Borrower Representations. The Borrower represents and warrants, for the benefit of Lender and the Authority, that (such representations and warranties to remain operative and in full effect regardless of the funding of the Loan or any investigations by or on behalf of the Lender or the Authority or the results thereof): The Borrower is a nonprofit [public benefit/religious] corporation duly incorporated and in good standing under the laws of the State, has or had, as appropriate, the requisite corporate right, power and authority to enter into this Master Loan Agreement, the Tax Certificate and Agreement, [list other Borrower documents] (collectively, the "Borrower Loan Documents") and to carry out and consummate all transactions contemplated with respect to the Borrower hereby and thereby, and by proper corporate action has duly authorized the execution and delivery of the Borrower Loan Documents. The officer[s] of the Borrower executing the Borrower Loan Documents are duly and properly in office and fully authorized to execute the same. The Borrower has duly executed and delivered each of the Borrower Loan Documents. Each of the Borrower Loan Documents constitutes the legal, valid and binding agreement of the Borrower, enforceable against the Borrower in accordance with its terms, except, in each case, as enforcement may be limited by bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, moratorium and other laws relating to or affecting creditors’ rights, by the application of equitable principles, regardless of whether such enforceability is considered in a proceeding in equity or at law, and by the exercise of judicial discretion in appropriate cases. The execution and delivery of the Borrower Loan Documents and the consummation of the transactions herein and therein contemplated [and the fulfillment of or compliance with the terms and conditions thereof] will not (1) conflict with or constitute a breach or violation of or default (with due notice or passage of time or both) under the articles of incorporation or the bylaws of the Borrower, any applicable law or administrative rule or regulation or any applicable court or administrative decree or order, or any indenture, mortgage, deed of trust, loan agreement, bond, debenture, note or other evidence of indebtedness or any contract, agreement, lease or other instrument to which the Borrower is a party or to which or by which the Borrower or any of the Borrower’s property is bound, or (2) result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the property or assets of the Borrower, which conflict, breach, violation, default, lien, charge or encumbrance might have consequences that would materially and adversely affect the consummation of the transactions contemplated by the Borrower Loan Documents or the financial condition, assets, properties or operations of the Borrower. No consent or approval of any trustee or holder of any indebtedness of the Borrower or any guarantor of indebtedness of or other provider of credit or liquidity of the Borrower, and no consent, permission, authorization, order or license of, or filing or registration with, any governmental authority (except with respect to any state securities or “blue sky” laws) is necessary in connection with the execution and delivery of the Borrower Loan Documents or the consummation of any transaction herein or therein contemplated, or the fulfillment of or compliance with the terms and conditions hereof or thereof, [except as have been obtained or made and as are in full force and effect and except as may be required to acquire, construct and/or complete the Project,] all of which are expected to be obtained in the ordinary course. There is no action, suit, proceeding, inquiry or investigation, before or by any court or federal, state, municipal or other governmental authority, pending or, to the knowledge of the Borrower, after reasonable investigation, threatened against or affecting the Borrower or the assets, properties or operations of the Borrower:
Appears in 2 contracts
Sources: Loan Agreement, Loan Agreement
Borrower Representations. The Borrower warrants and represents and warrantsto Lender, for the benefit of Lender and the Authority, that (such representations and warranties to remain operative and in full effect regardless as of the funding date hereof and as of the Loan or any investigations by or on behalf date of the Term Loan made hereunder, and agrees and covenants to Lender or the Authority or the results thereof): The that:
(a) Borrower’s legal name is “Bioheart, Inc.” Borrower is a nonprofit [public benefit/religious] corporation (i) duly incorporated organized and existing and in good standing under the laws of the Statestate of its organization as set forth above and (ii) qualified or licensed to do business in all other states in which the laws require Borrower to be so qualified and/or licensed;
(b) Borrower is duly authorized and empowered to enter into, has or hadexecute, as appropriatedeliver and perform this Loan Agreement and the Other Agreements and the execution, delivery and/or performance by Borrower of this Loan Agreement and the Other Agreements, and the use by Borrower of the proceeds of the Loans hereunder, shall not, by the lapse of time, the requisite corporate rightgiving of notice or otherwise, power and authority to enter into this Master Loan Agreementconflict with or constitute a violation of any applicable law (including, the Tax Certificate and Agreementwithout limitation, [list other Borrower documents] (collectively, the "Borrower Loan Documents") and to carry out and consummate all transactions contemplated with respect to the Borrower hereby and thereby, and by proper corporate action has duly authorized the execution and delivery Regulation U or Regulation X of the Borrower Loan Documents. The officer[s] Board of Governors of the Federal Reserve System or any other regulation thereof) or a breach of any provision contained in Borrower’s organizational documents or contained in any Material Agreement to which Borrower executing is a party or by which it is bound or give rise to or result in any default thereunder;
(c) This Loan Agreement is (and when executed or delivered, each Other Agreement will be) the Borrower Loan Documents are duly and properly in office and fully authorized to execute the same. The Borrower has duly executed and delivered each of the Borrower Loan Documents. Each of the Borrower Loan Documents constitutes the legal, legally valid and binding agreement obligation of the Borrower, enforceable against the Borrower in accordance with its respective terms, except, in each case, except as enforcement may be limited by bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, moratorium and other or similar laws relating to or affecting limiting creditors’ rights, rights generally or by the application of equitable principles, regardless of principles (whether such enforceability enforcement is considered in a proceeding sought in equity or at law).
(d) Except as disclosed to Lender in writing prior to the date hereof, and by the exercise there are no actions or proceedings which are pending, or to its knowledge threatened, against Borrower which, if adversely determined, could reasonably be expected to have a Material Adverse Effect. Borrower is not in breach of judicial discretion in appropriate cases. The execution and delivery of the Borrower Loan Documents and the consummation of the transactions herein and therein contemplated [and the fulfillment of any Material Agreement or compliance with the terms and conditions thereof] will not (1) conflict with or constitute a breach or violation of or default (with due notice or passage of time or both) under the articles of incorporation or the bylaws of the Borrowersubject to any charge, any applicable law or administrative rule or regulation or any applicable court or administrative restriction, judgment, decree or orderorder which has or could reasonably be expected to have a Material Adverse Effect, or nor is Borrower in default with respect to any indenture, security agreement, mortgage, deed of trust, loan agreement, bond, debenture, note or other evidence similar agreement relating to the borrowing of indebtedness or any contract, agreement, lease or other instrument monies to which the Borrower it is a party or to which or by which it is bound;
(e) Except as disclosed to Lender in writing prior to the date hereof, Borrower has and is in good standing with respect to all licenses, patents, copyrights, trademarks, trade names, governmental permits, certificates, consents and franchises necessary to continue to conduct its business as previously conducted by it and to own or any lease and operate its properties as now owned or leased by it;
(f) The financial statements delivered by Borrower to Lender prior to the date hereof and the date of the Term Loan fairly and accurately present the assets, liabilities and financial conditions and results of operations of Borrower as of the dates and for the periods stated therein and have been prepared in accordance with GAAP, and no event, condition or change that has had, or could reasonably be expected to have, a Material Adverse Effect has occurred since the date of this Loan Agreement;
(g) As to the Accounts and other Collateral, (i) Borrower has good, indefeasible and merchantable title to and ownership of the Collateral and the Accounts described and/or listed on any certificate or schedule relating to the Accounts delivered to Lender, free and clear of all liens, claims, security interests and encumbrances, except those of Lender and Permitted Liens.
(h) As to Lender’s security interest, (i) Lender’s security interest in the Collateral is perfected and is of first priority (subject to Permitted Liens); (ii) the offices and/or locations where Borrower keeps the Collateral and Borrower’s property books and records concerning the Collateral are at the locations identified to Lender in writing; and (iii) the addresses identified to Lender in writing as Borrower’s chief executive office and principal place(s) of business are Borrower’s sole offices and place(s) of business.
(i) Borrower is bound, not an “investment company” or (2) result a company “controlled” by an “investment company” as such terms are defined in the creation Investment Company Act of 1940, as amended.
(j) All income and other tax returns and reports required to be filed by Borrower have been timely filed, and all taxes shown on such tax returns to be due and payable and all other assessments, fees and governmental charges upon Borrower and its properties, assets, income, businesses and franchises have been paid when due and payable except to the extent that (A) such taxes, assessments, charges or imposition claims (i) are being contested in good faith by appropriate proceedings (promptly instituted and diligently conducted) so long as such reserve or other appropriate provision, if any, as shall be required in conformity with GAAP shall have been made therefor and (ii) such proceeding shall stay the attachment, sale, disposition, foreclosure or forfeiture of any lienasset of Borrower in connection with any such contested tax, assessment, charge or encumbrance claim or, (B) the failure to timely pay such taxes, assessments, charges or claims could not reasonably be expected to have a Material Adverse Effect. All necessary and appropriate estimated payments (including any interest and penalties) in respect of any nature whatsoever upon any assessed tax liability under Borrower’s state and federal tax returns have been made on a timely basis.
(k) As of the property or assets date hereof and of the Term Loan (i) the sum of Borrower, which conflict, breach, violation, default, lien, charge or encumbrance might have consequences that would materially ’s debt (including contingent liabilities) does not exceed the present fair saleable value of Borrower’s present assets; (ii) Borrower’s capital is not unreasonably small in relation to its business as it exists and adversely affect the consummation of the transactions as is contemplated by the at such time; and (iii) Borrower Loan Documents or the financial condition, assets, properties or operations of the Borrower. No consent or approval of any trustee or holder of any indebtedness of the Borrower or any guarantor of indebtedness of or other provider of credit or liquidity of the Borrower, has not incurred and no consent, permission, authorization, order or license ofdoes not intend to incur, or filing believe that it will incur, debts beyond its ability to pay such debts as they become due.
(l) No information furnished in writing to Lender by or registration with, any governmental authority (except with respect to any state securities or “blue sky” laws) is necessary on behalf of Borrower for use in connection with the execution and delivery transactions contemplated hereby contains or will contain, any untrue statement of a material fact or omits to state a material fact necessary in order to make the Borrower Loan Documents or the consummation of any transaction statements contained herein or therein contemplatednot misleading in light of the circumstances in which the same were made. Any projections contained in such materials are based upon good faith estimates and assumptions believed by Borrower to be reasonable at the time made. There are no facts known to Borrower that, individually or in the fulfillment of or compliance with the terms and conditions hereof or thereofaggregate, [except as have been obtained or made and as are in full force and effect and except as may could reasonably be required to acquire, construct and/or complete the Project,] all of which are expected to be obtained result in a Material Adverse Effect.
(m) Borrower has provided to Lender on or prior to the date hereof a schedule that correctly identifies the ownership interest (including all options, warrants and other rights to acquire capital stock) of Borrower and each of its Subsidiaries as of the date hereof.
(n) (i) Borrower (A) has been and is in compliance in all material respects with all applicable Environmental Laws; (B) has not received any communication, whether from a governmental authority or otherwise, alleging that Borrower is not in such compliance, and there are no past or present actions, activities, circumstances conditions, events or incidents that may prevent or interfere with such compliance in the ordinary course. There future; (ii) there is no action, suit, proceeding, inquiry or investigation, before or by any court or federal, state, municipal or other governmental authority, Environmental Claim pending or, to the best knowledge of the Borrower, after reasonable investigation, threatened against or affecting the Borrower or against any Person whose liability for any Environmental Claim Borrower has or may have retained or assumed either contractually or by operation of law; and (iii) there are no past or present actions, activities, circumstances, conditions, events or incidents, including, without limitation, the assetsrelease, properties threatened release or operations presence of any Hazardous Material, which could reasonably be expected to form the basis of any Environmental Claim against Borrower or, to the best knowledge of Borrower, against any Person whose liability for any Environmental Claim Borrower has or may have retained or assumed either contractually or by operation of law.
(i) Borrower is an “operating company” within the meaning of the Borrower:regulations of the United States Department of Labor included within 29 CFR Section 2510.3-101 (the “DOL Regulations”) or is in compliance with such other exception as may be available under such regulations to prevent the assets of Borrower from being treated as the assets of any employee benefit plan for purposes of the DOL Regulations and (ii) neither Borrower nor any subsidiary of Borrower maintains or is obligated to make contributions to any employee benefit plan that is subject to Title IV of the Employee Retirement Income Security Act of 1974, as amended from time to time, and any successor statute (“ERISA”).
Appears in 2 contracts
Sources: Loan and Security Agreement (Bioheart, Inc.), Loan and Security Agreement (Bioheart, Inc.)
Borrower Representations. The Borrower warrants and represents and warrantsto Lender, for the benefit of Lender and the Authority, that (such representations and warranties to remain operative and in full effect regardless as of the funding date hereof and as of the date of any Loan or any investigations by or on behalf of the made hereunder, and agrees and covenants to Lender or the Authority or the results thereof): The that:
(a) Borrower is and at all times hereafter shall be (i) a nonprofit [public benefit/religious] corporation Person having that legal name and organizational structure as set forth above, duly incorporated organized and existing and in good standing under the laws of the Statestate of its organization as set forth above and (ii) qualified or licensed to do business in all other states in which the laws require Borrower to be so qualified and/or licensed, has except in such states where the failure to be so qualified or hadlicensed would not reasonably be expected to have a Material Adverse Effect;
(b) Borrower is duly authorized and empowered to enter into, as appropriateexecute, deliver and perform this Loan Agreement and the Other Agreements and the execution, delivery and/or performance by Borrower of this Loan Agreement and the Other Agreements, and the use by Borrower of the proceeds of the Loans hereunder, shall not, by the lapse of time, the requisite corporate rightgiving of notice or otherwise, power and authority to enter into this Master Loan Agreementconflict with or constitute a violation of any applicable law (including, the Tax Certificate and Agreementwithout limitation, [list other Borrower documents] (collectively, the "Borrower Loan Documents") and to carry out and consummate all transactions contemplated with respect to the Borrower hereby and thereby, and by proper corporate action has duly authorized the execution and delivery Regulation U or Regulation X of the Borrower Loan Documents. The officer[s] Board of Governors of the Federal Reserve System or any other regulation thereof) or a breach of any provision contained in Borrower’s organizational documents or contained in any material agreement, instrument or document to which Borrower executing is a party or give rise to or result in any default thereunder;
(c) This Loan Agreement is (and when executed or delivered, each Other Agreement will be) the Borrower Loan Documents are duly and properly in office and fully authorized to execute the same. The Borrower has duly executed and delivered each of the Borrower Loan Documents. Each of the Borrower Loan Documents constitutes the legal, legally valid and binding agreement obligation of the Borrower, enforceable against the Borrower in accordance with its respective terms, except, in each case, except as enforcement may be limited by bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, moratorium and other or similar laws relating to or affecting limiting creditors’ rights, rights generally or by the application of equitable principles, regardless of principles (whether such enforceability enforcement is considered in a proceeding sought in equity or at law);
(d) Except as disclosed to Lender in writing prior to the date hereof, and by the exercise of judicial discretion there are no actions or proceedings which are pending, or to its knowledge threatened, against Borrower which could reasonably be expected to have a Material Adverse Effect. Borrower is not in appropriate cases. The execution and delivery of the Borrower Loan Documents and the consummation of the transactions herein and therein contemplated [and the fulfillment breach of or compliance with the terms and conditions thereof] will not (1) conflict with a party to any contract or constitute a breach agreement or violation of or default (with due notice or passage of time or both) under the articles of incorporation or the bylaws of the Borrowersubject to any charge, any applicable law or administrative rule or regulation or any applicable court or administrative restriction, judgment, decree or orderorder which has or could reasonably be expected to have a Material Adverse Effect, or nor is Borrower in default with respect to any indenture, security agreement, mortgage, deed of trust, loan agreement, bond, debenture, note or other evidence similar agreement relating to the borrowing of indebtedness or any contract, agreement, lease or other instrument monies to which the Borrower it is a party or to which or by which the Borrower or any of the Borrower’s property it is bound, or ;
(2e) result Borrower has and is in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the property or assets of the Borrower, which conflict, breach, violation, default, lien, charge or encumbrance might have consequences that would materially and adversely affect the consummation of the transactions contemplated by the Borrower Loan Documents or the financial condition, assets, properties or operations of the Borrower. No consent or approval of any trustee or holder of any indebtedness of the Borrower or any guarantor of indebtedness of or other provider of credit or liquidity of the Borrower, and no consent, permission, authorization, order or license of, or filing or registration with, any governmental authority (except good standing with respect to any state securities all licenses, patents, copyrights, trademarks, trade names, governmental permits, certificates, consents and franchises necessary to continue to conduct its business as previously conducted by it and to own or “blue sky” lawslease and operate its properties as now owned or leased by it except, in each case, where failure to be in good standing or to obtain such licenses, permits, certificates, consents or franchises could not reasonably be expected to have a Material Adverse Effect;
(f) is necessary The financial statements delivered by Borrower to Lender prior to the date hereof and the Financials delivered by Borrower to Lender pursuant to Section 7.3 fairly and accurately present the assets, liabilities and financial conditions and results of operations of Borrower as of the dates and for the periods stated therein and have been prepared in accordance with GAAP (subject to, in the case of interim financial statements, the absence of footnotes and normal year-end adjustments in connection with the execution audited financial statements for the periods covered by such interim financial statements), and delivery no event, condition or change that has had, or could reasonably be expected to have, a Material Adverse Effect has occurred since the date of this Loan Agreement;
(g) As to the Accounts and other Collateral, (i) Borrower has and at all times hereafter shall have good, indefeasible and merchantable title to and ownership of the Collateral and the Accounts described and/or listed on any certificate or schedule relating to the Accounts delivered to Lender, free and clear of all liens, claims, security interests and encumbrances except those of Lender and Permitted Liens; (ii) Borrower, promptly on demand by Lender, shall deliver to Lender all evidence of ownership of, including without limitation, vendor invoices and proofs of payment thereof, certificates of title to and applications for title to, any Collateral; (iii) Borrower Loan Documents shall keep and maintain the Collateral in good operating condition and repair, ordinary wear and tear excepted, and shall make all necessary replacements thereof and renewals thereto so that the value and operating efficiency thereof shall at all times be maintained and preserved; and (iv) Borrower shall not permit any such items to become a fixture to real estate or accession to any other Person’s personal property.
(h) As to Lender’s security interest, (i) Lender’s security interest in the consummation Collateral is now and at all times hereafter shall be perfected and have a first priority (subject to Permitted Liens); (ii) the offices and/or locations where Borrower keeps the Collateral and Borrower’s books and records concerning the Collateral are at the locations identified to Lender in writing and Borrower shall not remove such books and records and/or the Collateral therefrom to any other location unless Borrower gives Lender written notice thereof at least thirty (30) days prior thereto and the same is within the contiguous forty-eight (48) states of the United States of America; and (iii) the addresses identified to Lender in writing as Borrower’s chief executive office and principal place(s) of business are Borrower’s sole offices and place(s) of business, and Borrower, by written notice delivered to Lender at least thirty (30) days prior thereto, shall advise Lender of any transaction change thereto.
(i) Borrower is not an “investment company” or a company “controlled” by an “investment company”, as such terms are defined in the Investment Company Act of 1940.
(j) All income and other tax returns and reports required to be filed by Borrower have been timely filed, and all taxes shown on such tax returns to be due and payable and all other assessments, fees and governmental charges upon Borrower and its properties, assets, income, businesses and franchises have been paid when due and payable, except to the extent that such taxes, assessments, charges or claims (i) are being contested in good faith by appropriate proceedings (promptly instituted and diligently conducted) so long as such reserve or other appropriate provision, if any, as shall be required in conformity with GAAP shall have been made therefor and (ii) such proceeding shall stay the attachment, sale, disposition, foreclosure or forfeiture of any asset of Borrower in connection with any such contested tax, assessment, charge or claim. All necessary and appropriate estimated payments (including any interest and penalties) in respect of assessed tax liability under Borrower’s state and federal tax returns have been made on a timely basis.
(k) As of the date hereof and of each Loan (i) the sum of Borrower’s debt (including contingent liabilities) does not exceed the present fair saleable value of Borrower’s present assets; (ii) Borrower’s capital is not unreasonably small in relation to its business as it exists and as is contemplated at such time; and (iii) Borrower has not incurred and does not intend to incur, or believe that it will incur, debts beyond its ability to pay such debts as they become due.
(l) No information furnished to Lender by or on behalf of Borrower for use in connection with the transactions contemplated hereby, taken as a whole for the relevant period, contains, any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained herein or therein contemplatednot materially misleading in light of the circumstances in which the same were made. Any projections contained in such materials are based upon good faith estimates and assumptions believed by Borrower to be reasonable at the time made. There are no facts known to Borrower that, individually or in the fulfillment of or compliance with the terms and conditions hereof or thereofaggregate, [except as have been obtained or made and as are in full force and effect and except as may could reasonably be required to acquire, construct and/or complete the Project,] all of which are expected to be obtained result in the ordinary course. There is no action, suit, proceeding, inquiry a Material Adverse Effect.
(m) Borrower has provided to Lender on or investigation, before or by any court or federal, state, municipal or other governmental authority, pending or, prior to the knowledge date hereof a schedule that correctly identifies the ownership interest (including all options, warrants and other rights to acquire capital stock) of Borrower and each of its Subsidiaries as of the Borrower, after reasonable investigation, threatened against or affecting the date hereof.
(n) (i) Borrower or the assets, properties or operations of the Borrower:(A) has been and is in compliance in all material respects with all applicable Environmental Laws;
Appears in 2 contracts
Sources: Loan and Security Agreement (Genocea Biosciences, Inc.), Loan and Security Agreement (Genocea Biosciences, Inc.)
Borrower Representations. The (a) Each Borrower represents is subject to civil and warrants, for the benefit of Lender commercial Laws with respect to its obligations under this Agreement and the Authorityother Loan Documents to which it is a party (collectively as to such Borrower, that (the “Applicable Borrower Documents”), and the execution, delivery and performance by such representations and warranties to remain operative and in full effect regardless Borrower of the funding Applicable Borrower Documents constitute and will constitute private and commercial acts and not public or governmental acts. Neither such Borrower nor any of the Loan its property has any immunity from jurisdiction of any court or from any investigations by legal process (whether through service or on behalf notice, attachment prior to judgment, attachment in aid of the Lender execution, execution or the Authority or the results thereof): The Borrower is a nonprofit [public benefit/religious] corporation duly incorporated and in good standing otherwise) under the laws of the State, has or had, as appropriate, jurisdiction in which such Borrower is organized and existing in respect of its obligations under the requisite corporate right, power Applicable Borrower Documents.
(b) The Applicable Borrower Documents are in proper legal form under the Laws of the jurisdiction in which such Borrower is organized and authority to enter into this Master Loan Agreement, existing for the Tax Certificate and Agreement, [list other enforcement thereof against such Borrower documents] (collectively, under the "Borrower Loan Documents") and to carry out and consummate all transactions contemplated with respect to the Borrower hereby and therebyLaws of such jurisdiction, and by proper corporate action has duly authorized are sufficient to ensure the execution and delivery legality, validity, enforceability, priority or admissibility in evidence of the Applicable Borrower Loan Documents. The officer[s] .
(c) It is not necessary to ensure the legality, validity, enforceability, priority or admissibility in evidence of the Applicable Borrower executing Documents that the Applicable Borrower Loan Documents are duly be filed, registered or recorded with, or executed or notarized before, any court or other authority in the jurisdiction in which such Borrower is organized and properly existing or that any registration charge or stamp or similar tax be paid on or in office and fully authorized to execute the same. The Borrower has duly executed and delivered each respect of the Applicable Borrower Loan Documents. Each of the Borrower Loan Documents constitutes the legal, valid and binding agreement of the Borrower, enforceable against the Borrower in accordance with its terms, except, in each case, as enforcement may be limited by bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, moratorium and other laws relating to or affecting creditors’ rights, by the application of equitable principles, regardless of whether such enforceability is considered in a proceeding in equity or at law, and by the exercise of judicial discretion in appropriate cases. The execution and delivery of the Borrower Loan Documents and the consummation of the transactions herein and therein contemplated [and the fulfillment of or compliance with the terms and conditions thereof] will not (1) conflict with or constitute a breach or violation of or default (with due notice or passage of time or both) under the articles of incorporation or the bylaws of the Borrower, any applicable law or administrative rule or regulation or any applicable court other document, except for (A) any such filing, registration, recording, execution, translation or administrative decree notarization as has been made or orderis not required to be made until the Applicable Borrower Document or any other document is sought to be enforced and (B) any charge or tax as has been timely paid.
(d) There is no tax, levy, impost, duty, fee, assessment or other governmental charge, or any indenturededuction or withholding, mortgageimposed by any Governmental Authority in or of the jurisdiction in which such Borrower is organized and existing either (A) on or by virtue of the execution or delivery or enforcement of or performance by the parties of their respective obligations under the Applicable Borrower Documents or (B) on any payment to be made by such Borrower pursuant to the Applicable Borrower Documents, deed except as has been disclosed in writing to the Initial Lender. None of trustthe Borrowers is a foreign financial institution as defined in section 1471(d)(4) of the Code.
(e) The execution, loan delivery and performance of the Applicable Borrower Documents executed by such Borrower are, under applicable foreign exchange control regulations of the jurisdiction in which such Borrower is organized and existing, not subject to any notification or authorization except (A) such as have been made or obtained or (B) such as cannot be made or obtained until a later date (provided that any notification or authorization described in clause (b) shall be made or obtained as soon as is reasonably practicable).
(f) The execution, delivery and performance of the Applicable Borrower Documents executed by such Borrower and the making of the applicable Loans will not violate or result in a default under any indenture or any other agreement, bond, debenture, note instrument or other evidence of indebtedness Material Indebtedness, or any contract, agreement, lease or other material instrument to which the Borrower is a party or to which or by which the binding upon any Borrower or any of the Borrower’s property is boundits assets, or (2) result in the creation or imposition of give rise to a right thereunder to require any lien, charge or encumbrance of any nature whatsoever upon any of the property or assets of the Borrower, which conflict, breach, violation, default, lien, charge or encumbrance might have consequences that would materially and adversely affect the consummation of the transactions contemplated by the Borrower Loan Documents or the financial condition, assets, properties or operations of the Borrower. No consent or approval of any trustee or holder of any indebtedness of the Borrower or any guarantor of indebtedness of or other provider of credit or liquidity of the Borrower, and no consent, permission, authorization, order or license of, or filing or registration with, any governmental authority (except with respect to any state securities or “blue sky” laws) is necessary in connection with the execution and delivery of the Borrower Loan Documents or the consummation of any transaction herein or therein contemplated, or the fulfillment of or compliance with the terms and conditions hereof or thereof, [except as have been obtained or made and as are in full force and effect and except as may be required to acquire, construct and/or complete the Project,] all of which are expected payment to be obtained in the ordinary course. There is no action, suit, proceeding, inquiry or investigation, before or made by any court or federal, state, municipal or other governmental authority, pending or, to the knowledge of the Borrower, after reasonable investigation, threatened against or affecting the Borrower or the assets, properties or operations of the Borrower:.
Appears in 2 contracts
Sources: Credit Agreement, Credit Agreement (American Apparel, Inc)
Borrower Representations. The Borrower warrants and represents and warrantsto Lender, for the benefit of Lender and the Authority, that (such representations and warranties to remain operative and in full effect regardless as of the funding date hereof and as of the date of any Loan or any investigations by or on behalf of the Lender or the Authority or the results thereof): The made hereunder, that:
(a) Borrower is and at all times hereafter shall be a nonprofit [public benefit/religious] corporation Person having that legal name and organizational structure as set forth above, duly incorporated organized and existing and in good standing under the laws of the Statestate of its organization as set forth above and qualified or licensed to do business in all other states in which the laws require Borrower to be so qualified and/or licensed, has except where the failure to be qualified or had, as appropriate, the requisite corporate right, power licensed could not reasonably be expected to have a material adverse effect;
(b) Borrower is duly authorized and authority empowered to enter into into, execute, deliver and perform this Master Loan AgreementAgreement and the Other Agreements and the execution, delivery and/or performance by Borrower of this Loan Agreement and the Tax Certificate and Agreement, [list other Borrower documents] (collectively, the "Borrower Loan Documents") and to carry out and consummate all transactions contemplated with respect to the Borrower hereby and thereby, and by proper corporate action has duly authorized the execution and delivery of the Borrower Loan Documents. The officer[s] of the Borrower executing the Borrower Loan Documents are duly and properly in office and fully authorized to execute the same. The Borrower has duly executed and delivered each of the Borrower Loan Documents. Each of the Borrower Loan Documents constitutes the legal, valid and binding agreement of the Borrower, enforceable against the Borrower in accordance with its terms, except, in each case, as enforcement may be limited by bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, moratorium and other laws relating to or affecting creditors’ rightsOther Agreements shall not, by the application lapse of equitable principlestime, regardless the giving of whether such enforceability is considered in a proceeding in equity notice or at lawotherwise, and by the exercise of judicial discretion in appropriate cases. The execution and delivery of the Borrower Loan Documents and the consummation of the transactions herein and therein contemplated [and the fulfillment of or compliance with the terms and conditions thereof] will not (1) conflict with or constitute a breach or violation of or default (with due notice or passage of time or both) under the articles of incorporation or the bylaws of the Borrower, any applicable law or administrative rule a breach of any provision contained in Borrower’s organizational documents or regulation contained in any material agreement, instrument or document to which Borrower is now or hereafter a party or by which it is or may become bound, except where such violation or breach could not reasonably be expected to have a material adverse effect;
(c) Except as disclosed to Lender in writing, there are no actions or proceedings which are pending, or to its knowledge threatened, against Borrower, nor is Borrower a party to any applicable court contract or administrative agreement or subject to any charge, restriction, judgment, decree or order, which might result in any material and adverse change in its financial condition or materially affect its assets or the Collateral, nor is Borrower in default with respect to any material indenture, security agreement, mortgage, deed of trust, loan agreement, bond, debenture, note or other evidence similar agreement relating to the borrowing of indebtedness or any contract, agreement, lease or other instrument monies to which the Borrower it is a party or to which or by which it is bound;
(d) To Borrower’s knowledge, Borrower has and is in good standing with respect to all licenses, patents, copyrights, trademarks, and trade names and Borrower has all governmental permits, certificates, consents and franchises necessary to continue to conduct its business as previously conducted by it and to own or lease and operate its properties as now owned or leased by it, except where the failure to have such permits, certificates, consents and franchises could not reasonably be expected to have a material adverse effect;
(e) The Financials fairly and accurately present in all material respects the assets, liabilities and financial conditions and results of operations of Borrower as of the date when the Financials were prepared and have been prepared in accordance with generally accepted accounting principles, consistently applied, provided that monthly financial statements are subject to year-end adjustments and the absence of footnotes and there has been no material adverse change in the assets, liabilities or financial condition of Borrower since the date of the Financials.
(f) As to the Equipment and Collateral, (i) Borrower has and at all times hereafter shall have good, indefeasible and merchantable title to and ownership of the Collateral free and clear of all liens, claims, security interests and encumbrances except Permitted Liens; (ii) Borrower has and at all times hereafter shall have good, indefeasible and merchantable title to and ownership of the Equipment described and/or listed on any certificate or schedule relating to Equipment and delivered to Lender, free and clear of all liens, claims, security interests and encumbrances except under subsections 2, 3 and 7 of the definition of Permitted Liens; (iii) the Equipment and Collateral shall be kept and/or maintained solely at the addresses identified in writing to Lender; (iv) Borrower, immediately on demand by Lender, shall deliver to Lender any and all evidence of ownership of, including without limitation, vendor invoices and proofs of payment thereof, certificates of title to and applications for title to, any of the Equipment and Collateral; (v) Borrower shall keep and maintain the Equipment and Collateral in good operating condition and repair and shall make all necessary replacements thereof and renewals thereto so that the value and operating efficiency thereof shall at all times be maintained and preserved; and (vi) Borrower shall not permit any such items to become a fixture to real estate or accession to other personal property.
(g) As to Lender’s security interest, (i) Subject to all required filings and Permitted Liens, Lender’s security interest in the Collateral is now and at all times hereafter shall be perfected and have a first priority, and subject to all required filings, Lender’s security interest in the Equipment described and/or listed on any certificate or schedule relating to Equipment and delivered to Lender is now and at all times hereafter shall be perfected and have a first priority except under subsections 2, 3, 7, 8, 10, 11, and 12 of the definition of Permitted Liens; (ii) the offices and/or locations where Borrower keeps the Collateral and Borrower’s property books and records concerning the Collateral are at the locations identified to Lender in writing and Borrower shall not remove such books and records and/or the Collateral therefrom to any other location unless Borrower gives Lender written notice thereof at least thirty (30) days prior thereto and the same is boundwithin the contiguous forty-eight (48) states of the United States of America; and (iii) the addresses identified to Lender in writing as Borrower’s chief executive office and principal place(s) of business are Borrower’s principal offices and place(s) of business, or and Borrower, by written notice delivered to Lender at least thirty (230) result in the creation or imposition days prior thereto, shall advise Lender of any lien, charge or encumbrance of any nature whatsoever upon any of the property or assets of the Borrower, which conflict, breach, violation, default, lien, charge or encumbrance might have consequences that would materially and adversely affect the consummation of the transactions contemplated by the Borrower Loan Documents or the financial condition, assets, properties or operations of the Borrower. No consent or approval of any trustee or holder of any indebtedness of the Borrower or any guarantor of indebtedness of or other provider of credit or liquidity of the Borrower, and no consent, permission, authorization, order or license of, or filing or registration with, any governmental authority (except with respect to any state securities or “blue sky” laws) is necessary in connection with the execution and delivery of the Borrower Loan Documents or the consummation of any transaction herein or therein contemplated, or the fulfillment of or compliance with the terms and conditions hereof or thereof, [except as have been obtained or made and as are in full force and effect and except as may be required to acquire, construct and/or complete the Project,] all of which are expected to be obtained in the ordinary course. There is no action, suit, proceeding, inquiry or investigation, before or by any court or federal, state, municipal or other governmental authority, pending or, to the knowledge of the Borrower, after reasonable investigation, threatened against or affecting the Borrower or the assets, properties or operations of the Borrower:change thereto.
Appears in 2 contracts
Sources: Equipment Loan and Security Agreement, Equipment Loan and Security Agreement (Alien Technology Corp)
Borrower Representations. The Each Borrower warrants and represents and warrantsto Lender, for the benefit of Lender and the Authority, that (such representations and warranties to remain operative and in full effect regardless as of the funding date hereof and as of the date of any Loan or any investigations by or on behalf of the made hereunder, and agrees and covenants to Lender or the Authority or the results thereof): The that:
(a) Borrower is and at all times hereafter shall be (i) a nonprofit [public benefit/religious] corporation Person having that legal name and organizational structure as set forth above, duly incorporated organized and existing and in good standing under the laws of the Statestate of its organization as set forth above and (ii) qualified or licensed to do business in all other states in which the laws require Borrower to be so qualified and/or licensed;
(b) Borrower is duly authorized and empowered to enter into, has or hadexecute, as appropriatedeliver and perform this Loan Agreement and the Other Agreements and the execution, delivery and/or performance by Borrower of this Loan Agreement and the Other Agreements, and the use by Borrower of the proceeds of the Loans hereunder, shall not, by the lapse of time, the requisite corporate rightgiving of notice or otherwise, power and authority to enter into this Master Loan Agreementconflict with or constitute a violation of any applicable law (including, the Tax Certificate and Agreementwithout limitation, [list other Borrower documents] (collectively, the "Borrower Loan Documents") and to carry out and consummate all transactions contemplated with respect to the Borrower hereby and thereby, and by proper corporate action has duly authorized the execution and delivery Regulation U or Regulation X of the Borrower Loan Documents. The officer[s] Board of Governors of the Federal Reserve System or any other regulation thereof) or a breach of any provision contained in Borrower's organizational documents or contained in any agreement, instrument or document to which Borrower executing is now or hereafter a party or by which it is or may become bound or give rise to or result in any default thereunder;
(c) This Loan Agreement is (and when executed or delivered, each Other Agreement will be) the Borrower Loan Documents are duly and properly in office and fully authorized to execute the same. The Borrower has duly executed and delivered each of the Borrower Loan Documents. Each of the Borrower Loan Documents constitutes the legal, legally valid and binding agreement obligation of the Borrower, enforceable against the Borrower in accordance with its respective terms, except, in each case, except as enforcement may be limited by bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, moratorium and other or similar laws relating to or affecting limiting creditors’ rights, ' rights generally or by the application of equitable principles, regardless of principles (whether such enforceability enforcement is considered in a proceeding sought in equity or at law).
(d) Except as disclosed to Lender in writing prior to the date hereof, and by the exercise of judicial discretion there are no actions or proceedings which are pending, or to its knowledge threatened, against Borrower. Borrower is not in appropriate cases. The execution and delivery of the Borrower Loan Documents and the consummation of the transactions herein and therein contemplated [and the fulfillment breach of or compliance with the terms and conditions thereof] will not (1) conflict with a party to any contract or constitute a breach agreement or violation of or default (with due notice or passage of time or both) under the articles of incorporation or the bylaws of the Borrowersubject to any charge, any applicable law or administrative rule or regulation or any applicable court or administrative restriction, judgment, decree or orderorder which has or could reasonably be expected to have a Material Adverse Effect, or nor is Borrower in default with respect to any indenture, security agreement, mortgage, deed of trust, loan agreement, bond, debenture, note or other evidence similar agreement relating to the borrowing of indebtedness or any contract, agreement, lease or other instrument monies to which the Borrower it is a party or to which or by which it is bound;
(e) Borrower has and is in good standing with respect to all licenses, patents, copyrights, trademarks, trade names, governmental permits, certificates, consents and franchises necessary to continue to conduct its business as previously conducted by it and to own or lease and operate its properties as now owned or leased by it;
(f) The financial statements delivered by Borrower to Lender prior to the date hereof and the Financials delivered by Borrower or any to Lender pursuant to Section 7.3 hereof fairly and accurately present the assets, liabilities and financial conditions and results of operations of Borrower as of the Borrower’s property is bounddates and for the periods stated therein and have been prepared in accordance with generally accepted accounting principles, or (2) result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the property or assets of the Borrower, which conflict, breach, violation, default, lien, charge or encumbrance might have consequences that would materially and adversely affect the consummation of the transactions contemplated by the Borrower Loan Documents or the financial condition, assets, properties or operations of the Borrower. No consent or approval of any trustee or holder of any indebtedness of the Borrower or any guarantor of indebtedness of or other provider of credit or liquidity of the Borrowerconsistently applied, and no consentevent, permissioncondition or change that has had, authorizationor could reasonably be expected to have, order a Material Adverse Effect has occurred since the date of this Loan Agreement;
(g) Except as disclosed in the Schedule of Exceptions, as to the Accounts and other Collateral, (i) Borrower has and at all times hereafter shall have good, indefeasible and merchantable title to and ownership of the Collateral and the Accounts described and/or listed on any certificate or license schedule relating to the Accounts delivered to Lender, free and clear of all liens, claims, security interests and encumbrances except those of Lender and Permitted Liens; (ii) the Collateral shall be kept and/or maintained solely at the addresses identified in writing to Lender; (iii) Borrower, immediately on demand by Lender, shall deliver to Lender any and all evidence of ownership of, or filing or registration withincluding without limitation, vendor invoices and proofs of payment thereof, certificates of title to and applications for title to, any governmental authority (except with respect to any state securities or “blue sky” laws) is necessary in connection with the execution and delivery of the Borrower Loan Documents or the consummation of any transaction herein or therein contemplated, or the fulfillment of or compliance with the terms and conditions hereof or thereof, [except as have been obtained or made and as are in full force and effect and except as may be required to acquire, construct and/or complete the Project,] all of which are expected to be obtained in the ordinary course. There is no action, suit, proceeding, inquiry or investigation, before or by any court or federal, state, municipal or other governmental authority, pending or, to the knowledge of the Borrower, after reasonable investigation, threatened against or affecting the Borrower or the assets, properties or operations of the Borrower:Collateral;
Appears in 1 contract
Borrower Representations. The Borrower warrants and represents and warrantsto Lender, for the benefit of Lender and the Authority, that (such representations and warranties to remain operative and in full effect regardless as of the funding date hereof and as of the date of any Loan or any investigations by or on behalf of the made hereunder, and agrees and covenants to Lender or the Authority or the results thereof): The that:
(a) Borrower is and at all times hereafter shall be (i) a nonprofit [public benefit/religious] corporation Person having that legal name as set forth above, duly incorporated organized and existing and in good standing under the laws of the Statestate of its organization as set forth above and (ii) qualified or licensed to do business in all other states in which the laws require Borrower to be so qualified and/or licensed;
(b) Borrower is duly authorized and empowered to enter into, has or hadexecute, as appropriatedeliver and perform this Loan Agreement and the Other Agreements and the execution, delivery and/or performance by Borrower of this Loan Agreement and the Other Agreements, and the use by Borrower of the proceeds of the Loans hereunder, shall not, by the lapse of time, the requisite corporate rightgiving of notice or otherwise, power and authority to enter into this Master Loan Agreementconflict with or constitute a violation of any applicable law (including, the Tax Certificate and Agreementwithout limitation, [list other Borrower documents] (collectively, the "Borrower Loan Documents") and to carry out and consummate all transactions contemplated with respect to the Borrower hereby and thereby, and by proper corporate action has duly authorized the execution and delivery Regulation U or Regulation X of the Borrower Loan Documents. The officer[s] Board of Governors of the Federal Reserve System or any other regulation thereof) or a breach of any provision contained in Borrower’s organizational documents or contained in any agreement, instrument or document to which Borrower executing is now or hereafter a party or by which it is or may become bound or give rise to or result in any default thereunder;
(c) This Loan Agreement is (and when executed or delivered, each Other Agreement will be) the Borrower Loan Documents are duly and properly in office and fully authorized to execute the same. The Borrower has duly executed and delivered each of the Borrower Loan Documents. Each of the Borrower Loan Documents constitutes the legal, legally valid and binding agreement obligation of the Borrower, enforceable against the Borrower in accordance with its respective terms, except, in each case, except as enforcement may be limited by bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, moratorium and other or similar laws relating to or affecting limiting creditors’ rights, rights generally or by the application of equitable principles, regardless of principles (whether such enforceability enforcement is considered in a proceeding sought in equity or at law).
(d) Except as disclosed to Lender in writing prior to the date hereof, and by the exercise of judicial discretion there are no actions or proceedings which are pending, or to its knowledge threatened, against Borrower. Borrower is not in appropriate cases. The execution and delivery of the Borrower Loan Documents and the consummation of the transactions herein and therein contemplated [and the fulfillment breach of or compliance with the terms and conditions thereof] will not (1) conflict with a party to any contract or constitute a breach agreement or violation of or default (with due notice or passage of time or both) under the articles of incorporation or the bylaws of the Borrowersubject to any charge, any applicable law or administrative rule or regulation or any applicable court or administrative restriction, judgment, decree or orderorder which has or could reasonably be expected to have a Material Adverse Effect, or nor is Borrower in default with respect to any indenture, security agreement, mortgage, deed of trust, loan agreement, bond, debenture, note or other evidence similar agreement relating to the borrowing of indebtedness or any contract, agreement, lease or other instrument monies to which the Borrower it is a party or to which or by which it is bound;
(e) To Borrower’s knowledge, Borrower has and is in good standing with respect to all licenses, patents, copyrights, trademarks, trade names governmental permits, certificates, consents and franchises necessary to continue to conduct its business as previously conducted by it and to own or lease and operate its properties as now owned or leased by it;
(f) The financial statements delivered by Borrower to Lender prior to the date hereof and the Financials delivered by Borrower or any to Lender pursuant to Section 7.3 hereof fairly and accurately present the assets, liabilities and financial conditions and results of operations of Borrower as of the dates and for the periods stated therein and have been prepared in accordance with GAAP, and no event, condition or change that has had, or could reasonably be expected to have, a Material Adverse Effect has occurred since the date of this Loan Agreement;
(g) As to the Accounts and other Collateral, (i) Borrower has and at all times hereafter shall have good, indefeasible and merchantable title to and ownership of the Collateral and the Accounts described and/or listed on any certificate or schedule relating to the Accounts delivered to Lender, free and clear of all liens, claims, security interests and encumbrances except those of Lender and Permitted Liens; (ii) the Collateral shall be kept and/or maintained solely at the addresses identified in writing to Lender; (iii) Borrower, promptly on demand by Lender, shall deliver to Lender any and all evidence of ownership of, including without limitation, vendor invoices and proofs of payment thereof, certificates of title to and applications for title to, any Collateral; (iv) Borrower shall keep and maintain the Collateral in good operating condition and repair and shall make all necessary replacements thereof and renewals thereto so that the value and operating efficiency thereof shall at all times be maintained and preserved; and (v) Borrower shall not permit any such items to become a fixture to real estate or accession to other personal property.
(h) As to Lender’s security interest, (i) Lender’s security interest in the Collateral is now and at all times hereafter shall be perfected and have a first priority (subject to liens permitted under Section 7.2 hereof and other Permitted Liens); (ii) the offices and/or locations where Borrower keeps the Collateral and Borrower’s property books and records concerning the Collateral are at the locations identified to Lender in writing and Borrower shall not remove such books and records and/or the Collateral therefrom to any other location unless Borrower gives Lender written notice thereof at least thirty (30) days prior thereto and the same is boundwithin the contiguous forty-eight (48) states of the United States of America; and (iii) the addresses identified to Lender in writing as Borrower’s chief executive office and principal place(s) of business are Borrower’s sole offices and place(s) of business, and Borrower, by written notice delivered to Lender at least thirty (30) days prior thereto, shall advise Lender of any change thereto.
(i) Borrower is not an “investment company” or (2) result a company “controlled” by an “investment company” as such terms are defined in the creation or imposition Investment Company Act of any lien1940.
(j) All income and other tax returns and reports required to be filed by Borrower have been timely filed, charge or encumbrance of any nature whatsoever and all taxes shown on such tax returns to be due and payable and all other assessments, fees and governmental charges upon any of the property or assets of the Borrower, which conflict, breach, violation, default, lien, charge or encumbrance might have consequences that would materially Borrower and adversely affect the consummation of the transactions contemplated by the Borrower Loan Documents or the financial conditionits properties, assets, properties or operations income, businesses and franchises have been paid when due and payable, the nonpayment of which could reasonably be expected to result in a Material Adverse Effect.
(k) As of the date hereof and of each Loan (i) the sum of Borrower. No consent or approval ’s debt (including contingent liabilities) does not exceed the present fair saleable value of any trustee or holder of any indebtedness of the Borrower’s present assets; (ii) Borrower’s capital is not unreasonably small in relation to its business as it exists and as is contemplated at such time; and (iii) Borrower or any guarantor of indebtedness of or other provider of credit or liquidity of the Borrower, has not incurred and no consent, permission, authorization, order or license ofdoes not intend to incur, or filing believe that it will incur, debts beyond its ability to pay such debts as they become due.
(l) No information furnished to Lender by or registration with, any governmental authority (except with respect to any state securities or “blue sky” laws) is necessary on behalf of Borrower for use in connection with the execution and delivery transactions contemplated hereby contains or will contain, any untrue statement of a material fact or omits to state a material fact necessary in order to make the Borrower Loan Documents or the consummation of any transaction statements contained herein or therein contemplatednot misleading in light of the circumstances in which the same were made. Any projections contained in such materials are based upon good faith estimates and assumptions believed by Borrower to be reasonable at the time made. There are no facts known to Borrower that, individually or in the fulfillment of or compliance with the terms and conditions hereof or thereofaggregate, [except as have been obtained or made and as are in full force and effect and except as may could reasonably be required to acquire, construct and/or complete the Project,] all of which are expected to be obtained result in a Material Adverse Effect.
(m) Borrower has provided to Lender on or prior to the date hereof a schedule that correctly identifies the ownership interest (including all options, warrants and other rights to acquire capital stock) of Borrower and each of its Subsidiaries as of the date hereof.
(i) To Borrower’s knowledge, Borrower (A) has been and is in compliance in all material respects with all applicable Environmental Laws; (B) has not received any communication, whether from a governmental authority or otherwise, alleging that Borrower is not in such compliance, and there are no past or present actions, activities, circumstances conditions, events or incidents that may prevent or interfere with such compliance in the ordinary course. There future; (ii) there is no action, suit, proceeding, inquiry or investigation, before or by any court or federal, state, municipal or other governmental authority, Environmental Claim pending or, to the best knowledge of the Borrower, after reasonable investigation, threatened against or affecting the Borrower or against any Person whose liability for any Environmental Claim Borrower has or may have retained or assumed either contractually or by operation of law; and (iii) there are no past or present actions, activities, circumstances, conditions, events or incidents, including, without limitation, the assetsrelease, properties threatened release or operations presence of any Hazardous Material, which could reasonably be expected to form the basis of any Environmental Claim against Borrower or, to the best knowledge of Borrower, against any Person whose liability for any Environmental Claim Borrower has or may have retained or assumed either contractually or by operation of law.
(i) Borrower is an “operating company” within the meaning of the Borrower:regulations of the United States Department of Labor included within 29 CFR Section 2510.3-101 (the “DOL Regulations”) or is in compliance with such other exception as may be available under such regulations to prevent the assets of Borrower from being treated as the assets of any employee benefit plan for purposes of the DOL Regulations and (ii) neither Borrower nor any subsidiary of Borrower maintains or is obligated to make contributions to any employee benefit plan that is subject to Title IV of the Employee Retirement Income Security Act of 1974, as amended from time to time, and any successor statute (“ERISA”).
Appears in 1 contract
Borrower Representations. The Borrower warrants and represents and warrantsto Lender, for the benefit of Lender and the Authority, that (such representations and warranties to remain operative and in full effect regardless as of the funding date hereof and as of the date of any Loan or any investigations by or on behalf of the made hereunder, and agrees and covenants to Lender or the Authority or the results thereof): The that:
(a) Borrower is and at all times hereafter shall be (i) a nonprofit [public benefit/religious] corporation Person having that legal name and organizational structure as set forth above, duly incorporated organized and existing and in good standing under the laws of the Statestate of its organization as set forth above and (ii) qualified or licensed to do business in all other states in which the laws require Borrower to be so qualified and/or licensed;
(b) Borrower is duly authorized and empowered to enter into, has or hadexecute, as appropriatedeliver and perform this Loan Agreement and the Other Agreements and the execution, delivery and/or performance by Borrower of this Loan Agreement and the Other Agreements, and the use by Borrower of the proceeds of the Loans hereunder, shall not, by the lapse of time, the requisite corporate rightgiving of notice or otherwise, power and authority to enter into this Master Loan Agreementconflict with or constitute a violation of any applicable law (including, the Tax Certificate and Agreementwithout limitation, [list other Borrower documents] (collectively, the "Borrower Loan Documents") and to carry out and consummate all transactions contemplated with respect to the Borrower hereby and thereby, and by proper corporate action has duly authorized the execution and delivery Regulation U or Regulation X of the Borrower Loan Documents. The officer[s] Board of Governors of the Federal Reserve System or any other regulation thereof) or a breach of any provision contained in Borrower's organizational documents or contained in any agreement, instrument or document to which Borrower executing is now or hereafter a party or by which it is or may become bound or give rise to or result in any default thereunder;
(c) This Loan Agreement is (and when executed or delivered, each Other Agreement will be) the Borrower Loan Documents are duly and properly in office and fully authorized to execute the same. The Borrower has duly executed and delivered each of the Borrower Loan Documents. Each of the Borrower Loan Documents constitutes the legal, legally valid and binding agreement obligation of the Borrower, enforceable against the Borrower in accordance with its respective terms, except, in each case, except as enforcement may be limited by bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, moratorium and other or similar laws relating to or affecting limiting creditors’ rights, ' rights generally or by the application of equitable principles, regardless of principles (whether such enforceability enforcement is considered in a proceeding sought in equity or at law);
(d) Except as disclosed to Lender in writing prior to the date hereof, and by the exercise of judicial discretion there are no actions or proceedings which are pending, or to its knowledge threatened, against Borrower. Borrower is not in appropriate cases. The execution and delivery of the Borrower Loan Documents and the consummation of the transactions herein and therein contemplated [and the fulfillment breach of or compliance with the terms and conditions thereof] will not (1) conflict with a party to any contract or constitute a breach agreement or violation of or default (with due notice or passage of time or both) under the articles of incorporation or the bylaws of the Borrowersubject to any charge, any applicable law or administrative rule or regulation or any applicable court or administrative restriction, judgment, decree or orderorder which has or could reasonably be expected to have a Material Adverse Effect, or nor is Borrower in default with respect to any indenture, security agreement, mortgage, deed of trust, loan agreement, bond, debenture, note or other evidence similar agreement relating to the borrowing of indebtedness or any contract, agreement, lease or other instrument monies to which the Borrower it is a party or to which or by which it is bound;
(e) Borrower has and is in good standing with respect to all licenses, patents, copyrights, trademarks, trade names, governmental permits, certificates, consents and franchises necessary to continue to conduct its business as previously conducted by it and to own or lease and operate its properties as now owned or leased by it;
(f) The financial statements delivered by Borrower to Lender prior to the date hereof and the Financials delivered by Borrower or any to Lender pursuant to Section 7.3 hereof fairly and accurately present the assets, liabilities and financial conditions and results of operations of Borrower as of the Borrower’s property is bounddates and for the periods stated therein and have been prepared in accordance with GAAP, and no event, condition or change that has had, or could reasonably be expected to have, a Material Adverse Effect has occurred since the date of this Loan Agreement;
(2g) result As to the Accounts and other Collateral, (i) Borrower has and at all times hereafter shall have good, indefeasible and merchantable title to and ownership of the Collateral, free and clear of all liens, claims, security interests and encumbrances except those of Lender and Permitted Liens; (ii) the Collateral shall be kept and/or maintained solely at the addresses identified in writing to Lender; (iii) Borrower, immediately on demand by Lender, shall deliver to Lender any and all evidence of ownership of, including without limitation, vendor invoices and proofs of payment thereof, certificates of title to and applications for title to, any Collateral; (iv) Borrower shall keep and maintain the Collateral in good operating condition and repair and shall make all necessary replacements thereof and renewals thereto so that the value and operating efficiency thereof shall at all times be maintained and preserved; and (v) Borrower shall not permit any such items to become a fixture to real estate or accession to other personal property;
(h) As to Lender's security interest, (i) Lender's security interest in the creation or imposition Collateral is now and at all times hereafter shall be perfected and have a first priority (subject to Permitted Liens and except as otherwise provided herein); (ii) the offices and/or locations where Borrower keeps the Collateral and Borrower's books and records concerning the Collateral are at the locations identified to Lender in writing and Borrower shall not remove such books and records and/or the Collateral therefrom to any other location unless Borrower gives Lender written notice thereof at least thirty (30) days prior thereto and the same is within the contiguous forty-eight (48) states of the United States of America; and (iii) the addresses identified to Lender in writing as Borrower's chief executive office and principal place(s) of business are Borrower's sole offices and place(s) of business, and Borrower, by written notice delivered to Lender at least thirty (30) days prior thereto, shall advise Lender of any lienchange thereto;
(i) Borrower is not an "investment company" or a company "controlled" by an "investment company" as such terms are defined in the Investment Company Act of 1940;
(j) All income and other tax returns and reports required to be filed by Borrower have been timely filed, and all taxes shown on such tax returns to be due and payable and all other assessments, fees and governmental charges upon Borrower and its properties, assets, income, businesses and franchises have been paid when due and payable except to the extent that (A) such taxes, assessments, charges or claims (i) are being contested in good faith by appropriate proceedings (promptly instituted and diligently conducted) so long as such reserve or other appropriate provision, if any, as shall be required in conformity with GAAP shall have been made therefor and (ii) such proceeding shall stay the attachment, sale, disposition, foreclosure or forfeiture of any asset of Borrower in connection with any such contested tax, assessment, charge or encumbrance claim or, (B) the failure to timely pay such taxes, assessments, charges or claims could not reasonably be expected to have a Material Adverse Effect. All necessary and appropriate estimated payments (including any interest and penalties) in respect of any nature whatsoever upon any assessed tax liability under Borrower's state and federal tax returns have been made on a timely basis;
(k) As of the property or assets date hereof and of each Loan (i) the sum of Borrower, which conflict, breach, violation, default, lien, charge or encumbrance might have consequences that would materially 's debt (including contingent liabilities) does not exceed the present fair saleable value of Borrower's present assets; (ii) Borrower's capital is not unreasonably small in relation to its business as it exists and adversely affect the consummation of the transactions as is contemplated by the at such time; and (iii) Borrower Loan Documents or the financial condition, assets, properties or operations of the Borrower. No consent or approval of any trustee or holder of any indebtedness of the Borrower or any guarantor of indebtedness of or other provider of credit or liquidity of the Borrower, has not incurred and no consent, permission, authorization, order or license ofdoes not intend to incur, or filing believe that it will incur, debts beyond its ability to pay such debts as they become due;
(l) No information furnished to Lender by or registration with, any governmental authority (except with respect to any state securities or “blue sky” laws) is necessary on behalf of Borrower for use in connection with the execution and delivery transactions contemplated hereby contains or will contain, any untrue statement of a material fact or omits to state a material fact necessary in order to make the Borrower Loan Documents or the consummation of any transaction statements contained herein or therein contemplatednot misleading in light of the circumstances in which the same were made. Any projections contained in such materials are based upon good faith estimates and assumptions believed by Borrower to be reasonable at the time made. There are no facts known to Borrower that, individually or in the fulfillment of or compliance with the terms and conditions hereof or thereofaggregate, [except as have been obtained or made and as are in full force and effect and except as may could reasonably be required to acquire, construct and/or complete the Project,] all of which are expected to be obtained result in a Material Adverse Effect.
(m) Borrower has provided to Lender on or prior to the date hereof a schedule that correctly identifies the ownership interest (including all options, warrants and other rights to acquire capital stock) of Borrower and each of its Subsidiaries as of the date hereof;
(i) Borrower (A) has been and is in compliance in all material respects with all applicable Environmental Laws; (B) has not received any communication, whether from a governmental authority or otherwise, alleging that Borrower is not in such compliance, and there are no past or present actions, activities, circumstances conditions, events or incidents that may prevent or interfere with such compliance in the ordinary course. There future; (ii) there is no action, suit, proceeding, inquiry or investigation, before or by any court or federal, state, municipal or other governmental authority, Environmental Claim pending or, to the best knowledge of the Borrower, after reasonable investigation, threatened against or affecting the Borrower or against any Person whose liability for any Environmental Claim Borrower has or may have retained or assumed either contractually or by operation of law; and (iii) there are no past or present actions, activities, circumstances, conditions, events or incidents, including, without limitation, the assetsrelease, properties threatened release or operations presence of any Hazardous Material, which could reasonably be expected to form the basis of any Environmental Claim against Borrower or, to the best knowledge of Borrower, against any Person whose liability for any Environmental Claim Borrower has or may have retained or assumed either contractually or by operation of law.
(i) Borrower is an "operating company" within the meaning of the Borrower:regulations of the United States Department of Labor included within 29 CFR Section 2510.3-101 (the "DOL Regulations") or is in compliance with such other exception as may be available under such regulations to prevent the assets of Borrower from being treated as the assets of any employee benefit plan for purposes of the DOL Regulations and (ii) neither Borrower nor any subsidiary of Borrower maintains or is obligated to make contributions to any employee benefit plan that is subject to Title IV of the Employee Retirement Income Security Act of 1974, as amended from time to time, and any successor statute ("ERISA").
Appears in 1 contract
Borrower Representations. The Borrower represents and represents, warrants, for the benefit of Lender acknowledges, and the Authority, agrees with GTA-IB that (such representations and warranties to remain operative and in full effect regardless as of the funding of the Loan or any investigations by or on behalf of the Lender or the Authority or the results thereof): The Effective Date, after due inquiry and investigation:
(a) Borrower (i) is a nonprofit [public benefit/religious] duly organized and validly existing corporation duly incorporated and in good standing under the laws of the Statestate of Colorado, (ii) is duly qualified as a foreign entity in the jurisdiction in which the Property is located, (iii) has or had, as appropriate, the requisite corporate right, entity power and authority to enter into this Master Loan Agreement, the Tax Certificate and Agreement, [list other Borrower documents] (collectively, the "Borrower Loan Documents") and to carry out and consummate all transactions contemplated with respect to the Borrower hereby and therebyon its business as now being conducted, and by proper corporate action (iv) has duly authorized the execution and delivery of the Borrower Loan Documents. The officer[s] of the Borrower executing the Borrower Loan Documents are duly and properly in office and fully authorized requisite entity power to execute the same. The Borrower has duly executed and delivered each of the Borrower Loan Documents. Each of the Borrower Loan Documents constitutes the legal, valid and binding agreement of the Borrower, enforceable against the Borrower in accordance with its terms, except, in each case, as enforcement may be limited by bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, moratorium and other laws relating to or affecting creditors’ rights, by the application of equitable principles, regardless of whether such enforceability is considered in a proceeding in equity or at lawdeliver, and by the exercise of judicial discretion in appropriate cases. perform its obligations hereunder.
(b) The execution and delivery by Borrower of the Borrower Loan Documents this Agreement and the performance of its obligations hereunder and consummation of the transactions contemplated herein and therein contemplated [and (i) have been duly authorized by all requisite corporate action on the fulfillment part of or compliance with the terms and conditions thereof] Borrower, (ii) will not violate any provision of any applicable legal requirements, any order, writ, decree, injunction or demand of any court or other applicable governmental authority with jurisdiction over Borrower or the Property, any organizational document of Borrower or any indenture or agreement or other instrument to which Borrower is a party, or by which Borrower is bound, (1iii) will not be in conflict with with, result in a breach of, or constitute a breach or violation of or default (with due notice or passage lapse of time or both) under the articles of incorporation or the bylaws of the Borrower, any applicable law or administrative rule or regulation or any applicable court or administrative decree or ordera default under, or any indenture, mortgage, deed of trust, loan agreement, bond, debenture, note or other evidence of indebtedness or any contract, agreement, lease or other instrument to which the Borrower is a party or to which or by which the Borrower or any of the Borrower’s property is bound, or (2) result in the creation or imposition of any lien, charge or encumbrance lien other than to Lender in connection with the Loan of any nature whatsoever upon any of the property or assets of the BorrowerBorrower pursuant to any indenture or agreement or instrument, which conflict, breach, violation, default, lien, charge or encumbrance might have consequences that would materially and adversely affect the consummation of the transactions contemplated (iv) has been duly executed and delivered by the Borrower Loan Documents or the financial condition, assets, properties or operations of the Borrower. No consent This Agreement is enforceable against Borrower according to its terms. Except for those mentioned in Section 5.6(a) and except for those obtained or approval of filed on or prior to the date hereof, Borrower is not required to obtain any trustee or holder of any indebtedness of the Borrower or any guarantor of indebtedness of or other provider of credit or liquidity of the Borrower, and no consent, permission, authorization, order approval or license ofauthorization from, or filing to file any declaration or registration statement with, any governmental authority or other agency in connection with or as a condition to the execution, delivery or performance of this Agreement or consummate any of the transactions contemplated hereunder.
(except c) Borrower owns a fee simple estate in and to the Innisbrook Real Property, subject only to Innisbrook Permitted Exceptions.
(d) Condo LLC owns a fee simple estate in and to the Condo Property, subject only to the Condo Property Permitted Exceptions.
(e) Borrower has full right, title and interest in and to the GTA Stock Interests and has not transferred, pledged or hypothecated the GTA Stock Interests other than pursuant to the Pledge Agreement.
(f) The Vested Rights (including, without limitation, the right to develop 139 residential units on the Resort Property or such greater number of units, if any, to which Borrower, Guarantor, GH Management and/or Condo Owner may have vested rights to develop, including, without limitation, the Unused Parcel F Units) shall be assigned to GTA-IB by Borrower, Guarantor, GH Management and Condo Owner, pursuant to that certain assignment agreement, a form of which is attached hereto as Exhibit J-3, (the “Vested Rights Assignment”), and none of Borrower, Guarantor, GH Management and Condo Owner, or their affiliates, shall impair or in any way diminish the Vested Rights, including, without limitation, GTA-IB’s legal standing, if any, to enforce the Vested Rights without qualification or condition. Notwithstanding the foregoing, it shall not be considered an impairment or diminishment of the Vested Rights under this Agreement if the following occur: (i) if there is a final, non-appealable, judicially imposed reduction of the Vested Rights; or (ii) if the number of residential units permitted to be developed in connection with Vested Rights is decreased by ten percent (10%) or less (i.e., if the 139 units permitted to be developed is decreased by 13 or fewer units).
(g) To Borrower’s knowledge, there are no permits, approvals, and allocations relating to the Real Property or other similar documents other than the Permits.
(h) To Borrower’s knowledge, there exist no surveys, plans, maps, specifications, drawings and other similar documents, relating to the Real Property and owned by or in the possession of Borrower or its affiliates other than the Plans and Specifications.
(i) There exist no employment agreements, commitments, equipment leases, guarantees, contracts, undertakings, and arrangements entered into by Borrower or anyone on Borrower’s behalf, whether written and oral, relating to the Property other than the Contracts.
(j) To Borrower’s knowledge, there exist no rental agreements and leases entered into by Borrower or anyone on Borrower’s behalf, whether written and oral, relating to the Property other than the Leases.
(k) Borrower has delivered to Lender true, correct and complete originals or copies of all Contracts, Permits, Leases, Pinellas County Contracts, Wall Springs Contracts, Plans and Specifications, Warranties and Guaranties, and Insurance Policies in Borrower’s or its affiliates’, agents’, consultants’, employees’ or contractors’ possession.
(l) Borrower is not a party to any contract or agreement with Resort Manager or ▇▇▇, or any of their respective affiliates, other than the Current Management Contract or the Westin Management Agreement.
(m) The Closing Date Balance Sheet (as defined below) shall reflect a true, correct and complete presentation, in all material respects (i.e., material respects shall mean an amount exceeding Twenty Thousand Dollars ($20,000) in the aggregate), of the assets and liabilities relating to Borrower and the Property as of the Closing Date, including, without limitation, the amount of real property taxes and real property tax appeal consequences (including, without limitation, all related reasonably and actually incurred legal fees, penalties, interest and other directly related reasonably and actually incurred third-party costs, which amounts shall not exceed, in the aggregate, One Million Thirty Thousand Nine Hundred Dollars ($1,030,900) respecting the Property which have accrued or become payable as of the Closing Date.
(n) Borrower and Guarantor are represented by legal counsel of their choice, are fully aware of the terms contained in this Agreement, and have voluntarily and without coercion or duress entered into this Agreement and the documents executed in connection with this Agreement.
(o) Neither Borrower nor Guarantor shall at any time solicit, directly or indirectly, any person or persons employed at the Property for a period of five (5) years after the Closing Date; provided, however, that if a sale or refinancing of the Innisbrook Real Property is being marketed or pending at the expiration of that period, the five (5) year period shall be automatically extended for an additional one (1) year.
(p) After giving effect to the Borrower Release and the Resort Manager Release and excluding any potential liability arising from the Lawsuits, the transfers of the Property and the GTA-Stock Interests to GTA-IB and the assumption of liabilities by GTA-IB will not render Borrower insolvent.
(q) Borrower has made adequate provision for the payment of all liabilities of Borrower (including, without limitation, the liabilities of Borrower to Resort Manager) other than its liabilities to Lender and those liabilities to be assumed by GTA-IB pursuant to the terms of this Agreement.
(r) Neither Borrower nor Guarantor have entered into this transaction to provide preferential treatment to Lender, GTA-IB or any other creditor of Borrower or Guarantor in anticipation of seeking relief under the Bankruptcy Code, as amended.
(s) The only individuals employed by Borrower and Condo Owner and their affiliates with respect to the Property (including the officers of Borrower and Condo Owner and those individuals on leave of absence or layoff status) are those listed on Schedule 6.1(s) attached hereto (the “Employees”).
(t) Other than those rights and benefits listed on Schedule 1.1(r), there are no other contractual, real property or other rights or benefits of Borrower or Guarantor or their respective affiliates that exist in any form respecting Parcels J-1, J-2 or K. Other than those consents and notices listed on Schedule 6.1(t)-1, there are no Consents or Notices (defined below) required to be executed or delivered in connection with an assignment of any Property to GTA-IB. Other than those agreements and contracts set forth in Schedule 6.1(t)-2, there are no other agreements or contracts or understandings, written or otherwise, relating to the sale of Parcels J-1, J-2 and K by Borrower (the “Parcel J and K Contracts”). For the purposes of this paragraph, “Consents and Notices” shall mean those consents and notices required under those certain contracts, agreements or understandings, excepting those contracts, agreements or understandings which: (i) shall have a commercial value or cost of less than Ten Thousand Dollars ($10,000) individually, provided that the collective commercial value or cost of all such contracts, agreements and understandings meeting the aforesaid monetary criterion shall not exceed Fifty Thousand Dollars ($50,000) in the aggregate; or (ii) may be terminated at any time with no cost or penalty; or (iii) have a term of less than thirty (30) days and may be cancelled without cost or penalty at the expiration of that period. Notwithstanding anything contained in this Section 6.1(t), in no event shall Borrower have any liability with respect to any state securities contract or obligation which requires a Consent or Notice if GTA-IB does not terminate or attempt to terminate such contract or obligation.
(u) All amounts required to be funded to the retirement accounts relating to the Targeted Employees and Other Employees (the “blue sky” lawsRetirement Accounts”) are fully funded and no Retirement Account or amount contained there has been pledged, encumbered or hypothecated.
(v) Any Parcel F Contract delivered to GTA-IB on or prior to the Closing Date, (together with true, correct and complete copies of all attachments thereto) is necessary in connection with the execution (1) a true, correct and delivery of the Borrower Loan Documents or the consummation of any transaction herein or therein contemplated, or the fulfillment of or compliance with the terms and conditions hereof or complete original thereof, [except as have been obtained enforceable against the parties thereto, and (2) no side letters or made and as are in full force and effect and except as may be required to acquire, construct and/or complete the Project,] all of which are expected to be obtained in the ordinary course. other modifications thereto exist.
(w) There is no action, suit, suit or proceeding, inquiry or investigationany governmental investigation or any arbitration, before or by any court or federal, state, municipal or other governmental authority, in each case pending or, to the knowledge of the Borrower, after reasonable investigation, threatened against or affecting the Borrower Borrower, GH Securities or the assetsProperty before any governmental or administrative body, properties agency or official which if adversely determined would affect the use and operation of the Property or the business, financial condition or results of operations of Borrower, GH Securities or the Property except for the ▇▇▇▇▇▇▇▇▇▇ Litigation or as set forth on Schedule 6.1(w) hereof. In addition, none of Borrower, Guarantor, GH Securities, GH Management or the Condo Owner, nor their respective affiliates, are aware of any right to commence, have commenced, or intend to commence any legal action, administrative proceeding, arbitration, or mediation before any governmental or administrative body, agency or official in any way relating to the Property or the business, financial condition or results of operations of the Property, except for the ▇▇▇▇▇▇▇▇▇▇ Litigation or as set forth on Schedule 6.1(w) hereof (all such matters listed on Schedule 6.1(w) are collectively the “Litigation”). Any future legal actions, administrative proceedings, arbitrations, or mediations commenced by such parties in any way relating to the Property or the business, financial condition or results of operations of the Property shall be referred to as the “Future Litigation.” Borrower has delivered true, correct and complete copies of all existing pleadings, court documents, deposition transcripts, legal memoranda and settlement proposals in respect of the Lawsuits, the ▇▇▇▇▇▇▇▇▇▇ Litigation and the Litigation to GTA-IB and its counsel, unless such delivery would waive attorney-client privilege (and Borrower has informed GTA-IB and its counsel in writing when it has asserted such attorney-client privilege).
(x) Borrower is not aware of any payments in the nature of Termination Payments which Borrower has not disclosed in writing to Lender, and such writing shall make specific reference to this Agreement.
(y) The Current Troon Agreement (i) is the only agreement relating to the management and/or operation of the Innisbrook Golf Courses, other than the Troon Management Agreement, (ii) has not been modified or amended, and (iii) has not been extended or renewed by Borrower:, except insofar as it is currently being extended on a month to month basis.
(z) Neither Borrower nor Resort Manager has, since January 1, 2001, applied any revenues, assets and/or credit capacities of the Resort Property other than to costs, expenses and improvements specifically relating to the Resort Property.
(aa) As of the Effective Date, Schedule 6.1(aa)-1 attached hereto is a true, correct and complete description of the job titles, employment dates and aggregate annual cash compensation (all such information shall be accurate as of the Effective date) for each of the Employees. As of the Effective Date, except as specifically set forth on Schedule 6.1(aa)-1 attached hereto, (a) Borrower does not have any outstanding loan from or to any affiliate, or any agent or Employee, and (b) no material representations, warranties or covenants have been made to, or agreements have been reached with, any Employee in material variance with the provisions of the employee manual with respect to their employment, compensation or benefits. No Employee has given written notice as of the Effective Date of their plans to terminate employment with Borrower during the twelve (12) months subsequent to the Effective Date. Schedule 6.1(aa)-2 attached hereto sets forth a list of each Employee who has a management, employment or bonus contract, or contract for personal services with Borrower.
(bb) Schedule 6.1(bb) attached hereto contains a true, correct and complete list of all employee benefit, bonus, auto allowance, consulting, change in control, fringe benefit plans and collective bargaining, employment or severance agreements or other similar arrangements, whether or not subject to ERISA (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise), whether formal or informal, oral or written, legally binding or not, under which any Employee or Other Employee has any present or future right to benefits sponsored or maintained by Borrower or to which Borrower is a party, is required to make any contribution, or by which any of them is bound, or with respect to which any of them has any liability or obligation, including, without limitation, (i) any profit-sharing, deferred compensation, bonus, stock option, stock purchase, or other equity-based compensation, pension, retainer, consulting, retirement, severance, plant closing, loan or loan guarantee, change in control, welfare or incentive plan, agreement or arrangement, (ii) any plan, agreement or arrangement providing for “fringe benefits” or perquisites to any Employee or Other Employee officers, directors or agents, including, without limitation, benefits relating to automobiles, clubs, vacation, child care, parenting, sabbatical, sick leave, medical, dental, hospitalization, life insurance and other types of insurance, (iii) any written employment agreement, or (iv) any other “employee benefit plan” (within the meaning of Sections 3(3) and 3(37) of ERISA, including, without limitation, multiemployer plans) (each, a “GHR Employee Plan,” and collectively, the “GHR Employee Plans”). There has been no amendment to the GHR Employee Plans since January 1, 2001, which is the date on which Borrower delivered copies of the GHR Employee Plans to GTA-IB. Other than those rights and obligations contained in the GHR Employee Plans as of the Closing Date, notwithstanding anything to the contrary, nothing in this Agreement or otherwise shall create any additional rights (or expand any existing rights) of any person or beneficiary in connection with the GHR Employee Plans.
(cc) Borrower has made available to Lender true, correct and complete copies of (i) all material documents and existing written summary plan descriptions (and
Appears in 1 contract
Sources: Settlement Agreement (Gta-Ib, LLC)
Borrower Representations. The Borrower warrants and represents and warrantsto Lender, for the benefit of Lender and the Authority, that (such representations and warranties to remain operative and in full effect regardless as of the funding date of the Term Loan or any investigations by or on behalf of the made hereunder (“Term Loan Date”), and agrees and covenants to Lender or the Authority or the results thereof): The that:
(a) Borrower’s legal name is “Bioheart, Inc.” Borrower is a nonprofit [public benefit/religious] corporation (i) duly incorporated organized and existing and in good standing under the laws of the Statestate of its organization as set forth above and (ii) qualified or licensed to do business in all other states in which the laws require Borrower to be so qualified and/or licensed;
(b) Borrower is duly authorized and empowered to enter into, has or hadexecute, as appropriatedeliver and perform this Loan Agreement and the Other Agreements and the execution, delivery and/or performance by Borrower of this Loan Agreement and the Other Agreements, and the use by Borrower of the proceeds of the Loans hereunder, shall not, by the lapse of time, the requisite corporate rightgiving of notice or otherwise, power and authority to enter into this Master Loan Agreementconflict with or constitute a violation of any applicable law (including, the Tax Certificate and Agreementwithout limitation, [list other Borrower documents] (collectively, the "Borrower Loan Documents") and to carry out and consummate all transactions contemplated with respect to the Borrower hereby and thereby, and by proper corporate action has duly authorized the execution and delivery Regulation U or Regulation X of the Borrower Loan Documents. The officer[s] Board of Governors of the Federal Reserve System or any other regulation thereof) or a breach of any provision contained in Borrower’s organizational documents or contained in any Material Agreement to which Borrower executing is a party or by which it is bound or give rise to or result in any default thereunder;
(c) This Loan Agreement and each Other Agreement are the Borrower Loan Documents are duly and properly in office and fully authorized to execute the same. The Borrower has duly executed and delivered each of the Borrower Loan Documents. Each of the Borrower Loan Documents constitutes the legal, legally valid and binding agreement obligation of the Borrower, enforceable against the Borrower in accordance with its respective terms, except, in each case, except as enforcement may be limited by bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, moratorium and other or similar laws relating to or affecting limiting creditors’ rights, rights generally or by the application of equitable principles, regardless of principles (whether such enforceability enforcement is considered in a proceeding sought in equity or at law).
(d) Except as disclosed to Lender in writing prior to the Term Loan Date, and by the exercise there are no actions or proceedings which are pending, or to its knowledge threatened, against Borrower which, if adversely determined, could reasonably be expected to have a Material Adverse Effect. Borrower is not in breach of judicial discretion in appropriate cases. The execution and delivery of the Borrower Loan Documents and the consummation of the transactions herein and therein contemplated [and the fulfillment of any Material Agreement or compliance with the terms and conditions thereof] will not (1) conflict with or constitute a breach or violation of or default (with due notice or passage of time or both) under the articles of incorporation or the bylaws of the Borrowersubject to any charge, any applicable law or administrative rule or regulation or any applicable court or administrative restriction, judgment, decree or orderorder which has or could reasonably be expected to have a Material Adverse Effect, or nor is Borrower in default with respect to any indenture, security agreement, mortgage, deed of trust, loan agreement, bond, debenture, note or other evidence similar agreement relating to the borrowing of indebtedness or any contract, agreement, lease or other instrument monies to which the Borrower it is a party or to which or by which it is bound;
(e) Except as disclosed to Lender in writing prior to the Term Loan Date, Borrower has and is in good standing with respect to all licenses, patents, copyrights, trademarks, trade names, governmental permits, certificates, consents and franchises necessary to continue to conduct its business as previously conducted by it and to own or any lease and operate its properties as now owned or leased by it;
(f) The financial statements delivered by Borrower to Lender prior to the Term Loan Date Loan fairly and accurately present the assets, liabilities and financial conditions and results of operations of Borrower as of the dates and for the periods stated therein and have been prepared in accordance with GAAP, and no event, condition or change that has had, or could reasonably be expected to have, a Material Adverse Effect has occurred between the date of this Loan Agreement and the Term Loan Date;
(g) As to the Accounts and other Collateral, (i) Borrower has good, indefeasible and merchantable title to and ownership of the Collateral and the Accounts described and/or listed on any certificate or schedule relating to the Accounts delivered to Lender, free and clear of all liens, claims, security interests and encumbrances, except those of Lender and Permitted Liens.
(h) As to Lender’s security interest, (i) Lender’s security interest in the Collateral is perfected and is of first priority (subject to Permitted Liens); (ii) the offices and/or locations where Borrower keeps the Collateral and Borrower’s property books and records concerning the Collateral are at the locations identified to Lender in writing; and (iii) the addresses identified to Lender in writing as Borrower’s chief executive office and principal place(s) of business are Borrower’s sole offices and place(s) of business.
(i) Borrower is bound, not an “investment company” or (2) result a company “controlled” by an “investment company” as such terms are defined in the creation Investment Company Act of 1940, as amended.
(j) All income and other tax returns and reports required to be filed by Borrower have been timely filed, and all taxes shown on such tax returns to be due and payable and all other assessments, fees and governmental charges upon Borrower and its properties, assets, income, businesses and franchises have been paid when due and payable except to the extent that (A) such taxes, assessments, charges or imposition claims (i) are being contested in good faith by appropriate proceedings (promptly instituted and diligently conducted) so long as such reserve or other appropriate provision, if any, as shall be required in conformity with GAAP shall have been made therefor and (ii) such proceeding shall stay the attachment, sale, disposition, foreclosure or forfeiture of any lienasset of Borrower in connection with any such contested tax, assessment, charge or encumbrance claim or, (B) the failure to timely pay such taxes, assessments, charges or claims could not reasonably be expected to have a Material Adverse Effect. All necessary and appropriate estimated payments (including any interest and penalties) in respect of any nature whatsoever upon any assessed tax liability under Borrower’s state and federal tax returns have been made on a timely basis.
(k) As of the property or assets Term Loan Date (i) the sum of Borrower’s debt (including contingent liabilities) does not exceed the present fair saleable value of Borrower, which conflict, breach, violation, default, lien, charge or encumbrance might have consequences that would materially ’s present assets; (ii) Borrower’s capital is not unreasonably small in relation to its business as it exists and adversely affect the consummation of the transactions as is contemplated by the at such time; and (iii) Borrower Loan Documents or the financial condition, assets, properties or operations of the Borrower. No consent or approval of any trustee or holder of any indebtedness of the Borrower or any guarantor of indebtedness of or other provider of credit or liquidity of the Borrower, has not incurred and no consent, permission, authorization, order or license ofdoes not intend to incur, or filing believe that it will incur, debts beyond its ability to pay such debts as they become due.
(l) No information furnished in writing to Lender by or registration with, any governmental authority (except with respect to any state securities or “blue sky” laws) is necessary on behalf of Borrower for use in connection with the execution and delivery transactions contemplated hereby contains or will contain, any untrue statement of a material fact or omits to state a material fact necessary in order to make the Borrower Loan Documents or the consummation of any transaction statements contained herein or therein contemplatednot misleading in light of the circumstances in which the same were made. Any projections contained in such materials are based upon good faith estimates and assumptions believed by Borrower to be reasonable at the time made. There are no facts known to Borrower that, individually or in the fulfillment of or compliance with the terms and conditions hereof or thereofaggregate, [except as have been obtained or made and as are in full force and effect and except as may could reasonably be required to acquire, construct and/or complete the Project,] all of which are expected to be obtained result in a Material Adverse Effect.
(m) Borrower has provided to Lender on or prior to the Term Loan Date hereof a schedule that correctly identifies the ownership interest (including all options, warrants and other rights to acquire capital stock) of Borrower and each of its Subsidiaries as of the date hereof.
(n) (i) Borrower (A) has been and is in compliance in all material respects with all applicable Environmental Laws; (B) has not received any communication, whether from a governmental authority or otherwise, alleging that Borrower is not in such compliance, and there are no past or present actions, activities, circumstances conditions, events or incidents that may prevent or interfere with such compliance in the ordinary course. There future; (ii) there is no action, suit, proceeding, inquiry or investigation, before or by any court or federal, state, municipal or other governmental authority, Environmental Claim pending or, to the best knowledge of the Borrower, after reasonable investigation, threatened against or affecting the Borrower or against any Person whose liability for any Environmental Claim Borrower has or may have retained or assumed either contractually or by operation of law; and (iii) there are no past or present actions, activities, circumstances, conditions, events or incidents, including, without limitation, the assetsrelease, properties threatened release or operations presence of any Hazardous Material, which could reasonably be expected to form the basis of any Environmental Claim against Borrower or, to the best knowledge of Borrower, against any Person whose liability for any Environmental Claim Borrower has or may have retained or assumed either contractually or by operation of law.
(i) Borrower is an “operating company” within the meaning of the Borrower:regulations of the United States Department of Labor included within 29 CFR Section 2510.3-101 (the “DOL Regulations”) or is in compliance with such other exception as may be available under such regulations to prevent the assets of Borrower from being treated as the assets of any employee benefit plan for purposes of the DOL Regulations and (ii) neither Borrower nor any subsidiary of Borrower maintains or is obligated to make contributions to any employee benefit plan that is subject to Title IV of the Employee Retirement Income Security Act of 1974, as amended from time to time, and any successor statute (“ERISA”).
Appears in 1 contract
Borrower Representations. The Borrower warrants and represents and warrants, for the benefit of to Lender and the Authority, that (such representations and warranties to remain operative and in full effect regardless as of the funding date hereof and as of the date of any Loan or any investigations by or on behalf of the made hereunder, and agrees and covenants to Lender or the Authority or the results thereof): The that:
(a) Borrower is and at all times hereafter shall be (i) a nonprofit [public benefit/religious] corporation Person having that legal name and organizational structure as set forth above (or as set forth in any notice delivered by Borrower to Lender pursuant to Section 7.2(i) hereof), duly incorporated organized and existing and in good standing under the laws of the Statestate of its organization as set forth above (or as set forth in any notice delivered by Borrower to Lender pursuant to Section 7.2(i) hereof) and (ii) qualified or licensed to do business in all other states in which the laws require Borrower to be so qualified and/or licensed, except where failure to be so qualified and/or licensed has or had, as appropriate, the requisite corporate right, power not had and authority could not reasonably be expected to have a Material Adverse Effect.
(b) Borrower is duly authorized and empowered to enter into into, execute, deliver and perform this Master Loan Agreement, the Tax Certificate Warrants and the Other Agreements and the execution, delivery and/or performance by Borrower of this Loan Agreement, [list other the Warrants and the Other Agreements, and the use by Borrower documents] (collectivelyof the proceeds of the Loans hereunder, shall not, by the lapse of time, the "Borrower Loan Documents") and to carry out and consummate all transactions contemplated giving of notice or otherwise, conflict with respect to the Borrower hereby and therebyor constitute a violation of any applicable law (including, and by proper corporate action has duly authorized the execution and delivery without limitation, Regulation U or Regulation X of the Borrower Loan Documents. The officer[s] Board of Governors of the Federal Reserve System or any other regulation thereof) or a breach of any provision contained in Borrower’s organizational documents or contained in any agreement, instrument or document to which Borrower executing is now or hereafter a party or by which it is or may become bound or give rise to or result in any default thereunder.
(c) This Loan Agreement and the Borrower Loan Documents Warrants are duly (and properly in office and fully authorized to execute the same. The Borrower has duly when executed and delivered delivered, each of Other Agreement will be) the Borrower Loan Documents. Each of the Borrower Loan Documents constitutes the legal, legally valid and binding agreement obligation of the Borrower, enforceable against the Borrower in accordance with its respective terms, except, in each case, except as enforcement may be limited by bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, moratorium and other or similar laws relating to or affecting limiting creditors’ rights, rights generally or by the application of equitable principles, regardless of principles (whether such enforceability enforcement is considered in a proceeding sought in equity or at law).
(d) Except as disclosed to Lender in writing prior to the date hereof, there are no actions or proceedings which are pending, or to its knowledge threatened, against Borrower, other than actions or proceedings which have not had and by the exercise of judicial discretion could not reasonably be expected to have a Material Adverse Effect. Borrower is not in appropriate cases. The execution and delivery of the Borrower Loan Documents and the consummation of the transactions herein and therein contemplated [and the fulfillment breach of or compliance with the terms and conditions thereof] will not (1) conflict with a party to any contract or constitute a breach agreement or violation of or default (with due notice or passage of time or both) under the articles of incorporation or the bylaws of the Borrowersubject to any charge, any applicable law or administrative rule or regulation or any applicable court or administrative restriction, judgment, decree or orderorder which has had or could reasonably be expected to have a Material Adverse Effect, or nor is Borrower in default in any material respect under any indenture, security agreement, mortgage, deed of trust, loan agreement, bond, debenture, note or other evidence similar agreement relating to the borrowing of indebtedness or any contract, agreement, lease or other instrument monies to which the Borrower it is a party or to which or by which it is bound.
(e) Borrower has and is in good standing with respect to all licenses, patents, copyrights, trademarks, trade names governmental permits, certificates, consents and franchises necessary to continue to conduct its business as previously conducted by it and to own or lease and operate its properties as now owned or leased by it (except where the failure to have the same or to maintain the same in good standing has not had and could not reasonably be expected to have a Material Adverse Effect);
(f) The financial statements delivered by Borrower or any to Lender prior to the date hereof and the Financials delivered by Borrower to Lender pursuant to Section 7.3 hereof fairly and accurately present in all material respects the assets, liabilities and financial conditions and results of operations of Borrower as of the dates and for the periods stated therein and have been prepared in accordance with generally accepted accounting principles, consistently applied (except, in the case of interim financial statements, for normal year-end adjustments and the absence of footnote disclosures), and no event, condition or change that has had, or could reasonably be expected to have, a Material Adverse Effect has occurred since the date of this Loan Agreement;
(g) As to the Accounts and other Collateral, (i) Borrower has and at all times hereafter shall have good, indefeasible and merchantable title to and ownership of the Collateral and the Accounts described and/or listed on any certificate or schedule relating to the Accounts delivered to Lender, free and clear of all liens, claims, security interests and encumbrances except Permitted Liens; (ii) the Collateral shall be kept and/or maintained solely at the addresses identified in writing to Lender; (iii) Borrower, immediately on demand by Lender, shall deliver to Lender any and all evidence of ownership of, including without limitation, vendor invoices and proofs of payment thereof, certificates of title to and applications for title to, any Collateral; (iv) Borrower shall keep and maintain the Collateral in good operating condition and repair (ordinary wear and tear excepted) and shall make all necessary replacements thereof and renewals thereto so that the value and operating efficiency thereof shall at all times be maintained and preserved in all material respects; and (v) Borrower shall not permit any such material items to become a fixture to real estate or accession to other personal property without notifying Lender promptly thereof.
(h) As to Lender’s security interest, (i) Lender’s security interest in the Collateral is now and at all times hereafter shall be perfected and have a first priority (subject to Permitted Liens); (ii) the offices and/or locations where Borrower keeps the Collateral and Borrower’s property books and records concerning the Collateral are at the locations identified to Lender in writing and Borrower shall not remove such books and records and/or the Collateral therefrom to any other location unless Borrower gives Lender written notice thereof at least thirty (30) days prior thereto and the same is boundwithin the contiguous forty-eight (48) states of the United States of America; and (iii) the addresses identified to Lender in writing as Borrower’s chief executive office and principal place(s) of business are Borrower’s sole offices and place(s) of business, and Borrower, by written notice delivered to Lender at least thirty (30) days prior thereto, shall advise Lender of any change thereto.
(i) Borrower is not an “investment company” or (2) result a company “controlled” by an “investment company” as such terms are defined in the creation or imposition Investment Company Act of any lien1940.
(j) All material income and other tax returns and reports required to be filed by Borrower have been timely filed, charge or encumbrance of any nature whatsoever and all taxes shown on such tax returns to be due and payable and all other material assessments, fees and governmental charges upon any of the property or assets of the Borrower, which conflict, breach, violation, default, lien, charge or encumbrance might have consequences that would materially Borrower and adversely affect the consummation of the transactions contemplated by the Borrower Loan Documents or the financial conditionits properties, assets, properties or operations income, businesses and franchises have been paid when due and payable (other than those being contested in good faith by appropriate proceedings and for which Borrower maintains adequate reserves).
(k) As of the date hereof and of each Loan (i) the sum of Borrower. No consent or approval ’s debt (including contingent liabilities) does not exceed the present fair saleable value of any trustee or holder of any indebtedness of the Borrower’s then current assets; (ii) Borrower’s capital is not unreasonably small in relation to its business as it exists and as is contemplated at such time; and (iii) Borrower or any guarantor of indebtedness of or other provider of credit or liquidity of the Borrower, has not incurred and no consent, permission, authorization, order or license ofdoes not intend to incur, or filing believe that it will incur, debts beyond its ability to pay such debts as they become due.
(l) No information furnished in writing to Lender by or registration with, any governmental authority (except with respect to any state securities or “blue sky” laws) is necessary on behalf of Borrower for use in connection with the execution and delivery transactions contemplated hereby (when taken as a whole) contains or will contain any untrue statement of a material fact or omits to state a material fact necessary in order to make the Borrower Loan Documents or the consummation of any transaction statements contained herein or therein contemplatednot misleading in light of the circumstances in which the same were made. Any projections contained in such materials are based upon good faith estimates and assumptions believed by Borrower to be reasonable at the time made. Except as disclosed to Lender in writing prior to the date hereof, there are no facts known to Borrower that, individually or in the fulfillment of or compliance with the terms and conditions hereof or thereofaggregate, [except as have been obtained or made and as are in full force and effect and except as may could reasonably be required to acquire, construct and/or complete the Project,] all of which are expected to be obtained result in a Material Adverse Effect.
(m) Borrower has provided to Lender on or prior to the date hereof a schedule that correctly identifies the ownership interest (including all options, warrants and other rights to acquire capital stock) of Borrower and each of its Subsidiaries as of the date hereof.
(n) (i) Borrower (A) has been and is in compliance in all material respects with all applicable Environmental Laws; (B) has not, as of the date of this Loan Agreement, received any communication, whether from a governmental authority or otherwise, alleging that Borrower is not in such compliance, and there are no past or present actions, activities, circumstances conditions, events or incidents that may prevent or interfere with such compliance in the ordinary course. There future; (ii) there is no action, suit, proceeding, inquiry or investigation, before or by any court or federal, state, municipal or other governmental authority, material Environmental Claim pending or, to the best knowledge of the Borrower, after reasonable investigation, threatened against or affecting the Borrower or against any Person whose liability for such Environmental Claim Borrower has or may have retained or assumed either contractually or by operation of law; and (iii) there are no past or present actions, activities, circumstances, conditions, events or incidents, including, without limitation, the assetsrelease, properties threatened release or operations presence of any Hazardous Material, which could reasonably be expected to form the basis of any material Environmental Claim against Borrower or, to the best knowledge of Borrower, against any Person whose liability for such Environmental Claim Borrower has or may have retained or assumed either contractually or by operation of law.
(i) Borrower is an “operating company” within the meaning of the Borrower:regulations of the United States Department of Labor included within 29 CFR Section 2510.3-101 (the “DOL Regulations”) or is in compliance with such other exception as may be available under such regulations to prevent the assets of Borrower from being treated as the assets of any employee benefit plan for purposes of the DOL Regulations and (ii) neither Borrower nor any Subsidiary of Borrower maintains or is obligated to make contributions to any employee benefit plan that is subject to Title IV of the Employee Retirement Income Security Act of 1974, as amended from time to time, and any successor statute (“ERISA”).
Appears in 1 contract
Borrower Representations. The Borrower warrants and represents and warrantsto Lender, for the benefit of Lender and the Authority, that (such representations and warranties to remain operative and in full effect regardless as of the funding date hereof and as of the date of any Loan or any investigations by or on behalf of the made hereunder, and agrees and covenants to Lender or the Authority or the results thereof): The that:
(a) Borrower is and at all times hereafter shall be (i) a nonprofit [public benefit/religious] corporation Person having that legal name and organizational structure as set forth above, duly incorporated organized and existing and in good standing under the laws of the Statestate of its organization as set forth above and (ii) qualified or licensed to do business in all other states in which the laws require Borrower to be so qualified and/or licensed, has except in such states where the failure to be so qualified or hadlicensed would not reasonably be expected to have a Material Adverse Effect.
(b) Borrower is duly authorized and empowered to enter into, as appropriateexecute, deliver and perform this Loan Agreement and the Other Agreements and the execution, delivery and/or performance by Borrower of this Loan Agreement and the Other Agreements, and the use by Borrower of the proceeds of the Loans hereunder, shall not, by the lapse of time, the requisite corporate rightgiving of notice or otherwise, power and authority to enter into this Master Loan Agreementconflict with or constitute a violation of any applicable law (including, the Tax Certificate and Agreementwithout limitation, [list other Borrower documents] (collectively, the "Borrower Loan Documents") and to carry out and consummate all transactions contemplated with respect to the Borrower hereby and thereby, and by proper corporate action has duly authorized the execution and delivery Regulation U or Regulation X of the Borrower Loan Documents. The officer[s] Board of Governors of the Federal Reserve System or any other regulation thereof) or a breach of any provision contained in Borrower’s organizational documents or contained in any agreement, instrument or document to which Borrower executing is now or hereafter a party or by which it is or may become bound or give rise to or result in any default thereunder.
(c) This Loan Agreement is (and when executed or delivered, each Other Agreement will be) the Borrower Loan Documents are duly and properly in office and fully authorized to execute the same. The Borrower has duly executed and delivered each of the Borrower Loan Documents. Each of the Borrower Loan Documents constitutes the legal, legally valid and binding agreement obligation of the Borrower, enforceable against the Borrower in accordance with its respective terms, except, in each case, except as enforcement may be limited by bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, moratorium and other or similar laws relating to or affecting limiting creditors’ rights, rights generally or by the application of equitable principles, regardless of principles (whether such enforceability enforcement is considered in a proceeding sought in equity or at law).
(d) Except as disclosed to Lender in writing prior to the date hereof, and by the exercise of judicial discretion there are no actions or proceedings which are pending, or to its knowledge threatened, against Borrower which could reasonably be expected to have a Material Adverse Effect. Borrower is not in appropriate cases. The execution and delivery of the Borrower Loan Documents and the consummation of the transactions herein and therein contemplated [and the fulfillment breach of or compliance with the terms and conditions thereof] will not (1) conflict with a party to any contract or constitute a breach agreement or violation of or default (with due notice or passage of time or both) under the articles of incorporation or the bylaws of the Borrowersubject to any charge, any applicable law or administrative rule or regulation or any applicable court or administrative restriction, judgment, decree or orderorder which has or could reasonably be expected to have a Material Adverse Effect, or nor is Borrower in default with respect to any indenture, security agreement, mortgage, deed of trust, loan agreement, bond, debenture, note or other evidence similar agreement relating to the borrowing of indebtedness or any contract, agreement, lease or other instrument monies to which the Borrower it is a party or to which or by which the Borrower or any of the Borrower’s property it is bound, or ;
(2e) result Borrower has and is in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the property or assets of the Borrower, which conflict, breach, violation, default, lien, charge or encumbrance might have consequences that would materially and adversely affect the consummation of the transactions contemplated by the Borrower Loan Documents or the financial condition, assets, properties or operations of the Borrower. No consent or approval of any trustee or holder of any indebtedness of the Borrower or any guarantor of indebtedness of or other provider of credit or liquidity of the Borrower, and no consent, permission, authorization, order or license of, or filing or registration with, any governmental authority (except good standing with respect to any state securities all licenses, patents, copyrights, trademarks, trade names, governmental permits, certificates, consents and franchises necessary to continue to conduct its business as previously conducted by it and to own or “blue sky” lawslease and operate its properties as now owned or leased by it except, in each case, where failure to be in good standing or to obtain such permits, certificates, consents or franchises could not reasonably be expected to have a Material Adverse Effect;
(f) is necessary The financial statements delivered by Borrower to Lender prior to the date hereof and the Financials delivered by Borrower to Lender pursuant to Section 7.3 fairly and accurately present the assets, liabilities and financial conditions and results of operations of Borrower as of the dates and for the periods stated therein and have been prepared in accordance with GAAP (subject to, in the case of interim financial statements, the absence of footnotes and normal year-end adjustments in connection with the execution audited financial statements for the periods covered by such interim financial statements), and delivery no event, condition or change that has had, or could reasonably be expected to have, a Material Adverse Effect has occurred since the date of this Loan Agreement;
(g) As to the Accounts and other Collateral, (i) Borrower has and at all times hereafter shall have good, indefeasible and merchantable title to and ownership of the Collateral and the Accounts described and/or listed on any certificate or schedule relating to the Accounts delivered to Lender, free and clear of all liens, claims, security interests and encumbrances except those of Lender and Permitted Liens; (ii) the Collateral shall be kept and/or maintained solely at the addresses identified in writing to Lender; (iii) Borrower, immediately on demand by Lender, shall deliver to Lender all evidence of ownership of, including without limitation, vendor invoices and proofs of payment thereof, certificates of title to and applications for title to, any Collateral; (iv) Borrower Loan Documents shall keep and maintain the Collateral in good operating condition and repair, ordinary wear and tear excepted, and shall make all necessary replacements thereof and renewals thereto so that the value and operating efficiency thereof shall at all times be maintained and preserved; and (v) Borrower shall not permit any such items to become a fixture to real estate or accession to any other Person’s personal property.
(h) As to Lender’s security interest, (i) Lender’s security interest in the consummation Collateral is now and at all times hereafter shall be perfected and have a first priority (subject to Permitted Liens); (ii) the offices and/or locations where Borrower keeps the Collateral and Borrower’s books and records concerning the Collateral are at the locations identified to Lender in writing and Borrower shall not remove such books and records and/or the Collateral therefrom to any other location unless Borrower gives Lender written notice thereof at least thirty (30) days prior thereto and the same is within the contiguous forty-eight (48) states of the United States of America; and (iii) the addresses identified to Lender in writing as Borrower’s chief executive office and principal place(s) of business are Borrower’s sole offices and place(s) of business, and Borrower, by written notice delivered to Lender at least thirty (30) days prior thereto, shall advise Lender of any transaction change thereto.
(i) Borrower is not an “investment company” or a company “controlled” by an “investment company”, as such terms are defined in the Investment Company Act of 1940.
(j) All income and other tax returns and reports required to be filed by Borrower have been timely filed, and all taxes shown on such tax returns to be due and payable and all other assessments, fees and governmental charges upon Borrower and its properties, assets, income, businesses and franchises have been paid when due and payable, except to the extent that such taxes, assessments, charges or claims (i) are being contested in good faith by appropriate proceedings (promptly instituted and diligently conducted) so long as such reserve or other appropriate provision, if any, as shall be required in conformity with GAAP shall have been made therefor and (ii) such proceeding shall stay the attachment, sale, disposition, foreclosure or forfeiture of any asset of Borrower in connection with any such contested tax, assessment, charge or claim. All necessary and appropriate estimated payments (including any interest and penalties) in respect of assessed tax liability under Borrower’s state and federal tax returns have been made on a timely basis.
(k) As of the date hereof and of each Loan (i) the sum of Borrower’s debt (including contingent liabilities) does not exceed the present fair saleable value of Borrower’s present assets; (ii) Borrower’s capital is not unreasonably small in relation to its business as it exists and as is contemplated at such time; and (iii) Borrower has not incurred and does not intend to incur, or believe that it will incur, debts beyond its ability to pay such debts as they become due.
(l) No information furnished to Lender by or on behalf of Borrower for use in connection with the transactions contemplated hereby contains or will contain, any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained herein or therein contemplatednot misleading in light of the circumstances in which the same were made. Any projections contained in such materials are based upon good faith estimates and assumptions believed by Borrower to be reasonable at the time made. There are no facts known to Borrower that, individually or in the fulfillment of or compliance with the terms and conditions hereof or thereofaggregate, [except as have been obtained or made and as are in full force and effect and except as may could reasonably be required to acquire, construct and/or complete the Project,] all of which are expected to result in a Material Adverse Effect.
(m) Borrower has provided to Lender on or prior to the date hereof a schedule that correctly identifies the ownership interest (including all options, warrants and other rights to acquire capital stock) of Borrower and each of its Subsidiaries as of the date hereof.
(i) Borrower (A) has been and is in compliance in all material respects with all applicable Environmental Laws; (B) has not received any communication, whether from a governmental authority or otherwise, alleging that Borrower is not in such compliance, which noncompliance could reasonably be obtained expected to have a Material Adverse Effect, and there are no past or present actions, activities, circumstances conditions, events or incidents that may prevent or interfere with such compliance in the ordinary course. There future; (ii) there is no action, suit, proceeding, inquiry or investigation, before or by any court or federal, state, municipal or other governmental authority, Environmental Claim pending or, to the best knowledge of the Borrower, after reasonable investigation, threatened against or affecting the Borrower or against any Person whose liability for any Environmental Claim Borrower has or may have retained or assumed either contractually or by operation of law and which could reasonably be expected to have a Material Adverse Effect; and (iii) there are no past or present actions, activities, circumstances, conditions, events or incidents, including, without limitation, the assetsrelease, properties threatened release or operations presence of any Hazardous Material, which could reasonably be expected to form the basis of any Environmental Claim against Borrower or, to the best knowledge of Borrower, against any Person whose liability for any Environmental Claim Borrower has or may have retained or assumed either contractually or by operation of law and which could reasonably be expected to have a Material Adverse Effect.
(ii) Borrower is an “operating company” within the meaning of the Borrower:regulations of the United States Department of Labor included within 29 CFR Section 2510.3-101 (the “DOL Regulations”) or is in compliance with such other exception as may be available under such regulations to prevent the assets of Borrower from being treated as the assets of any employee benefit plan for purposes of the DOL Regulations and (ii) neither Borrower nor any Subsidiary of Borrower maintains or is obligated to make contributions to any employee benefit plan that is subject to Title IV of the Employee Retirement Income Security Act of 1974, as amended from time to time, and any successor statute (“ERISA”).
Appears in 1 contract
Borrower Representations. The Borrower represents and warrants, for the benefit of Lender and the Authority, that (such representations and warranties to remain operative and in full effect regardless of the funding of the Loan or any investigations by or on behalf of the Lender or the Authority or the results thereof): The Borrower is a nonprofit [public benefit/religious] corporation duly incorporated and in good standing under the laws of the State, has or had, warrants as appropriate, the requisite corporate right, power and authority to enter into this Master Loan Agreement, the Tax Certificate and Agreement, [list other Borrower documents] (collectively, the "Borrower Loan Documents"follows:
a) and to carry out and consummate all transactions contemplated with respect to the Borrower hereby and thereby, and by proper corporate action has duly authorized the execution and delivery of the Borrower Loan Documents. The officer[s] of the Borrower executing the Borrower Loan Documents are duly and properly in office and fully authorized to execute the same. The Borrower has duly executed and delivered each of the Borrower Loan Documents. Each of the Borrower Loan Documents constitutes the legal, valid and binding agreement of the Borrower, enforceable against the Borrower in accordance with its terms, except, in each case, as enforcement may be limited by bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, moratorium and other laws relating to or affecting creditors’ rights, by the application of equitable principles, regardless of whether such enforceability is considered in a proceeding in equity or at law, and by the exercise of judicial discretion in appropriate cases. The execution and delivery by Borrower of the this Amendment and performance by Borrower Loan Documents and the consummation of the transactions herein contemplated (i) are and therein contemplated [will be within each Borrower's corporate powers, (ii) have been authorized by all necessary corporate action, and the fulfillment of or compliance with the terms (iii) are not and conditions thereof] will not (1) conflict with be in contravention of any order of any court or constitute a breach other agency or violation government, of or default (with due notice or passage of time or both) under the articles of incorporation or the bylaws of the Borrower, any applicable law or administrative rule or regulation or any applicable court or administrative decree or order, or any other indenture, mortgage, deed of trust, loan agreement, bond, debenture, note agreement or other evidence of indebtedness or any contract, agreement, lease or other instrument undertaking to which the any Borrower is a party or to which or by which the property of any Borrower or any of the Borrower’s property is bound, or in conflict with, or result in a breach of or constitute (2with due notice and/or lapse of time) a default under any such indenture, agreement or undertaking or result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon on any Property of any Borrower.
b) This Amendment and any other agreements, instruments and documents executed and/or delivered in connection herewith or shall be valid, binding and enforceable against each Borrower in accordance with their respective terms.
c) After giving effect to this Amendment, (i) the representations and warranties herein, in the Loan Agreement and in each other Loan Document and certificate or other writing delivered to the Agent or the Lenders on or prior to the date hereof shall be correct and accurate on and as of the property or assets date hereof as though made on and as of such date (subject to the provisions of Section 7.2 of the Borrower, which conflict, breach, violation, default, lien, charge Loan Agreement); and (ii) no Default or encumbrance might Event of Default shall have consequences that occurred and be continuing on the date hereof or would materially and adversely affect the consummation of the transactions contemplated by the Borrower Loan Documents or the financial condition, assets, properties or operations of the Borrower. result from this Amendment becoming effective in accordance with its terms.
d) No consent authorization or approval of any trustee or holder of any indebtedness of the Borrower or any guarantor of indebtedness of or other provider of credit or liquidity of the Borroweraction by, and no consent, permission, authorization, order or license of, notice to or filing or registration with, any governmental authority (except with respect to any state securities or “blue sky” laws) other regulatory body is necessary required in connection with the execution due execution, delivery and delivery performance by any Borrower of this Amendment or the performance by such Borrower of the Borrower Loan Documents or the consummation of any transaction herein or therein contemplatedAgreement, or the fulfillment of or compliance with the terms and conditions hereof or thereof, [except as have been obtained or made and as are in full force and effect and except as may be required to acquire, construct and/or complete the Project,] all of which are expected to be obtained in the ordinary course. There is no action, suit, proceeding, inquiry or investigation, before or by any court or federal, state, municipal or other governmental authority, pending or, to the knowledge of the Borrower, after reasonable investigation, threatened against or affecting the Borrower or the assets, properties or operations of the Borrower:amended hereby.
Appears in 1 contract
Sources: Fourth Amendment and Consent Agreement (Gentiva Health Services Inc)