Common use of Representations and Warranties of Applicant Clause in Contracts

Representations and Warranties of Applicant. Applicant represents and warrants that (a) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, has all requisite power and authority to carry on its business as now conducted and is qualified to do business in, and is in good standing in, every jurisdiction where such qualification is required, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect; (b) the transactions contemplated by this Agreement are within the Applicant’s corporate powers and have been duly authorized by all necessary corporate action, this Agreement has been duly executed and delivered by the Applicant and constitutes a legal, valid and binding obligation of the Applicant, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law; (c) the transactions contemplated by this Agreement (i) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except such as have been obtained or made and are in full force and effect, except (A) those required in the ordinary course of business of the Applicant in connection with the performance by the Applicant of its obligations of the covenants hereunder, other filings under securities laws, and filings, registrations consents or approvals in each case not required to be made or obtained by the date hereof, and (B) the filing by the Applicant of a Periodic Report on Form 8-K with respect to the transactions contemplated hereby, which filing will be made promptly following the execution and delivery of this Agreement, (ii) will not violate any applicable law or regulation or the charter, by-laws or other organizational documents of the Applicant or any order of any Governmental Authority, (iii) will not result in a material violation of or default under any indenture or other material agreement or instrument binding upon the Applicant or any of the Subsidiaries or their assets, or give rise to a right thereunder to require any payment to be made by the Applicant or any of the Subsidiaries, and (iv) will not result in the creation or imposition of any material Liens on any material assets of the Applicant or any of the Subsidiaries; (d) Applicant has heretofore furnished to Citibank (i) its consolidated balance sheet and statements of income, stockholders’ equity and cash flows as of and for the fiscal year ended December 31, 2006, reported on by independent public accountants; (ii) its unaudited interim consolidated financial statements for the quarterly period ended March 31, 2007; and (iii) its unaudited interim consolidated financial statements for the quarterly period ended June 30, 2007. Such financial statements present fairly, in all material respects, the consolidated financial position of Applicant and its Subsidiaries as of the dates thereof and results of operations and cash flows of Applicant and its Subsidiaries for the periods covered thereby (subject to normal year-end audit adjustments with respect to the unaudited interim consolidated financial statements) in accordance with GAAP; (e) each of the reports required to be filed by Applicant under Section 13(a) of the Securities Exchange Act of 1934 on or prior to the date hereof has been filed and, as of the respective dates thereof and the date hereof, such reports did not contain and do not contain an untrue statement of a material fact and did not omit and do not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (f) neither Applicant nor any of the Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying Margin Stock and (g) neither the Applicant nor any of the Subsidiaries is an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940.

Representations and Warranties of Applicant. Applicant represents and warrants that (a) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, has all requisite power and authority to carry on its business as now conducted and is qualified to do business in, and is in good standing in, every jurisdiction where such qualification is required, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect; (b) the transactions contemplated by this Agreement are within the Applicant’s corporate powers and have been duly authorized by all necessary corporate action, this Agreement has been duly executed and delivered by the Applicant and constitutes a legal, valid and binding obligation of the Applicant, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law; (c) the transactions contemplated by this Agreement (i) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except (A) such as have been obtained or made and are in full force and effect, except (AB) those required in the ordinary course of business of the Applicant in connection with the performance by the Applicant of its obligations of the covenants hereunder, other filings under securities laws, and filings, registrations consents or approvals in each case not required to be made or obtained by the date hereof, and (BC) the filing by the Applicant of a Periodic Report on Form 8-K with respect to the transactions contemplated hereby, which filing will be made promptly following the execution and delivery of this Agreement, (ii) will not violate any applicable law or regulation or the charter, by-laws or other organizational documents of the Applicant or any order of any Governmental Authority, (iii) will not result in a material violation of or default under any indenture or other material agreement or instrument binding upon the Applicant or any of the Subsidiaries or their assets, or give rise to a right thereunder to require any payment to be made by the Applicant or any of the Subsidiaries, and (iv) will xxxx not result in the creation or imposition of any material Liens on any material assets of the Applicant or any of the Subsidiaries; (d) Applicant has heretofore furnished to Citibank (i) its audited consolidated balance sheet and statements of consolidated income, stockholders’ equity and cash flows as of and for the fiscal year ended December 31, 20062011, reported on by independent public accountants; accountants and (ii) its unaudited interim consolidated financial statements for the quarterly period ended periods ending March 31, 2007; and (iii) its unaudited interim consolidated financial statements for the quarterly period ended 2012, June 30, 20072012 and September 30, 2012. Such financial statements present fairly, in all material respects, the consolidated financial position of the Applicant and its Subsidiaries as of the dates date thereof and results of operations and cash flows of the Applicant and its Subsidiaries for the periods covered thereby (subject to normal year-year end audit adjustments and the absence of footnote disclosure with respect to the unaudited interim consolidated financial statements) in accordance with GAAP; (e) each of the reports required to be filed by the Applicant under Section 13(a) of the Securities Exchange Act of 1934 on or prior to the date hereof since December 31, 2011 has been filed and, as of the respective dates thereof and the date hereof, such reports did not contain and (as each such report may have been supplemented or revised by any subsequent report filed by the Applicant) do not contain an untrue statement of a material fact and did not omit and do not omit to state a material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, not misleading; provided, however, that with respect to any projected financial information or other forward looking statements, the Applicant represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time; (f) neither Applicant nor any of the Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying Margin Stock and (g) neither the Applicant nor any of the Subsidiaries is an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940.

Representations and Warranties of Applicant. Applicant represents and warrants that that: (a) it is a corporation duly organized, validly existing and in good standing under the laws of the its jurisdiction of organization; (b) it has the lawful power to own or lease its organization, has all requisite power properties and authority to carry on its engage in the business as now conducted it presently conducts or proposes to conduct; (c) it is duly licensed or qualified and is qualified to do business in, and is in good standing in, every in each jurisdiction where such qualification is required, except where the failure to do soso could not, individually or in the aggregate, could not reasonably be expected to result in cause a Material Adverse EffectChange; (bd) the transactions contemplated by it has full power to enter into, execute, deliver and carry out this Agreement are within the Applicant’s corporate powers Agreement, and to perform its obligations under this Agreement, and all such actions have been duly authorized by all necessary corporate action, proceedings on its part; (e) this Agreement has been duly and validly executed and delivered by the Applicant and constitutes a Applicant; (f) this Agreement constitutes, legal, valid and binding obligation of the Applicant, enforceable against Applicant in accordance with its terms, subject except to applicable the extent that enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, reorganization moratorium or other similar laws affecting creditors’ the enforceability of creditor’s rights generally and subject to general principles or limiting the right of equity, regardless of whether considered in a proceeding in equity or at lawspecific performance; (cg) the transactions contemplated by this Agreement (i) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except such as have been obtained or made and are in full force and effect, except (A) those required in the ordinary course of business of the Applicant in connection with the performance by the Applicant of its obligations of the covenants hereunder, other filings under securities laws, and filings, registrations consents or approvals in each case not required to be made or obtained by the date hereof, and (B) the filing by the Applicant of a Periodic Report on Form 8-K with respect to the transactions contemplated hereby, which filing will be made promptly following neither the execution and delivery of this AgreementAgreement by Applicant nor the consummation of the transactions herein or compliance with the terms and provisions hereof by Applicant will conflict with, constitute a default under or result in any breach of (iii) will not violate any applicable law or regulation or the charterterms and conditions of the certificate of incorporation, by-laws bylaws, certificate of formation or other organizational documents of the Applicant or (ii) any order of Law or any Governmental Authority, (iii) will not result in a material violation of or default under any indenture or other material agreement or instrument binding upon the or order, writ, judgment, injunction or decree to which Applicant is a party or any of the Subsidiaries by which it is bound or their assetsto which it is subject, or give rise to a right thereunder to require any payment to be made by the Applicant or any of the Subsidiaries, and (iv) will not result in the creation or imposition enforcement of any material Lien, charge or encumbrance whatsoever upon any property (now or hereafter acquired) of Applicant (other than Liens on granted under the Credit Agreement) that could, individually or in the aggregate, reasonably be expected to cause a Material Adverse Change; (h) there are no actions, suits, proceedings or investigations pending or, to the knowledge of Applicant, threatened against Applicant at law or equity before any material assets Official Body that individually or in the aggregate may result in any Material Adverse Change; (i) it is not in violation of the Applicant any order, writ, injunction or any decree of the Subsidiariesany Official Body that may result in any Material Adverse Change; (dj) (i) Applicant has heretofore furnished delivered to Citibank (i) its copies of Hovnanian’s audited and consolidated balance sheet year-end financial statements for and statements of income, stockholders’ equity and cash flows as of and for the end of the fiscal year ended December October 31, 2005 (the “Annual Statements”) and unaudited consolidated quarter-end statements for and as of the end of the fiscal quarters ended January 31, 2006, reported on by independent public accountants; April 30, 2006 and July 31, 2006 (the “Quarterly Statements”, and, together with the Annual Statements, the “Historical Statements”), (ii) its unaudited interim the Historical Statements were compiled from the books and records maintained by Hovnanian’s management, are correct and complete in all material respects and fairly represent (subject, in the case of Quarterly Statements, to year-end adjustments) in all material respects the consolidated financial statements conditions of Hovnanian and its Subsidiaries as of their dates and the results of operations for the quarterly period fiscal periods then ended March 31and have been prepared in accordance with GAAP consistently applied, 2007; and (iii) its unaudited interim consolidated financial statements for the quarterly period ended June 30, 2007. Such financial statements present fairly, Historical Statements accurately reflect the liabilities in all material respects, the consolidated financial position respects of Applicant Hovnanian and its Subsidiaries as of the respective dates thereof of the Historical Statements, (iv) as of the date hereof, neither Hovnanian nor any Subsidiary of Hovnanian has any liabilities, contingent or otherwise, or forward or long-term commitments that are required by GAAP to be, but are not, disclosed in the Historical Statements or in the notes thereto, and results except as disclosed therein there are no unrealized or anticipated losses from any commitments of operations Hovnanian or any Subsidiary of Hovnanian that may cause a Material Adverse Change and cash flows of (v) except as disclosed in reports filed by Applicant and its Subsidiaries for or Hovnanian with the periods covered thereby (subject to normal year-end audit adjustments with respect SEC prior to the unaudited interim consolidated financial statements) in accordance with GAAPdate hereof, since October 31, 2005, no Material Adverse Change has occurred; (ek) each of the reports required to be filed by Applicant under Section 13(a) of the Securities Exchange Act of 1934 on or prior to the date hereof has been filed and, as of the respective dates thereof and the date hereof, such reports reports, taken as a whole, did not contain and do not contain an untrue statement of a material fact and did not omit and do not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleadingmisleading in any material respect; (fl) neither Applicant nor any of the Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying Margin Stock and (gm) neither the Applicant nor any of the Subsidiaries is an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940.

Representations and Warranties of Applicant. Applicant represents and warrants that (a) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, has all requisite power and authority to carry on its business as now conducted and is qualified to do business in, and is in good standing in, every jurisdiction where such qualification is required, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect; (b) the transactions contemplated by this Agreement are within the Applicant’s corporate powers and have been duly authorized by all necessary corporate action, this Agreement has been duly executed and delivered by the Applicant and constitutes a legal, valid and binding obligation of the Applicant, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law; (c) the transactions contemplated by this Agreement (i) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except such as have been obtained or made and are in full force and effect, except (A) those required in the ordinary course of business of the Applicant in connection with the performance by the Applicant of its obligations of the covenants hereunder, other filings under securities laws, and filings, registrations consents or approvals in each case not required to be made or obtained by the date hereof, and (B) the filing by the Applicant of a Periodic Report on Form 8-K with respect to the transactions contemplated hereby, which filing will be made promptly following the execution and delivery of this Agreement, (ii) will not violate any applicable law or regulation or the charter, by-laws or other organizational documents of the Applicant or any order of any Governmental Authority, (iii) will not result in a material violation of or default under any indenture or other material agreement or instrument binding upon the Applicant or any of the Subsidiaries or their assets, or give rise to a right thereunder to require any payment to be made by the Applicant or any of the Subsidiaries, and (iv) will not result in the creation or imposition of any material Liens on any material assets of the Applicant or any of the Subsidiaries; (d) Applicant has heretofore furnished to Citibank (i) its consolidated balance sheet and statements of income, stockholders’ equity and cash flows as of and for the fiscal year ended December 31, 20062005, reported on by independent public accountants; (ii) its unaudited interim consolidated financial statements for the quarterly period ended March 31, 2007; and (iii) its unaudited interim consolidated financial statements for the quarterly period ended June 30, 2007. Such financial statements present fairly, in all material respects, the consolidated financial position of Applicant and its Subsidiaries as of the dates thereof and results of operations and cash flows of Applicant and its Subsidiaries as of such date and for the periods covered thereby (subject to normal year-end audit adjustments with respect to the unaudited interim consolidated financial statements) fiscal year then ended in accordance with GAAP; (e) each of the reports required to be filed by Applicant under Section 13(a) of the Securities Exchange Act of 1934 on or prior to the date hereof has been filed and, as of the respective dates thereof and the date hereof, such reports did not contain and do not contain an untrue statement of a material fact and did not omit and do not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (f) neither Applicant nor any of the Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying Margin Stock and (g) neither the Applicant nor any of the Subsidiaries is an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940.

Representations and Warranties of Applicant. Applicant represents and warrants that (a) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, has all requisite power and authority to carry on its business as now conducted and is qualified to do business in, and is in good standing in, every jurisdiction where such qualification is required, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect; (b) the transactions contemplated by this Agreement are within the Applicant’s corporate powers and have been duly authorized by all necessary corporate action, this Agreement has been duly executed and delivered by the Applicant and constitutes a legal, valid and binding obligation of the Applicant, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law; (c) the transactions contemplated by this Agreement (i) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except (A) such as have been obtained or made and are in full force and effect, except (AB) those required in the ordinary course of business of the Applicant in connection with the performance by the Applicant of its obligations of the covenants hereunder, other filings under securities laws, and filings, registrations consents or approvals in each case not required to be made or obtained by the date hereof, and (BC) the filing by the Applicant of a Periodic Report on Form 8-K with respect to the transactions contemplated hereby, which filing will be made promptly following the execution and delivery of this Agreement, (ii) will not violate any applicable law or regulation or the charter, by-laws or other organizational documents of the Applicant or any order of any Governmental Authority, (iii) will not result in a material violation of or default under any indenture or other material agreement or instrument binding upon the Applicant or any of the Subsidiaries or their assets, or give rise to a right thereunder to require any payment to be made by the Applicant or any of the Subsidiaries, and (iv) will xxxx not result in the creation or imposition of any material Liens on any material assets of the Applicant or any of the Subsidiaries; (d) Applicant has heretofore furnished to Citibank (i) its audited consolidated balance sheet and statements of consolidated income, stockholders’ equity and cash flows as of and for the fiscal year ended December 31, 20062011, reported on by independent public accountants; (ii) its unaudited interim consolidated financial statements for the quarterly period ended March 31, 2007; and (iii) its unaudited interim consolidated financial statements for the quarterly period ended June 30, 2007. Such financial statements present fairly, in all material respects, the consolidated financial position of the Applicant and its Subsidiaries as of the dates date thereof and results of operations and cash flows of the Applicant and its Subsidiaries for the periods covered thereby (subject to normal year-end audit adjustments with respect to the unaudited interim consolidated financial statements) in accordance with GAAP; (e) each of the reports required to be filed by the Applicant under Section 13(a) of the Securities Exchange Act of 1934 on or prior to the date hereof since December 31, 2011 has been filed and, as of the respective dates thereof and the date hereof, such reports did not contain and (as each such report may have been supplemented or revised by any subsequent report filed by the Applicant) do not contain an untrue statement of a material fact and did not omit and do not omit to state a material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, not misleading; provided, however, that with respect to any projected financial information or other forward looking statements, the Applicant represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time; (f) neither Applicant nor any of the Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying Margin Stock and (g) neither the Applicant nor any of the Subsidiaries is an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940.

Representations and Warranties of Applicant. Applicant represents and warrants that (a) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, has all requisite power and authority to carry on its business as now conducted and is qualified to do business in, and is in good standing in, every jurisdiction where such qualification is required, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect; (b) the transactions contemplated by this Agreement are within the Applicant’s corporate powers and have been duly authorized by all necessary corporate action, this Agreement has been duly executed and delivered by the Applicant and constitutes a legal, valid and binding obligation of the Applicant, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law; (c) the transactions contemplated by this Agreement (i) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except such as have been obtained or made and are in full force and effect, except (A) those required in the ordinary course of business of the Applicant in connection with the performance by the Applicant of its obligations of the covenants hereunder, other filings under securities laws, and filings, registrations consents or approvals in each case not required to be made or obtained by the date hereof, and (B) the filing by the Applicant of a Periodic Report on Form 8-K with respect to the transactions contemplated hereby, which filing will be made promptly following the execution and delivery of this Agreement, (ii) will not violate any applicable law or regulation or the charter, by-laws or other organizational documents of the Applicant or any order of any Governmental Authority, (iii) will not result in a material violation of or default under any indenture or other material agreement or instrument binding upon the Applicant or any of the Subsidiaries or their assets, or give rise to a right thereunder to require any payment to be made by the Applicant or any of the Subsidiaries, and (iv) will not result in the creation or imposition of any material Liens on any material assets of the Applicant or any of the Subsidiaries; (d) Applicant has heretofore furnished to Citibank (i) its consolidated balance sheet and statements of income, stockholders’ equity and cash flows as of and for the fiscal year ended December 31, 20062005, reported on by independent public accountants; accountants and (ii) its unaudited interim consolidated financial statements for the quarterly period ended March 31, 2007; and (iii) its unaudited interim consolidated financial statements for the quarterly period ended June 30, 20072006. Such financial statements present fairly, in all material respects, the consolidated financial position of Applicant and its Subsidiaries as of the dates thereof and results of operations and cash flows of Applicant and its Subsidiaries for the periods covered thereby (subject to normal year-end audit adjustments with respect to the unaudited interim consolidated financial statements) in accordance with GAAP; (e) each of the reports required to be filed by Applicant under Section 13(a) of the Securities Exchange Act of 1934 on or prior to the date hereof has been filed and, as of the respective dates thereof and the date hereof, such reports did not contain and do not contain an untrue statement of a material fact and did not omit and do not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (f) neither Applicant nor any of the Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying Margin Stock and (g) neither the Applicant nor any of the Subsidiaries is an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940.

Representations and Warranties of Applicant. Applicant represents and warrants that (a) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, has all requisite power and authority to carry on its business as now conducted and is qualified to do business in, and is in good standing in, every jurisdiction where such qualification is required, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect; (b) the transactions contemplated by this Agreement are within the Applicant’s corporate powers and have been duly authorized by all necessary corporate action, this Agreement has been duly executed and delivered by the Applicant and constitutes a legal, valid and binding obligation of the Applicant, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law; (c) the transactions contemplated by this Agreement (i) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except such as have been obtained or made and are in full force and effect, except (A) those required in the ordinary course of business of the Applicant in connection with the performance by the Applicant of its obligations of the covenants hereunder, other filings under securities laws, and filings, registrations consents or approvals in each case not required to be made or obtained by the date hereof, and (B) the filing by the Applicant of a Periodic Report on Form 8-K with respect to the transactions contemplated hereby, which filing will be made promptly following the execution and delivery of this Agreement, (ii) will not violate any applicable law or regulation or the charter, by-laws or other organizational documents of the Applicant or any order of any Governmental Authority, (iii) will not result in a material violation of or default under any indenture or other material agreement or instrument binding upon the Applicant or any of the Subsidiaries or their assets, or give rise to a right thereunder to require any payment to be made by the Applicant or any of the Subsidiaries, and (iv) will not result in the creation or imposition of any material Liens on any material assets of the Applicant or any of the Subsidiaries; (d) Applicant has heretofore furnished to Citibank (i) its consolidated balance sheet and statements of income, stockholders’ equity and cash flows as of and for the fiscal year ended December 31, 2006, reported on by independent public accountants; (ii) its unaudited interim consolidated financial statements for the quarterly period ended March 31, 2007; and (iii) its unaudited interim consolidated financial statements for the quarterly period ended June 30, 2007. Such financial statements present fairly, in all material respects, the consolidated financial position of Applicant and its Subsidiaries as of the dates date thereof and results of operations and cash flows of Applicant and its Subsidiaries for the periods period covered thereby (subject to normal year-end audit adjustments with respect to the unaudited interim consolidated financial statements) in accordance with GAAP; (e) each of the reports required to be filed by Applicant under Section 13(a) of the Securities Exchange Act of 1934 on or prior to the date hereof has been filed and, as of the respective dates thereof and the date hereof, such reports did not contain and do not contain an untrue statement of a material fact and did not omit and do not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (f) neither Applicant nor any of the Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying Margin Stock and (g) neither the Applicant nor any of the Subsidiaries is an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940.

Representations and Warranties of Applicant. Applicant represents and warrants that (a) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, has all requisite power and authority to carry on its business as now conducted and is qualified to do business in, and is in good standing in, every jurisdiction where such qualification is required, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect; (b) the transactions contemplated by this Agreement are within the Applicant’s corporate powers and have been duly authorized by all necessary corporate action, this Agreement has been duly executed and delivered by the Applicant and constitutes a legal, valid and binding obligation of the Applicant, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law; (c) the transactions contemplated by this Agreement (i) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except (A) such as have been obtained or made and are in full force and effect, except (AB) those required in the ordinary course of business of the Applicant in connection with the performance by the Applicant of its obligations of the covenants hereunder, other filings under securities laws, and filings, registrations consents or approvals in each case not required to be made or obtained by the date hereof, and (BC) the filing by the Applicant of a Periodic Report on Form 8-K with respect to the transactions contemplated hereby, which filing will be made promptly following the execution and delivery of this Agreement, (ii) will not violate any applicable law or regulation or the charter, by-laws or other organizational documents of the Applicant or any order of any Governmental Authority, (iii) will not result in a material violation of or default under any indenture or other material agreement or instrument binding upon the Applicant or any of the Subsidiaries or their assets, or give rise to a right thereunder to require any payment to be made by the Applicant or any of the Subsidiaries, and (iv) will xxxx not result in the creation or imposition of any material Liens on any material assets of the Applicant or any of the Subsidiaries; (d) Applicant has heretofore furnished to Citibank (i) its audited consolidated balance sheet and statements of consolidated income, stockholders’ equity and cash flows as of and for the fiscal year ended December 31, 20062010, reported on by independent public accountants; (ii) its unaudited interim consolidated financial statements for the quarterly period ended March 31, 2007; and (iii) its unaudited interim consolidated financial statements for the quarterly period ended June 30, 2007. Such financial statements present fairly, in all material respects, the consolidated financial position of the Applicant and its Subsidiaries as of the dates date thereof and results of operations and cash flows of the Applicant and its Subsidiaries for the periods covered thereby (subject to normal year-end audit adjustments with respect to the unaudited interim consolidated financial statements) in accordance with GAAP; (e) each of the reports required to be filed by the Applicant under Section 13(a) of the Securities Exchange Act of 1934 on or prior to the date hereof since December 31, 2010 has been filed and, as of the respective dates thereof and the date hereof, such reports did not contain and (as each such report may have been supplemented or revised by any subsequent report filed by the Applicant) do not contain an untrue statement of a material fact and did not omit and do not omit to state a material fact necessary in order to make the statements therein, therein in the light of the circumstances under which they were made, not misleading; provided, however, that with respect to any projected financial information or other forward looking statements, the Applicant represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time; (f) neither Applicant nor any of the Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying Margin Stock and (g) neither the Applicant nor any of the Subsidiaries is an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940.