REPRESENTATIONS AND WARRANTIES OF EACH SELLER. Each Seller represents and warrants as follows: (a) Such Seller is a corporation duly incorporated, validly existing and in good standing under the laws of its jurisdiction of incorporation indicated at the beginning of this Agreement, and is duly qualified to do business, and is in good standing, in every jurisdiction where the nature of its business requires it to be so qualified, except to the extent that any failure to be so qualified or in good standing could reasonably be expected to result in a Material Adverse Effect. (b) The execution, delivery and performance by such Seller of the Transaction Documents to which it is a party and the other documents to be delivered by it thereunder, and the transactions contemplated hereby and thereby, including such Seller's use of the proceeds of the sales, transfers and assignments of Receivable Assets hereunder, are within such Seller's corporate powers, have been duly authorized by all necessary corporate action, do not (i) contravene such Seller's charter, articles or by-laws, (ii) violate any applicable law, rule, regulation, order, writ, judgment, injunction, decree, determination or award, or (iii) breach or result in a default under, or result in the acceleration of (or entitle any party to accelerate) the maturity of any obligation of such Seller under, or result in or require the creation of any lien upon or security interest in any property of such Seller pursuant to the terms of, any Contract or any other agreement or instrument (other than any Transaction Document) binding on or affecting such Seller or any of its properties. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by such Seller of any Transaction Document to which it is a party or any other agreement or document to be delivered thereunder, or for the perfection of or the exercise by any Indemnified Party of its rights and remedies under such Transaction Document or such other agreement or document, except for the filing of the financing statements referred to in Section 2.01(c). (d) This Agreement has been, and each other Transaction Document to which such Seller is a party when delivered will have been, duly executed and delivered by such Seller. This Agreement is, and the other Transaction Documents to which such Seller is a party when delivered will be, the legal, valid and binding obligations of such Seller enforceable against such Seller in accordance with their respective terms, subject to bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and to general equitable principles. (e) There is no pending or, to the best of such Seller's knowledge, threatened action or proceeding affecting such Seller before any court, governmental agency or arbitrator or other authority, domestic or foreign, which could reasonably be expected to have a Material Adverse Effect or which purports to affect the legality, validity or enforceability of this Agreement or any other Transaction Document. (f) Immediately prior to each sale, transfer, assignment and/or contribution by such Seller of any Receivable Assets hereunder, such Seller is the legal and beneficial owner of such Receivable Assets, free and clear of any Adverse Claim. Upon each sale, transfer, assignment and/or contribution by such Seller of each Receivable Asset hereunder, the Buyer shall have a valid and perfected first priority undivided 100% ownership interest or security interest in such Receivable Asset free and clear of any Adverse Claim except as created or permitted by this Agreement and the Receivables Purchase Agreement. No effective financing statement or other instrument similarly in effect covering any Contract or any Receivable Assets is on file in any recording office, except those filed in favor of the Buyer and the Agent relating to this Agreement or in favor of the Agent and relating to the Receivables Purchase Agreement. (g) No proceeds of any sale, transfer, assignment and/or contribution by such Seller of any Seller Receivable hereunder will be used to acquire any security in any transaction which is subject to Sections 13 and 14 of the Securities Exchange Act of 1934, as amended. (h) Each Receivables Activity Report, Seller Report, Weekly Report and Daily Report (if prepared by such Seller or one of its Affiliates, or to the extent that information contained therein is supplied by such Seller or any Affiliate thereof), information, exhibit, financial statement, or other report or document furnished or to be furnished at any time by or on behalf of such Seller to the Buyer or the Agent or any Owner in connection with this Agreement or the Receivables Purchase Agreement is or will be accurate in all material respects as of its date or as of the date so furnished, and no such report or document contains, or will contain, as of its date of delivery or the date so furnished, any untrue statement of a material fact or omits to state, or will omit to state, as of its date of delivery or the date so furnished, a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not misleading. (i) The principal place of business and chief executive office of such Seller, and the office where such Seller keeps its Records concerning the Receivable Assets, are located at the address specified for the Seller in Schedule IV hereto (or, by notice to the Buyer and the Agent in accordance with Section 4.01(e), at such other locations in jurisdictions, within the United States or in the case of Crown (Canada), Ontario, Canada, where all actions required by Section 5.04(a) have been taken and completed). (j) The names and addresses of all the Lock-Box Banks, together with the lock-box numbers related to, and the account numbers of, the Lock-Box Accounts of such Seller at such Lock-Box Banks, are specified in Schedule I hereto (or such other Lock-Box Banks and/or such other Lock-Box Accounts as have been notified to the Buyer and the Agent in accordance with Section 4.02(d)). (k) Except as set forth on Schedule VI hereto, such Seller has not changed its name during the four-month period prior to the date of the Existing Receivables Contribution and Sale Agreement, and has no tradenames, fictitious names, assumed names or "doing business as" names. (l) The Initial Purchase Price payable to such Seller on the date of the Existing Receivables Contribution and Sale Agreement or the date hereof, as applicable, pursuant to Section 2.02(a) for the Receivable Assets outstanding on the date of the Existing Receivables Contribution and Sale Agreement or the date hereof, as applicable, and the Purchase Price payable on each Settlement Date pursuant to Section 2.02(b) for such Seller's Receivable Assets created after such date, in each case constitutes fair consideration and approximates fair market value for such Receivable Assets, and the terms and conditions (including, without limitation, such Initial Purchase Price or Purchase Price, as applicable, therefor) of the sale, transfer and assignment of such Receivable Assets pursuant to Sections 2.01 and 2.02 reasonably approximate an arm's-length transaction between unaffiliated parties. No such sale, transfer or assignment has been made for or on account of an antecedent debt owed by such Seller to the Buyer and no such sale, transfer or assignment is or may be voidable or subject to avoidance under any section of the U.S. Bankruptcy Code. (m) Such Seller has filed, or caused to be filed or be included in, all tax reports and returns (federal, state, local and foreign), if any, required to be filed by it and paid, or caused to be paid, all amounts of taxes, including interest and penalties, required to be paid by it, except for such taxes (i) as are being contested in good faith by proper proceedings and (ii) against which adequate reserves shall have been established in accordance with and to the extent required by GAAP, but only so long as the proceedings referred to in clause (i) above could not subject the Agent or any other Indemnified Party to any civil or criminal penalty or liability or involve any material risk of the loss, sale or forfeiture of any property, rights or interests covered hereunder or under the Receivables Purchase Agreement. (n) The consolidated unaudited balance sheet of such Seller and its subsidiaries as at December 31, 2000, and the related consolidated unaudited statements of income and retained earnings and of cash flows of such Seller and its subsidiaries for the fiscal year then ended, fairly present the consolidated financial condition of such Seller and its subsidiaries as at such date, and the consolidated results of the operations and cash flows of such Seller and its subsidiaries for the periods ended on such date, all in accordance with generally accepted accounting principles applied on a consistent basis. Since December 31, 2000, there has been no material adverse change in such condition or operations, other than to the extent expressly set forth on Schedule V hereto or disclosed in any public filing prior to the date of the Existing Receivables Contribution and Sale Agreement with the Securities and Exchange Commission, or in the collectibility of such Seller's Seller Receivables taken as a whole or in the ability of such Seller (as Seller, the Buyer's Servicer, the Servicer or otherwise) to perform its obligations under any Transaction Document, other than to the extent expressly set forth on Schedule V hereto or disclosed in any public filing prior to the date of the Existing Receivables Contribution and Sale Agreement with the Securities and Exchange Commission. (o) Such Seller is in compliance in all material respects with the presently applicable provisions of ERISA and the Code. (p) Such Seller has not sold, assigned, transferred, pledged or hypothecated any interest in any Receivable Assets with respect thereto to any Person other than as contemplated by this Agreement. (q) Such Seller has complied with the Credit and Collection Policy in all material respects and since the date of this Agreement there has been no change in the Credit and Collection Policy except as permitted hereunder. (r) Since December 31, 2000, no event has occurred which could result in a Material Adverse Effect, other than to the extent expressly set forth on Schedule V hereto or disclosed in any public filing prior to the date of the Existing Receivables Contribution and Sale Agreement with the Securities and Exchange Commission. (s) Such Seller has not extended or modified the terms of any Seller Receivable or the Contract under which any such Seller Receivable arose, except in accordance with the Credit and Collection Policy or in accordance with Section 6.02(b) of the Receivables Purchase Agreement. (t) Except under the Lock-Box Agreements, such Seller has not granted any Person dominion or control of any Lock-Box Account, or the right to take dominion or control over any Lock-Box Account at a future time or upon the occurrence of a future event. (u) Such Seller is Solvent.
Appears in 1 contract
Samples: Receivables Contribution and Sale Agreement (Crown Cork & Seal Co Inc)
REPRESENTATIONS AND WARRANTIES OF EACH SELLER. Each Seller Seller, severally and not jointly, hereby represents and warrants to the Purchaser as follows:
(a) Such Seller is a corporation duly incorporatedhas the full right, validly existing power and in good standing under authority to execute and deliver this Agreement and to consummate the laws of its jurisdiction of incorporation indicated at the beginning of this Agreement, and is duly qualified to do business, and is in good standing, in every jurisdiction where the nature of its business requires it to be so qualified, except to the extent that any failure to be so qualified or in good standing could reasonably be expected to result in a Material Adverse Effect.
(b) The execution, delivery and performance by such Seller of the Transaction Documents to which it is a party and the other documents to be delivered by it thereunder, and the transactions contemplated hereby and therebyTransactions, including such Seller's use the sale, transfer, conveyance, assignment and delivery of the proceeds all of the sales, transfers and assignments of Receivable Assets hereunder, are within such Seller's corporate powers, have been duly authorized by all necessary corporate action, do not (i) contravene such Seller's charter, articles his or by-laws, (ii) violate any applicable law, rule, regulation, order, writ, judgment, injunction, decree, determination or award, or (iii) breach or result in a default under, or result in the acceleration of (or entitle any party to accelerate) the maturity of any obligation of such Seller under, or result in or require the creation of any lien upon or security interest in any property of such Seller pursuant to the terms of, any Contract or any other agreement or instrument (other than any Transaction Document) binding on or affecting such Seller or any of its properties.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by such Seller of any Transaction Document to which it is a party or any other agreement or document to be delivered thereunder, or for the perfection of or the exercise by any Indemnified Party of its rights and remedies under such Transaction Document or such other agreement or document, except for the filing of the financing statements referred to in Section 2.01(c).
(d) respective Membership Interest. This Agreement has been, been duly and each other Transaction Document to which such Seller is a party when delivered will have been, duly validly executed and delivered by such Seller. This Agreement is, Seller and the other Transaction Documents to which such Seller is a party when delivered will be, the legal, constitutes his or its valid and binding obligations of such Seller agreement, enforceable against such Seller him or it in accordance with their respective its terms, subject to bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and to general equitable principles.
(e) There is no pending or, to the best of such Seller's knowledge, threatened action or proceeding affecting such Seller before any court, governmental agency or arbitrator or other authority, domestic or foreign, which could reasonably be expected to have a Material Adverse Effect or which purports to affect the legality, validity or enforceability of this Agreement or any other Transaction Document.
(f) Immediately prior to each sale, transfer, assignment and/or contribution by such Seller of any Receivable Assets hereunder, such Seller is the legal and beneficial owner of such Receivable Assets, free and clear of any Adverse Claim. Upon each sale, transfer, assignment and/or contribution by such Seller of each Receivable Asset hereunder, the Buyer shall have a valid and perfected first priority undivided 100% ownership interest or security interest in such Receivable Asset free and clear of any Adverse Claim except as created or permitted by this Agreement and the Receivables Purchase Agreement. No effective financing statement or other instrument similarly in effect covering any Contract or any Receivable Assets is on file in any recording office, except those filed in favor of the Buyer and the Agent relating to this Agreement or in favor of the Agent and relating to the Receivables Purchase Agreement.
(g) No proceeds of any sale, transfer, assignment and/or contribution by such Seller of any Seller Receivable hereunder will be used to acquire any security in any transaction which is subject to Sections 13 and 14 of the Securities Exchange Act of 1934, as amended.
(h) Each Receivables Activity Report, Seller Report, Weekly Report and Daily Report (if prepared by such Seller or one of its Affiliates, or to the extent that information contained therein is supplied by such Seller or any Affiliate thereof), information, exhibit, financial statement, or other report or document furnished or to be furnished at any time by or on behalf of such Seller to the Buyer or the Agent or any Owner in connection with this Agreement or the Receivables Purchase Agreement is or will be accurate in all material respects as of its date or as of the date so furnished, and no such report or document contains, or will contain, as of its date of delivery or the date so furnished, any untrue statement of a material fact or omits to state, or will omit to state, as of its date of delivery or the date so furnished, a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not misleading.
(i) The principal place of business and chief executive office of such Seller, and the office where such Seller keeps its Records concerning the Receivable Assets, are located at the address specified for the Seller in Schedule IV hereto (or, by notice to the Buyer and the Agent in accordance with Section 4.01(e), at such other locations in jurisdictions, within the United States or in the case of Crown (Canada), Ontario, Canada, where all actions required by Section 5.04(a) have been taken and completed).
(j) The names and addresses of all the Lock-Box Banks, together with the lock-box numbers related to, and the account numbers of, the Lock-Box Accounts of such Seller at such Lock-Box Banks, are specified in Schedule I hereto (or such other Lock-Box Banks and/or such other Lock-Box Accounts as have been notified to the Buyer and the Agent in accordance with Section 4.02(d)).
(k) Except as set forth on Schedule VI hereto, such Seller has not changed its name during the four-month period prior to the date of the Existing Receivables Contribution and Sale Agreement, and has no tradenames, fictitious names, assumed names or "doing business as" names.
(l) The Initial Purchase Price payable to such Seller on the date of the Existing Receivables Contribution and Sale Agreement or the date hereof, as applicable, pursuant to Section 2.02(a) for the Receivable Assets outstanding on the date of the Existing Receivables Contribution and Sale Agreement or the date hereof, as applicable, and the Purchase Price payable on each Settlement Date pursuant to Section 2.02(b) for such Seller's Receivable Assets created after such date, in each case constitutes fair consideration and approximates fair market value for such Receivable Assets, and the terms and conditions (including, without limitation, such Initial Purchase Price or Purchase Price, as applicable, therefor) of the sale, transfer and assignment of such Receivable Assets pursuant to Sections 2.01 and 2.02 reasonably approximate an arm's-length transaction between unaffiliated parties. No such sale, transfer or assignment has been made for or on account of an antecedent debt owed by such Seller to the Buyer and no such sale, transfer or assignment is or may be voidable or subject to avoidance under any section of the U.S. Bankruptcy Code.
(m) Such Seller has filed, or caused to be filed or be included in, all tax reports and returns (federal, state, local and foreign), if any, required to be filed by it and paid, or caused to be paid, all amounts of taxes, including interest and penalties, required to be paid by it, except for such taxes (i) as are being contested in good faith by proper proceedings and (ii) against which adequate reserves shall have been established in accordance with and to the extent required by GAAP, but only so long as the proceedings referred to in clause (i) above could not subject the Agent or any other Indemnified Party to any civil or criminal penalty or liability or involve any material risk of the loss, sale or forfeiture of any property, rights or interests covered hereunder or under the Receivables Purchase Agreement.
(n) The consolidated unaudited balance sheet of such Seller and its subsidiaries as at December 31, 2000, and the related consolidated unaudited statements of income and retained earnings and of cash flows of such Seller and its subsidiaries for the fiscal year then ended, fairly present the consolidated financial condition of such Seller and its subsidiaries as at such date, and the consolidated results of the operations and cash flows of such Seller and its subsidiaries for the periods ended on such date, all in accordance with generally accepted accounting principles applied on a consistent basis. Since December 31, 2000, there has been no material adverse change in such condition or operations, other than to the extent expressly set forth on Schedule V hereto or disclosed in any public filing prior to the date of the Existing Receivables Contribution and Sale Agreement with the Securities and Exchange Commission, or in the collectibility of such Seller's Seller Receivables taken as a whole or in the ability of such Seller (as Seller, the Buyer's Servicer, the Servicer or otherwise) to perform its obligations under any Transaction Document, other than to the extent expressly set forth on Schedule V hereto or disclosed in any public filing prior to the date of the Existing Receivables Contribution and Sale Agreement with the Securities and Exchange Commission.
(ob) Such Seller is in compliance in all material respects with the presently all applicable provisions federal, state and local laws, rules, and regulations applicable to ownership of ERISA and the Codeits respective Membership Interest.
(pc) With respect to his or its respective Membership Interest reflected on Schedule I hereto as held by such Seller, (i) such Seller has good and marketable title to such Membership Interest, free and clear of any mortgages, pledges, liens, encumbrances, charges, security interests or restrictions on transfer (other than any restrictions set forth in the Amended and Restated Limited Liability Company Agreement of RDS (the “RDS LLC Agreement”), or the Third Amended and Restated Limited Liability Company Agreement of ASG (the “ASG LLC Agreement”), as applicable), and (ii) such Membership Interest is the only equity interest in RDS or ASG held by such Seller, and such Seller does not hold any other equity interests in RDS or ASG.
(d) Such Seller has not soldentered into any contracts or agreements granting to any person or entity any rights in respect of any of his or its respective Membership Interest, assignedother than (i) with the Purchaser or SIC, transferred, pledged or hypothecated any interest in any Receivable Assets (ii) with respect thereto to any Person other than the RDS LLC Agreement or the ASG LLC Agreement, as contemplated by this Agreementapplicable.
(qe) The execution and delivery of this Agreement, and performance of the Transactions, by such Seller will not (i) conflict with, violate, or constitute a breach or default (with or without notice or lapse of time, or both) or accelerate maturity or performance or give rise to a termination or consent right, under any contract or other instrument to which such Seller is a party or which is applicable to such Seller or such Seller’s assets, (ii) violate any law applicable to such Seller, or (iii) require any filing or registration with, or the issuance of any permit or approval by, any person or entity.
(f) Such Seller has complied with the Credit obtained all requisite and Collection Policy in all material respects necessary consents, approvals, or other assurances for him or it to enter into and since the date of deliver this Agreement there has been no change in and sell, transfer, convey, assign, and deliver all of his or its respective Membership Interest to the Credit and Collection Policy except as permitted hereunderPurchaser.
(rg) Since December 31There is no litigation or action pending or, 2000to such Seller’s knowledge after reasonable inquiry, no event has occurred which could result in a Material Adverse Effectthreatened against such Seller, other than brought by or against such Seller and affecting or relating to the extent expressly set forth on Schedule V hereto or disclosed in any public filing prior to the date of the Existing Receivables Contribution and Sale Agreement with the Securities and Exchange CommissionTransactions.
(s) Such Seller has not extended or modified the terms of any Seller Receivable or the Contract under which any such Seller Receivable arose, except in accordance with the Credit and Collection Policy or in accordance with Section 6.02(b) of the Receivables Purchase Agreement.
(t) Except under the Lock-Box Agreements, such Seller has not granted any Person dominion or control of any Lock-Box Account, or the right to take dominion or control over any Lock-Box Account at a future time or upon the occurrence of a future event.
(u) Such Seller is Solvent.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Select Interior Concepts, Inc.)
REPRESENTATIONS AND WARRANTIES OF EACH SELLER. Each Seller Seller, severally and not jointly, hereby represents and warrants to the Company, as of the date hereof and the Closing Date, as follows:
(a) Such Seller is a corporation duly incorporatedhas the full right, validly existing power and in good standing under authority to execute and deliver this Agreement and to consummate the laws Transactions, including the sale, transfer, conveyance, assignment and delivery of all of its jurisdiction respective Repurchase Shares. This Agreement has been duly and validly executed and delivered by such Seller and constitutes its valid and binding agreement, enforceable against it in accordance with its terms.
(b) Such Seller has good and marketable title to its respective Repurchase Shares, free and clear of incorporation indicated at any mortgages, pledges, liens, encumbrances, charges, security interests or restrictions on transfer (other than any restrictions set forth in the beginning respective Lock-Up Agreement entered into by such Seller for the benefit of X. Xxxxx FBR, Inc. (each Seller’s respective Lock-Up Agreement, its “Lock-Up Agreement”), which restrictions will have expired prior to the Closing Date).
(c) Such Seller has not entered into any contracts or agreements granting to any person or entity any rights in respect of any of its respective Repurchase Shares, other than under (i) its respective Lock-Up Agreement, (ii) the Escrow Agreement, and (iii) this Agreement.
(d) The execution and delivery of this Agreement, and is duly qualified to do businessperformance of the Transactions, and is in good standing, in every jurisdiction where the nature of its business requires it to be so qualified, except to the extent that any failure to be so qualified or in good standing could reasonably be expected to result in a Material Adverse Effect.
(b) The execution, delivery and performance by such Seller of the Transaction Documents to which it is a party and the other documents to be delivered by it thereunder, and the transactions contemplated hereby and thereby, including such Seller's use of the proceeds of the sales, transfers and assignments of Receivable Assets hereunder, are within such Seller's corporate powers, have been duly authorized by all necessary corporate action, do will not (i) contravene such Seller's charterconflict with, articles or by-laws, (ii) violate any applicable law, rule, regulation, order, writ, judgment, injunction, decree, determination or awardviolate, or (iii) constitute a breach or result in a default under(with or without notice or lapse of time, or result in the acceleration of (both) or entitle accelerate maturity or performance or give rise to a termination or consent right, under any party to accelerate) the maturity of any obligation of such Seller under, or result in or require the creation of any lien upon or security interest in any property of such Seller pursuant to the terms of, any Contract or any other agreement or instrument (other than any Transaction Document) binding on or affecting such Seller or any of its properties.
(c) No authorization or approval contract or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by such Seller of any Transaction Document to which it is a party or any other agreement or document to be delivered thereunder, or for the perfection of or the exercise by any Indemnified Party of its rights and remedies under such Transaction Document or such other agreement or document, except for the filing of the financing statements referred to in Section 2.01(c).
(d) This Agreement has been, and each other Transaction Document instrument to which such Seller is a party when delivered will have been, duly executed and delivered by or which is applicable to such Seller or such Seller. This Agreement is’s assets, and (ii) violate any law applicable to such Seller, or (iii) require any filing or registration with, or the other Transaction Documents to which such Seller is a party when delivered will beissuance of any permit or approval by, the legal, valid and binding obligations of such Seller enforceable against such Seller in accordance with their respective terms, subject to bankruptcy, insolvency, reorganization, moratorium any person or similar laws affecting the rights of creditors generally and to general equitable principlesentity.
(e) There is no pending orSuch Seller has obtained all requisite and necessary consents, to the best of such Seller's knowledgeapprovals, threatened action or proceeding affecting such Seller before any court, governmental agency or arbitrator or other authority, domestic or foreign, which could reasonably be expected assurances for it to have a Material Adverse Effect or which purports to affect the legality, validity or enforceability of enter into and deliver this Agreement or any other Transaction Document.
(f) Immediately prior to each saleand sell, transfer, assignment and/or contribution by such Seller convey, assign, and deliver all of any Receivable Assets hereunder, such Seller is the legal and beneficial owner of such Receivable Assets, free and clear of any Adverse Claim. Upon each sale, transfer, assignment and/or contribution by such Seller of each Receivable Asset hereunder, the Buyer shall have a valid and perfected first priority undivided 100% ownership interest or security interest in such Receivable Asset free and clear of any Adverse Claim except as created or permitted by this Agreement and the Receivables Purchase Agreement. No effective financing statement or other instrument similarly in effect covering any Contract or any Receivable Assets is on file in any recording office, except those filed in favor of the Buyer and the Agent relating to this Agreement or in favor of the Agent and relating its respective Repurchase Shares to the Receivables Purchase AgreementCompany.
(g) No proceeds of any sale, transfer, assignment and/or contribution by such Seller of any Seller Receivable hereunder will be used to acquire any security in any transaction which is subject to Sections 13 and 14 of the Securities Exchange Act of 1934, as amended.
(h) Each Receivables Activity Report, Seller Report, Weekly Report and Daily Report (if prepared by such Seller or one of its Affiliates, or to the extent that information contained therein is supplied by such Seller or any Affiliate thereof), information, exhibit, financial statement, or other report or document furnished or to be furnished at any time by or on behalf of such Seller to the Buyer or the Agent or any Owner in connection with this Agreement or the Receivables Purchase Agreement is or will be accurate in all material respects as of its date or as of the date so furnished, and no such report or document contains, or will contain, as of its date of delivery or the date so furnished, any untrue statement of a material fact or omits to state, or will omit to state, as of its date of delivery or the date so furnished, a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not misleading.
(i) The principal place of business and chief executive office of such Seller, and the office where such Seller keeps its Records concerning the Receivable Assets, are located at the address specified for the Seller in Schedule IV hereto (or, by notice to the Buyer and the Agent in accordance with Section 4.01(e), at such other locations in jurisdictions, within the United States or in the case of Crown (Canada), Ontario, Canada, where all actions required by Section 5.04(a) have been taken and completed).
(j) The names and addresses of all the Lock-Box Banks, together with the lock-box numbers related to, and the account numbers of, the Lock-Box Accounts of such Seller at such Lock-Box Banks, are specified in Schedule I hereto (or such other Lock-Box Banks and/or such other Lock-Box Accounts as have been notified to the Buyer and the Agent in accordance with Section 4.02(d)).
(k) Except as set forth on Schedule VI hereto, such Seller has not changed its name during the four-month period prior to the date of the Existing Receivables Contribution and Sale Agreement, and has no tradenames, fictitious names, assumed names or "doing business as" names.
(l) The Initial Purchase Price payable to such Seller on the date of the Existing Receivables Contribution and Sale Agreement or the date hereof, as applicable, pursuant to Section 2.02(a) for the Receivable Assets outstanding on the date of the Existing Receivables Contribution and Sale Agreement or the date hereof, as applicable, and the Purchase Price payable on each Settlement Date pursuant to Section 2.02(b) for such Seller's Receivable Assets created after such date, in each case constitutes fair consideration and approximates fair market value for such Receivable Assets, and the terms and conditions (including, without limitation, such Initial Purchase Price or Purchase Price, as applicable, therefor) of the sale, transfer and assignment of such Receivable Assets pursuant to Sections 2.01 and 2.02 reasonably approximate an arm's-length transaction between unaffiliated parties. No such sale, transfer or assignment has been made for or on account of an antecedent debt owed by such Seller to the Buyer and no such sale, transfer or assignment is or may be voidable or subject to avoidance under any section of the U.S. Bankruptcy Code.
(m) Such Seller has filed, or caused to be filed or be included in, all tax reports and returns (federal, state, local and foreign), if any, required to be filed by it and paid, or caused to be paid, all amounts of taxes, including interest and penalties, required to be paid by it, except for such taxes (i) as are being contested in good faith by proper proceedings and (ii) against which adequate reserves shall have been established in accordance with and to the extent required by GAAP, but only so long as the proceedings referred to in clause (i) above could not subject the Agent or any other Indemnified Party to any civil or criminal penalty or liability or involve any material risk of the loss, sale or forfeiture of any property, rights or interests covered hereunder or under the Receivables Purchase Agreement.
(n) The consolidated unaudited balance sheet of such Seller and its subsidiaries as at December 31, 2000, and the related consolidated unaudited statements of income and retained earnings and of cash flows of such Seller and its subsidiaries for the fiscal year then ended, fairly present the consolidated financial condition of such Seller and its subsidiaries as at such date, and the consolidated results of the operations and cash flows of such Seller and its subsidiaries for the periods ended on such date, all in accordance with generally accepted accounting principles applied on a consistent basis. Since December 31, 2000, there has been no material adverse change in such condition or operations, other than to the extent expressly set forth on Schedule V hereto or disclosed in any public filing prior to the date of the Existing Receivables Contribution and Sale Agreement with the Securities and Exchange Commission, or in the collectibility of such Seller's Seller Receivables taken as a whole or in the ability of such Seller (as Seller, the Buyer's Servicer, the Servicer or otherwise) to perform its obligations under any Transaction Document, other than to the extent expressly set forth on Schedule V hereto or disclosed in any public filing prior to the date of the Existing Receivables Contribution and Sale Agreement with the Securities and Exchange Commission.
(o) Such Seller is in compliance in all material respects with the presently applicable provisions of ERISA and the Code.
(p) Such Seller has not sold, assigned, transferred, pledged or hypothecated any interest in any Receivable Assets with respect thereto to any Person other than as contemplated by this Agreement.
(q) Such Seller has complied with the Credit and Collection Policy in all material respects and since the date of this Agreement there has been no change in the Credit and Collection Policy except as permitted hereunder.
(r) Since December 31, 2000, no event has occurred which could result in a Material Adverse Effect, other than to the extent expressly set forth on Schedule V hereto or disclosed in any public filing prior to the date of the Existing Receivables Contribution and Sale Agreement with the Securities and Exchange Commission.
(s) Such Seller has not extended or modified the terms of any Seller Receivable or the Contract under which any such Seller Receivable arose, except in accordance with the Credit and Collection Policy or in accordance with Section 6.02(b) of the Receivables Purchase Agreement.
(t) Except under the Lock-Box Agreements, such Seller has not granted any Person dominion or control of any Lock-Box Account, or the right to take dominion or control over any Lock-Box Account at a future time or upon the occurrence of a future event.
(u) Such Seller is Solvent.
Appears in 1 contract
Samples: Repurchase Agreement (Select Interior Concepts, Inc.)
REPRESENTATIONS AND WARRANTIES OF EACH SELLER. Each Seller hereby, for itself, himself, or herself, and for no other Seller, represents and warrants to the Purchaser as followsof the date hereof and as of the Closing Date, that:
(a) Such Seller is a corporation duly incorporated, validly existing has all necessary power and in good standing authority under all applicable provisions of applicable law to execute and deliver this Agreement and to carry out the laws of its jurisdiction of incorporation indicated at provisions hereof. All action on such Seller's part required for the beginning lawful execution and delivery of this Agreement, and is duly qualified to do business, and is in good standing, in every jurisdiction where Agreement has been taken as of the nature of its business requires it to be so qualified, except to the extent that any failure to be so qualified or in good standing could reasonably be expected to result in a Material Adverse Effectdate hereof.
(b) This Agreement has been duly and validly executed and delivered by such Seller, and constitutes the valid and binding agreement of such Seller, enforceable against such Seller in accordance with its terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application affecting enforcement of creditors' rights, and/or (ii) as limited by general principles of equity that restrict the availability of equitable remedies.
(c) The execution, delivery and performance of this Agreement by such Seller of the Transaction Documents to which it is a party and the other documents to be delivered by it thereunder, and the transactions contemplated hereby and thereby, including such Seller's use of the proceeds of the sales, transfers and assignments of Receivable Assets hereunder, are within such Seller's corporate powers, have been duly authorized by all necessary corporate action, do not will not: (i) contravene such Seller's charter, articles or by-laws, (ii) violate any applicable law, rulerule or regulation of any state or of the United States, regulation, or any order, writ, judgment, injunction, decree, determination or award, or cause the suspension or revocation of any authorization, consent, approval or license, presently in effect that affects or binds such Seller; or (iiiii) breach conflict with or result in a material breach of or default under, under any indenture or result in the acceleration of (loan or entitle any party to accelerate) the maturity of any obligation of such Seller under, or result in or require the creation of any lien upon or security interest in any property of such Seller pursuant to the terms of, any Contract credit agreement or any other agreement or instrument (other than any Transaction Document) binding on or affecting such Seller or any of its properties.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by such Seller of any Transaction Document to which it is a party or any other agreement or document to be delivered thereunder, or for the perfection of or the exercise by any Indemnified Party of its rights and remedies under such Transaction Document or such other agreement or document, except for the filing of the financing statements referred to in Section 2.01(c).
(d) This Agreement has been, and each other Transaction Document to which such Seller is a party when delivered will or by which such Seller or its, his or her properties may be affected or bound, except, in respect of each item mentioned above, as would not have beena material adverse effect on the Purchaser or the transactions contemplated hereby.
(d) The number of Shares set forth next to such Seller's name on Schedule 1 hereto are owned of record and beneficially by such Seller free and clear of any and all restrictions on transfer (other than restrictions on transfer under (i) the Securities Purchase Agreement and the Investor Rights Agreement and (ii) applicable state and federal securities laws), duly taxes, liens, encumbrances, options, warrants, purchase rights, contracts, commitments, equities, claims, and demands; and such Seller is not a party to any option, warrant, purchase right, or other contract or commitment that could require such Seller to sell, transfer, or otherwise dispose of its, his or her Shares (other than pursuant to this Agreement).
(e) The Assignment Separate from Certificate/s (defined below), the Assignment and Assumption Agreement (defined below), and the other instruments executed and delivered by such Seller. This Agreement is, and Seller to the other Transaction Documents Purchaser pursuant to which such Seller is a party when delivered Section 8.1 will be, the legal, be valid and binding obligations of such Seller Seller, enforceable against such Seller in accordance with their respective terms, subject to except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar other laws of general application affecting enforcement of creditors' rights, and/or (ii) as limited by general principles of equity that restrict the rights availability of creditors generally equitable remedies, and to general equitable principles.
(e) There is no pending or, will transfer to the best of such Seller's knowledgePurchaser good, threatened action or proceeding affecting valid and marketable title to the Shares to be transferred by such Seller before any courtto the Purchaser pursuant to and contemplated by this Agreement, governmental agency or arbitrator or free and clear of all encumbrances whatsoever, other authoritythan those (i) under the Securities Purchase Agreement and the Investor Rights Agreement, domestic or foreign, which could reasonably (ii) under applicable state and federal securities laws and (iii) that may be expected to have a Material Adverse Effect or which purports to affect created by the legality, validity or enforceability of this Agreement or any other Transaction DocumentPurchaser.
(f) Immediately prior to each sale, transfer, assignment and/or contribution by such Such Seller of has not relied upon any Receivable Assets hereunder, such Seller is the legal and beneficial owner of such Receivable Assets, free and clear of any Adverse Claim. Upon each sale, transfer, assignment and/or contribution by such Seller of each Receivable Asset hereunder, the Buyer shall have a valid and perfected first priority undivided 100% ownership interest or security interest in such Receivable Asset free and clear of any Adverse Claim except as created or permitted by this Agreement and the Receivables Purchase Agreement. No effective financing statement representation or other instrument similarly in effect covering any Contract information from the Purchaser (whether oral or any Receivable Assets is on file in any recording office, except those filed in favor of the Buyer and the Agent relating to this Agreement or in favor of the Agent and relating written) with respect to the Receivables Purchase Company other than as set forth in this Agreement.
(g) No proceeds of any sale, transfer, assignment and/or contribution by such Seller of any Seller Receivable hereunder will be used to acquire any security in any transaction which is subject to Sections 13 and 14 of the Securities Exchange Act of 1934, as amended.
(h) Each Receivables Activity Report, Seller Report, Weekly Report and Daily Report (if prepared by such Seller or one of its Affiliates, or to the extent that information contained therein is supplied by such Seller or any Affiliate thereof), information, exhibit, financial statement, or other report or document furnished or to be furnished at any time by or on behalf of such Seller to the Buyer or the Agent or any Owner in connection with this Agreement or the Receivables Purchase Agreement is or will be accurate in all material respects as of its date or as of the date so furnished, and no such report or document contains, or will contain, as of its date of delivery or the date so furnished, any untrue statement of a material fact or omits to state, or will omit to state, as of its date of delivery or the date so furnished, a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not misleading.
(i) The principal place of business and chief executive office of such Seller, and the office where such Seller keeps its Records concerning the Receivable Assets, are located at the address specified for the Seller in Schedule IV hereto (or, by notice to the Buyer and the Agent in accordance with Section 4.01(e), at such other locations in jurisdictions, within the United States or in the case of Crown (Canada), Ontario, Canada, where all actions required by Section 5.04(a) have been taken and completed).
(j) The names and addresses of all the Lock-Box Banks, together with the lock-box numbers related to, and the account numbers of, the Lock-Box Accounts of such Seller at such Lock-Box Banks, are specified in Schedule I hereto (or such other Lock-Box Banks and/or such other Lock-Box Accounts as have been notified to the Buyer and the Agent in accordance with Section 4.02(d)).
(k) Except as set forth on Schedule VI hereto, such Seller has not changed its name during the four-month period prior to the date of the Existing Receivables Contribution and Sale Agreement, and has no tradenames, fictitious names, assumed names or "doing business as" names.
(l) The Initial Purchase Price payable to such Seller on the date of the Existing Receivables Contribution and Sale Agreement or the date hereof, as applicable, pursuant to Section 2.02(a) for the Receivable Assets outstanding on the date of the Existing Receivables Contribution and Sale Agreement or the date hereof, as applicable, and the Purchase Price payable on each Settlement Date pursuant to Section 2.02(b) for such Seller's Receivable Assets created after such date, in each case constitutes fair consideration and approximates fair market value for such Receivable Assets, and the terms and conditions (including, without limitation, such Initial Purchase Price or Purchase Price, as applicable, therefor) of the sale, transfer and assignment of such Receivable Assets pursuant to Sections 2.01 and 2.02 reasonably approximate an arm's-length transaction between unaffiliated parties. No such sale, transfer or assignment has been made for or on account of an antecedent debt owed by such Seller to the Buyer and no such sale, transfer or assignment is or may be voidable or subject to avoidance under any section of the U.S. Bankruptcy Code.
(m) Such Seller has filed, or caused to be filed or be included in, all tax reports adequate information concerning the business and returns (federal, state, local and foreign), if any, required to be filed by it and paid, or caused to be paid, all amounts of taxes, including interest and penalties, required to be paid by it, except for such taxes (i) as are being contested in good faith by proper proceedings and (ii) against which adequate reserves shall have been established in accordance with and to the extent required by GAAP, but only so long as the proceedings referred to in clause (i) above could not subject the Agent or any other Indemnified Party to any civil or criminal penalty or liability or involve any material risk of the loss, sale or forfeiture of any property, rights or interests covered hereunder or under the Receivables Purchase Agreement.
(n) The consolidated unaudited balance sheet of such Seller and its subsidiaries as at December 31, 2000, and the related consolidated unaudited statements of income and retained earnings and of cash flows of such Seller and its subsidiaries for the fiscal year then ended, fairly present the consolidated financial condition of such Seller and its subsidiaries as at such datethe Company to make an informed decision regarding the sale of its, and the consolidated results of the operations and cash flows of such Seller and its subsidiaries for the periods ended on such date, all in accordance with generally accepted accounting principles applied on a consistent basis. Since December 31, 2000, there has been no material adverse change in such condition or operations, other than to the extent expressly set forth on Schedule V hereto or disclosed in any public filing prior to the date of the Existing Receivables Contribution and Sale Agreement with the Securities and Exchange Commissionhis, or in the collectibility of such Seller's Seller Receivables taken as a whole or in the ability of such Seller (as Seller, the Buyer's Servicer, the Servicer or otherwise) to perform its obligations under any Transaction Document, other than to the extent expressly set forth on Schedule V hereto or disclosed in any public filing prior to the date of the Existing Receivables Contribution her Shares and Sale Agreement with the Securities has independently and Exchange Commission.
(o) Such Seller is in compliance in all material respects with the presently applicable provisions of ERISA and the Code.
(p) Such Seller has not sold, assigned, transferred, pledged or hypothecated any interest in any Receivable Assets with respect thereto to any Person other than as contemplated by this Agreement.
(q) Such Seller has complied with the Credit and Collection Policy in all material respects and since the date of this Agreement there has been no change in the Credit and Collection Policy except as permitted hereunder.
(r) Since December 31, 2000, no event has occurred which could result in a Material Adverse Effect, other than to the extent expressly set forth on Schedule V hereto or disclosed in any public filing prior to the date of the Existing Receivables Contribution and Sale Agreement with the Securities and Exchange Commission.
(s) Such Seller has not extended or modified the terms of any Seller Receivable or the Contract under which any such Seller Receivable arose, except in accordance with the Credit and Collection Policy or in accordance with Section 6.02(b) of the Receivables Purchase Agreement.
(t) Except under the Lock-Box Agreements, such Seller has not granted any Person dominion or control of any Lock-Box Account, or the right to take dominion or control over any Lock-Box Account at a future time or without reliance upon the occurrence of a future eventPurchaser or its agents made its, his or her own analysis and decision to sell the Shares.
(u) Such Seller is Solvent.
Appears in 1 contract
REPRESENTATIONS AND WARRANTIES OF EACH SELLER. Each Seller represents Seller, on behalf of itself and warrants on behalf of its respective Company (as followsidentified on Exhibit A), hereby makes the following representations and warranties to Purchaser as of the Effective Date, which representations and warranties shall be deemed to have been made again as of the Closing with respect only to such Seller’s Membership Interests:
(a) Organization and Authority.
(i) Such Seller has been duly organized and is a corporation duly incorporated, validly existing and in good standing under the laws of the state of its jurisdiction formation. Such Seller has the full right and authority to enter into this Agreement and to transfer all of incorporation indicated at the beginning Membership Interests in it respective Company and to consummate or cause to be consummated the transaction contemplated by this Agreement and the execution, delivery and performance of this AgreementAgreement has been authorized by all necessary corporate, limited liability company or partnership action and this Agreement is a legal, valid and binding obligation of such Seller and is duly qualified enforceable against such Seller in accordance with its terms. The person signing this Agreement on behalf of such Seller is authorized to do businessso. No consent of any partner, shareholder, creditor, investor, judicial or administrative body, governmental or quasi-governmental authority or other third party is required for such Seller to enter into this Agreement and is in good standing, in every jurisdiction where to consummate the nature of its business requires it to be so qualified, except to the extent that any failure to be so qualified or in good standing could reasonably be expected to result in a Material Adverse Effecttransactions contemplated hereby.
(bii) The execution, delivery and performance of this Agreement by such Seller of the Transaction Documents to which it is a party and the other documents to be delivered by it thereunder, and consummation of the transactions contemplated hereby and thereby, including such Seller's use of the proceeds of the sales, transfers and assignments of Receivable Assets hereunder, are within such Seller's corporate powers, have been duly authorized by all necessary corporate action, do not and shall not (iwith or without due notice or lapse of time or both): (A) contravene conflict with or violate any law or governmental order applicable to such Seller's charter, articles Seller or by-lawsits properties, (iiB) violate any applicable law, rule, regulation, order, writ, judgment, injunction, decree, determination or award, or (iii) breach or result in a default under, or result in the acceleration of (or entitle any party to accelerate) the maturity of any obligation of such Seller under, or result in or require the creation of any lien encumbrance upon or security interest in any property of such Seller pursuant to the terms of, any Contract or any other agreement or instrument (other than any Transaction Document) binding on or affecting such Seller or any of its properties.
(c) No authorization the Membership Interests under any of the terms, conditions or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by such Seller provisions of any Transaction Document to which it is a party or any other agreement or document to be delivered thereunder, or for the perfection of or the exercise by any Indemnified Party of its rights and remedies under such Transaction Document or such other agreement or document, except for the filing of the financing statements referred to in Section 2.01(c).
(d) This Agreement has been, and each other Transaction Document contract to which such Seller is a party when delivered will have beenor, duly executed and delivered by to the knowledge of such Seller. This Agreement is, and any law or governmental order applicable to such Seller, or (C) (1) violate or result in a breach of or default; (2) conflict with, give rise to a right of termination, modification, cancellation or acceleration of any obligations; (3) give rise to a loss of a material benefit, or an increased, additional, accelerated or guaranteed rights or entitlements of any Person or government authority; or (4) result in the other Transaction Documents obligation to make any payment, in each such case, with respect to clauses (1) – (4), under any of the terms, conditions or provisions of any contract to which such Seller or its respective Company is a party when delivered will be, the legal, valid and binding obligations of such Seller enforceable against such Seller in accordance with their respective terms, subject to bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and to general equitable principlesparty.
(e) There is no pending or, to the best of such Seller's knowledge, threatened action or proceeding affecting such Seller before any court, governmental agency or arbitrator or other authority, domestic or foreign, which could reasonably be expected to have a Material Adverse Effect or which purports to affect the legality, validity or enforceability of this Agreement or any other Transaction Document.
(f) Immediately prior to each sale, transfer, assignment and/or contribution by such Seller of any Receivable Assets hereunder, such Seller is the legal and beneficial owner of such Receivable Assets, free and clear of any Adverse Claim. Upon each sale, transfer, assignment and/or contribution by such Seller of each Receivable Asset hereunder, the Buyer shall have a valid and perfected first priority undivided 100% ownership interest or security interest in such Receivable Asset free and clear of any Adverse Claim except as created or permitted by this Agreement and the Receivables Purchase Agreement. No effective financing statement or other instrument similarly in effect covering any Contract or any Receivable Assets is on file in any recording office, except those filed in favor of the Buyer and the Agent relating to this Agreement or in favor of the Agent and relating to the Receivables Purchase Agreement.
(g) No proceeds of any sale, transfer, assignment and/or contribution by such Seller of any Seller Receivable hereunder will be used to acquire any security in any transaction which is subject to Sections 13 and 14 of the Securities Exchange Act of 1934, as amended.
(h) Each Receivables Activity Report, Seller Report, Weekly Report and Daily Report (if prepared by such Seller or one of its Affiliates, or to the extent that information contained therein is supplied by such Seller or any Affiliate thereof), information, exhibit, financial statement, or other report or document furnished or to be furnished at any time by or on behalf of such Seller to the Buyer or the Agent or any Owner in connection with this Agreement or the Receivables Purchase Agreement is or will be accurate in all material respects as of its date or as of the date so furnished, and no such report or document contains, or will contain, as of its date of delivery or the date so furnished, any untrue statement of a material fact or omits to state, or will omit to state, as of its date of delivery or the date so furnished, a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not misleading.
(i) The principal place of business and chief executive office of such Seller, and the office where such Seller keeps its Records concerning the Receivable Assets, are located at the address specified for the Seller in Schedule IV hereto (or, by notice to the Buyer and the Agent in accordance with Section 4.01(e), at such other locations in jurisdictions, within the United States or in the case of Crown (Canada), Ontario, Canada, where all actions required by Section 5.04(a) have been taken and completed).
(j) The names and addresses of all the Lock-Box Banks, together with the lock-box numbers related to, and the account numbers of, the Lock-Box Accounts of such Seller at such Lock-Box Banks, are specified in Schedule I hereto (or such other Lock-Box Banks and/or such other Lock-Box Accounts as have been notified to the Buyer and the Agent in accordance with Section 4.02(d)).
(k) Except as set forth on Schedule VI hereto, such Seller has not changed its name during the four-month period prior to the date of the Existing Receivables Contribution and Sale Agreement, and has no tradenames, fictitious names, assumed names or "doing business as" names.
(l) The Initial Purchase Price payable to such Seller on the date of the Existing Receivables Contribution and Sale Agreement or the date hereof, as applicable, pursuant to Section 2.02(a) for the Receivable Assets outstanding on the date of the Existing Receivables Contribution and Sale Agreement or the date hereof, as applicable, and the Purchase Price payable on each Settlement Date pursuant to Section 2.02(b) for such Seller's Receivable Assets created after such date, in each case constitutes fair consideration and approximates fair market value for such Receivable Assets, and the terms and conditions (including, without limitation, such Initial Purchase Price or Purchase Price, as applicable, therefor) of the sale, transfer and assignment of such Receivable Assets pursuant to Sections 2.01 and 2.02 reasonably approximate an arm's-length transaction between unaffiliated parties. No such sale, transfer or assignment has been made for or on account of an antecedent debt owed by such Seller to the Buyer and no such sale, transfer or assignment is or may be voidable or subject to avoidance under any section of the U.S. Bankruptcy Code.
(m) Such Seller has filed, or caused to be filed or be included in, all tax reports and returns (federal, state, local and foreign), if any, required to be filed by it and paid, or caused to be paid, all amounts of taxes, including interest and penalties, required to be paid by it, except for such taxes (i) as are being contested in good faith by proper proceedings and (ii) against which adequate reserves shall have been established in accordance with and to the extent required by GAAP, but only so long as the proceedings referred to in clause (i) above could not subject the Agent or any other Indemnified Party to any civil or criminal penalty or liability or involve any material risk of the loss, sale or forfeiture of any property, rights or interests covered hereunder or under the Receivables Purchase Agreement.
(n) The consolidated unaudited balance sheet of such Seller and its subsidiaries as at December 31, 2000, and the related consolidated unaudited statements of income and retained earnings and of cash flows of such Seller and its subsidiaries for the fiscal year then ended, fairly present the consolidated financial condition of such Seller and its subsidiaries as at such date, and the consolidated results of the operations and cash flows of such Seller and its subsidiaries for the periods ended on such date, all in accordance with generally accepted accounting principles applied on a consistent basis. Since December 31, 2000, there has been no material adverse change in such condition or operations, other than to the extent expressly set forth on Schedule V hereto or disclosed in any public filing prior to the date of the Existing Receivables Contribution and Sale Agreement with the Securities and Exchange Commission, or in the collectibility of such Seller's Seller Receivables taken as a whole or in the ability of such Seller (as Seller, the Buyer's Servicer, the Servicer or otherwise) to perform its obligations under any Transaction Document, other than to the extent expressly set forth on Schedule V hereto or disclosed in any public filing prior to the date of the Existing Receivables Contribution and Sale Agreement with the Securities and Exchange Commission.
(o) Such Seller is in compliance in all material respects with the presently applicable provisions of ERISA and the Code.
(p) Such Seller has not sold, assigned, transferred, pledged or hypothecated any interest in any Receivable Assets with respect thereto to any Person other than as contemplated by this Agreement.
(q) Such Seller has complied with the Credit and Collection Policy in all material respects and since the date of this Agreement there has been no change in the Credit and Collection Policy except as permitted hereunder.
(r) Since December 31, 2000, no event has occurred which could result in a Material Adverse Effect, other than to the extent expressly set forth on Schedule V hereto or disclosed in any public filing prior to the date of the Existing Receivables Contribution and Sale Agreement with the Securities and Exchange Commission.
(s) Such Seller has not extended or modified the terms of any Seller Receivable or the Contract under which any such Seller Receivable arose, except in accordance with the Credit and Collection Policy or in accordance with Section 6.02(b) of the Receivables Purchase Agreement.
(t) Except under the Lock-Box Agreements, such Seller has not granted any Person dominion or control of any Lock-Box Account, or the right to take dominion or control over any Lock-Box Account at a future time or upon the occurrence of a future event.
(u) Such Seller is Solvent.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Easterly Government Properties, Inc.)
REPRESENTATIONS AND WARRANTIES OF EACH SELLER. Each Seller Seller, severally and not jointly, hereby represents and warrants to the Company as follows:
(a) Such Seller is a corporation duly incorporatedhas the full right, validly existing power and in good standing under the laws of its jurisdiction of incorporation indicated at the beginning of authority to execute and deliver this Agreement, Agreement and is duly qualified to do business, and is in good standing, in every jurisdiction where the nature of its business requires it to be so qualified, except to the extent that any failure to be so qualified or in good standing could reasonably be expected to result in a Material Adverse Effect.
(b) The execution, delivery and performance by such Seller of the Transaction Documents to which it is a party and the other documents to be delivered by it thereunder, and consummate the transactions contemplated hereby and thereby(the “Transactions”), including such Seller's use the sale, transfer, conveyance, assignment and delivery of the proceeds all of the sales, transfers and assignments of Receivable Assets hereunder, are within such Seller's corporate powers, have been duly authorized by all necessary corporate action, do not (i) contravene such Seller's charter, articles his or by-laws, (ii) violate any applicable law, rule, regulation, order, writ, judgment, injunction, decree, determination or award, or (iii) breach or result in a default under, or result in the acceleration of (or entitle any party to accelerate) the maturity of any obligation of such Seller under, or result in or require the creation of any lien upon or security interest in any property of such Seller pursuant to the terms of, any Contract or any other agreement or instrument (other than any Transaction Document) binding on or affecting such Seller or any of its properties.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by such Seller of any Transaction Document to which it is a party or any other agreement or document to be delivered thereunder, or for the perfection of or the exercise by any Indemnified Party of its rights and remedies under such Transaction Document or such other agreement or document, except for the filing of the financing statements referred to in Section 2.01(c).
(d) respective Repurchase Shares. This Agreement has been, been duly and each other Transaction Document to which such Seller is a party when delivered will have been, duly validly executed and delivered by such Seller. This Agreement is, Seller and the other Transaction Documents to which such Seller is a party when delivered will be, the legal, constitutes his or its valid and binding obligations of such Seller agreement, enforceable against such Seller him or it in accordance with their respective its terms, subject to bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and to general equitable principles.
(e) There is no pending or, to the best of such Seller's knowledge, threatened action or proceeding affecting such Seller before any court, governmental agency or arbitrator or other authority, domestic or foreign, which could reasonably be expected to have a Material Adverse Effect or which purports to affect the legality, validity or enforceability of this Agreement or any other Transaction Document.
(f) Immediately prior to each sale, transfer, assignment and/or contribution by such Seller of any Receivable Assets hereunder, such Seller is the legal and beneficial owner of such Receivable Assets, free and clear of any Adverse Claim. Upon each sale, transfer, assignment and/or contribution by such Seller of each Receivable Asset hereunder, the Buyer shall have a valid and perfected first priority undivided 100% ownership interest or security interest in such Receivable Asset free and clear of any Adverse Claim except as created or permitted by this Agreement and the Receivables Purchase Agreement. No effective financing statement or other instrument similarly in effect covering any Contract or any Receivable Assets is on file in any recording office, except those filed in favor of the Buyer and the Agent relating to this Agreement or in favor of the Agent and relating to the Receivables Purchase Agreement.
(g) No proceeds of any sale, transfer, assignment and/or contribution by such Seller of any Seller Receivable hereunder will be used to acquire any security in any transaction which is subject to Sections 13 and 14 of the Securities Exchange Act of 1934, as amended.
(h) Each Receivables Activity Report, Seller Report, Weekly Report and Daily Report (if prepared by such Seller or one of its Affiliates, or to the extent that information contained therein is supplied by such Seller or any Affiliate thereof), information, exhibit, financial statement, or other report or document furnished or to be furnished at any time by or on behalf of such Seller to the Buyer or the Agent or any Owner in connection with this Agreement or the Receivables Purchase Agreement is or will be accurate in all material respects as of its date or as of the date so furnished, and no such report or document contains, or will contain, as of its date of delivery or the date so furnished, any untrue statement of a material fact or omits to state, or will omit to state, as of its date of delivery or the date so furnished, a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not misleading.
(i) The principal place of business and chief executive office of such Seller, and the office where such Seller keeps its Records concerning the Receivable Assets, are located at the address specified for the Seller in Schedule IV hereto (or, by notice to the Buyer and the Agent in accordance with Section 4.01(e), at such other locations in jurisdictions, within the United States or in the case of Crown (Canada), Ontario, Canada, where all actions required by Section 5.04(a) have been taken and completed).
(j) The names and addresses of all the Lock-Box Banks, together with the lock-box numbers related to, and the account numbers of, the Lock-Box Accounts of such Seller at such Lock-Box Banks, are specified in Schedule I hereto (or such other Lock-Box Banks and/or such other Lock-Box Accounts as have been notified to the Buyer and the Agent in accordance with Section 4.02(d)).
(k) Except as set forth on Schedule VI hereto, such Seller has not changed its name during the four-month period prior to the date of the Existing Receivables Contribution and Sale Agreement, and has no tradenames, fictitious names, assumed names or "doing business as" names.
(l) The Initial Purchase Price payable to such Seller on the date of the Existing Receivables Contribution and Sale Agreement or the date hereof, as applicable, pursuant to Section 2.02(a) for the Receivable Assets outstanding on the date of the Existing Receivables Contribution and Sale Agreement or the date hereof, as applicable, and the Purchase Price payable on each Settlement Date pursuant to Section 2.02(b) for such Seller's Receivable Assets created after such date, in each case constitutes fair consideration and approximates fair market value for such Receivable Assets, and the terms and conditions (including, without limitation, such Initial Purchase Price or Purchase Price, as applicable, therefor) of the sale, transfer and assignment of such Receivable Assets pursuant to Sections 2.01 and 2.02 reasonably approximate an arm's-length transaction between unaffiliated parties. No such sale, transfer or assignment has been made for or on account of an antecedent debt owed by such Seller to the Buyer and no such sale, transfer or assignment is or may be voidable or subject to avoidance under any section of the U.S. Bankruptcy Code.
(m) Such Seller has filed, or caused to be filed or be included in, all tax reports and returns (federal, state, local and foreign), if any, required to be filed by it and paid, or caused to be paid, all amounts of taxes, including interest and penalties, required to be paid by it, except for such taxes (i) as are being contested in good faith by proper proceedings and (ii) against which adequate reserves shall have been established in accordance with and to the extent required by GAAP, but only so long as the proceedings referred to in clause (i) above could not subject the Agent or any other Indemnified Party to any civil or criminal penalty or liability or involve any material risk of the loss, sale or forfeiture of any property, rights or interests covered hereunder or under the Receivables Purchase Agreement.
(n) The consolidated unaudited balance sheet of such Seller and its subsidiaries as at December 31, 2000, and the related consolidated unaudited statements of income and retained earnings and of cash flows of such Seller and its subsidiaries for the fiscal year then ended, fairly present the consolidated financial condition of such Seller and its subsidiaries as at such date, and the consolidated results of the operations and cash flows of such Seller and its subsidiaries for the periods ended on such date, all in accordance with generally accepted accounting principles applied on a consistent basis. Since December 31, 2000, there has been no material adverse change in such condition or operations, other than to the extent expressly set forth on Schedule V hereto or disclosed in any public filing prior to the date of the Existing Receivables Contribution and Sale Agreement with the Securities and Exchange Commission, or in the collectibility of such Seller's Seller Receivables taken as a whole or in the ability of such Seller (as Seller, the Buyer's Servicer, the Servicer or otherwise) to perform its obligations under any Transaction Document, other than to the extent expressly set forth on Schedule V hereto or disclosed in any public filing prior to the date of the Existing Receivables Contribution and Sale Agreement with the Securities and Exchange Commission.
(ob) Such Seller is in compliance in all material respects with the presently all applicable provisions federal, state and local laws, rules, and regulations applicable to ownership of ERISA and the Codehis or its respective Repurchase Shares.
(pc) Such Seller has good and marketable title to his or its respective Repurchase Shares, free and clear of any mortgages, pledges, liens, encumbrances, charges, security interests or restrictions on transfer (other than any restrictions set forth in the respective Lock-Up Agreement entered into by such Seller for the benefit of FBR Capital Markets & Co. (“FBR”) (each Seller’s respective Lock-Up Agreement, his or its “Lock-Up Agreement”), which restrictions will be waived by FBR prior to the consummation of the Transactions).
(d) Such Seller has not soldentered into any contracts or agreements granting to any person or entity any rights in respect of any of his or its respective Repurchase Shares, assignedother than (i) with the Company, transferred, pledged or hypothecated any interest in any Receivable Assets and (ii) with respect thereto to any Person other than as contemplated by this his or its respective Lock-Up Agreement.
(qe) Such Seller has complied with the Credit The execution and Collection Policy in all material respects and since the date delivery of this Agreement there has been no change in Agreement, and performance of the Credit and Collection Policy except as permitted hereunderTransactions, by such Seller will not (i) conflict with, violate, or constitute a breach or default (with or without notice or lapse of time, or both) or accelerate maturity or performance or give rise to a termination or consent right, under any contract or other instrument to which such Seller is a party or which is applicable to such Seller or such Seller’s assets, (ii) violate any law applicable to such Seller, or (iii) require any filing or registration with, or the issuance of any permit or approval by, any person or entity.
(rf) Since December 31, 2000, no event has occurred which could result Other than FBR waiving any applicable restrictions in a Material Adverse Effect, other than to the extent expressly set forth on Schedule V hereto his or disclosed in any public filing prior to the date of the Existing Receivables Contribution and Sale Agreement with the Securities and Exchange Commission.
(s) Such Seller has not extended or modified the terms of any Seller Receivable or the Contract under which any such Seller Receivable arose, except in accordance with the Credit and Collection Policy or in accordance with Section 6.02(b) of the Receivables Purchase Agreement.
(t) Except under the its Lock-Box AgreementsUp Agreement, such Seller has not granted any Person dominion or control of any Lock-Box Accountobtained all requisite and necessary consents, approvals, or other assurances for him or it to enter into and deliver this Agreement and sell, transfer, convey, assign, and deliver all of his or its respective Repurchase Shares to the right to take dominion or control over any Lock-Box Account at a future time or upon the occurrence of a future eventCompany.
(ug) Such There is no litigation or action pending or, to such Seller’s knowledge after reasonable inquiry, threatened against such Seller, brought by or against such Seller is Solventand affecting or relating to any of the Transactions.
Appears in 1 contract
Samples: Repurchase Agreement (Select Interior Concepts, Inc.)
