Representations and Warranties of Borrower and Guarantor. Borrower and Guarantor hereby represent and warrant to Purchaser and Seller as follows: (a) The liens, pledges and security interests granted in the Assigned Loan Documents are valid and perfected security interests with the priority required by the Loan and Security Agreement-Note C. (b) Borrower and Guarantor have requested that Seller and Purchaser enter into the transactions contemplated by this Agreement, and Borrower and Guarantor anticipate to receive, directly or indirectly, material benefit from the execution of this Agreement and consummation of the transaction contemplated by this Agreement. (c) The Loan and Security Agreement-Note C is valid and enforceable by its terms. Seller has a valid, enforceable, attached and perfected first priority security interest against the Assigned Security Interest under the Loan and Security Agreement-Note C. Borrower and Guarantor are unaware of any liens or security interests filed, threatened, asserted or claimed by any party against the Assigned Security Interest except for the Loan and Security Agreement-Note C. Borrower and Guarantor are unaware of any threatened, asserted, claimed or filed judicial or non-judicial proceeding and in which title to the Assigned Security Interest is affected or in which the validity or enforceability of the Loan and Security Agreement-Note C is disputed. Borrower and Guarantor are unaware of any threatened or claimed lien or security interest against the Assigned Security Interest. Borrower and Guarantor are unaware of any party that has threatened, asserted or claimed ownership of or a writ of possession against the Assigned Security Interest. All personal property taxes with respect to the Assigned Security Interest have been paid and are current and no supplemental assessments have been received or are known to Borrower and Guarantor. (d) Term Note C is valid and enforceable in accordance with its terms. Borrower and Guarantor do not assert and have not asserted and are not aware of any claim of setoff, offset, reduction, or credit against the amount of Term Note C. The outstanding principal balance of Term Note C is $276,696.40 as of May 31, 2003. Interest is paid through May 31, 2003. Term Note C is currently in default and such default has not been cured by Borrower or Guarantor. Borrower and Guarantor are currently unable to cure the defaults under Term Note C and have requested that Seller enter into the transactions set forth in this Agreement in part in order to allow Borrower to continue to operate and pay its creditors in the ordinary course of business. Borrower and Guarantor are not aware of any claim of ownership to or a security interest in Term Note C other than the ownership interest of Seller. Borrower and Guarantor are unaware of any party that has threatened, asserted or claimed ownership of or a writ of possession against Term Note C. (e) Borrower and Guarantor hereby ratify, consent to and approve of all prior transfers, on or prior to the Closing Date, of the Assigned Loan Documents, DACA5's Loan Documents, Term Note C, the Loan and Security Agreement-Note C or any other document evidencing Borrower's or Guarantor's obligations by and among Seller, Purchaser and/or Finova.
Appears in 1 contract
Sources: Note Purchase and Intercreditor Agreement (Black Mountain Holdings, Inc.)
Representations and Warranties of Borrower and Guarantor. Borrower and Guarantor hereby represent and warrant to Purchaser and Seller as follows:
(a) The liens, pledges and security interests granted in the Assigned Loan Documents and Seller's Loan Documents are valid and perfected security interests with the priority required by the Loan and Security Agreement-Note C..
(b) Borrower and Guarantor have requested that Seller and Purchaser enter into the transactions contemplated by this Agreement, and Borrower and Guarantor anticipate to receive, directly or indirectly, material benefit from the execution of this Agreement and consummation of the transaction contemplated by this Agreement.
(c) The Loan Mortgage is valid and enforceable by its terms. Seller has a first and prior lien against the Real Property under the Mortgage. Borrower and Guarantor are unaware of any liens or security interests filed, threatened, asserted or claimed by any party against the Real Property except for the Mortgage. Borrower and Guarantor are unaware of any threatened, asserted, claimed or filed judicial or non-judicial proceeding in which any of them is a party and in which title to the Real Property is affected or in which the validity or enforceability of the Mortgage is disputed. Borrower and Guarantor are unaware of any threatened or claimed lien or security interest against the Real Property other than the Mortgage. Borrower and Guarantor are unaware of any party that has threatened, asserted or claimed a lis pendens against the Real Property. All real property taxes with respect to the Real Property have been paid and are current and no supplemental assessments have been received or are known to Borrower.
(d) The Security Agreement-Note C Notes A and B is valid and enforceable by its terms. Seller has a valid, enforceable, attached and perfected first priority security interest against the Assigned Security Interest Seller's Equipment Collateral under the Loan and Security Agreement-Note C. Notes A and B. Borrower and Guarantor are unaware of any liens or security interests filed, threatened, asserted or claimed by any party against the Assigned Security Interest Seller's Equipment Collateral except for the Loan and Security Agreement-Note C. Notes A and B and except as reflected on Exhibit B. Borrower and Guarantor are unaware of any threatened, asserted, claimed or filed judicial or non-judicial proceeding and in which title to the Assigned Security Interest Seller's Equipment Collateral is affected or in which the validity or enforceability of the Loan and Security Agreement-Note C Notes A and B is disputed. Borrower and Guarantor are unaware of any threatened or claimed lien or security interest against the Assigned Security Interest. Seller's Equipment Collateral except as reflected on Exhibit B. Borrower and Guarantor are unaware of any party that has threatened, asserted or claimed ownership of or a writ of possession against the Assigned Security InterestSeller's Equipment Collateral. All personal property taxes with respect to the Assigned Security Interest Seller's Equipment Collateral have been paid and are current and no supplemental assessments have been received or are known to Borrower and GuarantorBorrower.
(de) The Term Note C is Notes are valid and enforceable in accordance with its their terms. Borrower and Guarantor do not assert and have not asserted and are not aware of any claim of setoff, offset, reduction, or credit against the amount of Term Note C. Notes Outstanding Balance. The outstanding principal balance of Term Note C Notes Outstanding Balance is $276,696.40 1,838,947.61 as of May 31, 2003, consisting of outstanding principal balance of the Term Notes in the amount of $1,704,286.22 and accrued and unpaid interest on the Term Notes in the amount of $134,661.39. Interest is paid through May 31, 200331,2003. The Term Note C is Notes are currently in default and such default has not been cured by Borrower or GuarantorBorrower. Borrower and Guarantor are currently unable to cure the defaults under the Term Note C Notes and have requested that Seller enter into the transactions set forth in this Agreement in part in order to allow Borrower to continue to operate and pay its creditors in the ordinary course of business. Seller has given Borrower reasonably equivalent value for Seller's Consideration. Borrower and Guarantor are not aware of any claim of ownership to or a security interest in the Term Note C Notes other than the ownership interest of Seller. Borrower and Guarantor are unaware of any party that has threatened, asserted or claimed ownership of or a writ of possession against the Term Note C.Notes.
(ef) Borrower and Guarantor hereby ratify, consent to and approve of all prior transfers, on or prior to the Closing Date, of the Assigned Loan Documents, DACA5Seller's Loan Documents, the Term Note CNotes, the Loan and Security Agreement-Note C Agreement or any other document evidencing Borrower's or and Guarantor's obligations by and among Seller, Purchaser and/or Finova.
Appears in 1 contract
Sources: Note Purchase Agreement (Black Mountain Holdings, Inc.)