Borrower’s Representations. The Borrower represents and warrants, which representations and warranties are deemed to be repeated at the time of each advance hereunder as though made at such time, except in the case of a representation or warranty of the Borrower that is made with respect to a specific date, in which case such representation or warranty shall have been true on such date, as follows: (a) The Borrower is a corporation, duly incorporated and organized and validly existing under the laws of the Province of Nova Scotia. The Borrower is duly qualified, licensed or registered to carry on business under the laws applicable to it in all jurisdictions in which such qualification, licensing or registration is necessary except where failure to be so qualified would not have a Material Adverse Effect. The Borrower has all necessary corporate power and authority to own or lease its property and assets and to carry on its business as now being conducted by it, and to authorize, create, execute, deliver and perform all of its obligations under the Credit Documents in accordance with their respective terms and the transactions contemplated thereunder are all within the Borrower’s corporate powers; (b) The execution, delivery and performance of the Credit Documents and the transactions contemplated thereunder have been duly authorized and are not in contravention of Applicable Laws or the terms of Borrower’s certificate of incorporation, bylaws, or other organizational documentation, or any indenture, agreement or undertaking to which Borrower is a party or by which Borrower or its property are bound and the Credit Documents have been duly executed and delivered by the Borrower and constitute legal, valid and binding obligations of the Borrower, enforceable against it in accordance with their respective terms; (c) Except as disclosed in the Disclosure Schedule, the Borrower is not in default under any of its obligations and there are no actions, suits or proceedings, pending or, to the best of the Borrower’s knowledge, threatened, against or affecting it which if adversely determined against Borrower would result in a Material Adverse Effect. Without limiting the foregoing, except as set forth in the Disclosure Schedule, to the best of Borrower’s knowledge, there is no present investigation by any governmental agency pending or threatened, against or affecting Borrower, its assets or business and there is no action, suit, proceeding or claim by any person pending, or to the best of Borrower’s knowledge threatened, against Borrower or its assets or goodwill, or against or affecting any transactions contemplated by this Agreement, which if adversely determined against Borrower would result in any material adverse change in the assets, business or prospects of Borrower or would impair the ability of Borrower to perform its obligations hereunder or under any of the other Credit Documents to which it is a party or of Lender to enforce any obligations or realize upon any Collateral; (d) No authorization, consent, approval, registration, qualification, designation, declaration or filing with any Governmental Entity or other person is or was necessary in connection with the execution, delivery and performance of obligations by the Borrower under the Credit Documents except as are in full force and effect, unamended; (e) The only jurisdictions (or registration districts within such jurisdictions) in which the Borrower has any place of business or stores any tangible personal property are listed in the Disclosure Schedule. The Borrower’s chief executive office is identified as such in the Disclosure Schedule; (f) The Borrower possesses all Material Permits necessary to properly conduct its business. Each such Material Permit is (i) in full force and effect except as would not have a Material Adverse Effect; and (ii) not subject to any dispute. No event has occurred which, with the giving of notice, lapse of time or both, would constitute a default under, or in respect of, any such Material Permit; (g) There are no collective bargaining agreements to which the Borrower is a party; (h) All contributions or premiums required to be made or paid by the Borrower to or in respect of the Pension Plans have been made and paid in a timely fashion in accordance with the terms thereof and Applicable Laws. (i) All financial books and records of the Borrower have been fully, properly and accurately kept and completed in accordance with GAAP and there are no material inaccuracies or discrepancies of any kind contained or reflected therein. The Borrower maintains its books and records at the location(s) identified in the Disclosure Schedule. All financial statements relating to Borrower which have been or may hereafter be delivered by Borrower to Lender have been prepared in accordance with GAAP and fairly present the financial condition and the results of operation of Borrower as at the dates and for the periods set forth therein; (j) The Borrower is not in violation of its constating documents, its by-laws or any shareholders’ agreement applicable to it. No event has occurred or condition exists, and is continuing after the applicable grace period, if any, specified in any agreement or instrument relating to any debt of the Borrower, the effect of which is to accelerate, or permit the acceleration of such debt. No debt of the Borrower has been declared to be due and payable prior to its stated maturity other than as disclosed in the Disclosure Schedule. No event has occurred and is continuing which constitutes, or which, with notice, lapse of time, or both, would constitute a breach of any covenant or other term or condition under any of the Credit Documents; (k) Neither this Agreement nor any certificate furnished to the Lender by or on behalf of any of the Borrower in connection with the transactions contemplated by this Agreement, contain any untrue statement of a material fact. All forecasts and projections supplied to the Lender in connection with the transactions contemplated by this Agreement were prepared in good faith, disclosed all relevant material assumptions and the most recent versions of all such forecasts provided to the Lender were at the time of delivery based on estimates believed by the Borrower to be reasonable. There is no fact known to the Borrower which has not been disclosed to the Lender which could reasonably be expected to have a Material Adverse Effect; (l) The Borrower has no subsidiaries and does not have an equity interest in any other entity; (m) The Disclosure Schedule sets forth the commitments of any lender for all debt for borrowed money to be advanced to the Borrower, and all debt for borrowed money outstanding, of the Borrower; (n) The Liens granted to Lender under this Agreement and the other Security Agreements constitute valid and perfected first priority liens and security interests in and upon the Collateral subject only to Permitted Encumbrances. Borrower has good and marketable title to all of the properties and assets owned by it subject to no Liens of any kind, except those granted to Lender and Permitted Encumbrances; (o) There has not occurred or become known to the Borrower any Material Adverse Change in respect of the Borrower since January 4, 2009; (p) The financing transactions hereunder (i) do not require any material consent or approval of, registration or filing with, or any other action by, any Governmental Entity, except such as have been obtained or made and are in full force and effect, (ii) will not violate in any material respect any Applicable Law and will not violate the charter, by-laws or other organizational or constitutional documents of the Borrower or any order of any Governmental Entity, (iii) will not violate or result in a default under any indenture, agreement or other instrument binding upon the Borrower or its assets, or give rise to a right thereunder to require any payment to be made by the Borrower in a manner which would reasonably be expected to have a Material Adverse Effect, and (iv) will not result in the creation or imposition of any Lien on any asset of the Borrower (other than the Liens created by the Credit Documents or Permitted Encumbrances); (q) The Borrower owns, or is licensed to use, all trademarks, tradenames, copyrights, patents and other intellectual property material to its business, and, to the knowledge of the Borrower, the use thereof by the Borrower does not infringe upon the rights of any other person; (r) The Borrower owns and operates all Blockbuster locations in Canada and does not have any franchisees; (s) The Borrower maintains direct contractual relationships with all suppliers of its inventory (“Supply Agreements”) independent of any relationships, contractual or otherwise, which BBI may have with any such suppliers or with any of their Affiliates and complete and accurate copies of all such contracts (other than purchase orders) have been provided by Borrower to Lender; (t) BCI is the sole shareholder of the Borrower and has no assets or liabilities other than the said shares owned by it and other than liabilities pursuant to guarantees issued in respect of the U.S. Credit Agreement and in respect of that certain Indenture dated as of April 20, 2004 (as amended, supplemented or otherwise modified from time to time), by and among BBI, as issuer, BCI and the other subsidiary guarantors party thereto and The Bank of New York Mellon Trust Company, N.A., as trustee, in respect of BBI’s 9% Senior Subordinated Notes due 2012. The sole shareholder of BCI is BBI; (u) The Borrower has not guaranteed any of the liabilities or obligations of BBI or of BCI; (v) Neither BBI nor BCI has guaranteed any of the liabilities or obligations of the Borrower, except that BBI has guaranteed the obligations of the Borrower pursuant to a Moneris VISA National Account Merchant Agreement/Moneris MasterCard National Account Merchant Agreement dated February 11, 2008 between the Borrower and Moneris Solutions Corporation; (w) The Borrower maintains, with financially sound and reputable insurance companies, insurance in such amounts and against such risks as are customarily maintained by companies engaged in the same or similar businesses operating in the same or similar locations; (x) As of the date hereof, both before and after giving effect to (a) the financing transactions to be consummated on the date hereof and (b) the payment and accrual of all fees, costs and expenses in connection therewith, the Borrower are and will be Solvent; (y) Borrower has filed, or caused to be filed, in a timely manner all tax returns, reports and declarations which are required to be filed by it (without requests for extension except as previously disclosed in writing to Lender). All information in such tax returns, reports and declarations is complete and accurate in all material respects. Borrower has paid or caused to be paid all taxes due and payable or claimed due and payable in any assessment received by it, except taxes the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower and with respect to which adequate reserves have been set aside on its books. Adequate provision has been made for the payment of all accrued and unpaid federal, provincial, municipal, local, foreign and other taxes whether or not yet due and payable and whether or not disputed; (z) The Borrower is not aware of any facts or circumstances which would have an adverse impact on the value of the Collateral taken as a whole, other than depreciation or diminution of value of items of Collateral in the ordinary course of business. The provisions of the Credit Documents create legal and valid liens on all the Collateral in favor of the Lender, and such liens constitute perfected and continuing liens on the Collateral and have priority over all other Liens on the Collateral except for Permitted Encumbrances; (aa) Adequate accruals have been made for the payment of all Priority Claims and potential Priority Claims, whether or not yet due, unless disputed; (bb) Borrower is not in default in any material respect under, or in violation in any material respect of any of the terms of, any material agreement, contract, instrument, lease or other commitment to which it is a party or by which it or any of its assets are bound and Borrower is in compliance in all material respects with all applicable provisions of Applicable Laws; and (cc) All information furnished by or on behalf of the Borrower in writing to the Lender in connection with this Agreement or any transaction contemplated hereby, is true and correct and does not omit any fact necessary in order to make such information not misleading. No event or circumstance has occurred since January 4, 2009 which has had or could reasonably be expected to have a Material Adverse Effect on the Borrower, which has not been fully and accurately disclosed to the Lender in writing. All representations and warranties contained in this Agreement or any of the other Credit Documents or in any certificates or other documents delivered to the Lender shall survive the execution and delivery of this Agreement and shall be deemed to have been made again to Lender on the date of each additional Borrowing hereunder and shall be conclusively presumed to have been relied on by Lender regardless of any investigation made or information possessed by Lender. The representations and warranties set forth herein shall be cumulative and in addition to any other representations or warranties which Borrower shall now or hereafter give, or cause to be given, to Lender.
Appears in 1 contract
Borrower’s Representations. The Borrower represents and warrants, which representations and warranties are deemed warrants to be repeated at the time of each advance hereunder as though made at such time, except in the case of a representation or warranty of the Borrower that is made with respect to a specific date, in which case such representation or warranty shall have been true on such date, Lender as follows:
(a) The Borrower is a corporation, duly incorporated and organized and validly existing under the laws of the Province of Nova Scotia. The Borrower is duly qualified, licensed or registered to carry on business under the laws applicable to it in all jurisdictions in which such qualification, licensing or registration is necessary except where failure to be so qualified would not have a Material Adverse Effect. The Borrower has all necessary corporate full power and authority to own or lease its property execute and assets deliver this Agreement and to carry on its business as now being conducted by it, and to authorize, create, execute, deliver and perform all of its obligations under the Credit Documents hereunder. Upon execution and delivery of this Agreement, this Agreement will be valid, binding and enforceable upon Borrower in accordance with their respective terms its terms. Execution and delivery of this Agreement do not and will not contravene, conflict with, violate or constitute a default under (i) the transactions contemplated thereunder are all within the Borrower’s corporate powers;
operating agreement creating and governing Borrower or (bii) The executionany applicable law, delivery and performance of the Credit Documents and the transactions contemplated thereunder have been duly authorized and are not in contravention of Applicable Laws rule, regulation, judgment, decree or the terms of Borrower’s certificate of incorporation, bylaws, or other organizational documentation, order or any indentureagreement, agreement indenture or undertaking instrument to which Borrower is a party or by is bound or which Borrower is binding upon or its property are bound and applicable to the Credit Documents have been duly executed and delivered by the Borrower and constitute legal, valid and binding obligations of the Borrower, enforceable against it in accordance with their respective terms;Mortgaged Property or any portion thereof.
(cb) Except as disclosed in the Disclosure Schedule, the Borrower There is not in default under any of its obligations and there are no actionscondition, suits event or circumstance existing, or any litigation, arbitration, governmental or administrative proceedings, pending orexaminations, claims or demands pending, or to the best of the Borrower’s knowledge, threatened, against affecting Borrower or affecting it which if adversely determined against Borrower would result in a Material Adverse Effect. Without limiting the foregoingMortgaged Property.
(c) To the best of Borrower’s knowledge, except no Event of Default (as set forth defined in the Disclosure ScheduleMortgage) or event or circumstance which with the giving of notice, the passage of time, or both would constitute a default exists under the Note, Mortgage or any of the other Loan Documents, all as amended by this Agreement and Borrower hereby acknowledges that as of the date of this Agreement, Borrower has no defenses, claims or set-offs to the enforcement by Lender of the obligations and liabilities of Borrower or Original Borrower under the Note, Mortgage and the other Loan Documents, all as amended by this Agreement.
(d) To the best of Borrower’s knowledge, there is no present investigation by not any condition, event or circumstance existing, or any litigation, arbitration, governmental agency pending or threatenedadministrative proceedings, against examinations, claims or affecting Borrower, its assets or business and there is no action, suit, proceeding or claim by any person demands pending, or to the best of any Borrower’s knowledge knowledge, threatened, against affecting Borrower or the Mortgaged Property, which would prevent Borrower from complying with or performing its assets obligations under the Note, the Mortgage or goodwillany of the other Loan Documents, or against or affecting any transactions contemplated as the same are being modified by this Agreement, which if adversely determined within the time limits set forth therein for such compliance or performance, and no basis for any such matter exists.
(e) Borrower is solvent and able to pay its debts as such debts become due, and has capital sufficient to carry on its present business transactions. The value of the Borrower’s property, at a fair valuation, is greater than the sum of its debts.
(f) Borrower is not bankrupt or insolvent, nor has Borrower made an assignment for the benefit of its creditors, nor has there been a trustee or receiver appointed for Borrower, nor has there been any bankruptcy, reorganization or insolvency proceeding instituted by or against Borrower, nor will Borrower would result in any material adverse change in be rendered insolvent by its execution, delivery or performance of this Agreement, the assetsNote, business Mortgage or prospects of Borrower or would impair the ability of Borrower to perform its obligations hereunder or under any of the other Credit Documents Loan Documents, all as amended by this Agreement.
(g) The most recent financial statements for Borrower and the Mortgaged Property provided to which it is a party or Lender fairly and accurately present the financial condition of such entity and, to the extent applicable, the results of operations for the applicable periods covered thereby.
(h) Each representation and warranty made by the Original Borrower in favor of Lender pursuant to enforce any obligations or realize upon any Collateral;
(d) No authorizationthe Note, consent, approval, registration, qualification, designation, declaration or filing with any Governmental Entity or Mortgage and the other person is or was necessary in connection with the execution, delivery Loan Documents are hereby ratified and performance of obligations by the Borrower under the Credit Documents except as are in full force confirmed and effect, unamended;
(e) The only jurisdictions (or registration districts within such jurisdictions) in which the Borrower has any place of business or stores any tangible personal property are listed in the Disclosure Schedule. The Borrower’s chief executive office is identified as such in the Disclosure Schedule;
(f) The Borrower possesses all Material Permits necessary to properly conduct its business. Each such Material Permit is (i) shall remain in full force and effect except as would not have a Material Adverse Effect; and (ii) not subject to any dispute. No event has occurred which, with the giving of notice, lapse of time or both, would constitute a default under, or in respect of, any such Material Permit;
(g) There are no collective bargaining agreements to which the Borrower is a party;
(h) All contributions or premiums required to be made or paid by the Borrower to or in respect of the Pension Plans have been made and paid in a timely fashion in accordance with the terms thereof and Applicable Laws.
(i) All financial books and records of the Borrower have been fully, properly and accurately kept and completed in accordance with GAAP and there are no material inaccuracies or discrepancies of any kind contained or reflected therein. The Borrower maintains its books and records at the location(s) identified in the Disclosure Schedule. All financial statements relating to Borrower which have been or may hereafter be delivered by Borrower to Lender have been prepared in accordance with GAAP and fairly present the financial condition and the results of operation of Borrower as at the dates and for the periods set forth therein;
(j) The Borrower is not in violation of its constating documents, its by-laws or any shareholders’ agreement applicable to it. No event has occurred or condition exists, and is continuing after the applicable grace period, if any, specified in any agreement or instrument relating to any debt of the Borrower, the effect of which is to accelerate, or permit the acceleration of such debt. No debt of the Borrower has been declared to be due and payable prior to its stated maturity other than as disclosed in the Disclosure Schedule. No event has occurred and is continuing which constitutes, or which, with notice, lapse of time, or both, would constitute a breach of any covenant or other term or condition under any of the Credit Documents;
(k) Neither this Agreement nor any certificate furnished to the Lender by or on behalf of any of the Borrower in connection with the transactions contemplated by this Agreement, contain any untrue statement of a material fact. All forecasts and projections supplied to the Lender in connection with the transactions contemplated by this Agreement were prepared in good faith, disclosed all relevant material assumptions and the most recent versions of all such forecasts provided to the Lender were at the time of delivery based on estimates believed by the Borrower to be reasonable. There is no fact known to the Borrower which has not been disclosed to the Lender which could reasonably be expected to have a Material Adverse Effect;
(l) The Borrower has no subsidiaries and does not have an equity interest in any other entity;
(m) The Disclosure Schedule sets forth the commitments of any lender for all debt for borrowed money to be advanced to the Borrower, and all debt for borrowed money outstanding, of the Borrower;
(n) The Liens granted to Lender under this Agreement and the other Security Agreements constitute valid and perfected first priority liens and security interests in and upon the Collateral subject only to Permitted Encumbrances. Borrower has good and marketable title to all of the properties and assets owned by it subject to no Liens of any kindtheir respective terms, except those granted to Lender and Permitted Encumbrances;
(o) There has not occurred or become known to the Borrower any Material Adverse Change in respect of the Borrower since January 4, 2009;
(p) The financing transactions hereunder (i) do not require any material consent or approval of, registration or filing with, or any other action by, any Governmental Entity, except such as have been obtained or made and are in full force and effect, (ii) will not violate in any material respect any Applicable Law and will not violate the charter, by-laws or other organizational or constitutional documents of the Borrower or any order of any Governmental Entity, (iii) will not violate or result in a default under any indenture, agreement or other instrument binding upon the Borrower or its assets, or give rise to a right thereunder to require any payment to be made by the Borrower in a manner which would reasonably be expected to have a Material Adverse Effect, and (iv) will not result in the creation or imposition of any Lien on any asset of the Borrower (other than the Liens created by the Credit Documents or Permitted Encumbrances);
(q) The Borrower owns, or is licensed to use, all trademarks, tradenames, copyrights, patents and other intellectual property material to its business, and, to the knowledge of the Borrower, the use thereof by the Borrower does not infringe upon the rights of any other person;
(r) The Borrower owns and operates all Blockbuster locations in Canada and does not have any franchisees;
(s) The Borrower maintains direct contractual relationships with all suppliers of its inventory (“Supply Agreements”) independent of any relationships, contractual or otherwise, which BBI may have with any such suppliers or with any of their Affiliates and complete and accurate copies of all such contracts (other than purchase orders) have been provided by Borrower to Lender;
(t) BCI is the sole shareholder of the Borrower and has no assets or liabilities other than the said shares owned by it and other than liabilities pursuant to guarantees issued in respect of the U.S. Credit Agreement and in respect of that certain Indenture dated as of April 20, 2004 (as amended, supplemented or otherwise modified from time to time), by and among BBI, as issuer, BCI and the other subsidiary guarantors party thereto and The Bank of New York Mellon Trust Company, N.A., as trustee, in respect of BBI’s 9% Senior Subordinated Notes due 2012. The sole shareholder of BCI is BBI;
(u) The Borrower has not guaranteed any of the liabilities or obligations of BBI or of BCI;
(v) Neither BBI nor BCI has guaranteed any of the liabilities or obligations of the Borrower, except that BBI has guaranteed the obligations of the Borrower pursuant to a Moneris VISA National Account Merchant Agreement/Moneris MasterCard National Account Merchant Agreement dated February 11, 2008 between the Borrower and Moneris Solutions Corporation;
(w) The Borrower maintains, with financially sound and reputable insurance companies, insurance in such amounts and against such risks as are customarily maintained by companies engaged in the same or similar businesses operating in the same or similar locations;
(x) As of the date hereof, both before and after giving effect to (a) the financing transactions to be consummated on the date hereof and (b) the payment and accrual of all fees, costs and expenses in connection therewith, the Borrower are and will be Solvent;
(y) Borrower has filed, or caused to be filed, in a timely manner all tax returns, reports and declarations which are required to be filed by it (without requests for extension except as previously disclosed in writing to Lender). All information in such tax returns, reports and declarations is complete and accurate in all material respects. Borrower has paid or caused to be paid all taxes due and payable or claimed due and payable in any assessment received by it, except taxes the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower and with respect to which adequate reserves have been set aside on its books. Adequate provision has been made for the payment of all accrued and unpaid federal, provincial, municipal, local, foreign and other taxes whether or not yet due and payable and whether or not disputed;
(z) The Borrower is not aware of any facts or circumstances which would have an adverse impact on the value of the Collateral taken as a whole, other than depreciation or diminution of value of items of Collateral in the ordinary course of business. The provisions of the Credit Documents create legal and valid liens on all the Collateral in favor of the Lender, and such liens constitute perfected and continuing liens on the Collateral and have priority over all other Liens on the Collateral except for Permitted Encumbrances;
(aa) Adequate accruals have been made for the payment of all Priority Claims and potential Priority Claims, whether or not yet due, unless disputed;
(bb) Borrower is not in default in any material respect under, or in violation in any material respect of any of the terms of, any material agreement, contract, instrument, lease or other commitment to which it is a party or by which it or any of its assets are bound and Borrower is in compliance in all material respects with all applicable provisions of Applicable Laws; and
(cc) All information furnished by or on behalf of the Borrower in writing to the Lender in connection with this Agreement or any transaction contemplated hereby, is true and correct and does not omit any fact necessary in order to make such information not misleading. No event or circumstance has occurred since January 4, 2009 which has had or could reasonably be expected to have a Material Adverse Effect on the Borrower, which has not been fully and accurately disclosed to the Lender in writing. All representations and warranties contained in this Agreement or any of the other Credit Documents or in any certificates or other documents delivered which were specific to the Lender shall survive the execution Original Borrower and delivery of this Agreement and shall be deemed are not applicable to have been made again to Lender on the date of each additional Borrowing hereunder and shall be conclusively presumed to have been relied on by Lender regardless of any investigation made or information possessed by Lender. The representations and warranties set forth herein shall be cumulative and in addition to any other representations or warranties which Borrower shall now or hereafter give, or cause to be given, to LenderBorrower.
Appears in 1 contract
Sources: Assignment, Assumption and Modification Agreement (Behringer Harvard Opportunity REIT I, Inc.)
Borrower’s Representations. The Borrower represents and warrants, which hereby reaffirms all of the representations and warranties are deemed to be repeated at the time of each advance hereunder as though made at such time, except set forth in the case of a representation or warranty of the Borrower Loan Documents, and further represents and warrants that is made with respect to a specific date, in which case such representation or warranty shall have been true on such date, as follows:
(a) The Borrower is the execution and delivery of this Agreement does not contravene, result in a corporation, duly incorporated and organized and validly existing under the laws of the Province of Nova Scotia. The Borrower is duly qualified, licensed or registered to carry on business under the laws applicable to it in all jurisdictions in which such qualification, licensing or registration is necessary except where failure to be so qualified would not have a Material Adverse Effect. The Borrower has all necessary corporate power and authority to own or lease its property and assets and to carry on its business as now being conducted by it, and to authorize, create, execute, deliver and perform all of its obligations under the Credit Documents in accordance with their respective terms and the transactions contemplated thereunder are all within the Borrower’s corporate powers;
(b) The execution, delivery and performance of the Credit Documents and the transactions contemplated thereunder have been duly authorized and are not in contravention of Applicable Laws or the terms of Borrower’s certificate of incorporation, bylawsbreach of, or constitute a default under, any deed of trust, loan agreement, indenture or other organizational documentation, contract or any indenture, agreement or undertaking to which Borrower is a party or by which Borrower or any of its property are properties may be bound (nor would such execution and delivery constitute such a default with the Credit Documents have been duly executed passage of time or the giving of notice or both), and delivered by do not violate or contravene any law, order, decree, rule, regulation or restriction to which the Borrower and constitute is subject; (b) this Agreement constitutes the legal, valid and binding obligations of the Borrower, Borrower enforceable against it in accordance with their respective its terms;
; (c) Except as disclosed in the Disclosure Scheduleexecution and delivery of, and performance under, this Agreement are within the Borrower is Borrower’s power and authority without the joinder or consent of any other party and have been duly authorized by all requisite action, and are not in default under contravention of any of its obligations and there are no actionslaw, suits or proceedings, pending or, to the best of the Borrower’s knowledgearticles of organization, threatened, against or affecting it which if adversely determined against Borrower would result in a Material Adverse Effect. Without limiting the foregoing, except as set forth in the Disclosure Schedule, to the best of Borrower’s knowledge, there is no present investigation by any governmental agency pending or threatened, against or affecting Borrower, its assets or business and there is no action, suit, proceeding or claim by any person pending, or to the best of Borrower’s knowledge threatened, against Borrower or its assets or goodwill, or against or affecting any transactions contemplated by this Agreement, which if adversely determined against Borrower would result in any material adverse change in the assets, business or prospects of Borrower or would impair the ability of Borrower to perform its obligations hereunder or under any of the other Credit Documents to which it is a party or of Lender to enforce any obligations or realize upon any Collateral;
(d) No authorization, consent, approval, registration, qualification, designation, declaration or filing with any Governmental Entity or other person is or was necessary in connection with the execution, delivery and performance of obligations by the Borrower under the Credit Documents except as are in full force and effect, unamended;
(e) The only jurisdictions (or registration districts within such jurisdictions) in which the Borrower has any place of business or stores any tangible personal property are listed in the Disclosure Schedule. The Borrower’s chief executive office is identified as such in the Disclosure Schedule;
(f) The Borrower possesses all Material Permits necessary to properly conduct its business. Each such Material Permit is (i) in full force and effect except as would not have a Material Adverse Effect; and (ii) not subject to any dispute. No event has occurred which, with the giving of notice, lapse of time or both, would constitute a default under, or in respect of, any such Material Permit;
(g) There are no collective bargaining agreements to which the Borrower is a party;
(h) All contributions or premiums required to be made or paid by the Borrower to or in respect of the Pension Plans have been made and paid in a timely fashion in accordance with the terms thereof and Applicable Laws.
(i) All financial books and records of the Borrower have been fully, properly and accurately kept and completed in accordance with GAAP and there are no material inaccuracies or discrepancies of any kind contained or reflected therein. The Borrower maintains its books and records at the location(s) identified in the Disclosure Schedule. All financial statements relating to Borrower which have been or may hereafter be delivered by Borrower to Lender have been prepared in accordance with GAAP and fairly present the financial condition and the results of operation of Borrower as at the dates and for the periods set forth therein;
(j) The Borrower is not in violation of its constating documents, its by-laws or any shareholders’ operating agreement applicable to it. No event has occurred or condition exists, and is continuing after the applicable grace period, if any, specified in any agreement or instrument relating to any debt of the Borrower, the effect of which is to accelerate, or permit the acceleration of such debt. No debt of the Borrower has been declared to be due and payable prior to its stated maturity other than as disclosed in the Disclosure Schedule. No event has occurred and is continuing which constitutes, or which, with notice, lapse of time, or both, would constitute a breach of any covenant or other term or condition under any of the Credit Documents;
(k) Neither this Agreement nor any certificate furnished to the Lender by or on behalf of any of the Borrower in connection with the transactions contemplated by this Agreement, contain any untrue statement of a material fact. All forecasts and projections supplied to the Lender in connection with the transactions contemplated by this Agreement were prepared in good faith, disclosed all relevant material assumptions and the most recent versions of all such forecasts provided to the Lender were at the time of delivery based on estimates believed by the Borrower to be reasonable. There is no fact known to the Borrower which has not been disclosed to the Lender which could reasonably be expected to have a Material Adverse Effect;
(l) The Borrower has no subsidiaries and does not have an equity interest in any other entity;
(m) The Disclosure Schedule sets forth the commitments of any lender for all debt for borrowed money to be advanced to the Borrower, and all debt for borrowed money outstanding, of the Borrower;
(n) The Liens granted to Lender under this Agreement and the other Security Agreements constitute valid and perfected first priority liens and security interests in and upon the Collateral subject only to Permitted Encumbrances. Borrower has good and marketable title to all of the properties and assets owned by it subject to no Liens of any kind, except those granted to Lender and Permitted Encumbrances;
(o) There has not occurred or become known to the Borrower any Material Adverse Change in respect of the Borrower since January 4, 2009;
(p) The financing transactions hereunder (i) do not require any material consent or approval of, registration or filing with, or any other action by, any Governmental Entity, except such as have been obtained or made and are in full force and effect, (ii) will not violate in any material respect any Applicable Law and will not violate the charter, by-laws or other organizational documents or constitutional documents of the Borrower or any order of any Governmental Entity, (iii) will not violate or result in a default under any indenture, agreement or other instrument binding upon undertaking to which the Borrower or its assets, or give rise to a right thereunder to require any payment to be made by the Borrower in a manner which would reasonably be expected to have a Material Adverse Effect, and (iv) will not result in the creation or imposition of any Lien on any asset of the Borrower (other than the Liens created by the Credit Documents or Permitted Encumbrances);
(q) The Borrower owns, or is licensed to use, all trademarks, tradenames, copyrights, patents and other intellectual property material to its business, and, to the knowledge of the Borrower, the use thereof by the Borrower does not infringe upon the rights of any other person;
(r) The Borrower owns and operates all Blockbuster locations in Canada and does not have any franchisees;
(s) The Borrower maintains direct contractual relationships with all suppliers of its inventory (“Supply Agreements”) independent of any relationships, contractual or otherwise, which BBI may have with any such suppliers or with any of their Affiliates and complete and accurate copies of all such contracts (other than purchase orders) have been provided by Borrower to Lender;
(t) BCI is the sole shareholder of the Borrower and has no assets or liabilities other than the said shares owned by it and other than liabilities pursuant to guarantees issued in respect of the U.S. Credit Agreement and in respect of that certain Indenture dated as of April 20, 2004 (as amended, supplemented or otherwise modified from time to time), by and among BBI, as issuer, BCI and the other subsidiary guarantors party thereto and The Bank of New York Mellon Trust Company, N.A., as trustee, in respect of BBI’s 9% Senior Subordinated Notes due 2012. The sole shareholder of BCI is BBI;
(u) The Borrower has not guaranteed any of the liabilities or obligations of BBI or of BCI;
(v) Neither BBI nor BCI has guaranteed any of the liabilities or obligations of the Borrower, except that BBI has guaranteed the obligations of the Borrower pursuant to a Moneris VISA National Account Merchant Agreement/Moneris MasterCard National Account Merchant Agreement dated February 11, 2008 between the Borrower and Moneris Solutions Corporation;
(w) The Borrower maintains, with financially sound and reputable insurance companies, insurance in such amounts and against such risks as are customarily maintained by companies engaged in the same or similar businesses operating in the same or similar locations;
(x) As of the date hereof, both before and after giving effect to (a) the financing transactions to be consummated on the date hereof and (b) the payment and accrual of all fees, costs and expenses in connection therewith, the Borrower are and will be Solvent;
(y) Borrower has filed, or caused to be filed, in a timely manner all tax returns, reports and declarations which are required to be filed by it (without requests for extension except as previously disclosed in writing to Lender). All information in such tax returns, reports and declarations is complete and accurate in all material respects. Borrower has paid or caused to be paid all taxes due and payable or claimed due and payable in any assessment received by it, except taxes the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower and with respect to which adequate reserves have been set aside on its books. Adequate provision has been made for the payment of all accrued and unpaid federal, provincial, municipal, local, foreign and other taxes whether or not yet due and payable and whether or not disputed;
(z) The Borrower is not aware of any facts or circumstances which would have an adverse impact on the value of the Collateral taken as a whole, other than depreciation or diminution of value of items of Collateral in the ordinary course of business. The provisions of the Credit Documents create legal and valid liens on all the Collateral in favor of the Lender, and such liens constitute perfected and continuing liens on the Collateral and have priority over all other Liens on the Collateral except for Permitted Encumbrances;
(aa) Adequate accruals have been made for the payment of all Priority Claims and potential Priority Claims, whether or not yet due, unless disputed;
(bb) Borrower is not in default in any material respect under, or in violation in any material respect of any of the terms of, any material agreement, contract, instrument, lease or other commitment to which it is a party or by which it is bound; (d) there exists no default under the Loan Agreement; (e) there are no offsets, claims, counterclaims, cross-claims or any of its assets are bound defenses with respect to the Revolving Loan; and (f) the Borrower is in compliance in all material respects with all applicable provisions of Applicable Laws; and
(cc) All information furnished by or on behalf duly formed and legally existing under the laws of the State of Minnesota. The Borrower further represents and warrants that, except as disclosed in writing to the Lender in connection with this Agreement Lender, there is no suit, judicial or any transaction contemplated herebyadministrative action, is true and correct and does not omit any fact necessary in order claim, investigation, inquiry, proceeding or demand pending (or, to make such information not misleading. No event or circumstance has occurred since January 4the Borrower’s knowledge, 2009 which has had or could reasonably be expected to have a Material Adverse Effect on threatened) against (i) the Borrower, or against any other person liable directly or indirectly for the Revolving Loan, or (ii) which has not been fully and accurately disclosed to affects the Lender in writing. All representations and warranties contained in this Agreement validity, enforceability or priority of any of the other Credit Documents documents evidencing or securing the Revolving Loan. ▇▇▇▇▇▇▇▇ agrees to indemnify and hold the Lender harmless against any loss, claim, damage, liability or expense (including, without limitation, attorneys’ fees) incurred as a result of any representation or warranty made by the Borrower herein which proves to be untrue or inaccurate in any certificates or other respect, and any such occurrence shall constitute a default under the documents delivered to evidencing the Lender shall survive the execution and delivery of this Agreement and shall be deemed to have been made again to Lender on the date of each additional Borrowing hereunder and shall be conclusively presumed to have been relied on by Lender regardless of any investigation made or information possessed by Lender. The representations and warranties set forth herein shall be cumulative and in addition to any other representations or warranties which Borrower shall now or hereafter give, or cause to be given, to LenderRevolving Loan.
Appears in 1 contract
Sources: Modification Agreement (Shared Capital Cooperative)
Borrower’s Representations. The Borrower represents hereby represents, warrants and warrants, which representations and warranties are deemed to be repeated at the time of each advance hereunder as though made at such time, except in the case of a representation or warranty of the Borrower that is made with respect to a specific date, in which case such representation or warranty shall have been true on such date, covenants as follows:
(a) The Borrower is a corporationhas the full power, duly incorporated authority and organized and validly existing under the laws of the Province of Nova Scotia. The Borrower is duly qualified, licensed or registered legal right to carry on business under the laws applicable to it in all jurisdictions in which such qualification, licensing or registration is necessary except where failure enter into this Agreement to be so qualified would not have a Material Adverse Effect. The Borrower has all necessary corporate power and authority to own or lease its property and assets bound hereby and to carry on its business as now being conducted by itperform and observe the terms and conditions hereof, and to authorizeis in compliance with all applicable material laws, create, execute, deliver rules and perform all of its obligations under the Credit Documents in accordance with their respective terms and the transactions contemplated thereunder are all within the Borrower’s corporate powers;regulations.
(b) The execution, delivery and performance of the Credit Documents and the transactions contemplated thereunder have been duly authorized and are not in contravention of Applicable Laws or the terms of Borrower’s certificate of incorporation, bylaws, or other organizational documentation, or any indenture, agreement or undertaking to which Borrower is a party or by which Borrower or its property are bound and the Credit Documents have This Agreement has been duly executed and delivered by the Borrower and constitute constitutes the legal, valid and binding obligations obligation of the Borrower, Borrower enforceable against it him in accordance with their respective its terms;, subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors' rights generally and to moratorium laws from time to time in effect and to general principles of equity.
(c) Except as disclosed in the Disclosure Schedule, the Borrower is not in default under any of its obligations and there are no actions, suits or proceedings, pending or, to the best of the Borrower’s knowledge, threatened, against or affecting it which if adversely determined against Borrower would result in a Material Adverse Effect. Without limiting the foregoing, except as set forth in the Disclosure Schedule, to the best of Borrower’s knowledge, there is no present investigation by any governmental agency pending or threatened, against or affecting Borrower, its assets or business and there is no action, suit, proceeding or claim by any person pending, or to the best of Borrower’s knowledge threatened, against Borrower or its assets or goodwill, or against or affecting any transactions contemplated by this Agreement, which if adversely determined against Borrower would result in any material adverse change in the assets, business or prospects of Borrower or would impair the ability of Borrower to perform its obligations hereunder or under any of the other Credit Documents to which it is a party or of Lender to enforce any obligations or realize upon any Collateral;
(d) No authorization, consent, approval, registration, qualification, designation, declaration or filing with any Governmental Entity or other person is or was necessary in connection with the The execution, delivery and performance of obligations by the Borrower under the Credit Documents except as are in full force of this Agreement does not and effect, unamended;
(e) The only jurisdictions (or registration districts within such jurisdictions) in which the Borrower has any place of business or stores any tangible personal property are listed in the Disclosure Schedule. The Borrower’s chief executive office is identified as such in the Disclosure Schedule;
(f) The Borrower possesses all Material Permits necessary to properly conduct its business. Each such Material Permit is will not (i) in full force and effect except as would not have a Material Adverse Effect; and (ii) not subject to any dispute. No event has occurred which, with the giving of notice, lapse of time or both, would constitute a default under, or in respect of, any such Material Permit;
(g) There are no collective bargaining agreements to which the Borrower is a party;
(h) All contributions or premiums required to be made or paid by the Borrower to or in respect of the Pension Plans have been made and paid in a timely fashion in accordance with the terms thereof and Applicable Laws.
(i) All financial books and records of the Borrower have been fully, properly and accurately kept and completed in accordance with GAAP and there are no material inaccuracies or discrepancies of any kind contained or reflected therein. The Borrower maintains its books and records at the location(s) identified in the Disclosure Schedule. All financial statements relating to Borrower which have been or may hereafter be delivered by Borrower to Lender have been prepared in accordance with GAAP and fairly present the financial condition and the results of operation of Borrower as at the dates and for the periods set forth therein;
(j) The Borrower is not in violation of its constating documents, its by-laws or any shareholders’ agreement applicable to it. No event has occurred or condition exists, and is continuing after the applicable grace period, if any, specified in any agreement or instrument relating to any debt of the Borrower, the effect of which is to accelerate, or permit the acceleration of such debt. No debt of the Borrower has been declared to be due and payable prior to its stated maturity other than as disclosed in the Disclosure Schedule. No event has occurred and is continuing which constitutes, or which, with notice, lapse of time, or both, would constitute a breach of any covenant or other term or condition under any of the Credit Documents;
(k) Neither this Agreement nor any certificate furnished to the Lender by or on behalf of any of the Borrower in connection with the transactions contemplated by this Agreement, contain any untrue statement of a material fact. All forecasts and projections supplied to the Lender in connection with the transactions contemplated by this Agreement were prepared in good faith, disclosed all relevant material assumptions and the most recent versions of all such forecasts provided to the Lender were at the time of delivery based on estimates believed by the Borrower to be reasonable. There is no fact known to the Borrower which has not been disclosed to the Lender which could reasonably be expected to have a Material Adverse Effect;
(l) The Borrower has no subsidiaries and does not have an equity interest in any other entity;
(m) The Disclosure Schedule sets forth the commitments of any lender for all debt for borrowed money to be advanced to the Borrower, and all debt for borrowed money outstanding, of the Borrower;
(n) The Liens granted to Lender under this Agreement and the other Security Agreements constitute valid and perfected first priority liens and security interests in and upon the Collateral subject only to Permitted Encumbrances. Borrower has good and marketable title to all of the properties and assets owned by it subject to no Liens of any kind, except those granted to Lender and Permitted Encumbrances;
(o) There has not occurred or become known to the Borrower any Material Adverse Change in respect of the Borrower since January 4, 2009;
(p) The financing transactions hereunder (i) do not require any material consent or approval of, registration or filing with, or any other action by, any Governmental Entity, except such as have been obtained or made and are in full force and effect, (ii) will not violate in any material respect any Applicable Law and will not violate the charter, by-laws or other organizational or constitutional documents of the Borrower or any order of any Governmental Entity, (iii) will not violate or result in constitute a default under any indentureprovision of any agreement, agreement note or other instrument which is binding upon the Borrower or its assetsby which his properties are bound or materially affected, or give rise to a right thereunder to any law, rule or regulation, order writ, injunction or decree of any court or governmental instrumentality or any contractual restriction binding on the Borrower, or (ii) require any payment to be made filing with or consent or other act by the Borrower or in a manner which would reasonably be expected to have a Material Adverse Effect, and (iv) will not result in the creation or imposition respect of any Lien on any asset of the Borrower governmental authority or other person or entity (other than the Liens created filing of the appropriate number of UCC-1 financing statements covering the Pledged Securities, if necessary, and any consent obtained by the Credit Documents or Permitted Encumbrances);
(q) The Borrower owns, or is licensed to use, all trademarks, tradenames, copyrights, patents and other intellectual property material to its business, and, prior to the knowledge date hereof) or (iii) constitute a default thereunder or result in the imposition or require the creation of any lien or charge (other than those created, continued or otherwise contemplated hereby) upon the assets of the Borrower, the use thereof .
(d) The Pledged Securities consist of not fewer than 120,000 shares of Common Stock of Dyax and are held and owned by the Borrower does not infringe upon the rights of any other person;
(r) The Borrower owns free and operates all Blockbuster locations in Canada and does not have any franchisees;
(s) The Borrower maintains direct contractual relationships with all suppliers of its inventory (“Supply Agreements”) independent of any relationships, contractual or otherwise, which BBI may have with any such suppliers or with any of their Affiliates and complete and accurate copies clear of all such contracts (other than purchase orders) have been provided by Borrower to Lender;
(t) BCI is the sole shareholder of the Borrower liens, encumbrances, attachments, security interests, pledges and has no assets or liabilities other than the said shares owned by it and other than liabilities pursuant to guarantees issued in respect of the U.S. Credit Agreement and in respect of that certain Indenture dated as of April 20, 2004 (as amended, supplemented or otherwise modified from time to time), by and among BBI, as issuer, BCI and the other subsidiary guarantors party thereto and The Bank of New York Mellon Trust Company, N.A., as trustee, in respect of BBI’s 9% Senior Subordinated Notes due 2012. The sole shareholder of BCI is BBI;
(u) The Borrower has not guaranteed any of the liabilities or obligations of BBI or of BCI;
(v) Neither BBI nor BCI has guaranteed any of the liabilities or obligations of the Borrower, except that BBI has guaranteed the obligations of the Borrower pursuant to a Moneris VISA National Account Merchant Agreement/Moneris MasterCard National Account Merchant Agreement dated February 11, 2008 between the Borrower and Moneris Solutions Corporation;
(w) The Borrower maintains, with financially sound and reputable insurance companies, insurance in such amounts and against such risks as are customarily maintained by companies engaged in the same or similar businesses operating in the same or similar locations;
(x) As of the date hereof, both before and after giving effect to (a) the financing transactions to be consummated on the date hereof and (b) the payment and accrual of all fees, costs and expenses in connection therewith, the Borrower are and will be Solvent;
(y) Borrower has filed, or caused to be filed, in a timely manner all tax returns, reports and declarations which are required to be filed by it (without requests for extension except as previously disclosed in writing to Lender). All information in such tax returns, reports and declarations is complete and accurate in all material respects. Borrower has paid or caused to be paid all taxes due and payable or claimed due and payable in any assessment received by it, except taxes the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower and with respect to which adequate reserves have been set aside on its books. Adequate provision has been made for the payment of all accrued and unpaid federal, provincial, municipal, local, foreign and other taxes whether or not yet due and payable and whether or not disputed;
(z) The Borrower is not aware of any facts or circumstances which would have an adverse impact on the value of the Collateral taken as a wholecharges, other than depreciation or diminution of value of items of Collateral in the ordinary course of business. The provisions of the Credit Documents create legal and valid liens on all the Collateral those in favor of the Lender, and such liens constitute perfected and continuing liens on the Collateral and have priority over all other Liens on the Collateral except for Permitted Encumbrances;
(aa) Adequate accruals have been made for the payment of all Priority Claims and potential Priority Claims, whether or not yet due, unless disputed;
(bb) Borrower is not in default in any material respect under, or in violation in any material respect of any of the terms of, any material agreement, contract, instrument, lease or other commitment to which it is a party or by which it or any of its assets are bound and Borrower is in compliance in all material respects with all applicable provisions of Applicable Laws; and
(cc) All information furnished by or on behalf of the Borrower in writing to the Lender in connection with this Agreement or any transaction contemplated hereby, is true and correct and does not omit any fact necessary in order to make such information not misleading. No event or circumstance has occurred since January 4, 2009 which has had or could reasonably be expected to have a Material Adverse Effect on the Borrower, which has not been fully and accurately disclosed to the Lender in writing. All representations and warranties contained in this Agreement or any of the other Credit Documents or in any certificates or other documents delivered to the Lender shall survive the execution and delivery of this Agreement and shall be deemed to have been made again to Lender on the date of each additional Borrowing hereunder and shall be conclusively presumed to have been relied on by Lender regardless of any investigation made or information possessed by Lender. The representations and warranties set forth herein shall be cumulative and in addition to any other representations or warranties which Borrower shall now or hereafter give, or cause to be given, to LenderDyax.
Appears in 1 contract
Borrower’s Representations. The Borrower represents hereby represents, warrants and warrants, which representations and warranties are deemed to be repeated at the time of each advance hereunder as though made at such time, except in the case of a representation or warranty of the Borrower that is made with respect to a specific date, in which case such representation or warranty shall have been true on such date, covenants as follows:
(a) The Borrower is a corporationhas the full power, duly incorporated authority and organized and validly existing under the laws of the Province of Nova Scotia. The Borrower is duly qualified, licensed or registered legal right to carry on business under the laws applicable to it in all jurisdictions in which such qualification, licensing or registration is necessary except where failure enter into this Agreement to be so qualified would not have a Material Adverse Effect. The Borrower has all necessary corporate power and authority to own or lease its property and assets bound hereby and to carry on its business as now being conducted by itperform and observe the terms and conditions hereof, and to authorizeis in compliance with all applicable material laws, create, execute, deliver rules and perform all of its obligations under the Credit Documents in accordance with their respective terms and the transactions contemplated thereunder are all within the Borrower’s corporate powers;regulations.
(b) The execution, delivery and performance of the Credit Documents and the transactions contemplated thereunder have been duly authorized and are not in contravention of Applicable Laws or the terms of Borrower’s certificate of incorporation, bylaws, or other organizational documentation, or any indenture, agreement or undertaking to which Borrower is a party or by which Borrower or its property are bound and the Credit Documents have This Agreement has been duly executed and delivered by the Borrower and constitute constitutes the legal, valid and binding obligations obligation of the Borrower, Borrower enforceable against it him in accordance with their respective its terms;, subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors’ rights generally and to moratorium laws from time to time in effect and to general principles of equity.
(c) Except as disclosed in the Disclosure Schedule, the Borrower is not in default under any of its obligations and there are no actions, suits or proceedings, pending or, to the best of the Borrower’s knowledge, threatened, against or affecting it which if adversely determined against Borrower would result in a Material Adverse Effect. Without limiting the foregoing, except as set forth in the Disclosure Schedule, to the best of Borrower’s knowledge, there is no present investigation by any governmental agency pending or threatened, against or affecting Borrower, its assets or business and there is no action, suit, proceeding or claim by any person pending, or to the best of Borrower’s knowledge threatened, against Borrower or its assets or goodwill, or against or affecting any transactions contemplated by this Agreement, which if adversely determined against Borrower would result in any material adverse change in the assets, business or prospects of Borrower or would impair the ability of Borrower to perform its obligations hereunder or under any of the other Credit Documents to which it is a party or of Lender to enforce any obligations or realize upon any Collateral;
(d) No authorization, consent, approval, registration, qualification, designation, declaration or filing with any Governmental Entity or other person is or was necessary in connection with the The execution, delivery and performance of obligations by the Borrower under the Credit Documents except as are in full force of this Agreement does not and effect, unamended;
(e) The only jurisdictions (or registration districts within such jurisdictions) in which the Borrower has any place of business or stores any tangible personal property are listed in the Disclosure Schedule. The Borrower’s chief executive office is identified as such in the Disclosure Schedule;
(f) The Borrower possesses all Material Permits necessary to properly conduct its business. Each such Material Permit is will not (i) in full force and effect except as would not have a Material Adverse Effect; and (ii) not subject to any dispute. No event has occurred which, with the giving of notice, lapse of time or both, would constitute a default under, or in respect of, any such Material Permit;
(g) There are no collective bargaining agreements to which the Borrower is a party;
(h) All contributions or premiums required to be made or paid by the Borrower to or in respect of the Pension Plans have been made and paid in a timely fashion in accordance with the terms thereof and Applicable Laws.
(i) All financial books and records of the Borrower have been fully, properly and accurately kept and completed in accordance with GAAP and there are no material inaccuracies or discrepancies of any kind contained or reflected therein. The Borrower maintains its books and records at the location(s) identified in the Disclosure Schedule. All financial statements relating to Borrower which have been or may hereafter be delivered by Borrower to Lender have been prepared in accordance with GAAP and fairly present the financial condition and the results of operation of Borrower as at the dates and for the periods set forth therein;
(j) The Borrower is not in violation of its constating documents, its by-laws or any shareholders’ agreement applicable to it. No event has occurred or condition exists, and is continuing after the applicable grace period, if any, specified in any agreement or instrument relating to any debt of the Borrower, the effect of which is to accelerate, or permit the acceleration of such debt. No debt of the Borrower has been declared to be due and payable prior to its stated maturity other than as disclosed in the Disclosure Schedule. No event has occurred and is continuing which constitutes, or which, with notice, lapse of time, or both, would constitute a breach of any covenant or other term or condition under any of the Credit Documents;
(k) Neither this Agreement nor any certificate furnished to the Lender by or on behalf of any of the Borrower in connection with the transactions contemplated by this Agreement, contain any untrue statement of a material fact. All forecasts and projections supplied to the Lender in connection with the transactions contemplated by this Agreement were prepared in good faith, disclosed all relevant material assumptions and the most recent versions of all such forecasts provided to the Lender were at the time of delivery based on estimates believed by the Borrower to be reasonable. There is no fact known to the Borrower which has not been disclosed to the Lender which could reasonably be expected to have a Material Adverse Effect;
(l) The Borrower has no subsidiaries and does not have an equity interest in any other entity;
(m) The Disclosure Schedule sets forth the commitments of any lender for all debt for borrowed money to be advanced to the Borrower, and all debt for borrowed money outstanding, of the Borrower;
(n) The Liens granted to Lender under this Agreement and the other Security Agreements constitute valid and perfected first priority liens and security interests in and upon the Collateral subject only to Permitted Encumbrances. Borrower has good and marketable title to all of the properties and assets owned by it subject to no Liens of any kind, except those granted to Lender and Permitted Encumbrances;
(o) There has not occurred or become known to the Borrower any Material Adverse Change in respect of the Borrower since January 4, 2009;
(p) The financing transactions hereunder (i) do not require any material consent or approval of, registration or filing with, or any other action by, any Governmental Entity, except such as have been obtained or made and are in full force and effect, (ii) will not violate in any material respect any Applicable Law and will not violate the charter, by-laws or other organizational or constitutional documents of the Borrower or any order of any Governmental Entity, (iii) will not violate or result in constitute a default under any indentureprovision of any agreement, agreement note or other instrument which is binding upon the Borrower or its assetsby which his properties are bound or materially affected, or give rise to a right thereunder to any law, rule or regulation, order writ, injunction or decree of any court or governmental instrumentality or any contractual restriction binding on the Borrower, or (ii) require any payment to be made filing with or consent or other act by the Borrower or in a manner which would reasonably be expected to have a Material Adverse Effect, and (iv) will not result in the creation or imposition respect of any Lien on any asset of the Borrower governmental authority or other person or entity (other than the Liens created filing of the appropriate number of UCC-1 financing statements covering the Pledged Securities, if necessary, and any consent obtained by the Credit Documents or Permitted Encumbrances);
(q) The Borrower owns, or is licensed to use, all trademarks, tradenames, copyrights, patents and other intellectual property material to its business, and, prior to the knowledge date hereof) or (iii) constitute a default thereunder or result in the imposition or require the creation of any lien or charge (other than those created, continued or otherwise contemplated hereby) upon the assets of the Borrower, the use thereof .
(d) The Pledged Securities pledged by the Borrower does not infringe upon the rights of any other person;
(r) The Borrower owns and operates all Blockbuster locations in Canada and does not have any franchisees;
(s) The Borrower maintains direct contractual relationships with all suppliers of its inventory (“Supply Agreements”) independent of any relationships, contractual or otherwise, which BBI may have with any such suppliers or with any of their Affiliates and complete and accurate copies of all such contracts (other than purchase orders) have been provided by Borrower to Lender;
(t) BCI is the sole shareholder of the Borrower and has no assets or liabilities other than the said shares owned by it and other than liabilities pursuant to guarantees issued in respect of the U.S. Credit Agreement and in respect of that certain Indenture dated as of April 20, 2004 (as amended, supplemented or otherwise modified from time to time), by and among BBI, as issuer, BCI and the other subsidiary guarantors party thereto and The Bank of New York Mellon Trust Company, N.A., as trustee, in respect of BBI’s 9% Senior Subordinated Notes due 2012. The sole shareholder of BCI is BBI;
(u) The Borrower has not guaranteed any of the liabilities or obligations of BBI or of BCI;
(v) Neither BBI nor BCI has guaranteed any of the liabilities or obligations of the Borrower, except that BBI has guaranteed the obligations of the Borrower pursuant to a Moneris VISA National Account Merchant Agreement/Moneris MasterCard National Account Merchant Agreement dated February 11, 2008 between the Borrower and Moneris Solutions Corporation;
(w) The Borrower maintains, with financially sound and reputable insurance companies, insurance in such amounts and against such risks as are customarily maintained by companies engaged in the same or similar businesses operating in the same or similar locations;
(x) As of the date hereof, both before and after giving effect to (a) the financing transactions to be consummated on the date hereof consist of not fewer than 562,500 shares of Common Stock of ▇▇▇▇▇ and (b) are held and owned by the payment Borrower free and accrual clear of all feesliens, costs encumbrances, attachments, security interests, pledges and expenses in connection therewith, the Borrower are and will be Solvent;
(y) Borrower has filed, or caused to be filed, in a timely manner all tax returns, reports and declarations which are required to be filed by it (without requests for extension except as previously disclosed in writing to Lender). All information in such tax returns, reports and declarations is complete and accurate in all material respects. Borrower has paid or caused to be paid all taxes due and payable or claimed due and payable in any assessment received by it, except taxes the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower and with respect to which adequate reserves have been set aside on its books. Adequate provision has been made for the payment of all accrued and unpaid federal, provincial, municipal, local, foreign and other taxes whether or not yet due and payable and whether or not disputed;
(z) The Borrower is not aware of any facts or circumstances which would have an adverse impact on the value of the Collateral taken as a wholecharges, other than depreciation or diminution of value of items of Collateral in the ordinary course of business. The provisions of the Credit Documents create legal and valid liens on all the Collateral those in favor of the Lender, and such liens constitute perfected and continuing liens on the Collateral and have priority over all other Liens on the Collateral except for Permitted Encumbrances;
(aa) Adequate accruals have been made for the payment of all Priority Claims and potential Priority Claims, whether or not yet due, unless disputed;
(bb) Borrower is not in default in any material respect under, or in violation in any material respect of any of the terms of, any material agreement, contract, instrument, lease or other commitment to which it is a party or by which it or any of its assets are bound and Borrower is in compliance in all material respects with all applicable provisions of Applicable Laws; and
(cc) All information furnished by or on behalf of the Borrower in writing to the Lender in connection with this Agreement or any transaction contemplated hereby, is true and correct and does not omit any fact necessary in order to make such information not misleading. No event or circumstance has occurred since January 4, 2009 which has had or could reasonably be expected to have a Material Adverse Effect on the Borrower, which has not been fully and accurately disclosed to the Lender in writing. All representations and warranties contained in this Agreement or any of the other Credit Documents or in any certificates or other documents delivered to the Lender shall survive the execution and delivery of this Agreement and shall be deemed to have been made again to Lender on the date of each additional Borrowing hereunder and shall be conclusively presumed to have been relied on by Lender regardless of any investigation made or information possessed by Lender. The representations and warranties set forth herein shall be cumulative and in addition to any other representations or warranties which Borrower shall now or hereafter give, or cause to be given, to Lender▇▇▇▇▇.
Appears in 1 contract
Sources: Loan and Pledge Agreement (Coley Pharmaceutical Group, Inc.)
Borrower’s Representations. The Borrower represents hereby represents, warrants and warrants, which representations and warranties are deemed to be repeated at the time of each advance hereunder as though made at such time, except in the case of a representation or warranty of the Borrower that is made with respect to a specific date, in which case such representation or warranty shall have been true on such date, covenants as follows:
(a) The Borrower is a corporationhas the full power, duly incorporated authority and organized and validly existing under the laws of the Province of Nova Scotia. The Borrower is duly qualified, licensed or registered legal right to carry on business under the laws applicable to it in all jurisdictions in which such qualification, licensing or registration is necessary except where failure enter into this Agreement to be so qualified would not have a Material Adverse Effect. The Borrower has all necessary corporate power and authority to own or lease its property and assets bound hereby and to carry on its business as now being conducted by itperform and observe the terms and conditions hereof, and to authorizeis in compliance with all applicable material laws, create, execute, deliver rules and perform all of its obligations under the Credit Documents in accordance with their respective terms and the transactions contemplated thereunder are all within the Borrower’s corporate powers;regulations.
(b) The execution, delivery and performance of the Credit Documents and the transactions contemplated thereunder have been duly authorized and are not in contravention of Applicable Laws or the terms of Borrower’s certificate of incorporation, bylaws, or other organizational documentation, or any indenture, agreement or undertaking to which Borrower is a party or by which Borrower or its property are bound and the Credit Documents have This Agreement has been duly executed and delivered by the Borrower and constitute constitutes the legal, valid and binding obligations obligation of the Borrower, Borrower enforceable against it him in accordance with their respective its terms;, subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors' rights generally and to moratorium laws from time to time in effect and to general principles of equity.
(c) Except as disclosed in the Disclosure Schedule, the Borrower is not in default under any of its obligations and there are no actions, suits or proceedings, pending or, to the best of the Borrower’s knowledge, threatened, against or affecting it which if adversely determined against Borrower would result in a Material Adverse Effect. Without limiting the foregoing, except as set forth in the Disclosure Schedule, to the best of Borrower’s knowledge, there is no present investigation by any governmental agency pending or threatened, against or affecting Borrower, its assets or business and there is no action, suit, proceeding or claim by any person pending, or to the best of Borrower’s knowledge threatened, against Borrower or its assets or goodwill, or against or affecting any transactions contemplated by this Agreement, which if adversely determined against Borrower would result in any material adverse change in the assets, business or prospects of Borrower or would impair the ability of Borrower to perform its obligations hereunder or under any of the other Credit Documents to which it is a party or of Lender to enforce any obligations or realize upon any Collateral;
(d) No authorization, consent, approval, registration, qualification, designation, declaration or filing with any Governmental Entity or other person is or was necessary in connection with the The execution, delivery and performance of obligations by the Borrower under the Credit Documents except as are in full force of this Agreement does not and effect, unamended;
(e) The only jurisdictions (or registration districts within such jurisdictions) in which the Borrower has any place of business or stores any tangible personal property are listed in the Disclosure Schedule. The Borrower’s chief executive office is identified as such in the Disclosure Schedule;
(f) The Borrower possesses all Material Permits necessary to properly conduct its business. Each such Material Permit is will not (i) in full force and effect except as would not have a Material Adverse Effect; and (ii) not subject to any dispute. No event has occurred which, with the giving of notice, lapse of time or both, would constitute a default under, or in respect of, any such Material Permit;
(g) There are no collective bargaining agreements to which the Borrower is a party;
(h) All contributions or premiums required to be made or paid by the Borrower to or in respect of the Pension Plans have been made and paid in a timely fashion in accordance with the terms thereof and Applicable Laws.
(i) All financial books and records of the Borrower have been fully, properly and accurately kept and completed in accordance with GAAP and there are no material inaccuracies or discrepancies of any kind contained or reflected therein. The Borrower maintains its books and records at the location(s) identified in the Disclosure Schedule. All financial statements relating to Borrower which have been or may hereafter be delivered by Borrower to Lender have been prepared in accordance with GAAP and fairly present the financial condition and the results of operation of Borrower as at the dates and for the periods set forth therein;
(j) The Borrower is not in violation of its constating documents, its by-laws or any shareholders’ agreement applicable to it. No event has occurred or condition exists, and is continuing after the applicable grace period, if any, specified in any agreement or instrument relating to any debt of the Borrower, the effect of which is to accelerate, or permit the acceleration of such debt. No debt of the Borrower has been declared to be due and payable prior to its stated maturity other than as disclosed in the Disclosure Schedule. No event has occurred and is continuing which constitutes, or which, with notice, lapse of time, or both, would constitute a breach of any covenant or other term or condition under any of the Credit Documents;
(k) Neither this Agreement nor any certificate furnished to the Lender by or on behalf of any of the Borrower in connection with the transactions contemplated by this Agreement, contain any untrue statement of a material fact. All forecasts and projections supplied to the Lender in connection with the transactions contemplated by this Agreement were prepared in good faith, disclosed all relevant material assumptions and the most recent versions of all such forecasts provided to the Lender were at the time of delivery based on estimates believed by the Borrower to be reasonable. There is no fact known to the Borrower which has not been disclosed to the Lender which could reasonably be expected to have a Material Adverse Effect;
(l) The Borrower has no subsidiaries and does not have an equity interest in any other entity;
(m) The Disclosure Schedule sets forth the commitments of any lender for all debt for borrowed money to be advanced to the Borrower, and all debt for borrowed money outstanding, of the Borrower;
(n) The Liens granted to Lender under this Agreement and the other Security Agreements constitute valid and perfected first priority liens and security interests in and upon the Collateral subject only to Permitted Encumbrances. Borrower has good and marketable title to all of the properties and assets owned by it subject to no Liens of any kind, except those granted to Lender and Permitted Encumbrances;
(o) There has not occurred or become known to the Borrower any Material Adverse Change in respect of the Borrower since January 4, 2009;
(p) The financing transactions hereunder (i) do not require any material consent or approval of, registration or filing with, or any other action by, any Governmental Entity, except such as have been obtained or made and are in full force and effect, (ii) will not violate in any material respect any Applicable Law and will not violate the charter, by-laws or other organizational or constitutional documents of the Borrower or any order of any Governmental Entity, (iii) will not violate or result in constitute a default under any indentureprovision of any agreement, agreement note or other instrument which is binding upon the Borrower or its assetsby which his properties are bound or materially affected, or give rise to a right thereunder to any law, rule or regulation, order writ, injunction or decree of any court or governmental instrumentality or any contractual restriction binding on the Borrower, or (ii) require any payment to be made filing with or consent or other act by the Borrower or in a manner which would reasonably be expected to have a Material Adverse Effect, and (iv) will not result in the creation or imposition respect of any Lien on any asset of the Borrower governmental authority or other person or entity (other than the Liens created filing of the appropriate number of UCC-1 financing statements covering the Pledged Securities, if necessary, and any consent obtained by the Credit Documents or Permitted Encumbrances);
(q) The Borrower owns, or is licensed to use, all trademarks, tradenames, copyrights, patents and other intellectual property material to its business, and, prior to the knowledge date hereof) or (iii) constitute a default thereunder or result in the imposition or require the creation of any lien or charge (other than those created, continued or otherwise contemplated hereby) upon the assets of the Borrower, the use thereof .
(d) The Pledged Securities consist of not fewer than 60,000 shares of Common Stock of Dyax and are held and owned by the Borrower does not infringe upon the rights of any other person;
(r) The Borrower owns free and operates all Blockbuster locations in Canada and does not have any franchisees;
(s) The Borrower maintains direct contractual relationships with all suppliers of its inventory (“Supply Agreements”) independent of any relationships, contractual or otherwise, which BBI may have with any such suppliers or with any of their Affiliates and complete and accurate copies clear of all such contracts (other than purchase orders) have been provided by Borrower to Lender;
(t) BCI is the sole shareholder of the Borrower liens, encumbrances, attachments, security interests, pledges and has no assets or liabilities other than the said shares owned by it and other than liabilities pursuant to guarantees issued in respect of the U.S. Credit Agreement and in respect of that certain Indenture dated as of April 20, 2004 (as amended, supplemented or otherwise modified from time to time), by and among BBI, as issuer, BCI and the other subsidiary guarantors party thereto and The Bank of New York Mellon Trust Company, N.A., as trustee, in respect of BBI’s 9% Senior Subordinated Notes due 2012. The sole shareholder of BCI is BBI;
(u) The Borrower has not guaranteed any of the liabilities or obligations of BBI or of BCI;
(v) Neither BBI nor BCI has guaranteed any of the liabilities or obligations of the Borrower, except that BBI has guaranteed the obligations of the Borrower pursuant to a Moneris VISA National Account Merchant Agreement/Moneris MasterCard National Account Merchant Agreement dated February 11, 2008 between the Borrower and Moneris Solutions Corporation;
(w) The Borrower maintains, with financially sound and reputable insurance companies, insurance in such amounts and against such risks as are customarily maintained by companies engaged in the same or similar businesses operating in the same or similar locations;
(x) As of the date hereof, both before and after giving effect to (a) the financing transactions to be consummated on the date hereof and (b) the payment and accrual of all fees, costs and expenses in connection therewith, the Borrower are and will be Solvent;
(y) Borrower has filed, or caused to be filed, in a timely manner all tax returns, reports and declarations which are required to be filed by it (without requests for extension except as previously disclosed in writing to Lender). All information in such tax returns, reports and declarations is complete and accurate in all material respects. Borrower has paid or caused to be paid all taxes due and payable or claimed due and payable in any assessment received by it, except taxes the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower and with respect to which adequate reserves have been set aside on its books. Adequate provision has been made for the payment of all accrued and unpaid federal, provincial, municipal, local, foreign and other taxes whether or not yet due and payable and whether or not disputed;
(z) The Borrower is not aware of any facts or circumstances which would have an adverse impact on the value of the Collateral taken as a wholecharges, other than depreciation or diminution of value of items of Collateral in the ordinary course of business. The provisions of the Credit Documents create legal and valid liens on all the Collateral those in favor of the Lender, and such liens constitute perfected and continuing liens on the Collateral and have priority over all other Liens on the Collateral except for Permitted Encumbrances;
(aa) Adequate accruals have been made for the payment of all Priority Claims and potential Priority Claims, whether or not yet due, unless disputed;
(bb) Borrower is not in default in any material respect under, or in violation in any material respect of any of the terms of, any material agreement, contract, instrument, lease or other commitment to which it is a party or by which it or any of its assets are bound and Borrower is in compliance in all material respects with all applicable provisions of Applicable Laws; and
(cc) All information furnished by or on behalf of the Borrower in writing to the Lender in connection with this Agreement or any transaction contemplated hereby, is true and correct and does not omit any fact necessary in order to make such information not misleading. No event or circumstance has occurred since January 4, 2009 which has had or could reasonably be expected to have a Material Adverse Effect on the Borrower, which has not been fully and accurately disclosed to the Lender in writing. All representations and warranties contained in this Agreement or any of the other Credit Documents or in any certificates or other documents delivered to the Lender shall survive the execution and delivery of this Agreement and shall be deemed to have been made again to Lender on the date of each additional Borrowing hereunder and shall be conclusively presumed to have been relied on by Lender regardless of any investigation made or information possessed by Lender. The representations and warranties set forth herein shall be cumulative and in addition to any other representations or warranties which Borrower shall now or hereafter give, or cause to be given, to LenderDyax.
Appears in 1 contract
Borrower’s Representations. The Borrower represents hereby represents, warrants and warrants, which representations and warranties are deemed to be repeated at the time of each advance hereunder as though made at such time, except in the case of a representation or warranty of the Borrower that is made with respect to a specific date, in which case such representation or warranty shall have been true on such date, covenants as follows:
(a) The Borrower is a corporationhas the full power, duly incorporated authority and organized and validly existing under the laws of the Province of Nova Scotia. The Borrower is duly qualified, licensed or registered legal right to carry on business under the laws applicable to it in all jurisdictions in which such qualification, licensing or registration is necessary except where failure enter into this Agreement to be so qualified would not have a Material Adverse Effect. The Borrower has all necessary corporate power and authority to own or lease its property and assets bound hereby and to carry on its business as now being conducted by itperform and observe the terms and conditions hereof, and to authorizeis in compliance with all applicable material laws, create, execute, deliver rules and perform all of its obligations under the Credit Documents in accordance with their respective terms and the transactions contemplated thereunder are all within the Borrower’s corporate powers;regulations.
(b) The execution, delivery and performance of the Credit Documents and the transactions contemplated thereunder have been duly authorized and are not in contravention of Applicable Laws or the terms of Borrower’s certificate of incorporation, bylaws, or other organizational documentation, or any indenture, agreement or undertaking to which Borrower is a party or by which Borrower or its property are bound and the Credit Documents have This Agreement has been duly executed and delivered by the Borrower and constitute constitutes the legal, valid and binding obligations obligation of the Borrower, Borrower enforceable against it him in accordance with their respective its terms;, subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors’ rights generally and to moratorium laws from time to time in effect and to general principles of equity.
(c) Except as disclosed in the Disclosure Schedule, the Borrower is not in default under any of its obligations and there are no actions, suits or proceedings, pending or, to the best of the Borrower’s knowledge, threatened, against or affecting it which if adversely determined against Borrower would result in a Material Adverse Effect. Without limiting the foregoing, except as set forth in the Disclosure Schedule, to the best of Borrower’s knowledge, there is no present investigation by any governmental agency pending or threatened, against or affecting Borrower, its assets or business and there is no action, suit, proceeding or claim by any person pending, or to the best of Borrower’s knowledge threatened, against Borrower or its assets or goodwill, or against or affecting any transactions contemplated by this Agreement, which if adversely determined against Borrower would result in any material adverse change in the assets, business or prospects of Borrower or would impair the ability of Borrower to perform its obligations hereunder or under any of the other Credit Documents to which it is a party or of Lender to enforce any obligations or realize upon any Collateral;
(d) No authorization, consent, approval, registration, qualification, designation, declaration or filing with any Governmental Entity or other person is or was necessary in connection with the The execution, delivery and performance of obligations by the Borrower under the Credit Documents except as are in full force of this Agreement does not and effect, unamended;
(e) The only jurisdictions (or registration districts within such jurisdictions) in which the Borrower has any place of business or stores any tangible personal property are listed in the Disclosure Schedule. The Borrower’s chief executive office is identified as such in the Disclosure Schedule;
(f) The Borrower possesses all Material Permits necessary to properly conduct its business. Each such Material Permit is will not (i) in full force and effect except as would not have a Material Adverse Effect; and (ii) not subject to any dispute. No event has occurred which, with the giving of notice, lapse of time or both, would constitute a default under, or in respect of, any such Material Permit;
(g) There are no collective bargaining agreements to which the Borrower is a party;
(h) All contributions or premiums required to be made or paid by the Borrower to or in respect of the Pension Plans have been made and paid in a timely fashion in accordance with the terms thereof and Applicable Laws.
(i) All financial books and records of the Borrower have been fully, properly and accurately kept and completed in accordance with GAAP and there are no material inaccuracies or discrepancies of any kind contained or reflected therein. The Borrower maintains its books and records at the location(s) identified in the Disclosure Schedule. All financial statements relating to Borrower which have been or may hereafter be delivered by Borrower to Lender have been prepared in accordance with GAAP and fairly present the financial condition and the results of operation of Borrower as at the dates and for the periods set forth therein;
(j) The Borrower is not in violation of its constating documents, its by-laws or any shareholders’ agreement applicable to it. No event has occurred or condition exists, and is continuing after the applicable grace period, if any, specified in any agreement or instrument relating to any debt of the Borrower, the effect of which is to accelerate, or permit the acceleration of such debt. No debt of the Borrower has been declared to be due and payable prior to its stated maturity other than as disclosed in the Disclosure Schedule. No event has occurred and is continuing which constitutes, or which, with notice, lapse of time, or both, would constitute a breach of any covenant or other term or condition under any of the Credit Documents;
(k) Neither this Agreement nor any certificate furnished to the Lender by or on behalf of any of the Borrower in connection with the transactions contemplated by this Agreement, contain any untrue statement of a material fact. All forecasts and projections supplied to the Lender in connection with the transactions contemplated by this Agreement were prepared in good faith, disclosed all relevant material assumptions and the most recent versions of all such forecasts provided to the Lender were at the time of delivery based on estimates believed by the Borrower to be reasonable. There is no fact known to the Borrower which has not been disclosed to the Lender which could reasonably be expected to have a Material Adverse Effect;
(l) The Borrower has no subsidiaries and does not have an equity interest in any other entity;
(m) The Disclosure Schedule sets forth the commitments of any lender for all debt for borrowed money to be advanced to the Borrower, and all debt for borrowed money outstanding, of the Borrower;
(n) The Liens granted to Lender under this Agreement and the other Security Agreements constitute valid and perfected first priority liens and security interests in and upon the Collateral subject only to Permitted Encumbrances. Borrower has good and marketable title to all of the properties and assets owned by it subject to no Liens of any kind, except those granted to Lender and Permitted Encumbrances;
(o) There has not occurred or become known to the Borrower any Material Adverse Change in respect of the Borrower since January 4, 2009;
(p) The financing transactions hereunder (i) do not require any material consent or approval of, registration or filing with, or any other action by, any Governmental Entity, except such as have been obtained or made and are in full force and effect, (ii) will not violate in any material respect any Applicable Law and will not violate the charter, by-laws or other organizational or constitutional documents of the Borrower or any order of any Governmental Entity, (iii) will not violate or result in constitute a default under any indentureprovision of any agreement, agreement note or other instrument which is binding upon the Borrower or its assetsby which his properties are bound or materially affected, or give rise to a right thereunder to any law, rule or regulation, order writ, injunction or decree of any court or governmental instrumentality or any contractual restriction binding on the Borrower, or (ii) require any payment to be made filing with or consent or other act by the Borrower or in a manner which would reasonably be expected to have a Material Adverse Effect, and (iv) will not result in the creation or imposition respect of any Lien on any asset of the Borrower governmental authority or other person or entity (other than the Liens created filing of the appropriate number of UCC-1 financing statements covering the Pledged Securities, if necessary, and any consent obtained by the Credit Documents or Permitted Encumbrances);
(q) The Borrower owns, or is licensed to use, all trademarks, tradenames, copyrights, patents and other intellectual property material to its business, and, prior to the knowledge date hereof) or (iii) constitute a default thereunder or result in the imposition or require the creation of any lien or charge (other than those created, continued or otherwise contemplated hereby) upon the assets of the Borrower, the use thereof ,
(d) The Pledged Securities consist of not fewer than one million (1,000,000) shares of Common Stock of Asthmatx and are held and owned by the Borrower does not infringe upon the rights of any other person;
(r) The Borrower owns free and operates all Blockbuster locations in Canada and does not have any franchisees;
(s) The Borrower maintains direct contractual relationships with all suppliers of its inventory (“Supply Agreements”) independent of any relationships, contractual or otherwise, which BBI may have with any such suppliers or with any of their Affiliates and complete and accurate copies clear of all such contracts (other than purchase orders) have been provided by Borrower to Lender;
(t) BCI is the sole shareholder of the Borrower liens, encumbrances, attachments, security interests, pledges and has no assets or liabilities other than the said shares owned by it and other than liabilities pursuant to guarantees issued in respect of the U.S. Credit Agreement and in respect of that certain Indenture dated as of April 20, 2004 (as amended, supplemented or otherwise modified from time to time), by and among BBI, as issuer, BCI and the other subsidiary guarantors party thereto and The Bank of New York Mellon Trust Company, N.A., as trustee, in respect of BBI’s 9% Senior Subordinated Notes due 2012. The sole shareholder of BCI is BBI;
(u) The Borrower has not guaranteed any of the liabilities or obligations of BBI or of BCI;
(v) Neither BBI nor BCI has guaranteed any of the liabilities or obligations of the Borrower, except that BBI has guaranteed the obligations of the Borrower pursuant to a Moneris VISA National Account Merchant Agreement/Moneris MasterCard National Account Merchant Agreement dated February 11, 2008 between the Borrower and Moneris Solutions Corporation;
(w) The Borrower maintains, with financially sound and reputable insurance companies, insurance in such amounts and against such risks as are customarily maintained by companies engaged in the same or similar businesses operating in the same or similar locations;
(x) As of the date hereof, both before and after giving effect to (a) the financing transactions to be consummated on the date hereof and (b) the payment and accrual of all fees, costs and expenses in connection therewith, the Borrower are and will be Solvent;
(y) Borrower has filed, or caused to be filed, in a timely manner all tax returns, reports and declarations which are required to be filed by it (without requests for extension except as previously disclosed in writing to Lender). All information in such tax returns, reports and declarations is complete and accurate in all material respects. Borrower has paid or caused to be paid all taxes due and payable or claimed due and payable in any assessment received by it, except taxes the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower and with respect to which adequate reserves have been set aside on its books. Adequate provision has been made for the payment of all accrued and unpaid federal, provincial, municipal, local, foreign and other taxes whether or not yet due and payable and whether or not disputed;
(z) The Borrower is not aware of any facts or circumstances which would have an adverse impact on the value of the Collateral taken as a wholecharges, other than depreciation or diminution of value of items of Collateral in the ordinary course of business. The provisions of the Credit Documents create legal and valid liens on all the Collateral those in favor of the Lender, and such liens constitute perfected and continuing liens on the Collateral and have priority over all other Liens on the Collateral except for Permitted Encumbrances;
(aa) Adequate accruals have been made for the payment of all Priority Claims and potential Priority Claims, whether or not yet due, unless disputed;
(bb) Borrower is not in default in any material respect under, or in violation in any material respect of any of the terms of, any material agreement, contract, instrument, lease or other commitment to which it is a party or by which it or any of its assets are bound and Borrower is in compliance in all material respects with all applicable provisions of Applicable Laws; and
(cc) All information furnished by or on behalf of the Borrower in writing to the Lender in connection with this Agreement or any transaction contemplated hereby, is true and correct and does not omit any fact necessary in order to make such information not misleading. No event or circumstance has occurred since January 4, 2009 which has had or could reasonably be expected to have a Material Adverse Effect on the Borrower, which has not been fully and accurately disclosed to the Lender in writing. All representations and warranties contained in this Agreement or any of the other Credit Documents or in any certificates or other documents delivered to the Lender shall survive the execution and delivery of this Agreement and shall be deemed to have been made again to Lender on the date of each additional Borrowing hereunder and shall be conclusively presumed to have been relied on by Lender regardless of any investigation made or information possessed by Lender. The representations and warranties set forth herein shall be cumulative and in addition to any other representations or warranties which Borrower shall now or hereafter give, or cause to be given, to LenderAsthmatx.
Appears in 1 contract
Borrower’s Representations. The Borrower represents and warrantsto Lender that no pending action, which representations and warranties are deemed to be repeated at the time of each advance hereunder as though made at such time, except in the case of a representation suit or warranty of the Borrower that is made with respect to a specific date, in which case such representation or warranty shall have been true on such date, as follows:
(a) The Borrower is a corporation, duly incorporated and organized and validly existing under the laws of the Province of Nova Scotia. The Borrower is duly qualified, licensed or registered to carry on business under the laws applicable to it in all jurisdictions in which such qualification, licensing or registration is necessary except where failure to be so qualified would not have a Material Adverse Effect. The Borrower has all necessary corporate power and authority to own or lease its property and assets and to carry on its business as now being conducted by it, and to authorize, create, execute, deliver and perform all of its obligations under the Credit Documents in accordance with their respective terms and the transactions contemplated thereunder are all within the Borrower’s corporate powers;
(b) The execution, delivery and performance of the Credit Documents and the transactions contemplated thereunder have been duly authorized and are not in contravention of Applicable Laws or the terms of Borrower’s certificate of incorporation, bylaws, or other organizational documentationproceeding, or any indenture, agreement or undertaking to which Borrower is a party or by which Borrower or its property are bound and the Credit Documents have been duly executed and delivered by the Borrower and constitute legal, valid and binding obligations of the Borrower, enforceable against it in accordance with their respective terms;
(c) Except as disclosed in the Disclosure Schedule, the Borrower is not in default under any of its obligations and there are no actions, suits or proceedings, pending or, to the best of the Borrower’s knowledge, threatened, against or affecting it which if adversely determined against Borrower would result in a Material Adverse Effect. Without limiting the foregoing, except as set forth in the Disclosure Schedule, to the best of Borrower’s knowledge, there is no present governmental investigation by any governmental agency pending or threatened, against or affecting Borrower, its assets or business and there is no action, suit, proceeding or claim by any person pending, or to the best of Borrower’s knowledge threatened, against Borrower or its assets or goodwill, or against or affecting any transactions contemplated by this Agreement, which if adversely determined against Borrower would result in any material adverse change in the assets, business or prospects of Borrower or would impair the ability of Borrower to perform its obligations hereunder or under any of the other Credit Documents to which it is a party or of Lender to enforce any obligations or realize upon any Collateral;
(d) No authorization, consent, approval, registration, qualification, designation, declaration or filing with any Governmental Entity or other person is or was necessary in connection with the execution, delivery and performance of obligations by the Borrower under the Credit Documents except as are in full force and effect, unamended;
(e) The only jurisdictions (or registration districts within such jurisdictions) in which the Borrower has any place of business or stores any tangible personal property are listed in the Disclosure Schedule. The Borrower’s chief executive office is identified as such in the Disclosure Schedule;
(f) The Borrower possesses all Material Permits necessary to properly conduct its business. Each such Material Permit is (i) in full force and effect except as would not have a Material Adverse Effect; and (ii) not subject to any dispute. No event has occurred which, with the giving of notice, lapse of time or both, would constitute a default under, or in respect of, any such Material Permit;
(g) There are no collective bargaining agreements to which the Borrower is a party;
(h) All contributions or premiums required to be made or paid by the Borrower to or in respect of the Pension Plans have been made and paid in a timely fashion in accordance with the terms thereof and Applicable Laws.
(i) All financial books and records of the Borrower have been fully, properly and accurately kept and completed in accordance with GAAP and there are no material inaccuracies or discrepancies of any kind contained or reflected therein. The Borrower maintains its books and records at the location(s) identified in the Disclosure Schedule. All financial statements relating to Borrower which have been or may hereafter be delivered by Borrower to Lender have been prepared in accordance with GAAP and fairly present the financial condition and the results of operation of Borrower as at the dates and for the periods set forth therein;
(j) The Borrower is not in violation of its constating documents, its by-laws or any shareholders’ agreement applicable to it. No event has occurred or condition existsarbitration, and is continuing after the applicable grace period, if any, specified in any agreement or instrument relating to any debt of the Borrower, the effect of which is to accelerate, or permit the acceleration of such debt. No debt of the Borrower has been declared to be due and payable prior to its stated maturity other than as disclosed in the Disclosure Schedule. No event has occurred and is continuing which constitutes, or which, with notice, lapse of time, or both, would constitute a breach of any covenant or other term or condition under any of the Credit Documents;
(k) Neither this Agreement nor any certificate furnished to the Lender by or on behalf of any of the Borrower in connection with the transactions contemplated by this Agreement, contain any untrue statement of a material fact. All forecasts and projections supplied to the Lender in connection with the transactions contemplated by this Agreement were prepared in good faith, disclosed all relevant material assumptions and the most recent versions of all such forecasts provided to the Lender were at the time of delivery based on estimates believed by the Borrower to be reasonable. There is no fact known to the Borrower which has not been disclosed to the Lender which could reasonably be expected to have a Material Adverse Effect;
(l) The Borrower has no subsidiaries and does not have an equity interest in any other entity;
(m) The Disclosure Schedule sets forth the commitments of any lender for all debt for borrowed money to be advanced to the Borrower, and all debt for borrowed money outstanding, of the Borrower;
(n) The Liens granted to Lender under this Agreement and the other Security Agreements constitute valid and perfected first priority liens and security interests in and upon the Collateral subject only to Permitted Encumbrances. Borrower has good and marketable title to all of the properties and assets owned by it subject to no Liens of any kind, except those granted to Lender and Permitted Encumbrances;
(o) There has not occurred or become known to the Borrower any Material Adverse Change in respect of the Borrower since January 4, 2009;
(p) The financing transactions hereunder (i) do not require any material consent or approval of, registration or filing with, or any other action by, any Governmental Entity, except such as have been obtained or made and are in full force and effect, (ii) will not violate in any material respect any Applicable Law and will not violate the charter, by-laws or other organizational or constitutional documents of the Borrower or any order of any Governmental Entity, (iii) will not violate or result in a default under any indenture, agreement or other instrument binding upon the Borrower or its assets, or give rise to a right thereunder to require any payment to be made by the Borrower in a manner which would reasonably be expected to have a Material Adverse Effect, and (iv) will not result in the creation or imposition of any Lien on any asset of the Borrower (other than the Liens created by the Credit Documents or Permitted Encumbrances);
(q) The Borrower owns, or is licensed to use, all trademarks, tradenames, copyrights, patents and other intellectual property material to its business, andexists or, to the knowledge of the Borrower, is threatened against Borrower or the use thereof by Property before any governmental or administrative body, agency or official which (i) challenges the validity of the Commitment or the Loan Documents, or the authority of Borrower does not infringe upon to enter into the rights Commitment or the Loan Documents or to perform the transactions herein or therein, or (ii) would have a material adverse effect on the occupancy of any other person;
the Property or on the business, financial condition or results of operations of Borrower, Key Principals or the Property. Borrower shall deliver to Lender a certificate confirming the truth and accuracy of the foregoing representation at the closing of the Loan. EXHIBIT 10.27 Borrower represents to Lender: (ri) The Borrower owns and operates all Blockbuster locations in Canada and does not have any franchisees;
it has previously provided to Lender (sa) The Borrower maintains direct contractual relationships with all suppliers of its inventory (“Supply Agreements”) independent of any relationshipsexcept for multi-family or self-storage tenants, contractual or otherwiseif applicable), which BBI may have with any such suppliers or with any of their Affiliates true, correct and complete and accurate counterpart executed copies of all such contracts leases with tenants at the Property (other than purchase ordersand all amendments and supplements thereto and agreements collateral thereto including, but not limited to, any guarantees thereof) have been provided by Borrower to Lender;
(tcollectively, the "Leases"), (b) BCI is a standard form of lease for the sole shareholder Property, and (c) a true, complete and correct rent roll of the Borrower and has no assets or liabilities other than the said shares owned by it and other than liabilities pursuant to guarantees issued in respect Property as of the U.S. Credit Agreement date set forth thereon (the "Rent Roll"); (ii) the Rent Roll remains true, complete and in respect of that certain Indenture dated correct as of April 20, 2004 (as amended, supplemented or otherwise modified from time to time), by and among BBI, as issuer, BCI and the other subsidiary guarantors party thereto and The Bank of New York Mellon Trust Company, N.A., as trustee, in respect of BBI’s 9% Senior Subordinated Notes due 2012. The sole shareholder of BCI is BBI;
(u) The Borrower has not guaranteed any of the liabilities or obligations of BBI or of BCI;
(v) Neither BBI nor BCI has guaranteed any of the liabilities or obligations of the Borrower, except that BBI has guaranteed the obligations of the Borrower pursuant to a Moneris VISA National Account Merchant Agreement/Moneris MasterCard National Account Merchant Agreement dated February 11, 2008 between the Borrower and Moneris Solutions Corporation;
(w) The Borrower maintains, with financially sound and reputable insurance companies, insurance in such amounts and against such risks as are customarily maintained by companies engaged in the same or similar businesses operating in the same or similar locations;
(x) As of the date hereof, both before and after giving effect to ; (aiii) the financing transactions to be consummated on the date hereof and (b) the payment and accrual it has neither provided nor received any notices of all fees, costs and expenses in connection therewith, the Borrower are and will be Solvent;
(y) Borrower has filed, or caused to be filed, in a timely manner all tax returns, reports and declarations which are required to be filed by it (without requests for extension except as previously disclosed in writing to Lender). All information in such tax returns, reports and declarations is complete and accurate in all material respects. Borrower has paid or caused to be paid all taxes due and payable or claimed due and payable in any assessment received by it, except taxes the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower and default with respect to which adequate reserves have the Leases; (iv) except as noted on the Rent Roll, it knows of no default of the landlord or the tenants under the Leases; and, (v) it has not been set aside on notified, in writing or otherwise, by any tenant of the discontinuance of, or intent to discontinue, its booksoperations at the Property. Adequate provision has been made for The standard form of lease must be satisfactory to Lender. All Leases and the payment identity of all accrued tenants and unpaid federal, provincial, municipal, local, foreign guarantors thereunder must be consistent with the information set forth in the Rent Roll and other taxes whether or not yet due and payable and whether or not disputed;
(z) The satisfactory to Lender. Borrower is not aware shall promptly notify Lender of any facts or circumstances which result in a change to the information set forth in the Rent Roll. At the closing of the Loan, Borrower shall deliver to Lender (i) a rent roll for the Property dated as of the Closing Date (the "Closing Rent Roll") which shall be consistent in form to the Rent Roll and (ii) a certification by Borrower that the Closing Rent Roll and all Leases theretofore provided to Lender by Borrower are true, correct and complete in all respects. Borrower must proffer a written explanation for, and Lender must agree, in its sole discretion, to accept said explanation, for any differences between facts and circumstances on the Closing Rent Roll and the facts and circumstances on the Rent Roll. Borrower represents (i) it has previously delivered to Lender true, correct and complete copies of operating statements of the Property for the lesser of the past three (3) calendar years or as many years as the Property has existed and a year-to-date operating statement of the Property for the current calendar year (which, to the extent included therein, contain true and accurate schedules of tenant improvements, leasing commissions and other capital expenditures), balance sheets and profit and loss statements, federal and state income tax returns, tenant sales figures and all financial statements or reports prepared by independent certified public accountants with respect to Borrower for the lesser of the past three (3) calendar years or as many years as the Borrower has existed, and (ii) the current budget, site plan and leasing plan prepared by Borrower and submitted to Lender with respect to the Property constitute good faith projections of the facts and circumstances set forth therein and Borrower is aware of no facts or circumstances which would have adversely affect such projections. Except as set forth in the Environmental Questionnaire and Certificate attached hereto and made a part of the Application, or previously delivered to Lender, Borrower represents to Lender it is not aware of any of the following affecting the Property, either currently or historically: any asbestos-containing materials, lead-based paint, storage tanks, toxic substances, hazardous waste or any other adverse environmental condition. Except as set forth on a separate written explanation attached hereto and made a part of the Application, or previously delivered to Lender, neither Borrower, any Key Principal, nor any Principal Owner (as defined below) of Borrower has closed any other loan with Lender within the last two (2) years nor has any other loans pending with Lender. Except as set forth in detail in a separate written explanation attached hereto and made a part of the Application, or previously delivered to Lender, Borrower represents to Lender that neither Borrower, its Principal Owners (being defined as any person or entity directly or indirectly owning or controlling twenty-five percent [25%] or more of an ownership interest in Borrower or having the power to direct the management and policies of Borrower, whether by contract, through an ownership interest, or otherwise) nor any Key Principal (i) has during the past seven (7) years, had any judgment remain unsatisfied for more than thirty (30) days; (ii) has during the past seven (7) years, EXHIBIT 10.27 transferred its right, title, and interest in a property through a deed-in-lieu or foreclosure action, or has filed or has had filed against it any action under the bankruptcy laws of the United States; (iii) is currently a co-maker, endorser or guarantor on or of any note (except as disclosed to Lender in writing as provided above); (iv) is currently a party to any lawsuit; (v) has received notice of, or is otherwise aware of, any bankruptcy, insolvency or comparable proceedings, condemnation, litigation, or any other action against or affecting the Property, Borrower or any Key Principals or contemplates filing any such proceedings; or (vi) has ever been convicted of a felony. Any such exception must be acceptable to Lender. On the Closing Date, Borrower shall certify to Lender if an adverse impact change has occurred in the: (i) occupancy of the Property; or (ii) the business, financial condition or results of operations of Borrower, Key Principals or the Property from that set forth on the value rent rolls, financial statements and reports referred to above. Any such adverse change must be acceptable to Lender. As of the Collateral taken date hereof and throughout the term of the Loan, Borrower and Key Principals, if any, represent, warrant and covenant that (i) neither Borrower nor any of its Principal Owners is, or will be, an "employee benefit plan" as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or other retirement arrangement, which is subject to Title I of ERISA or Section 4975 of the Internal Revenue Code of 1986, as amended (the "Code"); (ii) the assets of Borrower or any Principal Owners do not, and will not, constitute "plan assets" of one or more such plans or arrangements for purposes of Title I of ERISA or Section 4975 of the Code; (iii) neither Borrower nor any Principal Owner is or will be a whole"governmental plan" within the meaning of Section 3(32) of ERISA; and (iv) transactions by or with Borrower or any Principal Owners are not, other than depreciation or diminution and will not be, subject to state statutes applicable to Borrower regulating investments of value of items of Collateral in the ordinary course of businessand fiduciary obligations with respect to governmental plans. The provisions of this paragraph shall survive the Credit Documents create legal and valid liens on all the Collateral in favor termination of the Application (and, if accepted by Lender, and such liens constitute perfected and continuing liens on the Collateral and have priority over all other Liens on the Collateral except for Permitted Encumbrances;
(aaCommitment) Adequate accruals have been made for the payment of all Priority Claims and potential Priority Claims, whether or not yet due, unless disputed;
(bb) Borrower is not in default in any material respect under, or in violation in any material respect of any of the terms of, any material agreement, contract, instrument, lease or other commitment to which it is a party or by which it or any of its assets are bound and Borrower is and Key Principals warrant the representations made in compliance in all material respects with all applicable provisions of Applicable Laws; and
(cc) All information furnished by or on behalf of the Borrower in writing this paragraph shall continue to the Lender in connection with this Agreement or any transaction contemplated hereby, is be true and correct and does not omit any fact necessary until all sums owed under the Loan Documents have been paid in order to make such information not misleadingfull. No event or circumstance has occurred since January 4, 2009 which has had or could reasonably be expected to have a Material Adverse Effect on the Borrower, which has not been fully and accurately disclosed to the Lender in writing. All The Loan Documents shall contain additional representations and warranties contained in this Agreement of Borrower concerning Borrower, its constituent partner(s), shareholder(s) or any of member(s) and the other Credit Documents or in any certificates or other documents delivered to the Lender shall survive the execution and delivery of this Agreement and shall be deemed to have been made again to Lender on the date of each additional Borrowing hereunder and shall be conclusively presumed to have been relied on by Lender regardless of any investigation made or information possessed by Lender. The representations and warranties set forth herein shall be cumulative and in addition to any other representations or warranties which Borrower shall now or hereafter give, or cause to be given, to LenderProperty.
Appears in 1 contract
Sources: Credit Agreement (Perini Corp)
Borrower’s Representations. The Borrower hereby represents and warrantswarrants and covenants to the Creditor, which representations and warranties are deemed to be repeated at the time of each advance hereunder as though made at such time, except in the case of a representation or warranty of the Borrower that is made with respect date hereof and each other date on which the Group Parent issues Settlement Shares to a specific date, in which case such representation or warranty shall have been true on such datethe Creditor, as follows:
(ai) The Borrower is a corporation, Group Parent and each of its subsidiaries are entities duly incorporated and organized and validly existing and in good standing under the laws of the Province of Nova Scotia. The Borrower is duly qualified, licensed or registered to carry on business under the laws applicable to it in all jurisdictions jurisdiction in which such qualificationthey are formed, licensing or registration is necessary except where failure to be so qualified would not and have a Material Adverse Effect. The Borrower has all necessary corporate the requisite power and authority authorization to own or lease its property and assets their properties and to carry on its their business as now being conducted by it, and as presently proposed to authorize, create, execute, deliver be conducted.
(ii) The Borrower has the requisite power and authority to enter into and perform all of its obligations under this Agreement. The execution by the Credit Documents in accordance with their respective terms Borrower and the consummation by the Borrower of the transactions contemplated thereunder are all within hereby, including, without limitation, the Borrower’s corporate powers;
(b) The execution, delivery and performance issuance of the Credit Documents and the transactions contemplated thereunder Settlement Shares have been duly authorized and are not in contravention of Applicable Laws or the terms of by such Borrower’s certificate Board of incorporation, bylaws, Directors (or other organizational documentation, or applicable governing body). This Agreement and any indenture, agreement or undertaking to which Borrower is a party or by which Borrower or its property are bound and the Credit Documents related documents have been duly executed and delivered by the Borrower such Borrower, and constitute the legal, valid and binding obligations of the Borrower, enforceable against it the Borrower in accordance with their respective terms;
(c) Except as disclosed in the Disclosure Schedule, the Borrower is not in default under any of its obligations and there are no actions, suits or proceedings, pending or, to the best of the Borrower’s knowledge, threatened, against or affecting it which if adversely determined against Borrower would result in a Material Adverse Effect. Without limiting the foregoing, except as set forth in the Disclosure Schedulesuch enforceability may be limited by general principles of equity or applicable bankruptcy, to the best of Borrower’s knowledgeinsolvency, there is no present investigation by any governmental agency pending reorganization, moratorium, liquidation or threatenedsimilar laws relating to, against or affecting Borrowergenerally, its assets the enforcement of applicable creditors’ rights and remedies and except as rights to indemnification and to contribution may be limited by federal or business and there is no action, suit, proceeding or claim by any person pending, or to the best of Borrower’s knowledge threatened, against Borrower or its assets or goodwill, or against or affecting any transactions contemplated by this Agreement, which if adversely determined against Borrower would result in any material adverse change in the assets, business or prospects of Borrower or would impair the ability of Borrower to perform its obligations hereunder or under any of the other Credit Documents to which it is a party or of Lender to enforce any obligations or realize upon any Collateral;state securities laws.
(d) No authorization, consent, approval, registration, qualification, designation, declaration or filing with any Governmental Entity or other person is or was necessary in connection with the execution, delivery and performance of obligations by the Borrower under the Credit Documents except as are in full force and effect, unamended;
(e) The only jurisdictions (or registration districts within such jurisdictions) in which the Borrower has any place of business or stores any tangible personal property are listed in the Disclosure Schedule. The Borrower’s chief executive office is identified as such in the Disclosure Schedule;
(fiii) The Borrower possesses all Material Permits necessary to properly conduct its business. Each such Material Permit is (i) in full force and effect except as would not have a Material Adverse Effect; and (ii) not subject to any dispute. No event has occurred whichhas, during the preceding 12 months, filed with the giving United States Securities and Exchange Commission (the “SEC”) all reports and other materials required by the Securities Exchange Act of notice1934, lapse as amended (the “Exchange Act”), as applicable (all of the foregoing filed prior to the date hereof and all exhibits included therein and financial statements, notes and schedules thereto and documents incorporated by reference therein being hereinafter referred to as the “SEC Documents”). As of their respective dates, the SEC Documents complied in all material respects with the requirements of the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to the SEC Documents, and none of the SEC Documents, at the time they were filed with the SEC, contained any untrue statement of a material fact or both, would constitute omitted to state a default under, or in respect of, any such Material Permit;
(g) There are no collective bargaining agreements to which the Borrower is a party;
(h) All contributions or premiums material fact required to be made stated therein or paid necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. As of their respective dates, the financial statements of the Borrower included in the SEC Documents complied as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto as in effect as of the time of filing.
(iv) The Borrower represents that the Debt is a bona-fide claim against the Borrower and that the loan agreement, promissory notes and other documentation associated with the Debt are accurate representations of the nature of the Debt and the amounts owed by the Borrower to or in respect of the Pension Plans have been made and paid in a timely fashion in accordance with the terms thereof and Applicable LawsCreditor.
(i) All financial books and records of the Borrower have been fully, properly and accurately kept and completed in accordance with GAAP and there are no material inaccuracies or discrepancies of any kind contained or reflected therein. The Borrower maintains its books and records at the location(s) identified in the Disclosure Schedule. All financial statements relating to Borrower which have been or may hereafter be delivered by Borrower to Lender have been prepared in accordance with GAAP and fairly present the financial condition and the results of operation of Borrower as at the dates and for the periods set forth therein;
(jv) The Borrower is not in violation confirms that neither it nor any other person acting on its behalf has provided the Creditor or its agents or counsel with any information that constitutes or could reasonably be expected to constitute material, non-public information concerning the Group Parent or any of its constating documentssubsidiaries, its by-laws or any shareholders’ agreement applicable to it. No event has occurred or condition exists, and is continuing after the applicable grace period, if any, specified in any agreement or instrument relating to any debt of the Borrower, the effect of which is to accelerate, or permit the acceleration of such debt. No debt of the Borrower has been declared to be due and payable prior to its stated maturity other than as disclosed in the Disclosure Schedule. No event has occurred and is continuing which constitutes, or which, with notice, lapse existence of time, or both, would constitute a breach of any covenant or other term or condition under any of the Credit Documents;
(k) Neither this Agreement nor any certificate furnished to the Lender by or on behalf of any of the Borrower in connection with the transactions contemplated by this Agreement. The Borrower understands and confirms that the Creditor will rely on the foregoing representations in effecting transactions in securities of the Group Parent. To the knowledge of the Borrower after reasonable inquiry, all disclosures provided to the Creditor regarding the Group Parent and its subsidiaries, their businesses and the transactions contemplated hereby, including any schedules to this Agreement, furnished by or on behalf of Group Parent or any of its subsidiaries, is true and correct in all material respects and does not contain any untrue statement of a material fact. All forecasts and projections supplied fact or omit to the Lender in connection with the transactions contemplated by this Agreement were prepared in good faith, disclosed all relevant material assumptions and the most recent versions of all such forecasts provided to the Lender were at the time of delivery based on estimates believed by the Borrower to be reasonable. There is no fact known to the Borrower which has not been disclosed to the Lender which could reasonably be expected to have a Material Adverse Effect;
(l) The Borrower has no subsidiaries and does not have an equity interest in any other entity;
(m) The Disclosure Schedule sets forth the commitments of any lender for all debt for borrowed money to be advanced to the Borrower, and all debt for borrowed money outstanding, of the Borrower;
(n) The Liens granted to Lender under this Agreement and the other Security Agreements constitute valid and perfected first priority liens and security interests in and upon the Collateral subject only to Permitted Encumbrances. Borrower has good and marketable title to all of the properties and assets owned by it subject to no Liens of any kind, except those granted to Lender and Permitted Encumbrances;
(o) There has not occurred or become known to the Borrower any Material Adverse Change in respect of the Borrower since January 4, 2009;
(p) The financing transactions hereunder (i) do not require state any material consent or approval of, registration or filing with, or any other action by, any Governmental Entity, except such as have been obtained or made and are in full force and effect, (ii) will not violate in any material respect any Applicable Law and will not violate the charter, by-laws or other organizational or constitutional documents of the Borrower or any order of any Governmental Entity, (iii) will not violate or result in a default under any indenture, agreement or other instrument binding upon the Borrower or its assets, or give rise to a right thereunder to require any payment to be made by the Borrower in a manner which would reasonably be expected to have a Material Adverse Effect, and (iv) will not result in the creation or imposition of any Lien on any asset of the Borrower (other than the Liens created by the Credit Documents or Permitted Encumbrances);
(q) The Borrower owns, or is licensed to use, all trademarks, tradenames, copyrights, patents and other intellectual property material to its business, and, to the knowledge of the Borrower, the use thereof by the Borrower does not infringe upon the rights of any other person;
(r) The Borrower owns and operates all Blockbuster locations in Canada and does not have any franchisees;
(s) The Borrower maintains direct contractual relationships with all suppliers of its inventory (“Supply Agreements”) independent of any relationships, contractual or otherwise, which BBI may have with any such suppliers or with any of their Affiliates and complete and accurate copies of all such contracts (other than purchase orders) have been provided by Borrower to Lender;
(t) BCI is the sole shareholder of the Borrower and has no assets or liabilities other than the said shares owned by it and other than liabilities pursuant to guarantees issued in respect of the U.S. Credit Agreement and in respect of that certain Indenture dated as of April 20, 2004 (as amended, supplemented or otherwise modified from time to time), by and among BBI, as issuer, BCI and the other subsidiary guarantors party thereto and The Bank of New York Mellon Trust Company, N.A., as trustee, in respect of BBI’s 9% Senior Subordinated Notes due 2012. The sole shareholder of BCI is BBI;
(u) The Borrower has not guaranteed any of the liabilities or obligations of BBI or of BCI;
(v) Neither BBI nor BCI has guaranteed any of the liabilities or obligations of the Borrower, except that BBI has guaranteed the obligations of the Borrower pursuant to a Moneris VISA National Account Merchant Agreement/Moneris MasterCard National Account Merchant Agreement dated February 11, 2008 between the Borrower and Moneris Solutions Corporation;
(w) The Borrower maintains, with financially sound and reputable insurance companies, insurance in such amounts and against such risks as are customarily maintained by companies engaged in the same or similar businesses operating in the same or similar locations;
(x) As of the date hereof, both before and after giving effect to (a) the financing transactions to be consummated on the date hereof and (b) the payment and accrual of all fees, costs and expenses in connection therewith, the Borrower are and will be Solvent;
(y) Borrower has filed, or caused to be filed, in a timely manner all tax returns, reports and declarations which are required to be filed by it (without requests for extension except as previously disclosed in writing to Lender). All information in such tax returns, reports and declarations is complete and accurate in all material respects. Borrower has paid or caused to be paid all taxes due and payable or claimed due and payable in any assessment received by it, except taxes the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower and with respect to which adequate reserves have been set aside on its books. Adequate provision has been made for the payment of all accrued and unpaid federal, provincial, municipal, local, foreign and other taxes whether or not yet due and payable and whether or not disputed;
(z) The Borrower is not aware of any facts or circumstances which would have an adverse impact on the value of the Collateral taken as a whole, other than depreciation or diminution of value of items of Collateral in the ordinary course of business. The provisions of the Credit Documents create legal and valid liens on all the Collateral in favor of the Lender, and such liens constitute perfected and continuing liens on the Collateral and have priority over all other Liens on the Collateral except for Permitted Encumbrances;
(aa) Adequate accruals have been made for the payment of all Priority Claims and potential Priority Claims, whether or not yet due, unless disputed;
(bb) Borrower is not in default in any material respect under, or in violation in any material respect of any of the terms of, any material agreement, contract, instrument, lease or other commitment to which it is a party or by which it or any of its assets are bound and Borrower is in compliance in all material respects with all applicable provisions of Applicable Laws; and
(cc) All information furnished by or on behalf of the Borrower in writing to the Lender in connection with this Agreement or any transaction contemplated hereby, is true and correct and does not omit any fact necessary in order to make such information the statements made therein, in the light of the circumstances under which they were made, not misleading.
(vi) When issued and delivered, the Settlement Shares shall be validly issued and outstanding, fully paid and nonassessable, free and clear of all liens, encumbrances and rights of refusal of any kind.
(vii) The Borrower represents that it has not paid, and shall not pay, any commissions or other remuneration, directly or indirectly, to any third party for the solicitation of any Tranche pursuant to this Agreement. No event Other than the settlement of Creditor’s claims to the Debt, the Borrower has not received and will not receive any consideration from the Creditor for the Settlement Shares to be issued pursuant to this Agreement.
(viii) To the Borrower’s knowledge, neither the Creditor nor any of its affiliates, (A) is or circumstance was an officer, director, 10% shareholder, control person, or affiliate of the Borrower within the last 90 days, or (B) has occurred since January 4or will, 2009 which has had directly or could reasonably be expected indirectly, provide any consideration to or invest in any manner in the Borrower in exchange or consideration for, or otherwise in connection with, the sale or satisfaction of the Debt, other than pursuant to this Agreement.
(ix) The Borrower acknowledges and agrees that (A) the issuance of Settlement Shares pursuant to this Agreement may have a Material Adverse Effect on dilutive effect, which may be substantial, (B) neither the Borrower nor any of the Borrower’s affiliates has or will provide the Creditor with any material non-public information regarding the Borrower or its securities, and (C) the Creditor has no obligation of confidentiality to the Borrower and may sell any of its Settlement Shares issued pursuant to this Agreement at any time but subject to compliance with applicable laws and regulations.
(x) The Borrower acknowledges and agrees that with respect to this Agreement and the transactions contemplated hereby, (A) the Creditor is acting solely in an arm’s length capacity, (B) the Creditor does not make and has not made any representations or warranties, other than those specifically set forth in this Agreement, (C) except as set forth in this Agreement, the Borrower’s obligations hereunder are unconditional and absolute and not subject to any right of set off, counterclaim, delay or reduction, regardless of any claim the Borrower may have against the Creditor, (D) the Creditor has not and is not acting as a legal, financial, accounting or tax advisor to the Borrower, which has not been fully or agent or fiduciary of the Borrower, or in any similar capacity, and accurately disclosed to (E) any statement made by the Lender in writing. All representations and warranties contained in this Agreement Creditor or any of the other Credit Documents Creditor’s representatives, agents or in any certificates attorneys is not advice or other documents delivered a recommendation to the Lender shall survive Borrower.
(xi) Except as disclosed in SEC Documents, the execution and delivery of this Agreement and shall be deemed to have been made again to Lender on Borrower has not, in the 12 months preceding the date of each additional Borrowing hereunder this Agreement, received notice from any national securities exchange or automated quotation system on which the shares in Group Parent are listed or designated for quotation to the effect that the Borrower is not in compliance with the listing or maintenance requirements of such national securities exchange or automated quotation system. As of the date of this Agreement, to the Borrower’s actual knowledge based solely on absence of, as of the date hereof, any notice from any such securities exchange or automated quotation system that the Borrower is not in compliance with the listing or maintenance requirements of such national securities exchange or automated quotation system, the Borrower is in compliance with all such listing and shall maintenance requirements.
(xii) The Group Parent, through its Transfer Agent, currently participates in the DTC Fast Automated Securities Transfer (“FAST”) Program and utilizes DTC’s DWAC service, and the Settlement Shares may be conclusively presumed issued and transferred electronically to have been relied on by Lender regardless of any investigation made or information possessed by Lenderthird parties via DTC’s DWAC service. The representations and warranties set forth herein shall be cumulative and Borrower has not, in addition the 12 months preceding the date of this Agreement, received any notice from DTC to any other representations or warranties which Borrower shall now or hereafter givethe effect that a suspension of, or cause restriction on, accepting additional deposits of shares in the Group Parent or electronic trading or settlement services with respect to be givensuch shares are being imposed or are contemplated by DTC.
(xiii) The Group Parent’s shares are listed on the Nasdaq Capital Market.
(xiv) No suspension of trading of the Group Parent’s shares is in effect.
(xv) No injunctions or other legal proceedings relating to this Agreement is pending or threatened against the Borrower.
(xvi) The Borrower has delivered or will deliver to the Creditor and the Group Parent’s transfer agent an opinion of counsel in a form acceptable to the Creditor, to Lenderthe effect that the Settlement Shares issued hereunder are legally issued, fully paid and non-assessable, are exempt from registration under the Securities Act, may be issued without restrictive legend, and may be resold by Creditor without restriction.
(xvii) Except as disclosed in SEC Documents, the Borrower is not in a default under, or has given to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which such Borrower or any of its subsidiaries is a party.
Appears in 1 contract
Borrower’s Representations. The Borrower represents hereby represents, warrants and warrants, which representations and warranties are deemed to be repeated at the time of each advance hereunder as though made at such time, except in the case of a representation or warranty of the Borrower that is made with respect to a specific date, in which case such representation or warranty shall have been true on such date, covenants as follows:
(a) The Borrower is a corporationhas the full power, duly incorporated authority and organized and validly existing under the laws of the Province of Nova Scotia. The Borrower is duly qualified, licensed or registered legal right to carry on business under the laws applicable to it in all jurisdictions in which such qualification, licensing or registration is necessary except where failure enter into this Agreement to be so qualified would not have a Material Adverse Effect. The Borrower has all necessary corporate power and authority to own or lease its property and assets bound hereby and to carry on its business as now being conducted by itperform and observe the terms and conditions hereof, and to authorizeis in compliance with all applicable material laws, create, execute, deliver rules and perform all of its obligations under the Credit Documents in accordance with their respective terms and the transactions contemplated thereunder are all within the Borrower’s corporate powers;regulations.
(b) The execution, delivery and performance of the Credit Documents and the transactions contemplated thereunder have been duly authorized and are not in contravention of Applicable Laws or the terms of Borrower’s certificate of incorporation, bylaws, or other organizational documentation, or any indenture, agreement or undertaking to which Borrower is a party or by which Borrower or its property are bound and the Credit Documents have This Agreement has been duly executed and delivered by the Borrower and constitute constitutes the legal, valid and binding obligations obligation of the Borrower, Borrower enforceable against it him in accordance with their respective its terms;, subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors' rights generally and to moratorium laws from time to time in effect and to general principles of equity.
(c) Except as disclosed in the Disclosure Schedule, the Borrower is not in default under any of its obligations and there are no actions, suits or proceedings, pending or, to the best of the Borrower’s knowledge, threatened, against or affecting it which if adversely determined against Borrower would result in a Material Adverse Effect. Without limiting the foregoing, except as set forth in the Disclosure Schedule, to the best of Borrower’s knowledge, there is no present investigation by any governmental agency pending or threatened, against or affecting Borrower, its assets or business and there is no action, suit, proceeding or claim by any person pending, or to the best of Borrower’s knowledge threatened, against Borrower or its assets or goodwill, or against or affecting any transactions contemplated by this Agreement, which if adversely determined against Borrower would result in any material adverse change in the assets, business or prospects of Borrower or would impair the ability of Borrower to perform its obligations hereunder or under any of the other Credit Documents to which it is a party or of Lender to enforce any obligations or realize upon any Collateral;
(d) No authorization, consent, approval, registration, qualification, designation, declaration or filing with any Governmental Entity or other person is or was necessary in connection with the The execution, delivery and performance of obligations by the Borrower under the Credit Documents except as are in full force of this Agreement does not and effect, unamended;
(e) The only jurisdictions (or registration districts within such jurisdictions) in which the Borrower has any place of business or stores any tangible personal property are listed in the Disclosure Schedule. The Borrower’s chief executive office is identified as such in the Disclosure Schedule;
(f) The Borrower possesses all Material Permits necessary to properly conduct its business. Each such Material Permit is will not (i) in full force and effect except as would not have a Material Adverse Effect; and (ii) not subject to any dispute. No event has occurred which, with the giving of notice, lapse of time or both, would constitute a default under, or in respect of, any such Material Permit;
(g) There are no collective bargaining agreements to which the Borrower is a party;
(h) All contributions or premiums required to be made or paid by the Borrower to or in respect of the Pension Plans have been made and paid in a timely fashion in accordance with the terms thereof and Applicable Laws.
(i) All financial books and records of the Borrower have been fully, properly and accurately kept and completed in accordance with GAAP and there are no material inaccuracies or discrepancies of any kind contained or reflected therein. The Borrower maintains its books and records at the location(s) identified in the Disclosure Schedule. All financial statements relating to Borrower which have been or may hereafter be delivered by Borrower to Lender have been prepared in accordance with GAAP and fairly present the financial condition and the results of operation of Borrower as at the dates and for the periods set forth therein;
(j) The Borrower is not in violation of its constating documents, its by-laws or any shareholders’ agreement applicable to it. No event has occurred or condition exists, and is continuing after the applicable grace period, if any, specified in any agreement or instrument relating to any debt of the Borrower, the effect of which is to accelerate, or permit the acceleration of such debt. No debt of the Borrower has been declared to be due and payable prior to its stated maturity other than as disclosed in the Disclosure Schedule. No event has occurred and is continuing which constitutes, or which, with notice, lapse of time, or both, would constitute a breach of any covenant or other term or condition under any of the Credit Documents;
(k) Neither this Agreement nor any certificate furnished to the Lender by or on behalf of any of the Borrower in connection with the transactions contemplated by this Agreement, contain any untrue statement of a material fact. All forecasts and projections supplied to the Lender in connection with the transactions contemplated by this Agreement were prepared in good faith, disclosed all relevant material assumptions and the most recent versions of all such forecasts provided to the Lender were at the time of delivery based on estimates believed by the Borrower to be reasonable. There is no fact known to the Borrower which has not been disclosed to the Lender which could reasonably be expected to have a Material Adverse Effect;
(l) The Borrower has no subsidiaries and does not have an equity interest in any other entity;
(m) The Disclosure Schedule sets forth the commitments of any lender for all debt for borrowed money to be advanced to the Borrower, and all debt for borrowed money outstanding, of the Borrower;
(n) The Liens granted to Lender under this Agreement and the other Security Agreements constitute valid and perfected first priority liens and security interests in and upon the Collateral subject only to Permitted Encumbrances. Borrower has good and marketable title to all of the properties and assets owned by it subject to no Liens of any kind, except those granted to Lender and Permitted Encumbrances;
(o) There has not occurred or become known to the Borrower any Material Adverse Change in respect of the Borrower since January 4, 2009;
(p) The financing transactions hereunder (i) do not require any material consent or approval of, registration or filing with, or any other action by, any Governmental Entity, except such as have been obtained or made and are in full force and effect, (ii) will not violate in any material respect any Applicable Law and will not violate the charter, by-laws or other organizational or constitutional documents of the Borrower or any order of any Governmental Entity, (iii) will not violate or result in constitute a default under any indentureprovision of any agreement, agreement note or other instrument which is binding upon the Borrower or its assetsby which his properties are bound or materially affected, or give rise to a right thereunder to any law, rule or regulation, order writ, injunction or decree of any court or governmental instrumentality or any contractual restriction binding on the Borrower, or (ii) require any payment to be made filing with or consent or other act by the Borrower or in a manner which would reasonably be expected to have a Material Adverse Effect, and (iv) will not result in the creation or imposition respect of any Lien on any asset of the Borrower governmental authority or other person or entity (other than the Liens created filing of the appropriate number of UCC-1 financing statements covering the Pledged Securities, if necessary, and any consent obtained by the Credit Documents or Permitted Encumbrances);
(q) The Borrower owns, or is licensed to use, all trademarks, tradenames, copyrights, patents and other intellectual property material to its business, and, prior to the knowledge date hereof) or (iii) constitute a default thereunder or result in the imposition or require the creation of any lien or charge (other than those created, continued or otherwise contemplated hereby) upon the assets of the Borrower, the use thereof .
(d) The Pledged Securities consist of not fewer than 120,000 shares of Common Stock of Dyax and are held and owned by the Borrower does not infringe upon the rights of any other person;
(r) The Borrower owns free and operates all Blockbuster locations in Canada and does not have any franchisees;
(s) The Borrower maintains direct contractual relationships with all suppliers of its inventory (“Supply Agreements”) independent of any relationships, contractual or otherwise, which BBI may have with any such suppliers or with any of their Affiliates and complete and accurate copies clear of all such contracts (other than purchase orders) have been provided by Borrower to Lender;
(t) BCI is the sole shareholder of the Borrower liens, encumbrances, attachments, security interests, pledges and has no assets or liabilities other than the said shares owned by it and other than liabilities pursuant to guarantees issued in respect of the U.S. Credit Agreement and in respect of that certain Indenture dated as of April 20, 2004 (as amended, supplemented or otherwise modified from time to time), by and among BBI, as issuer, BCI and the other subsidiary guarantors party thereto and The Bank of New York Mellon Trust Company, N.A., as trustee, in respect of BBI’s 9% Senior Subordinated Notes due 2012. The sole shareholder of BCI is BBI;
(u) The Borrower has not guaranteed any of the liabilities or obligations of BBI or of BCI;
(v) Neither BBI nor BCI has guaranteed any of the liabilities or obligations of the Borrower, except that BBI has guaranteed the obligations of the Borrower pursuant to a Moneris VISA National Account Merchant Agreement/Moneris MasterCard National Account Merchant Agreement dated February 11, 2008 between the Borrower and Moneris Solutions Corporation;
(w) The Borrower maintains, with financially sound and reputable insurance companies, insurance in such amounts and against such risks as are customarily maintained by companies engaged in the same or similar businesses operating in the same or similar locations;
(x) As of the date hereof, both before and after giving effect to (a) the financing transactions to be consummated on the date hereof and (b) the payment and accrual of all fees, costs and expenses in connection therewith, the Borrower are and will be Solvent;
(y) Borrower has filed, or caused to be filed, in a timely manner all tax returns, reports and declarations which are required to be filed by it (without requests for extension except as previously disclosed in writing to Lender). All information in such tax returns, reports and declarations is complete and accurate in all material respects. Borrower has paid or caused to be paid all taxes due and payable or claimed due and payable in any assessment received by it, except taxes the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower and with respect to which adequate reserves have been set aside on its books. Adequate provision has been made for the payment of all accrued and unpaid federal, provincial, municipal, local, foreign and other taxes whether or not yet due and payable and whether or not disputed;
(z) The Borrower is not aware of any facts or circumstances which would have an adverse impact on the value of the Collateral taken as a wholecharges, other than depreciation or diminution of value of items of Collateral in the ordinary course of business. The provisions of the Credit Documents create legal and valid liens on all the Collateral those in favor of the Lender, and such liens constitute perfected and continuing liens on the Collateral and have priority over all other Liens on the Collateral except for Permitted Encumbrances;
(aa) Adequate accruals have been made for the payment of all Priority Claims and potential Priority Claims, whether or not yet due, unless disputed;
(bb) Borrower is not in default in any material respect under, or in violation in any material respect of any of the terms of, any material agreement, contract, instrument, lease or other commitment to which it is a party or by which it or any of its assets are bound and Borrower is in compliance in all material respects with all applicable provisions of Applicable Laws; and
(cc) All information furnished by or on behalf of the Borrower in writing to the Lender in connection with this Agreement or any transaction contemplated hereby, is true and correct and does not omit any fact necessary in order to make such information not misleading. No event or circumstance has occurred since January 4, 2009 which has had or could reasonably be expected to have a Material Adverse Effect on the Borrower, which has not been fully and accurately disclosed to the Lender in writing. All representations and warranties contained in this Agreement or any of the other Credit Documents or in any certificates or other documents delivered to the Lender shall survive the execution and delivery of this Agreement and shall be deemed to have been made again to Lender on the date of each additional Borrowing hereunder and shall be conclusively presumed to have been relied on by Lender regardless of any investigation made or information possessed by Lender. The representations and warranties set forth herein shall be cumulative and in addition to any other representations or warranties which Borrower shall now or hereafter give, or cause to be given, to Lender▇▇▇▇.
Appears in 1 contract
Borrower’s Representations. The Borrower represents hereby represents, warrants and warrants, which representations and warranties are deemed to be repeated at the time of each advance hereunder as though made at such time, except in the case of a representation or warranty of the Borrower that is made with respect to a specific date, in which case such representation or warranty shall have been true on such date, covenants as follows:
(a) The Borrower is a corporationhas the full power, duly incorporated authority and organized and validly existing under the laws of the Province of Nova Scotia. The Borrower is duly qualified, licensed or registered legal right to carry on business under the laws applicable to it in all jurisdictions in which such qualification, licensing or registration is necessary except where failure enter into this Agreement to be so qualified would not have a Material Adverse Effect. The Borrower has all necessary corporate power and authority to own or lease its property and assets bound hereby and to carry on its business as now being conducted by itperform and observe the terms and conditions hereof, and to authorizeis in compliance with all applicable material laws, create, execute, deliver rules and perform all of its obligations under the Credit Documents in accordance with their respective terms and the transactions contemplated thereunder are all within the Borrower’s corporate powers;regulations.
(b) The execution, delivery and performance of the Credit Documents and the transactions contemplated thereunder have been duly authorized and are not in contravention of Applicable Laws or the terms of Borrower’s certificate of incorporation, bylaws, or other organizational documentation, or any indenture, agreement or undertaking to which Borrower is a party or by which Borrower or its property are bound and the Credit Documents have This Agreement has been duly executed and delivered by the Borrower and constitute constitutes the legal, valid and binding obligations obligation of the Borrower, Borrower enforceable against it him in accordance with their respective its terms;, subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors' rights generally and to moratorium laws from time to time in effect and to general principles of equity.
(c) Except as disclosed in the Disclosure Schedule, the Borrower is not in default under any of its obligations and there are no actions, suits or proceedings, pending or, to the best of the Borrower’s knowledge, threatened, against or affecting it which if adversely determined against Borrower would result in a Material Adverse Effect. Without limiting the foregoing, except as set forth in the Disclosure Schedule, to the best of Borrower’s knowledge, there is no present investigation by any governmental agency pending or threatened, against or affecting Borrower, its assets or business and there is no action, suit, proceeding or claim by any person pending, or to the best of Borrower’s knowledge threatened, against Borrower or its assets or goodwill, or against or affecting any transactions contemplated by this Agreement, which if adversely determined against Borrower would result in any material adverse change in the assets, business or prospects of Borrower or would impair the ability of Borrower to perform its obligations hereunder or under any of the other Credit Documents to which it is a party or of Lender to enforce any obligations or realize upon any Collateral;
(d) No authorization, consent, approval, registration, qualification, designation, declaration or filing with any Governmental Entity or other person is or was necessary in connection with the The execution, delivery and performance of obligations by the Borrower of this Agreement does not and will not (i) violate or constitute a default under any provision of any agreement, note or instrument which is binding upon the Credit Documents except as Borrower or by which his properties are bound or materially affected, or any law, rule or regulation, order writ, injunction or decree of any court or governmental instrumentality or any contractual restriction binding on the Borrower, or (ii) require any filing with or consent or other act by or in full force respect of any governmental authority or other person or entity (other than the filing of the appropriate number of UCC-1 financing statements covering the Pledged Securities, if necessary, and effectany consent obtained by the Borrower prior to the date hereof) or (iii) constitute a default thereunder or result in the imposition or require the creation of any lien or charge (other than those created, unamended;continued or otherwise contemplated hereby) upon the assets of the Borrower.
(d) The Pledged Securities consist of not fewer than 431,056 shares of Class A Series 1 Preferred Stock, 246,040 shares of Class A Series 3 Preferred Stock, 129,713 shares of Class A Series 4 Preferred Stock and 18,350 shares of Class A Series 5 Preferred Stock, of Dyax and are held and owned by the Borrower free and clear of all liens, encumbrances, attachments, security interests, pledges and charges, other than those in favor of Dyax.
(e) The only jurisdictions (or registration districts within such jurisdictions) in which the Borrower has any place of business or stores any tangible personal property are listed in the Disclosure Schedule. The Borrower’s chief executive office is identified as such in the Disclosure Schedule;
(f) The Borrower possesses all Material Permits necessary to properly conduct its business. Each such Material Permit is (i) in full force and effect except as would not have a Material Adverse Effect; and (ii) not subject to any dispute. No event has occurred which, with the giving of notice, lapse of time or both, would constitute a default under, or in respect of, any such Material Permit;
(g) There are no collective bargaining agreements to which the Borrower is a party;
(h) All contributions or premiums required to be made or paid by the Borrower to or in respect of the Pension Plans have been made and paid in a timely fashion in accordance with the terms thereof and Applicable Laws.
(i) All financial books and records of the Borrower have been fully, properly and accurately kept and completed in accordance with GAAP and there are no material inaccuracies or discrepancies of any kind contained or reflected therein. The Borrower maintains its books and records at the location(s) identified in the Disclosure Schedule. All financial statements relating to Borrower which have been or may hereafter be delivered by Borrower to Lender have been prepared in accordance with GAAP and fairly present the financial condition and the results of operation of Borrower as at the dates and for the periods set forth therein;
(j) The Borrower is not in violation of its constating documents, its by-laws or any shareholders’ agreement applicable to it. No event has occurred or condition exists, and is continuing after the applicable grace period, if any, specified in any agreement or instrument relating to any debt of the Borrower, the effect of which is to accelerate, or permit the acceleration of such debt. No debt of the Borrower has been declared to be due and payable prior to its stated maturity other than as disclosed in the Disclosure Schedule. No event has occurred and is continuing which constitutes, or which, with notice, lapse of time, or both, would constitute a breach of any covenant or other term or condition under any of the Credit Documents;
(k) Neither this Agreement nor any certificate furnished to the Lender by or on behalf of any of the Borrower in connection with the transactions contemplated by this Agreement, contain any untrue statement of a material fact. All forecasts and projections supplied to the Lender in connection with the transactions contemplated by this Agreement were prepared in good faith, disclosed all relevant material assumptions and the most recent versions of all such forecasts provided to the Lender were at the time of delivery based on estimates believed by the Borrower to be reasonable. There is no fact known to the Borrower which has not been disclosed to the Lender which could reasonably be expected to have a Material Adverse Effect;
(l) The Borrower has no subsidiaries and does not have an equity interest in any other entity;
(m) The Disclosure Schedule sets forth the commitments of any lender for all debt for borrowed money to be advanced to the Borrower, and all debt for borrowed money outstanding, of the Borrower;
(n) The Liens granted to Lender under this Agreement and the other Security Agreements constitute valid and perfected first priority liens and security interests in and upon the Collateral subject only to Permitted Encumbrances. Borrower has good and marketable title to all of the properties and assets owned by it subject to no Liens of any kind, except those granted to Lender and Permitted Encumbrances;
(o) There has not occurred or become known to the Borrower any Material Adverse Change in respect of the Borrower since January 4, 2009;
(p) The financing transactions hereunder (i) do not require any material consent or approval of, registration or filing with, or any other action by, any Governmental Entity, except such as have been obtained or made and are in full force and effect, (ii) will not violate in any material respect any Applicable Law and will not violate the charter, by-laws or other organizational or constitutional documents of the Borrower or any order of any Governmental Entity, (iii) will not violate or result in a default under any indenture, agreement or other instrument binding upon the Borrower or its assets, or give rise to a right thereunder to require any payment to be made by the Borrower in a manner which would reasonably be expected to have a Material Adverse Effect, and (iv) will not result in the creation or imposition of any Lien on any asset of the Borrower (other than the Liens created by the Credit Documents or Permitted Encumbrances);
(q) The Borrower owns, or is licensed to use, all trademarks, tradenames, copyrights, patents and other intellectual property material to its business, and, to the knowledge of the Borrower, the use thereof by the Borrower does not infringe upon the rights of any other person;
(r) The Borrower owns and operates all Blockbuster locations in Canada and does not have any franchisees;
(s) The Borrower maintains direct contractual relationships with all suppliers of its inventory (“Supply Agreements”) independent of any relationships, contractual or otherwise, which BBI may have with any such suppliers or with any of their Affiliates and complete and accurate copies of all such contracts (other than purchase orders) have been provided by Borrower to Lender;
(t) BCI is the sole shareholder of the Borrower and has no assets or liabilities other than the said shares owned by it and other than liabilities pursuant to guarantees issued in respect of the U.S. Credit Agreement and in respect of that certain Indenture dated as of April 20, 2004 (as amended, supplemented or otherwise modified from time to time), by and among BBI, as issuer, BCI and the other subsidiary guarantors party thereto and The Bank of New York Mellon Trust Company, N.A., as trustee, in respect of BBI’s 9% Senior Subordinated Notes due 2012. The sole shareholder of BCI is BBI;
(u) The Borrower has not guaranteed any of the liabilities or obligations of BBI or of BCI;
(v) Neither BBI nor BCI has guaranteed any of the liabilities or obligations of the Borrower, except that BBI has guaranteed the obligations of the Borrower pursuant to a Moneris VISA National Account Merchant Agreement/Moneris MasterCard National Account Merchant Agreement dated February 11, 2008 between the Borrower and Moneris Solutions Corporation;
(w) The Borrower maintains, with financially sound and reputable insurance companies, insurance in such amounts and against such risks as are customarily maintained by companies engaged in the same or similar businesses operating in the same or similar locations;
(x) As of the date hereofhereof has a net worth, both before and after giving effect to (a) defined as the financing transactions to be consummated on the date hereof and (b) the payment and accrual of all fees, costs and expenses in connection therewith, the Borrower are and will be Solvent;
(y) Borrower has filed, or caused to be filed, in a timely manner all tax returns, reports and declarations which are required to be filed by it (without requests for extension except as previously disclosed in writing to Lender). All information in such tax returns, reports and declarations is complete and accurate in all material respects. Borrower has paid or caused to be paid all taxes due and payable or claimed due and payable in any assessment received by it, except taxes the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower and with respect to which adequate reserves have been set aside on its books. Adequate provision has been made for the payment of all accrued and unpaid federal, provincial, municipal, local, foreign and other taxes whether or not yet due and payable and whether or not disputed;
(z) The Borrower is not aware of any facts or circumstances which would have an adverse impact on the fair market value of the Collateral taken as a wholetotal assets, other than depreciation or diminution exclusive of value assets subject to contingent liabilities, less total liabilities, of items of Collateral in the ordinary course of business. The provisions of the Credit Documents create legal and valid liens on all the Collateral in favor of the Lender, and such liens constitute perfected and continuing liens on the Collateral and have priority over all other Liens on the Collateral except for Permitted Encumbrances;
(aa) Adequate accruals have been made for the payment of all Priority Claims and potential Priority Claims, whether or not yet due, unless disputed;
(bb) Borrower is not in default in any material respect under, or in violation in any material respect of any of the terms of, any material agreement, contract, instrument, lease or other commitment to which it is a party or by which it or any of its assets are bound and Borrower is in compliance in all material respects with all applicable provisions of Applicable Laws; and
(cc) All information furnished by or on behalf of the Borrower in writing to the Lender in connection with this Agreement or any transaction contemplated hereby, is true and correct and does not omit any fact necessary in order to make such information not misleading. No event or circumstance has occurred since January 4, 2009 which has had or could reasonably be expected to have a Material Adverse Effect on the Borrower, which has not been fully and accurately disclosed to the Lender in writing. All representations and warranties contained in this Agreement or any of the other Credit Documents or in any certificates or other documents delivered to the Lender shall survive the execution and delivery of this Agreement and shall be deemed to have been made again to Lender on the date of each additional Borrowing hereunder and shall be conclusively presumed to have been relied on by Lender regardless of any investigation made or information possessed by Lender. The representations and warranties set forth herein shall be cumulative and in addition to any other representations or warranties which Borrower shall now or hereafter give, or cause to be given, to Lenderat least $10,000,000.
Appears in 1 contract
Borrower’s Representations. The Borrower represents hereby represents, warrants and warrants, which representations and warranties are deemed to be repeated at the time of each advance hereunder as though made at such time, except in the case of a representation or warranty of the Borrower that is made with respect to a specific date, in which case such representation or warranty shall have been true on such date, covenants as follows:
(a) The Borrower is a corporationhas the full power, duly incorporated authority and organized and validly existing under the laws of the Province of Nova Scotia. The Borrower is duly qualified, licensed or registered legal right to carry on business under the laws applicable to it in all jurisdictions in which such qualification, licensing or registration is necessary except where failure enter into this Agreement to be so qualified would not have a Material Adverse Effect. The Borrower has all necessary corporate power and authority to own or lease its property and assets bound hereby and to carry on its business as now being conducted by itperform and observe the terms and conditions hereof, and to authorizeis in compliance with all applicable material laws, create, execute, deliver rules and perform all of its obligations under the Credit Documents in accordance with their respective terms and the transactions contemplated thereunder are all within the Borrower’s corporate powers;regulations.
(b) The execution, delivery and performance of the Credit Documents and the transactions contemplated thereunder have been duly authorized and are not in contravention of Applicable Laws or the terms of Borrower’s certificate of incorporation, bylaws, or other organizational documentation, or any indenture, agreement or undertaking to which Borrower is a party or by which Borrower or its property are bound and the Credit Documents have This Agreement has been duly executed and delivered by the Borrower and constitute constitutes the legal, valid and binding obligations obligation of the Borrower, Borrower enforceable against it him in accordance with their respective its terms;, subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency and similar laws affecting creditors' rights generally and to moratorium laws from time to time in effect and to general principles of equity.
(c) Except as disclosed in the Disclosure Schedule, the Borrower is not in default under any of its obligations and there are no actions, suits or proceedings, pending or, to the best of the Borrower’s knowledge, threatened, against or affecting it which if adversely determined against Borrower would result in a Material Adverse Effect. Without limiting the foregoing, except as set forth in the Disclosure Schedule, to the best of Borrower’s knowledge, there is no present investigation by any governmental agency pending or threatened, against or affecting Borrower, its assets or business and there is no action, suit, proceeding or claim by any person pending, or to the best of Borrower’s knowledge threatened, against Borrower or its assets or goodwill, or against or affecting any transactions contemplated by this Agreement, which if adversely determined against Borrower would result in any material adverse change in the assets, business or prospects of Borrower or would impair the ability of Borrower to perform its obligations hereunder or under any of the other Credit Documents to which it is a party or of Lender to enforce any obligations or realize upon any Collateral;
(d) No authorization, consent, approval, registration, qualification, designation, declaration or filing with any Governmental Entity or other person is or was necessary in connection with the The execution, delivery and performance of obligations by the Borrower under the Credit Documents except as are in full force of this Agreement does not and effect, unamended;
(e) The only jurisdictions (or registration districts within such jurisdictions) in which the Borrower has any place of business or stores any tangible personal property are listed in the Disclosure Schedule. The Borrower’s chief executive office is identified as such in the Disclosure Schedule;
(f) The Borrower possesses all Material Permits necessary to properly conduct its business. Each such Material Permit is will not (i) in full force and effect except as would not have a Material Adverse Effect; and (ii) not subject to any dispute. No event has occurred which, with the giving of notice, lapse of time or both, would constitute a default under, or in respect of, any such Material Permit;
(g) There are no collective bargaining agreements to which the Borrower is a party;
(h) All contributions or premiums required to be made or paid by the Borrower to or in respect of the Pension Plans have been made and paid in a timely fashion in accordance with the terms thereof and Applicable Laws.
(i) All financial books and records of the Borrower have been fully, properly and accurately kept and completed in accordance with GAAP and there are no material inaccuracies or discrepancies of any kind contained or reflected therein. The Borrower maintains its books and records at the location(s) identified in the Disclosure Schedule. All financial statements relating to Borrower which have been or may hereafter be delivered by Borrower to Lender have been prepared in accordance with GAAP and fairly present the financial condition and the results of operation of Borrower as at the dates and for the periods set forth therein;
(j) The Borrower is not in violation of its constating documents, its by-laws or any shareholders’ agreement applicable to it. No event has occurred or condition exists, and is continuing after the applicable grace period, if any, specified in any agreement or instrument relating to any debt of the Borrower, the effect of which is to accelerate, or permit the acceleration of such debt. No debt of the Borrower has been declared to be due and payable prior to its stated maturity other than as disclosed in the Disclosure Schedule. No event has occurred and is continuing which constitutes, or which, with notice, lapse of time, or both, would constitute a breach of any covenant or other term or condition under any of the Credit Documents;
(k) Neither this Agreement nor any certificate furnished to the Lender by or on behalf of any of the Borrower in connection with the transactions contemplated by this Agreement, contain any untrue statement of a material fact. All forecasts and projections supplied to the Lender in connection with the transactions contemplated by this Agreement were prepared in good faith, disclosed all relevant material assumptions and the most recent versions of all such forecasts provided to the Lender were at the time of delivery based on estimates believed by the Borrower to be reasonable. There is no fact known to the Borrower which has not been disclosed to the Lender which could reasonably be expected to have a Material Adverse Effect;
(l) The Borrower has no subsidiaries and does not have an equity interest in any other entity;
(m) The Disclosure Schedule sets forth the commitments of any lender for all debt for borrowed money to be advanced to the Borrower, and all debt for borrowed money outstanding, of the Borrower;
(n) The Liens granted to Lender under this Agreement and the other Security Agreements constitute valid and perfected first priority liens and security interests in and upon the Collateral subject only to Permitted Encumbrances. Borrower has good and marketable title to all of the properties and assets owned by it subject to no Liens of any kind, except those granted to Lender and Permitted Encumbrances;
(o) There has not occurred or become known to the Borrower any Material Adverse Change in respect of the Borrower since January 4, 2009;
(p) The financing transactions hereunder (i) do not require any material consent or approval of, registration or filing with, or any other action by, any Governmental Entity, except such as have been obtained or made and are in full force and effect, (ii) will not violate in any material respect any Applicable Law and will not violate the charter, by-laws or other organizational or constitutional documents of the Borrower or any order of any Governmental Entity, (iii) will not violate or result in constitute a default under any indentureprovision of any agreement, agreement note or other instrument which is binding upon the Borrower or its assetsby which his properties are bound or materially affected, or give rise to a right thereunder to any law, rule or regulation, order writ, injunction or decree of any court or governmental instrumentality or any contractual restriction binding on the Borrower, or (ii) require any payment to be made filing with or consent or other act by the Borrower or in a manner which would reasonably be expected to have a Material Adverse Effect, and (iv) will not result in the creation or imposition respect of any Lien on any asset of the Borrower governmental authority or other person or entity (other than the Liens created filing of the appropriate number of UCC-1 financing statements covering the Pledged Securities, if necessary, and any consent obtained by the Credit Documents or Permitted Encumbrances);
(q) The Borrower owns, or is licensed to use, all trademarks, tradenames, copyrights, patents and other intellectual property material to its business, and, prior to the knowledge date hereof) or (iii) constitute a default thereunder or result in the imposition or require the creation of any lien or charge (other than those created, continued or otherwise contemplated hereby) upon the assets of the Borrower, the use thereof .
(d) The Pledged Securities consist of not fewer than 60,000 shares of Common Stock of Dyax and are held and owned by the Borrower does not infringe upon the rights of any other person;
(r) The Borrower owns free and operates all Blockbuster locations in Canada and does not have any franchisees;
(s) The Borrower maintains direct contractual relationships with all suppliers of its inventory (“Supply Agreements”) independent of any relationships, contractual or otherwise, which BBI may have with any such suppliers or with any of their Affiliates and complete and accurate copies clear of all such contracts (other than purchase orders) have been provided by Borrower to Lender;
(t) BCI is the sole shareholder of the Borrower liens, encumbrances, attachments, security interests, pledges and has no assets or liabilities other than the said shares owned by it and other than liabilities pursuant to guarantees issued in respect of the U.S. Credit Agreement and in respect of that certain Indenture dated as of April 20, 2004 (as amended, supplemented or otherwise modified from time to time), by and among BBI, as issuer, BCI and the other subsidiary guarantors party thereto and The Bank of New York Mellon Trust Company, N.A., as trustee, in respect of BBI’s 9% Senior Subordinated Notes due 2012. The sole shareholder of BCI is BBI;
(u) The Borrower has not guaranteed any of the liabilities or obligations of BBI or of BCI;
(v) Neither BBI nor BCI has guaranteed any of the liabilities or obligations of the Borrower, except that BBI has guaranteed the obligations of the Borrower pursuant to a Moneris VISA National Account Merchant Agreement/Moneris MasterCard National Account Merchant Agreement dated February 11, 2008 between the Borrower and Moneris Solutions Corporation;
(w) The Borrower maintains, with financially sound and reputable insurance companies, insurance in such amounts and against such risks as are customarily maintained by companies engaged in the same or similar businesses operating in the same or similar locations;
(x) As of the date hereof, both before and after giving effect to (a) the financing transactions to be consummated on the date hereof and (b) the payment and accrual of all fees, costs and expenses in connection therewith, the Borrower are and will be Solvent;
(y) Borrower has filed, or caused to be filed, in a timely manner all tax returns, reports and declarations which are required to be filed by it (without requests for extension except as previously disclosed in writing to Lender). All information in such tax returns, reports and declarations is complete and accurate in all material respects. Borrower has paid or caused to be paid all taxes due and payable or claimed due and payable in any assessment received by it, except taxes the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower and with respect to which adequate reserves have been set aside on its books. Adequate provision has been made for the payment of all accrued and unpaid federal, provincial, municipal, local, foreign and other taxes whether or not yet due and payable and whether or not disputed;
(z) The Borrower is not aware of any facts or circumstances which would have an adverse impact on the value of the Collateral taken as a wholecharges, other than depreciation or diminution of value of items of Collateral in the ordinary course of business. The provisions of the Credit Documents create legal and valid liens on all the Collateral those in favor of the Lender, and such liens constitute perfected and continuing liens on the Collateral and have priority over all other Liens on the Collateral except for Permitted Encumbrances;
(aa) Adequate accruals have been made for the payment of all Priority Claims and potential Priority Claims, whether or not yet due, unless disputed;
(bb) Borrower is not in default in any material respect under, or in violation in any material respect of any of the terms of, any material agreement, contract, instrument, lease or other commitment to which it is a party or by which it or any of its assets are bound and Borrower is in compliance in all material respects with all applicable provisions of Applicable Laws; and
(cc) All information furnished by or on behalf of the Borrower in writing to the Lender in connection with this Agreement or any transaction contemplated hereby, is true and correct and does not omit any fact necessary in order to make such information not misleading. No event or circumstance has occurred since January 4, 2009 which has had or could reasonably be expected to have a Material Adverse Effect on the Borrower, which has not been fully and accurately disclosed to the Lender in writing. All representations and warranties contained in this Agreement or any of the other Credit Documents or in any certificates or other documents delivered to the Lender shall survive the execution and delivery of this Agreement and shall be deemed to have been made again to Lender on the date of each additional Borrowing hereunder and shall be conclusively presumed to have been relied on by Lender regardless of any investigation made or information possessed by Lender. The representations and warranties set forth herein shall be cumulative and in addition to any other representations or warranties which Borrower shall now or hereafter give, or cause to be given, to Lender▇▇▇▇.
Appears in 1 contract
Borrower’s Representations. The Borrower represents hereby represents, warrants and warrants, which representations and warranties are deemed covenants to be repeated at the time of each advance hereunder as though made at such time, except in the case of a representation or warranty of the Borrower that is made with respect to a specific date, in which case such representation or warranty shall have been true on such date, as followsLender that:
(a) The Borrower is lawfully seized of the Mortgaged Property hereby mortgaged, granted and conveyed and has the right to mortgage, grant and convey the Mortgaged Property, that the Mortgaged Property is unencumbered except by the Permitted Encumbrances, if any, and that Borrower will represent, warrant and defend generally the title to the Mortgaged Property, or any portion thereof, against any and all claims and demands, subject only to the Permitted Encumbrances, if any.
(b) Borrower (i) is a corporationDelaware limited liability company, duly incorporated and organized and validly existing under the laws of the Province State of Nova Scotia. The Borrower Delaware, is duly qualified, licensed or registered in good standing in the State of Delaware and is qualified to carry on do business under in the laws applicable to it in all jurisdictions in which such qualification, licensing or registration is necessary except where failure to be so qualified would not have State of New Jersey as a Material Adverse Effect. The Borrower foreign limited liability company; (ii) has all necessary corporate the power and authority to own or lease its property and assets properties and to carry on its business as now being conducted by conducted; and (iii) is in compliance with all laws, regulations, ordinances and orders of public authorities applicable to it, and to authorize, create, execute, deliver and perform all of its obligations under the Credit Documents in accordance with their respective terms and the transactions contemplated thereunder are all within the Borrower’s corporate powers;.
(bc) The execution, delivery and performance of the Credit Documents Note, this Mortgage and the transactions contemplated thereunder have been duly authorized and are not in contravention of Applicable Laws or the terms of Borrower’s certificate of incorporation, bylaws, or other organizational documentation, or any indenture, agreement or undertaking to which Borrower is a party or by which Borrower or its property are bound and the Credit Documents have been duly executed and delivered by the Borrower and constitute legal, valid and binding obligations of the Borrower, enforceable against it in accordance with their respective terms;
(c) Except as disclosed in the Disclosure Schedule, the Borrower is not in default under any of its obligations and there are no actions, suits or proceedings, pending or, to the best of the Borrower’s knowledge, threatened, against or affecting it which if adversely determined against Borrower would result in a Material Adverse Effect. Without limiting the foregoing, except as set forth in the Disclosure Schedule, to the best of Borrower’s knowledge, there is no present investigation by any governmental agency pending or threatened, against or affecting Borrower, its assets or business and there is no action, suit, proceeding or claim by any person pending, or to the best of Borrower’s knowledge threatened, against Borrower or its assets or goodwill, or against or affecting any transactions contemplated by this Agreement, which if adversely determined against Borrower would result in any material adverse change in the assets, business or prospects of Borrower or would impair the ability of Borrower to perform its obligations hereunder or under any of the other Credit Documents to which it is a party or of Lender to enforce any obligations or realize upon any Collateral;
(d) No authorization, consent, approval, registration, qualification, designation, declaration or filing with any Governmental Entity or other person is or was necessary in connection with the execution, delivery and performance of obligations by the Borrower under the Credit Documents except as are in full force and effect, unamended;
(e) The only jurisdictions (or registration districts within such jurisdictions) in which the Borrower has any place of business or stores any tangible personal property are listed in the Disclosure Schedule. The Borrower’s chief executive office is identified as such in the Disclosure Schedule;
(f) The Borrower possesses all Material Permits necessary to properly conduct its business. Each such Material Permit is Loan Documents: (i) in full force and effect except as would not have a Material Adverse Effectreceived all necessary trust, partnership, governmental, company or corporate approval; and (ii) do not subject to violate any dispute. No event has occurred which, with the giving of notice, lapse of time or both, would constitute a default under, or in respect of, any such Material Permit;
(g) There are no collective bargaining agreements to which the Borrower is a party;
(h) All contributions or premiums required to be made or paid by the Borrower to or in respect of the Pension Plans have been made and paid in a timely fashion in accordance with the terms thereof and Applicable Laws.
(i) All financial books and records of the Borrower have been fully, properly and accurately kept and completed in accordance with GAAP and there are no material inaccuracies or discrepancies provision of any kind contained or reflected therein. The Borrower maintains its books and records at the location(s) identified in the Disclosure Schedule. All financial statements relating to Borrower which have been or may hereafter be delivered by Borrower to Lender have been prepared in accordance with GAAP and fairly present the financial condition and the results of operation of Borrower as at the dates and for the periods set forth therein;
(j) The Borrower is not in violation of its constating documentslaw, its by-laws or any shareholders’ agreement applicable to it. No event has occurred or condition exists, and is continuing after the applicable grace period, if any, specified in any agreement or instrument relating to any debt of the Borrower, the effect of which is to accelerate, or permit the acceleration of such debt. No debt of the Borrower has been declared to be due and payable prior to its stated maturity other than as disclosed in the Disclosure Schedule. No event has occurred and is continuing which constitutes, or which, with notice, lapse of time, or both, would constitute a breach of any covenant or other term or condition under any of the Credit Documents;
(k) Neither this Agreement nor any certificate furnished to the Lender by or on behalf of any of the Borrower in connection with the transactions contemplated by this Agreement, contain any untrue statement of a material fact. All forecasts and projections supplied to the Lender in connection with the transactions contemplated by this Agreement were prepared in good faith, disclosed all relevant material assumptions and the most recent versions of all such forecasts provided to the Lender were at the time of delivery based on estimates believed by the Borrower to be reasonable. There is no fact known to the Borrower which has not been disclosed to the Lender which could reasonably be expected to have a Material Adverse Effect;
(l) The Borrower has no subsidiaries and does not have an equity interest in any other entity;
(m) The Disclosure Schedule sets forth the commitments of any lender for all debt for borrowed money to be advanced to the Borrower, and all debt for borrowed money outstanding, of the Borrower;
(n) The Liens granted to Lender under this Agreement and the other Security Agreements constitute valid and perfected first priority liens and security interests in and upon the Collateral subject only to Permitted Encumbrances. Borrower has good and marketable title to all of the properties and assets owned by it subject to no Liens of any kind, except those granted to Lender and Permitted Encumbrances;
(o) There has not occurred or become known to the Borrower any Material Adverse Change in respect of the Borrower since January 4, 2009;
(p) The financing transactions hereunder (i) do not require any material consent or approval of, registration or filing with, or any other action by, any Governmental Entity, except such as have been obtained or made and are in full force and effect, (ii) will not violate in any material respect any Applicable Law and will not violate the charter, by-laws or other organizational or constitutional documents of the Borrower or any order of any Governmental Entity, (iii) will not violate court or result in a default under agency of government or any indenture, agreement or other instrument binding upon the to which Borrower or its assetsis a party, or give rise to a right thereunder to require by which it or any payment to be made by portion of the Borrower in a manner which would reasonably be expected to have a Material Adverse Effect, Mortgaged Property is bound; and (iviii) are not in conflict with, nor will not result in breach of, or constitute (with due notice or lapse of time) a default under any indenture, agreement, or other instrument, or result in the creation or imposition of any Lien on lien, charge or encumbrance of any asset nature whatsoever, upon any of the Borrower (other than the Liens created its property or assets, except as contemplated by the Credit Documents or Permitted Encumbrances);provisions of this Mortgage.
(qd) The Borrower ownsNote, or is licensed to use, all trademarks, tradenames, copyrights, patents and other intellectual property material to its business, and, to the knowledge of the Borrower, the use thereof by the Borrower does not infringe upon the rights of any other person;
(r) The Borrower owns and operates all Blockbuster locations in Canada and does not have any franchisees;
(s) The Borrower maintains direct contractual relationships with all suppliers of its inventory (“Supply Agreements”) independent of any relationships, contractual or otherwise, which BBI may have with any such suppliers or with any of their Affiliates and complete and accurate copies of all such contracts (other than purchase orders) have been provided by Borrower to Lender;
(t) BCI is the sole shareholder of the Borrower and has no assets or liabilities other than the said shares owned by it and other than liabilities pursuant to guarantees issued in respect of the U.S. Credit Agreement and in respect of that certain Indenture dated as of April 20, 2004 (as amended, supplemented or otherwise modified from time to time), by and among BBI, as issuer, BCI this Mortgage and the other subsidiary guarantors party thereto Loan Documents, when executed and The Bank delivered by Borrower will constitute the legal, valid and binding obligations of New York Mellon Trust Company, N.A., as trustee, Borrower in respect of BBI’s 9% Senior Subordinated Notes due 2012. The sole shareholder of BCI is BBI;accordance with their respective terms.
(ue) The Borrower has not guaranteed any All information, reports, papers, balance sheets, statements of the liabilities profit and loss, and data given to Lender or obligations of BBI or of BCI;
(v) Neither BBI nor BCI has guaranteed any of the liabilities or obligations of the Borrower, except that BBI has guaranteed the obligations of the Borrower pursuant to a Moneris VISA National Account Merchant Agreement/Moneris MasterCard National Account Merchant Agreement dated February 11, 2008 between the Borrower its agents and Moneris Solutions Corporation;
(w) The Borrower maintains, with financially sound and reputable insurance companies, insurance in such amounts and against such risks as are customarily maintained by companies engaged in the same or similar businesses operating in the same or similar locations;
(x) As of the date hereof, both before and after giving effect to (a) the financing transactions to be consummated on the date hereof and (b) the payment and accrual of all fees, costs and expenses in connection therewith, the employees regarding Borrower are accurate and will be Solvent;
(y) Borrower has filed, or caused to be filed, in a timely manner all tax returns, reports and declarations which are required to be filed by it (without requests for extension except as previously disclosed in writing to Lender). All information in such tax returns, reports and declarations is complete and accurate correct in all material respects. Borrower has paid or caused , and are complete insofar as completeness may be necessary to be paid all taxes due give Lender a true and payable or claimed due and payable in any assessment received by it, except taxes accurate knowledge of the validity of which are being contested in good faith by appropriate proceedings diligently pursued and available to Borrower and with respect to which adequate reserves have been set aside on its books. Adequate provision has been made for the payment of all accrued and unpaid federal, provincial, municipal, local, foreign and other taxes whether or not yet due and payable and whether or not disputed;subject matter.
(zf) The Borrower There is not aware of any facts now pending against or circumstances which would have an adverse impact on the value of the Collateral taken as a wholeaffecting Borrower nor, other than depreciation or diminution of value of items of Collateral in the ordinary course of business. The provisions of the Credit Documents create legal and valid liens on all the Collateral in favor of the Lender, and such liens constitute perfected and continuing liens on the Collateral and have priority over all other Liens on the Collateral except for Permitted Encumbrances;
(aa) Adequate accruals have been made for the payment of all Priority Claims and potential Priority Claims, whether or not yet due, unless disputed;
(bb) Borrower is not in default in any material respect under, or in violation in any material respect of any of the terms of, any material agreement, contract, instrument, lease or other commitment to which it is a party or by which it or any of its assets are bound and Borrower is in compliance in all material respects with all applicable provisions of Applicable Laws; and
(cc) All information furnished by or on behalf of the Borrower in writing to the Lender in connection with this Agreement or any transaction contemplated herebybest of Borrower's knowledge, is true and correct and does not omit there threatened any fact necessary action, suit or proceeding at law, in order to make such information not misleading. No event equity or circumstance has occurred since January 4before any administrative agency which, 2009 which has had if adversely determined, would materially impair or could reasonably be expected to have a Material Adverse Effect on affect the Borrower, which has not been fully and accurately disclosed to financial condition or operation of Borrower or the Lender in writing. All representations and warranties contained in this Agreement or any of the other Credit Documents or in any certificates or other documents delivered to the Lender shall survive the execution and delivery of this Agreement and shall be deemed to have been made again to Lender on the date of each additional Borrowing hereunder and shall be conclusively presumed to have been relied on by Lender regardless of any investigation made or information possessed by Lender. The representations and warranties set forth herein shall be cumulative and in addition to any other representations or warranties which Borrower shall now or hereafter give, or cause to be given, to LenderMortgaged Property.
Appears in 1 contract
Sources: Mortgage, Security Agreement and Fixture Financing Statement (Alexanders Inc)