder), and covenants thatLoans by Lenders to Borrowers:
(a) Saba the aggregate Excess Availability of Borrowers on each day during the period from October 31, 2007 through and Santa Maria is each a corporation duly o▇▇▇▇▇zed and validly existing under the laws of the State of California and Greka is a corporation duly organized and validly existing under the laws of the State of Colorado and each Borrower is duly qualified and in good standing in every other state or jurisdiction in which the nature of Borrower's business requires such qualification except where the failure to qualify would including November 12, 2007, shall be not have a material adverse effect on the Borrower=s business.less than $12,000,000;
(b) This Amendment and the other Financing Agreements executed and/or delivered by any Borrower or Guarantor in connection herewith (together with this Amendment, the “Amendment Documents”) have been duly authorized, executed and delivered by all necessary action on the part of each Borrower and Guarantor which is a party hereto and, if necessary, their respective members or stockholders, as the case may be, and is in full force and effect as of the date hereof, as the case may be, and the agreements and obligations of Borrowers and Guarantors contained herein or therein constitute legal, valid and binding obligations of Borrowers and Guarantors enforceable against them in accordance with their terms, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or similar laws of general applicability affecting the enforcement of creditors’ rights and (ii) the application of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(c) As of the date hereof, all of the representations and warranties set forth in the Loan Agreement and the other Financing Agreements are true and correct in all material respects on and as of the date hereof as if made on the date hereof, except to the extent any such representation or warranty is made as of a specified date, in which case such representation or warranty shall have been true and correct as of such date.
(d) Neither the execution, delivery and performance of this Agreement and Amendment or any other Amendment Document in connection therewith, nor the Ancillary Agreements consummation of any of the transactions contemplated herein or therein (i) have been duly authorized, (ii) are not in contravention of Borrower's certificate of incorporation, by-laws law or of any indenture, agreement or undertaking (including the Indenture) to which any Borrower or Guarantor is a party or by which any Borrower is bound and or Guarantor or its property are bound, or (iiiii) are within Borrower's corporate powers;
(c) this Agreement and violates any provision of the Ancillary Agreements executed and delivered by Certificate of Incorporation, Certificate of Formation, Operating Agreement, By-Laws or other governing documents of any Borrower are Borrower's legal, valid and binding obligations, enforceable in accordance with their terms;
(d) it keeps and will continue to keep all of its books and records concerning the Collateral at Borrower's executive offices located at the address set forth in the introductory paragraph of this Agreement and will not move such books and records without giving Lender at least thirty (30) days prior written notice;
(i) the operation of Borrower's business is and will continue to be in compliance in all material respects with all applicable federal, state and local laws, including but not limited to all applicable environmental laws and regulations and Sanction/Embargo Programsor Guarantor.
(iie) Borrower has established and maintained and will continue to maintain a system to assure and monitor continued compliance with all applicable environmental laws, and Sanction/Embargo Programs, which system shall include periodic reviews of such compliance.
(iii) in the event the Borrower obtains, gives or receives notice of any release or threat of release of a reportable quantity of any Hazardous Substances on its property (any such event being hereinafter referred to as a "Hazardous Discharge") or receives any notice of violation, request for information or notification that it is potentially responsible for investigation or cleanup of environmental conditions on its property, demand letter or complaint, order, citation, or other written notice with regard to any Hazardous Discharge or violation of any environmental laws affecting its property or Borrower's interest therein (any As of the foregoing is referred to herein as an "Environmental Complaint") from any Person date hereof and after giving effect hereto, no Default or entity, including any state agency responsible in whole Event of Default exists or in part for environmental matters in the state in which such property is located or the United States Environmental Protection Agency (any such person or entity hereinafter the "Authority"), then the Borrower shall, within five (5) Business Days, give written notice of same to the Lender detailing facts and circumstances of which the Borrower is aware giving rise to the Hazardous Discharge or Environmental Complaint and periodically inform Lender of the status of the matter. Such information is to be provided to allow the Lender to protect its security interest in the Collateral has occurred and is not intended to create nor shall it create any obligation upon the Lender with respect theretocontinuing.
(iv) Borrower shall respond promptly to any Hazardous Discharge or Environmental Complaint and take all necessary action in order to safeguard the health of any Person and to avoid subjecting the Collateral to any lien, charge, claim or encumbrance. If Borrower shall fail to respond promptly to any Hazardous Discharge or Environmental Complaint or Borrower shall fail to comply with any of the requirements of any environmental laws, the Lender may, but without the obligation to do so, for the sole purpose of protecting the Lender's interest in Collateral: (A) give such notices or (B) enter onto Borrower's property (or authorize third parties to enter onto such property) and take such actions as the Lender (or such third parties as directed by the Lender) deem reasonably necessary or advisable, to clean up, remove, mitigate or otherwise deal with any such Hazardous Discharge or Environmental Complaint. All reasonable costs and expenses directly incurred by the Lender (or such third parties) in the exercise of any such rights, including any sums paid in connection with any judicial or administrative investigation or proceedings, fines and penalties, together with interest thereon from the date expended at the Default Rate for Revolving Credit Advances shall be paid upon demand by the Borrower, and until paid shall be added to and become a part of the Obligations secured by the liens created by the terms of this Agreement or any other agreement between Lender and Borrower.
(v) Borrower shall defend and indemnify the Lender and hold the Lender harmless from and against all loss, liability, damage and expense, claims, costs, fines and penalties, including attorney's fees, directly suffered or incurred by the Lender under or on account of A. any environmental laws, including, without limitation, the assertion of any lien thereunder, with respect to any Hazardous Discharge, the presence of any Hazardous Substances affecting Borrower's property, whether or not the same originates or emerges from Borrower's property or any contiguous real estate, including any loss of value of the Collateral as a result of the foregoing except to the extent such loss, liability, damage and expense is attributable to any Hazardous Discharge resulting from actions on the part of the Lender, and B. any Sanction/Embargo Program. The Borrower's obligations under Section 12(e)(v) A. shall arise upon the discovery of the presence of any Hazardous Substances on the Borrower's property, whether or not any federal, state, or local environmental agency has taken or threatened any action in connection with the presence of any Hazardous Substances, and under Section 12(e)(v) B on failure to comply with any Sanction/Embargo Program. The Borrower's obligation and the indemnifications hereunder shall survive the termination of this Agreement.
(vi) For purposes of Section 12
Appears in 1 contract
Additional Representations, Warranties and Covenants. Each Borrower represents and represents, warrants (each of which such representations and warranties shall be deemed repeated upon the making of a request for a Revolving Credit Advance and made as of the time of each Revolving Credit Advance made hereunder), and covenants that:
(a) Saba and Santa Maria is each a corporation duly o▇▇▇▇▇zed and validly existing under the laws of the State of California and Greka such Borrower is a corporation duly organized and validly existing under the laws of the State of Colorado States listed on Exhibit 12(a), and each such Borrower is duly qualified and in good standing in every other state or jurisdiction in which the nature of such Borrower's business requires such qualification except where the failure to qualify would not have a material adverse effect on the Borrower=s business.qualification;
(b) the execution, delivery and performance of this Agreement and the Ancillary Agreements (i) have been duly authorized, (ii) are not in contravention of such Borrower's certificate of incorporation, by-laws laws, or of any indenture, agreement or undertaking to which such Borrower is a party or by which such Borrower is bound and (iii) are within such Borrower's corporate powers;
(c) this Agreement and the Ancillary Agreements executed and delivered by each Borrower are such Borrower's legal, valid and binding obligations, enforceable in accordance with their terms;
(d) it keeps and will continue to keep all of its books and records concerning the Collateral at Borrower's the executive offices located at the address set forth in the introductory paragraph of this Agreement and will not move such books and records without giving Lender Access Capital at least thirty (30) days prior written notice;
(ie) the operation of each Borrower's business is and will continue to be in compliance in all material respects with all applicable federal, state and local laws, including but not limited to all applicable environmental laws and regulations;
(f) based upon the Employee Retirement Income Security Act of 1974 ("ERISA"), and the regulations and Sanction/Embargo Programs.
published interpretations thereunder: (i) no Borrower has engaged in any Prohibited Transactions as defined in paragraph 406 of ERISA and paragraph 4975 of the Internal Revenue Code, as amended; (ii) each Borrower has established and maintained and will continue to maintain a system to assure and monitor continued compliance with met all applicable environmental laws, and Sanction/Embargo Programs, which system shall include periodic reviews minimum funding requirements under paragraph 302 of such compliance.
ERISA in respect of its plans; (iii) in the event the no Borrower obtains, gives or receives notice has knowledge of any release event or threat occurrence which would cause the Pension Benefit Guaranty Corporation to institute proceedings under Title IV of release of a reportable quantity of ERISA to terminate any Hazardous Substances on its property (any such event being hereinafter referred to as a "Hazardous Discharge") or receives any notice of violation, request for information or notification that it is potentially responsible for investigation or cleanup of environmental conditions on its property, demand letter or complaint, order, citation, or other written notice with regard to any Hazardous Discharge or violation of any environmental laws affecting its property or Borrower's interest therein (any of the foregoing is referred to herein as an "Environmental Complaint") from any Person or entity, including any state agency responsible in whole or in part for environmental matters in the state in which such property is located or the United States Environmental Protection Agency (any such person or entity hereinafter the "Authority"employee benefit plan(s), then the Borrower shall, within five (5) Business Days, give written notice of same to the Lender detailing facts and circumstances of which the Borrower is aware giving rise to the Hazardous Discharge or Environmental Complaint and periodically inform Lender of the status of the matter. Such information is to be provided to allow the Lender to protect its security interest in the Collateral and is not intended to create nor shall it create any obligation upon the Lender with respect thereto.
; (iv) no Borrower shall respond promptly to any Hazardous Discharge or Environmental Complaint and take all necessary action in order to safeguard the health of any Person and to avoid subjecting the Collateral to any lien, charge, claim or encumbrance. If Borrower shall fail to respond promptly to any Hazardous Discharge or Environmental Complaint or Borrower shall fail to comply with any of the requirements of any environmental laws, the Lender may, but without the obligation to do so, has fiduciary responsibility for the sole purpose of protecting the Lender's interest in Collateral: (A) give such notices or (B) enter onto Borrower's property (or authorize third parties to enter onto such property) and take such actions as the Lender (or such third parties as directed by the Lender) deem reasonably necessary or advisable, to clean up, remove, mitigate or otherwise deal with any such Hazardous Discharge or Environmental Complaint. All reasonable costs and expenses directly incurred by the Lender (or such third parties) in the exercise of any such rights, including any sums paid in connection with any judicial or administrative investigation or proceedings, fines and penalties, together with interest thereon from the date expended at the Default Rate for Revolving Credit Advances shall be paid upon demand by the Borrower, and until paid shall be added to and become a part of the Obligations secured by the liens created by the terms of this Agreement or any other agreement between Lender and Borrower.
(v) Borrower shall defend and indemnify the Lender and hold the Lender harmless from and against all loss, liability, damage and expense, claims, costs, fines and penalties, including attorney's fees, directly suffered or incurred by the Lender under or on account of A. any environmental laws, including, without limitation, the assertion of any lien thereunder, investments with respect to any Hazardous Dischargeplan existing for the benefit of persons other than Borrower's employees; and (v) no Borrower has withdrawn, completely or partially, from any multi-employer pension plan so as to incur liability under the Multiemployer Pension Plan Amendments Act of 1980;
(g) it is solvent, able to pay its debts as they mature, has capital sufficient to carry on its business and all businesses in which it is about to engage and the fair saleable value of its assets (calculated on a going concern basis) is in excess of the amount of its liabilities;
(h) there is no pending or threatened litigation, actions or proceeding which involve the possibility of materially and adversely affecting any Borrower's business, assets, operations, prospects or condition (financial or otherwise), or the Collateral or the ability of any Borrower to perform this Agreement;
(i) all balance sheets and income statements for the fiscal year ended December 31, 1996, the presence of any Hazardous Substances affecting fiscal quarter ended March 31, 1997 and for the period ended May 31, 1997 which have been presently delivered to Access Capital fairly, accurately and properly state such Borrower's property, whether or not the same originates or emerges from financial condition on a basis consistent with that of previous financial statements and there has been no material adverse change in any Borrower's property financial condition as reflected in such statements since the date thereof and such statements do not fail to disclose any fact or any contiguous real estate, including any loss of value of the Collateral as a result of the foregoing except to the extent facts which might materially and adversely affect such loss, liability, damage and expense is attributable to any Hazardous Discharge resulting from actions on the part of the Lender, and B. any Sanction/Embargo Program. The Borrower's obligations under Section 12(e)(v) A. shall arise upon the discovery of the presence of any Hazardous Substances on the Borrower's property, whether or not any federal, state, or local environmental agency has taken or threatened any action in connection with the presence of any Hazardous Substances, and under Section 12(e)(v) B on failure to comply with any Sanction/Embargo Program. The Borrower's obligation and the indemnifications hereunder shall survive the termination of this Agreement.
(vi) For purposes of Section 12financial condition;
Appears in 1 contract
Sources: Loan and Security Agreement (Magnavision Corporation)
Additional Representations, Warranties and Covenants. Each Borrower represents and represents, warrants (each of which such representations and warranties shall be deemed repeated upon the making of a request for a Revolving Credit Advance and made as of the time of each Revolving Credit Advance made hereunder), and covenants that:
(ai) Saba and Santa Maria is each a corporation duly o▇▇▇▇▇zed and validly existing under the laws of the State of California and Greka Borrower is a corporation duly organized and validly existing under the laws of the State of Colorado and states listed on Exhibit 12(a), (ii) each Borrower is duly qualified and in good standing in every other state or jurisdiction in which the nature of such Borrower's business requires such qualification except where the failure to qualify would not have and (iii) ADC is a material adverse effect on the Borrower=s business.wholly owned Subsidiary of ADI;
(b) the execution, delivery and performance of this Agreement and the Ancillary Agreements (i) have been duly authorized, (ii) are not in contravention of such Borrower's certificate of incorporation, by-laws or of any indenture, agreement or undertaking to which such Borrower is a party or by which such Borrower is bound and (iii) are within such Borrower's corporate powers;
(c) this Agreement and the Ancillary Agreements executed and delivered by each Borrower are such Borrower's legal, valid and binding obligations, enforceable in accordance with their terms;
(d) it keeps and will continue to keep all of its books and records concerning the Collateral at Borrower's the executive offices located at the address set forth in the introductory paragraph of this Agreement and will not move such books and records without giving Lender at least thirty (30) days prior written notice;
(i) the operation of each Borrower's business is and will continue to be in compliance in all material respects with all applicable federal, state and local laws, including but not limited to to, all regulations promulgated by FDA (as applicable) and all applicable environmental laws and regulations and Sanction/Embargo Programs.regulations;
(ii) Borrower has established Borrowers will establish and maintained and will continue to maintain a system to assure and monitor continued compliance with all applicable environmental laws, and Sanction/Embargo Programs, which system shall include periodic reviews of such compliance.;
(iii) in In the event the any Borrower obtains, gives or receives notice of any release or threat of release of a reportable quantity of any Hazardous Substances hazardous substances on its property (any such event being hereinafter referred to as a "Hazardous Discharge") or receives any notice of violation, request for information or notification that it is potentially responsible for investigation or cleanup of environmental conditions on its property, demand letter or complaint, order, citation, or other written notice with regard to any Hazardous Discharge or violation of any environmental laws affecting its property or any Borrower's interest therein (any of the foregoing is referred to herein as an "Environmental Complaint") from any Person or entity, including any state agency responsible in whole or in part for environmental matters in the state in which such property is located or the United States Environmental Protection Agency (any such person or entity hereinafter the "Authority"), then the Borrower Borrowers shall, within five seven (57) Business Daysdays, give written notice of same to the Lender detailing facts and circumstances of which the Borrower is Borrowers are aware giving rise to the Hazardous Discharge or Environmental Complaint and periodically inform Lender of the status of the matter. Such information is to be provided to allow the Lender to protect its security interest in the Collateral and is not intended to create nor shall it create any obligation upon the Lender with respect thereto.;
(iv) Each Borrower shall respond promptly to any Hazardous Discharge or Environmental Complaint and take all necessary action in order to safeguard the health of any Person and to avoid subjecting the Collateral to any lien, charge, claim or encumbrance. If any Borrower shall fail to respond promptly to any Hazardous Discharge or Environmental Complaint or any Borrower shall fail to comply with any of the requirements of any environmental laws, the Lender may, but without the obligation to do so, for the sole purpose of protecting the Lender's interest in Collateral: (A) give such notices or (B) enter onto such Borrower's property (or authorize third parties to enter onto such property) and take such actions as the Lender (or such third parties as directed by the Lender) deem deems reasonably necessary or advisable, to clean up, remove, mitigate or otherwise deal with any such Hazardous Discharge or Environmental Complaint. All reasonable costs and expenses directly incurred by the Lender (or such third parties) in the exercise of any such rights, including any sums paid in connection with any judicial or administrative investigation or proceedings, fines and penalties, together with interest thereon from the date expended at the Default Rate for Revolving Credit Advances shall be paid upon demand by the BorrowerBorrowers, and until paid shall be added to and become a part of the Obligations secured by the liens created by the terms of this Agreement or any other agreement between Lender and any Borrower.;
(v) Each Borrower shall defend and indemnify the Lender and hold the Lender harmless from and against all loss, liability, damage and expense, claims, costs, fines and penalties, including attorney's fees, directly suffered or incurred by the Lender under or on account of A. any environmental laws, including, without limitation, the assertion of any lien thereunder, with respect to any Hazardous Discharge, the presence of any Hazardous Substances hazardous substances affecting any Borrower's property, whether or not the same originates or emerges from such Borrower's property or any contiguous real estate, including any loss of value of the Collateral as a result of the foregoing except to the extent such loss, liability, damage and expense is attributable to any Hazardous Discharge resulting from actions on the part of the Lender, and B. any Sanction/Embargo Program. The Borrower's Borrowers' obligations under Section 12(e)(vthis paragraph 12(e) A. shall arise upon the discovery of the presence of any Hazardous Substances hazardous substances on the Borrower's Borrowers' property, whether or not any federal, state, or local environmental agency has taken or threatened any action in connection with the presence of any Hazardous Substances, and under Section 12(e)(v) B on failure to comply with any Sanction/Embargo Program. The Borrower's obligation and the indemnifications hereunder shall survive the termination of this Agreement.
(vi) For purposes of Section 12hazardous
Appears in 1 contract
Additional Representations, Warranties and Covenants. Borrower represents and warrants (each of which such representations and warranties shall be deemed repeated upon the making of a request for a Revolving Credit Advance and made as of the time of each Revolving Credit Advance made hereunder), and covenants that:
(a) Saba and Santa Maria is each a corporation duly o▇▇▇▇▇zed and validly existing under the laws of the State of California and Greka Borrower is a corporation duly organized and validly existing under the laws of the State of Colorado Delaware and each Borrower is duly qualified and in good standing in every other state or jurisdiction in which the nature of Borrower's business requires such qualification except where the failure to qualify would not have a material adverse effect on the Borrower=s business.qualification;
(b) the execution, delivery and performance of this Agreement and the Ancillary Agreements (i) have been duly authorized, (ii) are not in contravention of Borrower's certificate of incorporation, by-laws or of any indenture, agreement or undertaking to which Borrower is a party or by which Borrower is bound and (iii) are within Borrower's corporate powers;
(c) this Agreement and the Ancillary Agreements executed and delivered by Borrower are Borrower's legal, valid and binding obligations, enforceable in accordance with their terms;
(d) it keeps and will continue to keep all of its books and records concerning the Collateral at Borrower's executive offices located at the address set forth in the introductory paragraph of this Agreement and will not move such books and records without giving Lender at least thirty (30) days prior written notice;
(i) the operation of Borrower's business is and will continue to be in compliance in all material respects with all applicable federal, state and local laws, including but not limited to all applicable environmental laws and regulations and Sanction/Embargo Programsregulations.
(ii) Borrower has established will establish and maintained and will continue to maintain a system to assure and monitor continued compliance with all applicable environmental laws, and Sanction/Embargo Programs, which system shall include periodic reviews of such compliance.
(iii) in the event the Borrower obtains, gives or receives notice of any release or threat of release of a reportable quantity of any Hazardous Substances on its property (any such event being hereinafter referred to as a "Hazardous Discharge") or receives any notice of violation, request for information or notification that it is potentially responsible for investigation or cleanup of environmental conditions on its property, demand letter or complaint, order, citation, or other written notice with regard to any Hazardous Discharge or violation of any environmental laws affecting its property or Borrower's interest therein (any of the foregoing is referred to herein as an "Environmental Complaint") from any Person or entity, including any state agency responsible in whole or in part for environmental matters in the state in which such property is located or the United States Environmental Protection Agency (any such person or entity hereinafter the "Authority"), then the Borrower shall, within five (5) Business Days, give written notice of same to the Lender detailing facts and circumstances of which the Borrower is aware giving rise to the Hazardous Discharge or Environmental Complaint and periodically inform Lender of the status of the matter. Such information is to be provided to allow the Lender to protect its security interest in the Collateral and is not intended to create nor shall it create any obligation upon the Lender with respect thereto.
(iv) Borrower shall respond promptly to any Hazardous Discharge or Environmental Complaint and take all necessary action in order to safeguard the health of any Person and to avoid subjecting the Collateral to any lien, charge, claim or encumbrance. If Borrower shall fail to respond promptly to any Hazardous Discharge or Environmental Complaint or Borrower shall fail to comply with any of the requirements of any environmental laws, the Lender may, but without the obligation to do so, for the sole purpose of protecting the Lender's interest in Collateral: (A) give such notices or (B) enter onto Borrower's property (or authorize third parties to enter onto such property) and take such actions as the Lender (or such third parties as directed by the Lender) deem reasonably necessary or advisable, to clean up, remove, mitigate or otherwise deal with any such Hazardous Discharge or Environmental Complaint. All reasonable costs and expenses directly incurred by the Lender (or such third parties) in the exercise of any such rights, including any sums paid in connection with any judicial or administrative investigation or proceedings, fines and penalties, together with interest thereon from the date expended at the Default Rate for Revolving Credit Advances shall be paid upon demand by the Borrower, and until paid shall be added to and become a part of the Obligations secured by the liens Liens created by the terms of this Agreement or any other agreement between Lender and Borrower.
(v) Borrower shall defend and indemnify the Lender and hold the Lender harmless from and against all loss, liability, damage and expense, claims, costs, fines and penalties, including attorney's fees, directly suffered or incurred by the Lender under or on account of A. any environmental laws, including, without limitation, the assertion of any lien thereunder, with respect to any Hazardous Discharge, the presence of any Hazardous Substances hazardous substances affecting Borrower's property, whether or not the same originates or emerges from Borrower's property or any contiguous real estate, including any loss of value of the Collateral as a result of the foregoing except to the extent such loss, liability, damage and expense is attributable to any Hazardous Discharge resulting from actions on the part of the Lender, and B. any Sanction/Embargo Program. The Borrower's obligations under Section 12(e)(vthis paragraph 12(e) A. shall arise upon the discovery of the presence of any Hazardous Substances on the Borrower's property, whether or not any federal, state, or local environmental agency has taken or threatened any action in connection with the presence of any Hazardous Substances, and under Section 12(e)(v) B on failure to comply with any Sanction/Embargo Programhazardous substances. The Borrower's obligation and the indemnifications hereunder shall survive the termination of this Agreement.
(vi) For purposes of Section paragraph 12
Appears in 1 contract
Sources: Credit and Security Agreement (Aviation Distributors Inc)
Additional Representations, Warranties and Covenants. Borrower represents and Guarantors, each hereby jointly and severally represents, warrants (each and covenants to Lender as follows, which representations, warranties and covenants are continuing and shall survive the execution and delivery hereof, and the truth and accuracy of, or compliance with each, together with the representations, warranties and covenants in the other Financing Agreements, being a continuing condition of which such representations and warranties shall be deemed repeated upon the making of a request for a Revolving Credit Advance loans and made as of the time of each Revolving Credit Advance made hereunder), and covenants thatproviding other financial accommodations by Lender to Borrower:
(a) Saba and Santa Maria is each a corporation duly o▇▇▇▇▇zed and validly existing under On or about the laws date hereof, Sellers have sold to Purchaser all of the State of California and Greka is a corporation duly organized and validly existing under Sale Assets pursuant to the laws of the State of Colorado and each Borrower is duly qualified and Sale Contract (as in good standing in every other state or jurisdiction in which the nature of Borrower's business requires such qualification except where the failure to qualify would not have a material adverse effect on the Borrower=s businessdate hereof).;
(b) A true, correct and complete copy of the executionSale Contract, delivery together with all exhibits and performance of this Agreement and schedules thereto, as executed by the Ancillary Agreements (i) have been duly authorized, (ii) are not in contravention of Borrower's certificate of incorporation, by-laws or of any indenture, agreement or undertaking to which Borrower parties thereto is a party or by which Borrower is bound and (iii) are within Borrower's corporate powers;annexed hereto as Exhibit B.
(c) this Agreement The security interests in and liens of Lender upon the Ancillary Agreements executed Collateral (as such term is defined in the Loan Agreement), other than the Sale Assets, are and delivered by Borrower are shall continue to be in full force and effect, including, but not limited to, all amounts at any time payable to Borrower's legal, valid any Guarantor or any of their respective affiliates pursuant to the Sale Contract (and binding obligationsall related agreements, enforceable in accordance with documents and instruments), and all rights, benefits and remedies of Borrower, any Guarantor or any of their terms;respective affiliates pursuant to the Sale Contract (and all related agreements, documents and instruments).
(d) it keeps Borrower and will continue Guarantors shall cause all amounts at any time payable to keep all Borrower, any Guarantor or any of its books their respective affiliates pursuant to the Sale Contract or any related agreements, documents and records concerning instruments to be paid by Purchaser directly to Lender for application to the Collateral at Borrower's executive offices located at the address set forth Obligations (as such term is defined in the introductory paragraph of this Agreement Loan Agreement) in such order and will manner as Lender shall determine. The net amount payable by Purchaser to Borrower in cash or other immediately available funds pursuant to the Sale Contract shall be not move such books and records without giving Lender at least thirty (30) days prior written notice;
(i) the operation of Borrower's business is and will continue to be in compliance in all material respects with all applicable federal, state and local laws, including but not limited to all applicable environmental laws and regulations and Sanction/Embargo Programsless than $2,250,000.
(iie) Borrower has established In the event Borrower, Guarantors or any of their respective affiliates receives any amounts at any time payable to Borrower, any Guarantor or any of their respective affiliates pursuant to the Sale Contract or any related agreement, document or instrument, such amounts shall be collected by Borrower, such Guarantor or such affiliate, as the case may be, as the property of Lender and maintained held by it or them in trust for Lender and will continue shall on the date received be remitted to maintain a system to assure and monitor continued compliance with all applicable environmental laws, and Sanction/Embargo Programs, which system shall include periodic reviews of such compliance.
(iii) Lender in the event the Borrower obtainsform received, gives with any necessary assignments or receives notice of any release or threat of release of a reportable quantity of any Hazardous Substances on its property (any such event being hereinafter referred to as a "Hazardous Discharge") or receives any notice of violationendorsements, request for information or notification that it is potentially responsible for investigation or cleanup of environmental conditions on its property, demand letter or complaint, order, citation, or other written notice with regard to any Hazardous Discharge or violation of any environmental laws affecting its property or Borrower's interest therein (any of the foregoing is referred to herein as an "Environmental Complaint") from any Person or entity, including any state agency responsible in whole or in part for environmental matters in the state in which such property is located or the United States Environmental Protection Agency (any such person or entity hereinafter the "Authority"), then the Borrower shall, within five (5) Business Days, give written notice of same application to the Obligations in such order and manner as Lender detailing facts and circumstances of which the Borrower is aware giving rise to the Hazardous Discharge or Environmental Complaint and periodically inform Lender of the status of the matter. Such information is to be provided to allow the Lender to protect its security interest in the Collateral and is not intended to create nor shall it create any obligation upon the Lender with respect theretodetermine.
(iv) Borrower shall respond promptly to any Hazardous Discharge or Environmental Complaint and take all necessary action in order to safeguard the health of any Person and to avoid subjecting the Collateral to any lien, charge, claim or encumbrance. If Borrower shall fail to respond promptly to any Hazardous Discharge or Environmental Complaint or Borrower shall fail to comply with any of the requirements of any environmental laws, the Lender may, but without the obligation to do so, for the sole purpose of protecting the Lender's interest in Collateral: (A) give such notices or (B) enter onto Borrower's property (or authorize third parties to enter onto such property) and take such actions as the Lender (or such third parties as directed by the Lender) deem reasonably necessary or advisable, to clean up, remove, mitigate or otherwise deal with any such Hazardous Discharge or Environmental Complaint. All reasonable costs and expenses directly incurred by the Lender (or such third parties) in the exercise of any such rights, including any sums paid in connection with any judicial or administrative investigation or proceedings, fines and penalties, together with interest thereon from the date expended at the Default Rate for Revolving Credit Advances shall be paid upon demand by the Borrower, and until paid shall be added to and become a part of the Obligations secured by the liens created by the terms of this Agreement or any other agreement between Lender and Borrower.
(v) Borrower shall defend and indemnify the Lender and hold the Lender harmless from and against all loss, liability, damage and expense, claims, costs, fines and penalties, including attorney's fees, directly suffered or incurred by the Lender under or on account of A. any environmental laws, including, without limitation, the assertion of any lien thereunder, with respect to any Hazardous Discharge, the presence of any Hazardous Substances affecting Borrower's property, whether or not the same originates or emerges from Borrower's property or any contiguous real estate, including any loss of value of the Collateral as a result of the foregoing except to the extent such loss, liability, damage and expense is attributable to any Hazardous Discharge resulting from actions on the part of the Lender, and B. any Sanction/Embargo Program. The Borrower's obligations under Section 12(e)(v) A. shall arise upon the discovery of the presence of any Hazardous Substances on the Borrower's property, whether or not any federal, state, or local environmental agency has taken or threatened any action in connection with the presence of any Hazardous Substances, and under Section 12(e)(v) B on failure to comply with any Sanction/Embargo Program. The Borrower's obligation and the indemnifications hereunder shall survive the termination of this Agreement.
(vi) For purposes of Section 12
Appears in 1 contract
Sources: Loan and Security Agreement (Health Fitness Corp /Mn/)
Additional Representations, Warranties and Covenants. Each Borrower represents and warrants (each of which such representations and warranties shall be deemed repeated upon the making of a request for a Revolving Credit Advance and made as of the time of each Revolving Credit Advance made hereunder), and covenants that:
(a) Saba and Santa Maria is each a corporation duly o▇▇▇▇▇zed and validly existing under the laws of the State of California and Greka Each Borrower is a corporation duly organized and validly existing under the laws of the its respective State of Colorado incorporation set forth in Schedule 12(a) and each Borrower is duly qualified and in good standing in every other state or jurisdiction in which the nature of Borrower's business requires such qualification except where the failure to qualify do so would not have a material adverse effect on the Borrower=s 's business.;
(b) the execution, delivery and performance of this Agreement and the Ancillary Agreements (i) have been duly authorized, (ii) are not in contravention of Borrower's certificate of incorporation, by-laws or of any indenture, agreement or undertaking to which Borrower is a party or by which Borrower is bound and (iii) are within Borrower's corporate powers;
(c) this Agreement and the Ancillary Agreements executed and delivered by Borrower are Borrower's legal, valid and binding obligations, enforceable in accordance with their terms;
(d) it keeps and will continue to keep all of its books and records concerning the Collateral at Borrower's executive offices located at the address set forth in the introductory paragraph of this Agreement or at such other locations as are listed on Schedule 12(d) and will not move such books and records without giving Lender at least thirty (30) days prior written notice;
(i) the operation of Borrower's business is and will continue to be in compliance in all material respects with all applicable federal, state and local laws, including but not limited to all applicable environmental laws and regulations and Sanction/Embargo Programsregulations.
(ii) Borrower has established and maintained and will continue to maintain a system to assure and monitor continued compliance with all applicable environmental laws, and Sanction/Embargo Programs, which system shall include periodic reviews of such compliance.
(iii) in the event the Borrower obtains, gives or receives notice of any release or threat of release of a reportable quantity of any Hazardous Substances on its property (any such event being hereinafter referred to as a "Hazardous Discharge") or receives any notice of violation, request for information or notification that it is potentially responsible for investigation or cleanup of environmental conditions on its property, demand letter or complaint, order, citation, or other written notice with regard to any Hazardous Discharge or violation of any environmental laws affecting its property or Borrower's interest therein (any of the foregoing is referred to herein as an "Environmental Complaint") from any Person or entity, including any state agency responsible in whole or in part for environmental matters in the state in which such property is located or the United States Environmental Protection Agency (any such person or entity hereinafter the "Authority"), then the Borrower shall, within five (5) Business Days, give written notice of same to the Lender detailing facts and circumstances of which the Borrower is aware giving rise to the Hazardous Discharge or Environmental Complaint and periodically inform Lender of the status of the matter. Such information is to be provided to allow the Lender to protect its security interest in the Collateral and is not intended to create nor shall it create any obligation upon the Lender with respect thereto.
(iv) Borrower shall respond promptly to any Hazardous Discharge or Environmental Complaint and take all action reasonably necessary action in order to safeguard the health of any Person and to avoid subjecting the Collateral to any lien, charge, claim or encumbrance. If Borrower shall fail to respond promptly to any Hazardous Discharge or Environmental Complaint or Borrower shall fail to comply with any of the requirements of any environmental laws, the Lender may, but without the obligation to do so, for the sole purpose of protecting the Lender's interest in Collateral: (A) give such notices or (B) enter onto Borrower's property (or authorize third parties to enter onto such property) and take such actions as the Lender (or such third parties as directed by the Lender) deem reasonably necessary or advisable, to clean up, remove, mitigate or otherwise deal with any such Hazardous Discharge or Environmental Complaint. All reasonable costs and expenses directly incurred by the Lender (or such third parties) in the exercise of any such rights, including any sums paid in connection with any judicial or administrative investigation or proceedings, fines and penalties, together with interest thereon from the date expended at the Default Rate for Revolving Credit Advances shall be paid upon demand by the Borrower, and until paid shall be added to and become a part of the Obligations secured by the liens Liens created by the terms of this Agreement or any other agreement between Lender and Borrower.
(v) Borrower shall defend and indemnify the Lender and hold the Lender harmless from and against all loss, liability, damage and expense, claims, costs, fines and penalties, including attorney's fees, directly suffered or incurred by the Lender under or on account of A. any environmental laws, including, without limitation, the assertion of any lien thereunder, with respect to any Hazardous Discharge, the presence of any Hazardous Substances hazardous substances affecting Borrower's property, whether or not the same originates or emerges from Borrower's property or any contiguous real estate, including any loss of value of the Collateral as a result of the foregoing except to the extent such loss, liability, damage and expense is attributable to any Hazardous Discharge resulting from actions on the part of the Lender, and B. any Sanction/Embargo Program. The Borrower's obligations under Section 12(e)(vthis paragraph 12(e) A. shall arise upon the discovery of the presence of any Hazardous Substances on the Borrower's property, whether or not any federal, state, or local environmental agency has taken or threatened any action in connection with the presence of any Hazardous Substances, and under Section 12(e)(v) B on failure to comply with any Sanction/Embargo Programhazardous substances. The Borrower's obligation and the indemnifications hereunder shall survive the termination of this Agreement.
(vi) For purposes of Section paragraph 12
Appears in 1 contract
Sources: Accounts Receivable Management and Security Agreement (Precision Standard Inc)
Additional Representations, Warranties and Covenants. Borrower represents and represents, warrants (each of which such representations and warranties shall be deemed repeated upon the making of a request for a Revolving Credit Advance and made as of the time of each Revolving Credit Advance made hereunder), and covenants thatwith and to Agent and Lenders as follows, which representations, warranties and covenants are continuing and shall survive the execution and delivery hereof:
(a) Saba This Amendment No. 11 has been duly executed and Santa Maria delivered by Borrower and is each a in full force and effect as of the date hereof and the agreements and obligations of Borrower contained herein constitute legal, valid and binding obligations of Borrower enforceable against Borrower in accordance with their respective terms.
(b) The Merger is valid and effective in accordance with the Merger Agreements and the corporation duly ostatutes of the State of Minnesota and the State of North Dakota and Borrower is the surviving corporation pursuant to the Merger.
(c) All actions and proceedings required by the Merger Agreements, applicable law and regulation (including but not limited to, compliance with ▇▇▇▇-▇▇▇▇▇zed and validly existing under the laws -▇▇▇▇▇▇ Anti-Trust Improvement Acts of the State of California and Greka is a corporation duly organized and validly existing under the laws of the State of Colorado and each Borrower is duly qualified and in good standing in every other state or jurisdiction in which the nature of Borrower's business requires such qualification except where the failure to qualify would not have a material adverse effect on the Borrower=s business.;
(b) the execution1976, delivery and performance of this Agreement and the Ancillary Agreements (ias amended by all applicable securities laws) have been taken and the transactions required thereunder have been duly authorizedand validly taken and consummated.
(d) No court of competent jurisdiction has issued any injunction, restraining order or other order which prohibits consummation of the transactions described in the Merger Agreements and no government action or proceeding has been threatened or commenced seeking any injunction, restraining order or other order which seeks to void or otherwise modify the transactions described in the Merger Agreements.
(iie) are The security interests in and liens upon the assets and properties of Turtle Mountain in favor of Agent shall continue upon such assets and properties to which Borrower shall succeed pursuant to the Merger and such security interests and liens and their perfection and priority shall continue in all respects in full force and effect. Without limiting the generality of the foregoing, the Merger shall in no way limit, impair or adversely affect the Obligations, howsoever arising, or any security interests or liens securing the same.
(f) The Merger and the other arrangements contemplated herein do not in contravention of Borrower's certificate of incorporation, by-laws violate any law or regulation or any order or decree of any indenturecourt or governmental instrumentality in any respect and do not and will not conflict with or result in the breach of, agreement or undertaking constitute a default in any respect under, any agreement, document or instrument to which Borrower is a party or by which it or any of its assets may be bound, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property of Borrower is bound and (iii) are within or violate any provision of the Certificate of Incorporation or By-Laws of Borrower's corporate powers;.
(cg) this Agreement Borrower has delivered, or caused to be delivered, to Agent a true, correct and complete copy of the Ancillary Agreements executed and delivered by Borrower are Borrower's legal, valid and binding obligations, enforceable in accordance with their terms;Merger Agreements.
(dh) it keeps No action of, or filing with, or consent or any governmental or public body or authority, and no approval or consent of any other party, is or will continue be required to keep all of its books authorize, or is or will be otherwise required in connection with, the execution, delivery and records concerning the Collateral at Borrower's executive offices located at the address set forth in the introductory paragraph performance of this Agreement Amendment No. 11 other than such filings with the Securities and will not move such books and records without giving Lender at least thirty (30) days prior written notice;Exchange Commission as Borrower may deem advisable to comply with applicable law.
(i) After giving effect to the operation provisions of Borrower's business this Amendment No. 11, no Event of Default exists or has occurred and is and will continue to be continuing as of the date of this Amendment No. 11 as a result of or in compliance in all material respects connection with all applicable federal, state and local laws, including but not limited to all applicable environmental laws and regulations and Sanction/Embargo Programsthe Merger.
(i) The winding up, liquidation and dissolution of Guarantor has not and shall not violate any law or any order or decree of any court or other Governmental Authority in any material respect and has not conflicted with or resulted in the breach of, or constituted a default under, any indenture, mortgage, deed of trust, or any other agreement or instrument to which Borrower is a party or may be bound, (ii) Borrower such dissolution has established and maintained and will continue to maintain a system to assure and monitor continued compliance been done in accordance with the requirements of all applicable environmental lawslaws and regulations, and Sanction/Embargo Programs, which system shall include periodic reviews of such compliance.
(iii) in effective upon such dissolution, all of the event the Borrower obtainsassets and properties of Guarantor have been duly and validly transferred and assigned to Borrower, gives or receives notice free and clear of any release liens, restrictions or threat of release of a reportable quantity of any Hazardous Substances on its property (any such event being hereinafter referred to as a "Hazardous Discharge") or receives any notice of violation, request for information or notification that it is potentially responsible for investigation or cleanup of environmental conditions on its property, demand letter or complaint, order, citation, or encumbrances other written notice with regard to any Hazardous Discharge or violation of any environmental laws affecting its property or Borrower's interest therein (any of than the foregoing is referred to herein as an "Environmental Complaint") from any Person or entity, including any state agency responsible in whole or in part for environmental matters in the state in which such property is located or the United States Environmental Protection Agency (any such person or entity hereinafter the "Authority"), then the Borrower shall, within five (5) Business Days, give written notice of same to the Lender detailing facts and circumstances of which the Borrower is aware giving rise to the Hazardous Discharge or Environmental Complaint and periodically inform Lender of the status of the matter. Such information is to be provided to allow the Lender to protect its security interest in the Collateral and is not intended to create nor shall it create any obligation upon the Lender with respect thereto.
liens of Agent, (iv) Borrower does not have and shall respond promptly to not assume any Hazardous Discharge Indebtedness, obligations or Environmental Complaint and take all necessary action in order to safeguard the health of any Person and to avoid subjecting the Collateral to any lien, charge, claim or encumbrance. If Borrower shall fail to respond promptly to any Hazardous Discharge or Environmental Complaint or Borrower shall fail to comply with any of the requirements of any environmental laws, the Lender may, but without the obligation to do so, for the sole purpose of protecting the Lender's interest in Collateral: (A) give such notices or (B) enter onto Borrower's property (or authorize third parties to enter onto such property) and take such actions as the Lender (or such third parties as directed by the Lender) deem reasonably necessary or advisable, to clean up, remove, mitigate or otherwise deal with any such Hazardous Discharge or Environmental Complaint. All reasonable costs and expenses directly incurred by the Lender (or such third parties) in the exercise of any such rights, including any sums paid in connection with any judicial or administrative investigation or proceedings, fines and penalties, together with interest thereon from the date expended at the Default Rate for Revolving Credit Advances shall be paid upon demand by the Borrower, and until paid shall be added to and become a part of the Obligations secured by the liens created by the terms of this Agreement or any other agreement between Lender and Borrower.
(v) Borrower shall defend and indemnify the Lender and hold the Lender harmless from and against all loss, liability, damage and expense, claims, costs, fines and penalties, including attorney's fees, directly suffered or incurred by the Lender under or on account of A. any environmental laws, including, without limitation, the assertion of any lien thereunder, with respect to any Hazardous Discharge, the presence of any Hazardous Substances affecting Borrower's property, whether or not the same originates or emerges from Borrower's property or any contiguous real estate, including any loss of value of the Collateral liabilities as a result of such dissolution, or otherwise become liable in respect of any obligations or liabilities of Guarantor, unless such Indebtedness is otherwise expressly permitted under the foregoing except to the extent such lossLoan Agreement, liability, damage and expense is attributable to any Hazardous Discharge resulting from actions on the part (v) Agent received not less than ten (10) Business Days’ prior written notice of the Lenderintention of Guarantor to dissolve, and B. any Sanction/Embargo Program. The Borrower's obligations under Section 12(e)(v) A. shall arise upon the discovery of the presence of any Hazardous Substances on the Borrower's property, whether or not any federal, state, or local environmental agency has taken or threatened any action in connection with the presence of any Hazardous Substances, and under Section 12(e)(v) B on failure to comply with any Sanction/Embargo Program. The Borrower's obligation and the indemnifications hereunder shall survive the termination of this Agreement.
(vi) For purposes as of Section 12the date of such dissolution and after giving effect thereto, no Default or Event of Default exists or has occurred.
Appears in 1 contract