BUSINESS LOAN AND SECURITY AGREEMENT
1. INTRODUCTION. This Business Loan and Security Agreement (“Agreement”) governs your business loan (“Loan”) from Chef Choice Equipment Rentals Inc. (“Chef Choice”). The accompanying Business Loan and Security Agreement Supplement (the “Supplement”), and the Pre-Authorized Debit and Credit Agreement (“PAD Agreement”) are incorporated by reference and are deemed to be a part of this Agreement. Please read it and keep it for your reference. In this Agreement, the words “you”, “your” and “Borrower” means each individual or entity that signs this Agreement or on whose behalf this Agreement is signed. The words, “Lender”, “we”, “us”, and “our” mean Chef Choice Equipment Rentals Inc. or its successor(s) and assign(s).
2. EFFECTIVE DATE. This Agreement begins on the date we accept this Agreement. Borrower understands and agrees that Lender may postpone, without penalty, the disbursement of amounts to Borrower until all required security interests have been perfected and Lender has received all required personal guarantees or other documentation.
3. AUTHORIZATION. Borrower agrees that the Loan made by Lender to Borrower shall be conclusively deemed to have been authorized by Borrower and to have been made pursuant to a duly authorized request on its behalf.
4. LOAN FOR SPECIFIC PURPOSES ONLY. The proceeds of the requested Loan shall be used exclusively for the specific purposes set forth in the Use of Proceeds Certification contained in Section 51 of this Agreement. The Loan shall not be used for personal, family or household purposes. Borrower understands and specifically acknowledges that Borrower’s agreement not to use the Loan proceeds for personal, family, or household purposes means that certain important duties imposed upon entities making loans for consumer/personal purposes and certain important rights conferred upon consumers, pursuant to Federal or Provincial law shall not apply to the Loan or this Agreement. Borrower also understands that Lender will be unable to confirm whether the use of the Loan conforms to this section. Borrower agrees that a breach by Borrower of the provisions of this section shall not affect Lender’s right to: (i) enforce Borrower’s promise to pay for all amounts owed under this Agreement, regardless of the purpose for which the Loan is in fact obtained; or (ii) use any remedy legally available to Lender, even if that remedy would not have been available had the Loan been made for consumer/personal purposes.
5. DISBURSEMENT OF LOAN PROCEEDS AND MAINTENANCE OF BORROWER’S BANK ACCOUNT. If Borrower applied and was approved for a Loan, the Loan shall be disbursed to Borrower upon approval as provided in the PAD Agreement. Borrower agrees to maintain Direct Payments (EFT Debits) in its operating account, which is the account that was identified by Borrower to be reviewed by Lender in conjunction with the underwriting and approval of this Loan. Borrower further agrees to keep such account open until the Total Repayment Amount had been completely repaid.
6. PROMISE TO PAY. Borrower agrees to pay Lender the Total Repayment Amount in accordance with the Payment Schedule shown in the Supplement. Borrower agrees to enroll in Lender’s Pre-Authorized Debit Plan and authorizes Lender to collect required payments as provided in the PAD Agreement. If required by Lender, Borrower further agrees and authorizes Lender or its servicer to collect required payments from a transfer account established pursuant to certain transfer account loan documentation that shall be provided by Lender in connection with this Agreement if applicable.
7. ALTERNATIVE PAYMENT METHODS. If Borrower knows, or ought to know, that for any reason Lender will be unable to process a payment under Lender’s Automatic Payment Plan, then Borrower must either: (i) restore sufficient funds such that the missed payment can be collected as provided in the accompanying PAD Agreement; (ii) promptly mail or deliver a cheque to Lender in the amount of the missed payment; or (iii) if offered, make the missed payment by any on- line service that Lender may make available from time to time. If Borrower elects
to send payments by postal mail, then Borrower agrees to send such payments to Chef Choice Equipment Rentals Inc. at 90C Centurian Drive, Suite 213, Markham, Ontario, L3R 8C5 or to such other address as Lender may specify from time to time in accordance with Section 38 of this Agreement. All alternative payments must be made by cheque, money order, wire transfer, automatic transfer from an account at an institution offering such service, or other instrument in immediately available and good funds, in Canadian Dollars. Borrower understands and agrees that payments made at any address other than as specified by Lender may result in a delay in processing and/or crediting. If Borrower makes an alternative payment by mail or by any on-line service that Lender may make available from time to time while Borrower is enrolled in Lender’s Automatic Payment Plan, Lender may treat such payment as an additional payment and continue to process Borrower’s scheduled Automatic Payment Plan payments, or may reduce any scheduled Automatic Payment Plan payment by the amount of any such additional payment received, in Lender’s sole and absolute discretion.
8. APPLICATION OF PAYMENTS. Lender reserves the right to apply payments, including partial payments, to the Loan in any manner Lender chooses, in Lender’s sole and absolute discretion.
9. POSTDATED CHEQUES, RESTRICTED ENDORSEMENT CHEQUES AND OTHER DISPUTED OR QUALIFIED PAYMENTS. Lender shall be permitted to accept late, postdated or partial payments, and such acceptance shall not constitute a waiver of any of Lender’s rights under this Agreement (a postdated cheque is a cheque dated later than the date on which it was actually presented for payment). Lender is under no obligation to hold a postdated cheque, and Lender reserves the right to process every item presented to Lender, if dated the same date received by Lender or Lender’s cheque processor, unless Borrower gives Lender adequate notice (being not less than 10 days) and a reasonable opportunity to act on such notice. Except where such notice and opportunity is given, Borrower may not hold Lender liable for depositing any postdated cheque. Borrower agrees not to send Lender partial payments marked “paid in full”, “without recourse,” or containing any other similar language. If Borrower sends such a payment, Lender may accept it without such acceptance constituting a waiver of any of Lender’s rights under this Agreement. All notices and written communications concerning postdated cheques, restricted endorsement cheques (including any cheque or other payment instrument that indicates that the payment constitutes “payment in full,” or any other similar language, of the amount owed or that is tendered with other conditions or limitations or as full satisfaction of a disputed amount) or any other disputed, nonconforming or qualified payments, must be mailed or
delivered to Chef Choice Equipment Rentals Inc. at 90 C Centurian Drive, Suite 213, Markham, Ontario L3R 8C5 or to such other address as Lender may specify from time to time in accordance with Section 38 of this Agreement.
10. PREPAYMENT. Upon 10 days’ notice to Lender, Borrower may prepay Borrower’s loan: (i) in whole by paying Lender the outstanding principal balance of the Loan, inclusive of all interest, fees and principal, including the Prepayment Fee as shown in the Supplement, up to the date of prepayment; or (ii) in part, by making a payment as contemplated by this Agreement, which payment shall include the Prepayment Fee as shown in the Supplement, and which payment shall be applied in accordance with Section 8 of this Agreement.
11. SECURITY INTEREST. For value received, Borrower hereby grants to Lender a security interest (the “Security Interest”) in all of the present and future undertaking, assets and personal property of Borrower including, without limitation, in all Goods (including all parts, accessories, attachments, special tools, additions and accessions thereto), Chattel Paper, Documents of Title (whether negotiable or not), Instruments, Intangibles, Money, and Investment Property now owned or hereafter owned or acquired by or on behalf of Borrower (including such as may be returned to or repossessed by Borrower) and in all proceeds and renewals thereof, accretions thereto and substitutions therefor (hereinafter collectively called “Collateral”), and including, without limitation, all
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of the following now owned or hereafter owned or acquired by or on behalf of Borrower: (i) all inventory of whatever kind and wherever situate; (ii) all equipment (other than inventory) of whatever kind and wherever situate, including, without limitation, all machinery, tools, apparatus, plant, furniture, fixtures and vehicles of whatsoever nature or kind; (iii) all Accounts and book debts and generally all debts, dues, claims, choses in action and demands of every nature and kind howsoever arising or secured including letters of credit and advices of credit, which are now due, owing or accruing or growing due to or owned by or which may hereafter become due, owing or accruing or growing due to or owned by Borrower (“Debts”); (iv) all lists, records and files relating to Borrower’s customers, clients and patients; (v) all deeds, documents, writings, papers, books of account and other books relating to or being records of Debts, Chattel Paper or Documents of Title or by which such are or may hereafter be secured, evidenced, acknowledged or made payable; (vi) all contractual rights and insurance claims; and (vii) all patents, industrial designs, trade-marks, trade secrets and know-how including without limitation environmental technology and biotechnology, confidential information, trade-names, goodwill, copyrights, personalty rights, plant breeders’ rights, integrated circuit topographies, software and all other forms of intellectual and industrial property, and any registrations and applications for registration of any of the foregoing (collectively “Intellectual Property”).
The Security Interest granted hereby shall not extend or apply to, and Collateral shall not include, the last day of the term of any lease or agreement therefor but upon the enforcement of the Security Interest, Borrower shall stand possessed of such last day in trust to assign the same to any person acquiring such term.
The terms “Goods”, “Chattel Paper”, “Document of Title”, “Instrument”, “Intangible”, “Investment Property”, “proceed”, “Inventory”, “accession”, “Money”, “Account”, “financing statement” and “financing change statement” whenever used herein shall be interpreted pursuant to their respective meanings when used in The Personal Property Security Act of the Province, as amended from time to time, which Act, including amendments thereto and any Act substituted therefor and amendments thereto is herein referred to as the “P.P.S.A.”. Provided always that the term “Goods” when used herein shall not include “consumer goods” of Borrower as that term is defined in the P.P.S.A., and the term “Inventory” when used herein shall include livestock and the young thereof after conception and crops that become such within one year of execution of this Agreement. Any reference herein to “Collateral” shall, unless the context otherwise requires, be deemed a reference to “Collateral or any part thereof”.
For all purposes of the laws of the Province of Quebec, for value received, Borrower hereby hypothecates to and in favour of the Lender, the universality of its movable property, tangible and intangible, present and future, wherever situated (collectively, the “Hypothecated Property”) in an amount equal to the Loan Amount plus an additional twenty per cent (20%) of such amount (the “Hypothec”). The provisions of this Agreement dealing with the “Security Interest” and “Collateral”, including without limitation Section 12 to Section 20, inclusively, shall apply respectively to the “Hypothec: and the “Hypothecated Property” mutatis mutandis.
12. OBLIGATIONS SECURED. The Security Interest granted hereby secures payment and performance of any and all obligations, indebtedness and liability of Borrower to Lender, present or future, direct or indirect, absolute or contingent, matured or not, extended or renewed, wheresoever and howsoever incurred and any ultimate unpaid balance thereof and whether the same is from time to time reduced and thereafter increased or entirely extinguished and thereafter incurred again and whether Borrower be bound alone or with another or others and whether as principal or surety (hereinafter collectively called the “Obligations”). If the Security Interest in the Collateral is not sufficient, in the event of default, to satisfy all Obligations of Borrower, Borrower acknowledges and agrees that Borrower shall continue to be liable for any Obligations remaining outstanding and Lender shall be entitled to pursue full payment thereof.
13. PROTECTING THE SECURITY INTEREST. Borrower agrees that Lender and/or any representative of Lender, including but not limited to Lender’s legal counsel (“Lender’s Representative”), may file any financing statement, lien entry form or other document Lender and/or Lender’s Representative requires in order to perfect, amend or continue Lender’s Security Interest in the Collateral, and Borrower agrees to cooperate with Lender and Lender’s Representative as may be necessary to accomplish said filing and to do such things as Lender and Lender’s Representative deem necessary to protect Lender’s security interest in the Collateral.
14. LOCATION OF COLLATERAL; TRANSACTIONS INVOLVING COLLATERAL. Unless Lender has agreed otherwise in writing, Borrower agrees and warrants that: (i) all Collateral (or records of the Collateral in the case of accounts, chattel paper and general intangibles) shall be located at Borrower’s address as shown in the application; (ii) except for inventory sold or accounts collected in the ordinary course of Borrower’s business, Borrower shall not sell, offer to sell, or otherwise transfer or dispose of the Collateral; (iii) no other party has any interest in or claim against the Collateral, other than interests which have been registered pursuant to the P.P.S.A. or such interests as have been previously disclosed to Lender and to which Lender has consented in writing, which consent may be withheld in the sole and absolute discretion of Lender; (iv) Borrower shall not pledge, mortgage, encumber or otherwise permit the Collateral to be the subject of any lien, security interest, encumbrance or charge, other than the security interest provided for in this Agreement; (v) Borrower shall not sell, offer to sell, or otherwise transferor dispose of the Collateral for less than the fair market value thereof; (vi) Borrower shall defend Lender’s rights in and to the Collateral against the claims and demands of all other persons; and (vii) all proceeds from any unauthorized disposition of the Collateral shall be held in trust for Lender, shall not be co- mingled with any other funds and shall immediately be delivered to Lender; this requirement, however, does not constitute consent by Lender to any such disposition.
15. TAXES, ASSESSMENTS AND LIENS. Borrower shall complete and file all necessary federal, provincial and municipal tax returns and shall pay, when due, all taxes, assessments, levies, assessments, liens and other charges upon the Collateral and provide evidence of such payments to Lender upon request.
16. INSURANCE. Borrower shall procure and maintain such insurance as Lender may require with respect to the Collateral, in form, amounts and coverage acceptable to Lender and issued by a company acceptable to Lender naming Lender as loss payee. If Borrower at any time fails to obtain or maintain any insurance as required under this Agreement, Lender may obtain such insurance as Lender deems appropriate. To the extent permitted by applicable law, all such expenses will become a part of the Obligations and, at Lender’s option will: (i) be payable on demand; (ii) be added to the balance of the Loan and be apportioned to and be payable with any installment payments to become due during the remaining term of the Loan; or (iii) be treated as a balloon payment that will be due and payable at the Loan’s maturity. Such right shall be in addition to all other rights and remedies to which Lender may be entitled upon an Event of Default. Borrower shall promptly notify Lender of any loss of or damage to the Collateral.
17. REPAIRS AND MAINTENANCE. Borrower agrees: (i) to keep and maintain, and to cause others to keep and maintain, the Collateral in good order, repair, and condition at all times while this Agreement remains in effect. Borrower further agrees to pay, when due, all claims for work done on, or services rendered or material furnished in connection with the Collateral so that no lien or encumbrance, including but not limited to liens or encumbrances of any craftsman, workman, builder, contractor, supplier of materials, architect, engineer, subcontractor or any other similar lien related to construction, improvement or maintenance, may be attested to, registered, or filed against the Collateral; (ii) not to use Collateral in violation of the provisions of this Agreement or any other agreement relating to Collateral or any policy insuring Collateral or any applicable statute, law, by-law, rule, regulation or ordinance; and (iii) to keep all agreements, registrations and applications relating to Intellectual Property and intellectual property used by Borrower in its business in good standing and to renew all agreements and registrations as may be necessary or desirable to
protect Intellectual Property, unless otherwise agreed in writing by Lender, and to apply to register all existing and future copyrights, trade-marks, patents, integrated circuit topographies and industrial designs whenever it is commercially reasonable to do so.
18. INSPECTION OF COLLATERAL AND PLACE OF BUSINESS; USE OF PHOTOGRAPHS AND TESTIMONIALS. Lender and Lender’s Representatives and agents shall have the right, during Borrower’s normal business hours and at any other reasonable time, to examine the Collateral wherever it is determined to be, as well as the interior and exterior of Borrower’s place of business. During an examination of Borrower’s place of business, Lender may examine, among other things, whether Borrower: (i) has a place of business that is separate from any personal residence; (ii) is open for business; (iii) has sufficient inventory to conduct Borrower’s business; and (iv) has one or more credit card terminals if Borrower processes credit card transactions. When performing an examination, Lender and Lender’s Representatives and agents may photograph the interior and exterior of Borrower’s place of business, including any signage, and may photograph any individual who has signed this Agreement (“Signatory”) unless the Signatory previously has notified Lender that he or she does not authorize Lender to photograph such Signatory. Lender may obtain testimonials from any Signatory, including testimonials related to the reason(s) Borrower needed the Loan and how the Loan has helped Borrower. Any photograph and/or testimonial will become and remain the sole property of Lender. Borrower and each Signatory grant Lender the irrevocable and permanent right to display and share any photograph and testimonial in all forms and media. including composite and modified representations, for all purposes, including but not limited to any trade or commercial purpose, with any Lender employees and agents and with the general public. Lender may, but is not required to, use the name of any Borrower and/or Signatory as a credit in connection with any photograph and/or testimonial. Borrower and each Signatory waive the right to inspect or approve versions of any photograph and/or testimonial or the written copy or other media that may be used in connection with same. Borrower and each Signatory release Lender from any claims that may arise regarding the use of any photograph and/or testimonial, including any claims of defamation, invasion of privacy or infringement of moral rights, rights of publicity or copyright.
19. LENDER’S EXPENDITURES. If any action or proceeding is commenced that would materially affect Lender’s interest in the Collateral, or if Borrower fails to comply with any provision of this Agreement or any other documentation evidencing the Obligations, including but not limited to Borrower’s failure to discharge or pay when due any amounts Borrower is required to discharge or pay under this Agreement or any other documentation evidencing the Obligations. Lender, on Borrower’s behalf, may (but shall not be obligated to) take any action that Lender deems appropriate, including but not limited to discharging or paying all taxes, liens, security interests, encumbrances and other claims at any time levied or placed on the Collateral, and paying all costs for insuring, maintaining and preserving the Collateral. To the extent permitted by applicable law, all such expenses will become a part of the Obligations and, at Lender’s option will: (i) be payable on demand; (ii) be added to the balance of the Loan and be apportioned to and be payable with any installment payments to become due during the remaining term of the Loan; or (iii) be treated as a balloon payment that will be due and payable at the Loan’s maturity. Such right shall be in addition to all other rights and remedies to which Lender may be entitled upon an Event of Default.
20. BORROWER’S REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants that: (i) Borrower is duly incorporated or established under the laws of its jurisdiction of incorporation or establishment and is validly subsisting under such laws, and has all the necessary power and authority to carry on its business as presently owned and carried on, and will continue to have such power and authority; (ii) Borrower has the personal or corporate power and authority, as applicable, to enter into and perform its obligations under this Agreement or any other agreements, documents and instruments in any way relating thereto; (iii) Borrower has duly authorized, executed and delivered this Agreement or any other documentation evidencing the Obligations, each of which constitutes a valid and binding obligation enforceable in accordance with its terms and priority of rank; (iv) the exact legal name of Borrower is as set forth in the application; (v) Borrower’s principal executive office and the office where
Borrower keeps its records is as set forth in the application; (vi) Borrower is in compliance with its organizational documents and by-laws, all contractual requirements by which it may be bound and all applicable laws, rules and regulations other than laws, rules or regulations the validity or applicability of which it is contesting in good faith, or provisions of any of the foregoing, the failure to comply with which cannot reasonably be expected to materially adversely affect its financial condition, business or prospects or the value of the Collateral; (vii) Borrower has obtained all licences, permits, and approvals from any and all governments, governmental commissions, boards or other agencies required or reasonably advisable in respect of its properties, business and operations as presently owned and carried on; (viii) No consent, approval or authorization or declaration, registration, filing or qualification with, or giving of notice to, or taking of any other action in respect of, any governmental authority or agency on its part or person is required in connection with the execution and delivery of this Agreement or any other documentation evidencing the Obligations, to which Borrower is a party, other than such consents, approvals or authorizations as have been obtained, such declarations, registrations, filings or qualifications as have been made, such notices as have been given and such actions as have been taken; (ix) there is no action, suit, proceeding or investigation pending or, to Borrower’s knowledge, threatened against or affecting it or any of its affiliates before or by any court or other governmental authority which, if determined adversely to it, could have a material adverse effect on its financial condition, business or the value of the Collateral; (x) Borrower will comply with all laws, statutes, regulations and ordinances pertaining to the conduct of Borrower’s business and promises to hold Lender harmless from any damages, liabilities, costs, expenses (including legal fees) or other harm arising out of any violation thereof; (xi) Borrower is not insolvent or unable to pay its debts as they become due, nor will it be insolvent or unable to pay its debts as they become due immediately following the completion of the transactions contemplated by this Agreement; (xii) all shares of Borrower, as applicable, are issued and outstanding as fully paid and non-assessable and all books and records of Borrower are accurate and up to date and will be so maintained; (xiii) Borrower is not a party to any agreement or instrument, or subject to any restriction or any judgment, order, writ, injunction, decree, award, rule or regulation, which materially adversely affects, or in the future may have a material adverse effect on, Borrower or its financial condition, business or prospects; (xiv) no event has occurred which constitutes an Event of Default (as hereinafter defined) nor will any Event of Default occur by reason of Borrower entering into this Agreement or any other documentation evidencing the Obligations, or performing its obligations thereunder or entitling itself to any benefits available to it thereunder;
(xv) Borrower is not a non-resident of Canada, within the meaning of the Income Tax Act (Canada) or the Taxation Act (Quebec);
21. INTEREST AND FEES. Borrower agrees to pay the Interest Charge in full as shown in the Supplement, in addition to the following fees, in full, as shown in the Supplement: (i) Origination Fee; (ii) Loan Servicing Fee; (iii) Chef Choice Platform Fee; (iv) Returned Payment Fee; and (v) Wire Fee.
22. ONLINE CUSTOMER PORTAL. When Borrower signs in with Borrower’s valid username and password at https://bl.Chef Choice.ca, Borrower may obtain information about the Loan, such as the outstanding balance, daily transactions and fees. No paper statement will be mailed to Borrower, and Borrower acknowledges that Borrower can obtain all information which would customarily appear on a paper statement at https://bl.Chef Choice.ca. Borrower agrees not to share Borrower’s user name and password with any third party.
23. FINANCIAL INFORMATION AND REEVALUATION OF CREDIT. Borrower hereby consents and authorizes Lender and its affiliates, agents, contractors, and representatives, at any time: (i) to collect, verify, use, communicate with and disclose to third parties (including credit reporting agencies, financial institutions, creditors, vendors and other persons) any credit, financial and other information, including personal information (as applicable) and information related to the credit rating, financial capacity and payment history, with respect to Borrower (“Information”), as Lender deems necessary to process, complete, service and enforce the transactions hereby contemplated and any other existing or potential transactions, or as required or otherwise permitted by law; (ii) to respond to inquiries from, and exchange any Information with, third parties
concerning Borrower’s credit rating, financial capacity and payment history; (iii) to provide Information to persons to whom Lender is considering assigning, granting a participation or otherwise disposing of rights or obligations under the transactions hereby contemplated; and (iv) to provide to any person copies of this Agreement. This consent is in addition to and does not replace any consent previously given by Borrower.
24. LEGAL FEES AND COLLECTION COSTS. To the extent not prohibited by applicable law, Borrower shall pay to Lender on demand any and all expenses, including, but not limited to, collection costs, all fees and expenses of legal counsel, and all other expenses of like or unlike nature which may be expended by Lender to obtain or enforce payment of Obligations either as against Borrower or in the prosecution or defense of any action or concerning any matter growing out of or connected with the subject matter of this Agreement, the Obligations or the Collateral or any of Lender’s rights or interests therein or thereto, including, without limiting the generality of the foregoing, any legal counsel fees or expenses incurred in any bankruptcy or insolvency proceedings and all costs and expenses (including search fees) incurred or paid by Lender in connection with the administration, supervision, protection or realization on any security held by Lender for the debt secured hereby, whether such security was granted by Borrower or by any other person primarily or secondarily liable (with or without recourse) with respect to such debt, and all costs and expenses incurred by Lender in connection with the defense, settlement or satisfaction of any action, claim or demand asserted against Lender in connection therewith. To the extent permitted by applicable law, all such expenses will become a part of the Obligations and, at Lender’s option will: (i) be payable on demand; (ii) be added to the balance of the Loan and be apportioned to and be payable with any installment payments to become due during the remaining term of the Loan; or (iii) be treated as a balloon payment that will be due and payable at the Loan’s maturity. Such right shall be in addition to all other rights and remedies to which Lender may be entitled upon an Event of Default.
25. BORROWER’S REPORTS. Promptly upon Lender’s written request, Borrower agrees to provide Lender with such information about the financial condition and operations of Borrower as Lender may, from time to time, request. Borrower also agrees promptly upon becoming aware of any Event of Default, or the occurrence or existence of an event which, with the passage of time or the giving of notice or both, would constitute an Event of Default hereunder, to provide notice thereof to Lender in writing
26. INDEMNIFICATION. Borrower will indemnify and save Lender harmless from and will reimburse Lender for all legal fees and for all costs, fees, expenses and liabilities incurred by Lender or for which Lender becomes obligated, without limit and without regard to the cause or causes thereof (including pre-existing conditions) or the negligence of any party or parties, including but not limited to, any negligent act or omission of Lender, but expressly excluding Lender’s gross negligence or willful misconduct, in connection with or arising out of: (i) the negotiation, preparation, closing, registration and enforcement of this Agreement, any amendment thereto, any other documentation evidencing the Obligations; (ii) the exercise by Lender of any of its rights under this Agreement or any other documentation evidencing the Obligations, including, without limitation, protecting its interests in any bankruptcy proceeding involving Borrower; (iii) the breach by Borrower of any of its representations, warranties and covenants under this Agreement or any other documentation evidencing the Obligations; (iv) any transaction contemplated by this Agreement; and (v) any inspection and/or verification of Borrower or any of its assets and undertakings after an Event of Default or a default has occurred; all of the foregoing to include, without limitation, all fees for the employment of professionals (including legal counsel), all lien and privilege search and title search fees, all title insurance premiums, all filing and recording fees and all reasonable travel expenses. Furthermore, Borrower shall pay to Lender all costs and expenses incurred in connection with any audit of Borrower by Lender’s auditor at any time during the continuance of an Event of Default, including, without limitation, Lender’s then customary per diem charges for such auditor. All of the foregoing shall be part of the Obligations of Borrower hereunder, payable upon demand, and secured by the Security Interest. The foregoing indemnity shall remain operative and in full force and effect regardless of the expiration of the term of this Agreement,
consummation of the transactions contemplated this Agreement or any other documentation evidencing the Obligations, the repayment of the Obligations of Borrower hereunder, invalidity or unenforceability of any term or provision of this Agreement or any other documentation evidencing the Obligations, any investigation made by or on behalf of Lender, or Borrower, and the content or accuracy of any representation or warranty made under this Agreement or any other documentation evidencing the Obligations.
27. NO REORGANIZATION OR SALE. Borrower represents and agrees that Borrower will not: (i) amalgamate, merge, consolidate, or arrange into or with any other entity; (ii) reorganize or voluntarily enter into receivership or make a proposal pursuant to the Bankruptcy and Insolvency Act (Canada) or any other legislation which relates to arrangements between debtors and creditors, or is the subject of any receivership, liquidation or wind-up order or any order or procedure of a similar nature; or (iii) enter into any joint venture or partnership with any other entity that would result in a change in control of Borrower.
28. CHANGE IN LEGAL STATUS. Without Lender’s consent, Borrower represents and agrees that Borrower will not: (i) change its name, its place of business or, if more than one, its head office; (ii) change its mailing address; or (iii) change its jurisdiction of organization or other legal structure.
29. DEFAULT. Without limiting the rights of Lender under Section 30 of this Agreement, the occurrence of any one or more of the following events (each an “Event of Default”) shall constitute, without notice or demand, a default under this Agreement and all other agreements between Lender and Borrower, whether such agreements, instruments, or papers now exist or hereafter arise. (a) Lender is unable to collect any payment on three consecutive dates due and/or, Borrower fails to pay any Obligations on three consecutive dates due. (b) Borrower fails to make any payment of principal, interest or any other amount required to be made by Borrower hereunder. (c) Borrower fails to comply with, promptly, punctually, and faithfully perform or observe any term, condition or promise within this Agreement or any other documentation evidencing the Obligations. (d) Any representation, warranty or statement which is made by Borrower in this Agreement or any other documentation evidencing the Obligations is untrue, false, incorrect or misleading in any material respect when made. (e) The determination is made by Lender that any representation or warranty heretofore, now or hereafter made by Borrower to Lender, in any documents, instrument, agreement, or paper was not true or accurate when given. (f) Borrower fails to comply with all applicable laws required for it to carry on its business. (g) There is a change in control of Borrower, whether directly or indirectly, without Lender’s prior written consent, which consent may be withheld in the sole and absolute discretion of Lender. (h) The occurrence of any event such that any indebtedness of Borrower from any lender other than Lender could be accelerated, notwithstanding that such acceleration has not taken place. (i) A seizure or execution or any similar process is levied or enforced against Borrower, or any or part of Borrower’s property or assets, which is not discharged within five days (except if such process is contested in good faith by appropriate proceedings and for which a reserve satisfactory to Lender is provided and such process does not materially adversely affect its business, operations, prospects, properties or assets or condition, financial or otherwise or its ability to perform its obligations under to this Agreement and all other documentation evidencing the Obligations. (j) Borrower fails to pay any taxes or insurance premiums when due.
(k) The occurrence of any event that would cause any person to take priority over the Security Interest by Lender. (l) A filing against or relating to Borrower of a federal tax lien in favor of the Canada Revenue Agency or a provincial tax lien in favor of any province or any municipality of any province. (m) An action, suit, proceeding or investigation is brought before any court or other governmental authority which, if determined adversely to Borrower, could have a material adverse effect on Borrower’s financial condition, business or the value of the Collateral. (n) Borrower ceases or threatens to cease to carry on business or makes or proposes to make any sale of the whole or any substantial portion of its assets in bulk, or otherwise, out of the normal course of its business. (o) Borrower becomes insolvent or bankrupt, makes an assignment of property to its creditors, avails itself or attempts to avail itself of the Bankruptcy and Insolvency Act (Canada) or any other legislation which relates to arrangements between debtors and creditors, or is the subject
of any receivership, liquidation or wind-up order or any order or procedure of a similar nature. (p) Any application is made with respect to Borrower under the Bankruptcy and Insolvency Act (Canada) or similar legislation seeking reorganization, readjustment, arrangement, composition or similar relief for Borrower under any Canadian or other applicable law, or if a proceeding is instituted for the winding up, liquidation or dissolution of Borrower or seeking an order adjudging Borrower insolvent or the appointment of any receiver, liquidator, trustee or similar officer of Borrower or over all or any part of its property or a petition in bankruptcy is presented against Borrower under a bankruptcy or similar statute (except if: (i) such application, petition or process is contested in good faith by appropriate proceedings by Borrower; (ii) such application, petition or process does not materially adversely affect Lender’s Security Interest; and (iii) such application, petition or process is withdrawn or successfully dismissed by Borrower within thirty days after its filing, deposit or issuance). (q) The meeting by Borrower with a formal or informal creditors’ committee. (r) The offering by or entering into by Borrower of any composition, extension or any other arrangement seeking relief or extension for the debts of Borrower, or the initiation of any other judicial or non-judicial proceeding or agreement by, against or including Borrower that seeks or intends to accomplish a reorganization or arrangement with creditors. (s) Borrower defaults on any obligation under any agreement with Lender, whether such agreement now exists or hereafter arises. (t) Borrower fails to meet its obligations as they generally become due. (u) At any time, there occurs an event or circumstance which, in the view of Lender, has a material adverse effect on Borrower. (v) The occurrence of any event or circumstance with respect to Borrower such that Lender shall believe in good faith that the prospect of payment of all or any part of the Obligations or the performance by Borrower under this Agreement or any other agreement between Lender and Borrower is impaired or there shall occur any material adverse change in the business or financial condition of Borrower (such event specifically includes, but is not limited to, taking additional financing from a credit card advance, cash advance company or an additional working capital loan). (w) The occurrence of any uninsured loss, theft, damage or destruction to any material asset(s) of Borrower. (x) This Agreement and any other documentation evidencing the Obligations shall at any time after execution and delivery and for any reason (other than in accordance with its terms or attributable to Lender) cease to be in full force and effect or shall be declared to be null and void, or the legality, validity, binding nature or enforceability of this Agreement and any other documentation evidencing the Obligations or any term or provision thereof shall be contested by Borrower or any other party thereto. (y) Any event or circumstance described in this Section 29 occurs with respect to any Signatory and any person who controls Borrower or any affiliate of Borrower. (z) Any Signatory shall repudiate, purport to revoke or fail to perform his or her obligations under his or her guaranty or support agreement in favor of Lender, or any corporate Signatory shall cease to exist.
30. RIGHTS AND REMEDIES UPON DEFAULT. Subject to applicable law, if an Event of Default occurs under this Agreement, at any time thereafter, Lender may exercise any one or more of the following rights and remedies: (a) Lender may refrain from disbursing Borrower’s Loan proceeds to Borrower’s Designated Chequing Account. (b) Lender may debit from Borrower’s Designated Chequing Account all Automatic Payment Plan payments that Lender was unable to collect and/or the amount of any other Obligations that Borrower failed to pay. (c) Lender may declare the entire Obligations immediately due and payable, without notice of any kind to Borrower. If Lender elects to so declare, Borrower shall be required to pay the Prepayment Fee for the entire loan amount. Borrower acknowledges that the Prepayment Fee represents a fair and reasonable compensation for the loss that Lender may sustain from any prepayment or acceleration of the Loan. (d) Lender may require Borrower to deliver to Lender all or any portion of the Collateral and any and all certificates of title and other documents relating to the Collateral. Lender may require Borrower to assemble the Collateral and make it available to Lender at a place to be designated by Lender. Lender shall have full power to enter, provided Lender does so without a breach of the peace, upon the property of Borrower to take possession of and remove the Collateral. If the Collateral contains other goods not covered by this Agreement at the time of repossession, Borrower agrees that Lender may take such other goods provided that Lender makes reasonable efforts to return them to Borrower after repossession. (e) Lender shall have full power to sell, lease,
transfer, or otherwise deal with the Collateral or proceeds thereof in Lender’s own name or that of Borrower. Lender may sell the Collateral at public auction or private sale. Unless the Collateral threatens to decline speedily in value or is of a type customarily sold on a recognized market, Lender will give Borrower, and other persons as required by law, reasonable notice of the time and place of any public sale, or the time after which any private sale or any other disposition of the Collateral is to be made. No notice need be provided to any person who, after an Event of Default occurs, enters into and authenticates an agreement waiving that person’s right to notification of sale. The requirements of reasonable notice shall be met if such notice is given at least seven days before the time of the sale or disposition. All expenses relating to the disposition of the Collateral, including without limitation the expenses of retaking, holding, insuring, preparing for sale and selling the Collateral, shall become a part of the Obligations secured by this Agreement. To the extent permitted by applicable law, all such expenses will become a part of the Obligations and, at Lender’s option will: (i) be payable on demand; (ii) be added to the balance of the Loan and be apportioned to and be payable with any installment payments to become due during the remaining term of the Loan; or (iii) be treated as a balloon payment that will be due and payable at the Loan’s maturity. (f) Lender shall have the right to have a receiver appointed to take possession of all or any part of the Collateral, with the power to protect and preserve the Collateral, to operate the Collateral preceding foreclosure or sale, and to collect the rents from the Collateral and apply the proceeds, over and above the cost of the receivership, as applicable, against the Obligations. The receiver may serve without bond if permitted by law. Lender’s right to the appointment of a receiver shall exist whether or not the apparent value of the Collateral exceeds the Obligations. Employment by Lender shall not disqualify a person from serving as a receiver. (g) Lender, either itself or through a receiver, may collect the payments, rents, income, and revenues from the Collateral. Lender may at any time in Lender’s discretion transfer any Collateral into Lender’s own name or that of Lender’s nominee and receive the payments, rents, income and revenues therefrom and hold the same as security for the Obligations or apply it to payment of the Obligations in such order of preference as Lender may determine. Insofar as the Collateral consists of accounts, general intangibles, insurance policies, instruments, chattel paper, choses in action, or similar property, Lender may demand, collect, receipt for, settle, compromise, adjust, sue for, foreclose or realize on the Collateral as Lender may determine, whether or not any amount included within the Obligations is then due. For these purposes, Lender may, on behalf of and in the name of Borrower, receive, open and dispose of mail addressed to Borrower; change any address to which mail and payments are to be sent; and endorse notes, cheques, drafts, money orders, documents of title, instruments and items pertaining to payment, shipment or storage of any Collateral. To facilitate collections, Lender may notify account debtors and obligors on any Collateral to make payments directly to Lender. (h) If Lender chooses to sell any or all of the Collateral, Lender may obtain a judgment against Borrower for any deficiency remaining on the Obligations due to Lender after application of all amounts received from the exercise of the rights provided in this Agreement. Borrower shall be liable for a deficiency even if the transaction described in this subsection is a sale of accounts or chattel paper. (i) Lender shall have all the rights and remedies of a secured creditor under the provisions of the P.P.S.A., as may be amended from time to time. In addition, Lender shall have and may exercise any or all other rights and remedies it may have available at law, in equity or otherwise. (j) Nothing contained in this Agreement or any other documentation evidencing the Obligations, or any other security hereafter acquired by Lender with respect to the indebtedness of Borrower to Lender or any part thereof, nor any act or omission shall in any way prejudice or affect the rights, remedies and powers of the Lender with respect to any other such security at the time held by the Lender. (k) Except as may be prohibited by applicable law, all of Lender’s rights and remedies, whether pursuant to this Agreement or any other documentation evidencing the Obligations, shall be cumulative and may be exercised singularly or concurrently. Election by Lender to pursue any remedy shall not exclude pursuit of any other remedy, and an election to make expenditures or to take action to perform an obligation of Borrower under this Agreement, after Borrower’s failure to perform, shall not affect Lender’s right to declare a default and exercise its remedies.
31. CONSENT TO JURISDICTION. Subject to Section 32 of this Agreement below, Borrower and Lender agree that any action or proceeding to enforce or arising out of this Agreement may be brought in any court of competent jurisdiction in the Province, and Borrower waives personal service of process.
32. ARBITRATION. In the event of any dispute, claim, question or difference between parties hereto relating to any matter, covenant, commitment or agreement provided for or contained in this Agreement, any party to such dispute, claim, question or difference may by written notice (the “Arbitration Notice”) to the other parties thereto, require same to be settled by arbitration pursuant to and in accordance with the provisions of the Arbitration Act of the jurisdiction of this Agreement (the “Arbitration Act”). Any arbitration commenced pursuant to this Article shall be based on the following: (a) The arbitration tribunal shall consist of one arbitrator appointed by unanimous agreement of the parties to the dispute, claim, question or difference, as the case may be, who is qualified by education and training to pass upon the particular matter to be decided, or in the event of failure to agree within ten business days, each party thereto shall select an arbitrator (collectively, the “Initial Arbitrators”) and the Initial Arbitrators shall select an additional arbitrator (“Additional Arbitrator”) within ten business days of the appointment of the last such Initial Arbitrator. If the Initial Arbitrators cannot unanimously agree upon the Additional Arbitrator within such ten Business Day period, any party thereto may apply to a court of competent jurisdiction under the Arbitration Act to appoint the Additional Arbitrator. (b) The arbitration tribunal shall be instructed that time is of the essence in proceeding with its determination of any dispute, claim, question or difference and, in any event, the arbitration award must be rendered within thirty days of the submission of such dispute to arbitration. (c) The arbitration shall take place in private. (d) The laws to be applied in connection with the arbitration shall be the laws of the jurisdiction of this Agreement and the federal laws of Canada applicable therein. (e) In its arbitration award, the arbitration tribunal may award any remedy for any breach of this Agreement that might have been awarded by the court of competent jurisdiction except where the remedy for such breach has been expressly limited by this Agreement. (f) The arbitration award shall be given in writing and shall be final and binding on the parties, not subject to any appeal on a matter of law, a matter of fact, or a matter of mixed fact and law. (g) The arbitration award shall deal with the question of costs of arbitration and all matters related thereto. (h) Judgment upon the award rendered may be entered in any court of competent jurisdiction, or application may be made to such court for a judicial recognition of the award or an order of enforcement thereof, as the case may be. (i) Nothing herein will prevent the party who gave the Arbitration Notice from applying for injunctive relief pending such arbitration proceeding.
33. REMEDIES CUMULATIVE. The rights and remedies of Lender under this Agreement are cumulative and are in addition to and not in substitution for any rights or remedies provided by law. Any single or partial exercise by Lender of any right or remedy for a default or breach of any term, covenant, condition or agreement herein contained shall not be deemed to be a waiver of, or to alter, affect or prejudice any other right or remedy or other rights or remedies to which Lender may be lawfully entitled for the same default or breach, and any waiver by Lender of the strict observance, performance or compliance with any term, covenant, condition or agreement herein contained, and any indulgence granted thereby, shall be deemed not to be a waiver of any subsequent default.
34. NO PREJUDICE, ETC. Nothing contained in this Agreement or any other security hereafter acquired by Lender with respect to the indebtedness of Borrower to Lender or any part thereof, nor any act or omission with respect to this Agreement or such security, shall in any way prejudice or affect the rights, remedies and powers of Lender with respect to any other such security at the time held by Lender.
35. ASSIGNMENT. This Agreement shall bind and enure to the benefit of the respective successors and assigns of each of the parties hereto: provided, however, that Borrower may not assign this Agreement or any rights or duties hereunder without Lender’s prior written consent, which consent may be withheld in the sole and absolute discretion of Lender, and any prohibited assignment shall be absolutely void. No consent to an assignment by Lender shall
release Borrower from its Obligations. Lender may assign this Agreement and its right and duties hereunder, and no consent or approval by Borrower is required in connection with any such assignment. Lender reserves the right to sell, assign, transfer, negotiate or grant participations in all or any part of, or any interest in Lender’s rights and benefits hereunder. In connection with any assignment or participation, Lender may disclose all documents and Information that Lender now or hereafter may have relating to Borrower or Borrower’s business. To the extent that Lender assigns its rights and obligations hereunder to another party, Lender thereafter shall be released from such assigned obligations to Borrower and such assignment shall affect a novation between Borrower and such other party.
36. INTERPRETATION. Paragraph and section headings used in this Agreement are for convenience only, and shall not affect the construction of this Agreement. Neither this Agreement nor any uncertainty or ambiguity herein shall be construed or resolved against Lender or Borrower, whether under any rule of construction or otherwise. On the contrary, this Agreement has been reviewed by all parties and shall be construed and interpreted according to the ordinary meaning of the words used so as to fairly accomplish the purposes and intentions of all parties hereto.
37. SEVERABILITY. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, to the extent permitted by law, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provision in any other jurisdiction.
38. NOTICES. Except as otherwise provided in this Agreement, notice under this Agreement must be in writing. A notice is deemed to be delivered and received: (i) if delivery personally, on the date of delivery if delivered prior to 5:00 p.m. (recipient’s time) on a business day and otherwise on the next business day; (ii) if sent by same-day courier, on the date of delivery if delivered prior to 5:00 p.m. (recipient’s time) on a business day and otherwise on the next business day; (iii) if sent by overnight courier, on the next business day; or (iv) if transmitted by facsimile, on the business day following the date of confirmation of transmission by the originating facsimile. Notice to Lender may be sent to: Chef Choice Equipment Rentals Inc. at 90C Centurian Drive, Suite 213, Markham, Ontario L3R 8C5. Either party may change its address for service from time to time by notice given in accordance with the foregoing provisions.
39. RECORDKEEPING AND AUDIT REQUIREMENTS. Lender shall have no obligation to maintain any electronic records or any documents, schedules, invoices or any other paper delivered to Lender by Borrower in connection with this Agreement or any other agreement other than as required by law. Borrower will at all times keep accurate and complete records of Borrower’s accounts and Collateral. At Lender’s request, Borrower shall deliver to Lender schedules of accounts and general intangibles and such other information regarding the Collateral as Lender shall request. Lender, or any of its agents, shall have the right to call at Borrower’s place or places of business at intervals to be determined by Lender, and without hindrance or delay, to inspect. audit, check, and make extracts from any copies of the books, records, journals, orders, receipts, and correspondence that relate to Borrower’s accounts and Collateral or other transactions between the parties thereto and the general financial condition of Borrower, and Lender may remove any such records temporarily for the purpose of having copies made thereof. If Borrower was referred to Lender for this Loan by a third party (the “Referring Party”), then Borrower consents to Lender sharing certain reasonable information about Borrower with the Referring Party for purposes of the Referring Party verifying and/or auditing loans made through such Referring Party’s referrals.
40. GOVERNING LAW. Our relationship (including this Agreement and any claim, dispute or controversy (whether in contract, tort, or otherwise) at any time arising from or relating to this Agreement) shall be governed by and construed in accordance with the laws of the province of QC and the federal laws of Canada applicable therein. The legality, enforceability and interpretation of this Agreement and the amounts contracted for, charged and reserved under
this Agreement shall be governed by such laws. Borrower understands and agrees that no binding contract will be formed until Lender receives and accepts Borrower’s signed Agreement.
41. WAIVER OF NOTICES AND OTHER TERMS. Demand, presentment, protest, notice of default, notice of acceleration, notice of intention to accelerate and notice of non-payment are hereby waived by Borrower. Borrower also waives the benefit of all laws pertaining to or otherwise concerning any valuation, appraisal and exemption of Borrower’s property. Recourse to any security held by Lender pursuant to this Agreement will not be required at any time.
42. MONITORING, RECORDING AND ELECTRONIC COMMUNICATIONS. In order to ensure a high quality of service for Lender’s customers, Lender may monitor and/or record telephone calls between Borrower and Lender’s employees or agents. Borrower acknowledges that Lender may do so and agrees in advance to any such monitoring or recording of telephone calls. Borrower also agrees that Lender may communicate with Borrower electronically by e-mail.
43. JURY TRIAL WAIVER. To the extent not prohibited by applicable law, Borrower and Lender waive their right to a trial by jury of any claim or cause of action based upon or arising out of or related to this Agreement or any other documentation evidencing the Obligations, in any legal action or proceeding. Any such claim or cause of action shall be resolved in accordance with Section 32 of this Agreement, and failing such resolution, shall be tried by a court of competent jurisdiction sitting without a jury.
44. CONFIDENTIALITY. Borrower shall not make, publish or otherwise disseminate in any manner a copy of this Agreement or any public statement or description of the terms of this Agreement except to its employees, advisors and similar persons who have a legitimate need to know its contents.
45. ENTIRE AGREEMENT. Any application Borrower signed or otherwise submitted in connection with the Loan, the accompanying Supplement and the PAD Agreement, and any other documents required by Lender now or in the future in connection with this Agreement and Borrower’s Loan are hereby incorporated into and made a part of this Agreement. This Agreement is the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior negotiations, undertakings, representations and understanding, whether written or oral, relating thereto.
46. COUNTERPARTS. This Agreement may be executed in with one or more counterparts, each of which counterparts shall be deemed to be an original, and all such counterparts shall constitute one and the same instrument. For purposes of the execution of this Agreement, electronic signatures shall be treated in all respects as original signatures.
47. LANGUAGE. The parties confirm that it is their wish that this Agreement as well as all other documents related hereto, including notices, have been and shall be drawn up in the English only. Les parties aux présents confirment leur volonté que cette convention de même que tous les documents s’y attachant, ainsi que tous avis, soient rédigés en anglais seulement.
48. CUSTOMER SERVICE CONTACT INFORMATION. If you have questions or comments about your Loan, you may contact us by email at firstname.lastname@example.org.
nonexclusive, revocable, non-transferable, non-sub-licensable, limited right and royalty-free license to use the Chef Choice Platform, effective solely during the term of the Loan and so long as an Event of Default has not occurred and the Lender has not revoked the Borrower’s license hereunder. The license granted to Borrower is personal, and no rights hereunder may be transferred by Borrower without the express written approval of Lender, which consent may be withheld by Lender in its sole and absolute discretion. Lender may terminate the license granted hereunder without notice at any time.
50. GUARANTEE. Each signatory identified as a guarantor on the signature page hereto (the “Guarantor”), jointly and severally (if more than one), absolutely and unconditionally guarantee the prompt payment to Lender, including its successors and assignees, of any and all Obligations incurred by Borrower pursuant to this Agreement. Each Guarantor agrees to repay the Obligations on demand, without requiring Lender first to enforce payment against Borrower. This is a guarantee of payment and not of collection. This is an absolute, unconditional, primary, and continuing obligation and will remain in full force and effect until the first to occur of the following: (i) all of the Obligations have been indefeasibly paid in full and Lender has terminated this Guarantee, or (ii) 30 days after the date on which written notice of revocation is actually received and accepted by Lender. No revocation will affect: (i) the then existing liabilities of the revoking Guarantor under this Guarantee, (ii) Obligations created, contracted, assumed, acquired or incurred prior to the effective date of such revocation; (iii) Obligations created, contracted, assumed, acquired or incurred after the effective date of such revocation pursuant to any agreement entered into or commitment obtained prior to the effective date of such revocation; or (iv) any Obligations then or thereafter arising under the agreements or instruments then in effect and then evidencing the Obligations. Each Guarantor waives all notices to which the Guarantor might otherwise be entitled by law, and also waives all defenses, legal or equitable, otherwise available to the Guarantor. This Guarantee shall be construed in accordance with the laws of the Province and all federal laws applicable therein, and shall ensure to the benefit of Lender, its successors and assigns. For any Borrowers located in the province of Alberta a Certificate of Notary Public, in the form required by law and attached as Schedule “A” hereto, has been obtained by all Guarantors, and each Guarantor acknowledges that the Loan contemplated by this Agreement shall not be effective until such time as evidence of such Certificate of a Notary Public has been provided to Lender. Each Guarantor hereby executes and delivers this Agreement to acknowledge its terms and conditions, and to agree to be bound by all provisions thereof related or applicable to such Guarantor. For greater certainty, each Guarantor hereby represents, warrants and covenants that the representations, warranties, covenants, undertakings and indemnities made by Borrower and contained in this Agreement or any other documentation evidencing the Obligations are equally true and applicable to such Guarantor.
51. CERTIFICATION AND SIGNATURES. By signing below or authorizing the person signing below to sign on its behalf, Borrower certifies that Borrower has received a copy of this Agreement and that Borrower has read, understood and agreed to be bound by its terms. Each person signing below certifies that each person is signing in the capacity indicated below through signer’s name and that such signer is authorized to execute this Agreement and all documentation evidencing the Obligations on behalf of or the in stated relation to Borrower Use of Proceeds Certification as referred to in Section 4, by signing below, Borrower certifies, acknowledges and understands that the proceeds from the requested Loan will be used solely for purchasing or acquiring specific products or services, for the following purposes only: (i) working capital; (ii) insurance (but not self- insurance programs); (iii) services or equipment; (iv) merchandise, inventory or specified goods; (v) improvements or construction of facilities (but not purchase of real estate) loans to finance specified sales transactions; and (vi) public works projects or educational services (e.g., training).