Representations and Warranties of the Originator. The Originator hereby represents and warrants to the other parties hereto as of the Closing Date that: (a) The Originator has been duly organized and is validly existing as a limited liability company in good standing under the laws of Florida, with full power and authority to own its assets and conduct its business as presently being conducted. (b) The Originator has the full power and authority to execute and deliver this Agreement and to perform its obligations hereunder, and the execution, delivery and performance of this Agreement (including all instruments of transfer to be delivered pursuant to this Agreement) by the Originator and the consummation of the transactions contemplated hereby have been duly and validly authorized. (c) This Agreement constitutes a legal, valid and binding obligation of the Originator, enforceable against the Originator in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect affecting the enforcement of creditors’ rights in general and except as such enforceability may be limited by general principles of equity (whether considered in a proceeding at law or in equity). (d) None of the execution and delivery of this Agreement, the transactions contemplated hereby, or the fulfillment of, or compliance with the terms and conditions of this Agreement will conflict with or result in a breach of any of the terms, certificate of formation, operating agreement or any legal restriction or any agreement or instrument to which the Originator is now a party or by which it is bound, or constitute a default or result in the violation of any law, rule, regulation, order, judgment or decree to which Originator or its property is subject, or impair the ability of the Trust to realize on the Mortgage Loans, or impair the value of the Mortgage Loans. (e) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Originator of or compliance by the Originator with this Agreement, or if required, such consent, approval, authorization or order has been obtained prior to the related Closing Date. (f) There is no action, suit, proceeding or investigation pending or to its knowledge threatened against the Originator which, either individually or in the aggregate, may result in any material adverse change in the business, operations, financial condition, properties or assets of the Originator, or in any material impairment of the right or ability of the Originator to carry on its business substantially as now conducted, or which would draw into question the validity of this Agreement or the Mortgage Loans or of any action taken or to be contemplated herein, or which would be likely to impair materially the ability of the Originator to perform under the terms of this Agreement. (g) The information about the Originator under the heading “The Originator” in the Prospectus relating to the Originator does not include an untrue statement of a material fact and does not omit to state a material fact, with respect to the statements made, necessary in order to make the statements in light of the circumstances under which they were made not misleading. (h) All financial statements provided by the Originator fairly present the pertinent results of operations and changes in financial position for each of such periods and the financial position at the end of each such period of the Originator and its subsidiaries and have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved. (i) There has been no material adverse change in the business, operations, financial condition or assets of the Originator since the date of the Originator’s most recent financial statements.
Appears in 3 contracts
Samples: Transfer and Servicing Agreement (FBR Securitization, Inc.), Transfer and Servicing Agreement (First NLC Securitization, Inc.), Pooling and Servicing Agreement (First NLC Trust 2005-2)
Representations and Warranties of the Originator. The Originator hereby represents and warrants to the other parties hereto as of the Closing Date thatfollows:
(a) The Originator has been is a corporation duly organized and is incorporated, validly existing as a limited liability company and in good standing under the laws of Floridathe State of Delaware, with full power and authority is duly qualified to own its assets do business and conduct is in good standing as a foreign corporation in every jurisdiction where the nature of its business as presently being conductedrequires it to be so qualified, except where the failure to be so qualified would not have a Material Adverse Effect.
(b) The Originator has the full power and authority to execute and deliver this Agreement and to perform its obligations hereunder, and the execution, delivery and performance by the Originator of this Agreement (including all instruments of transfer to be delivered pursuant to this Agreement) by the Originator and the consummation of the transactions contemplated hereby other Transaction Documents to which it is a party: (i) are within its corporate powers; (ii) have been duly authorized by all necessary corporate action; (iii) do not contravene in any material respect or result in a default under or conflict with: (A) its charter or by-laws, (B) any law, rule or regulation applicable to it, (C) any indenture, loan agreement, mortgage, deed of trust or other agreement or instrument to which it is a party or by which it is bound, or (D) any law or any order, writ, judgment, award, injunction or decree binding on or affecting it or any of its property; and validly authorized(iv) do not result in or require the creation of any Adverse Claim upon or with respect to any of its properties. The Agreement and the other Transaction Documents to which it is a party have been duly executed and delivered by the Originator.
(c) This No authorization, approval or other action by, and no notice to or filing with, any Governmental Authority or other Person is required for the due execution, delivery and performance by the Originator of the Agreement or any other Transaction Document to which it is a party, other than the Uniform Commercial Code filings referred to in Exhibit II to the Receivables Purchase Agreement, all of which shall have been filed on or before the date of the first purchase hereunder.
(d) Each sale of Receivables and Related Rights made by the Originator pursuant to this Agreement shall constitute a valid sale, transfer and assignment thereof to the Buyer, enforceable against creditors of, and purchasers from, the Originator; and each of the Agreement and the other Transaction Documents to which the Originator is a party constitutes a its legal, valid and binding obligation of the Originator, Originator enforceable against the Originator in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect affecting the enforcement of creditors’ rights in general and except as such enforceability may be limited by general principles of equity (whether considered in a proceeding at law or in equity).
(d) None of the execution and delivery of this Agreementbankruptcy, the transactions contemplated hereby, or the fulfillment of, or compliance with the terms and conditions of this Agreement will conflict with or result in a breach of any of the terms, certificate of formation, operating agreement or any legal restriction or any agreement or instrument to which the Originator is now a party or by which it is bound, or constitute a default or result in the violation of any law, rule, regulation, order, judgment or decree to which Originator or its property is subject, or impair the ability of the Trust to realize on the Mortgage Loans, or impair the value of the Mortgage Loans.
(e) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Originator of or compliance by the Originator with this Agreement, or if required, such consent, approval, authorization or order has been obtained prior to the related Closing Date.
(f) There is no action, suit, proceeding or investigation pending or to its knowledge threatened against the Originator which, either individually or in the aggregate, may result in any material adverse change in the business, operations, financial condition, properties or assets of the Originator, or in any material impairment of the right or ability of the Originator to carry on its business substantially as now conducted, or which would draw into question the validity of this Agreement or the Mortgage Loans or of any action taken or to be contemplated herein, or which would be likely to impair materially the ability of the Originator to perform under the terms of this Agreement.
(g) The information about the Originator under the heading “The Originator” in the Prospectus relating to the Originator does not include an untrue statement of a material fact and does not omit to state a material fact, with respect to the statements made, necessary in order to make the statements in light of the circumstances under which they were made not misleading.
(h) All financial statements provided by the Originator fairly present the pertinent results of operations and changes in financial position for each of such periods and the financial position at the end of each such period of the Originator and its subsidiaries and have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved.
(i) There has been no material adverse change in the business, operations, financial condition or assets of the Originator since the date of the Originator’s most recent financial statements.insolvency,
Appears in 2 contracts
Samples: Master Agreement of Sale (Warnaco Group Inc /De/), Master Agreement of Sale (Warnaco Group Inc /De/)
Representations and Warranties of the Originator. The Originator hereby represents and warrants to the other parties hereto and the Lenders that as of the Closing Date thatand as of each Transfer Date:
(a) The Originator has been is a corporation duly organized and is organized, validly existing as a limited liability company and in good standing under the laws of Floridathe jurisdiction of its organization, with is duly qualified, in good standing and licensed to carry on its business in each state where the conduct of its business requires it to be so qualified and licensed and has full corporate power and authority to own its assets and conduct property, to carry on its business as presently being conducted.currently conducted and to enter into and perform its obligations under each Loan Document to which it is a party;
(b) The execution and delivery by the Originator of each Loan Document to which it is a party and its performance of and compliance with the terms thereof will not violate the Originator’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach or acceleration of, any material contract, agreement or other instrument to which the Originator is a party or which may be applicable to the Originator or any of its assets in each case that is likely to affect materially and adversely its ability to carry out the transactions contemplated hereby;
(c) The Originator has the full power and authority to execute enter into and deliver this Agreement and consummate all transactions contemplated by the Loan Documents to perform its obligations hereunderbe consummated by it, and has duly authorized the execution, delivery and performance of this Agreement (including all instruments of transfer each Loan Document to be which it is a party and has duly executed and delivered pursuant each Loan Document to this Agreement) which it is a party; each Loan Document to which it is a party, assuming due authorization, execution and delivery by the Originator and the consummation each of the transactions contemplated hereby have been duly and validly authorized.
(c) This Agreement other parties thereto, constitutes a legalvalid, valid legal and binding obligation of the Originator, enforceable against the Originator it in accordance with its termsthe terms hereof, except as enforceability such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws now relating to or hereafter in effect affecting the enforcement rights of creditors’ rights in general creditors generally, and except as such enforceability may be limited by general equity principles (regardless of equity (whether such enforcement is considered in a proceeding in equity or at law or in equitylaw).;
(d) None of The Originator is not in violation of, and the execution and delivery of this Agreement, each Loan Document to which it is a party by the transactions contemplated hereby, or the fulfillment of, or Originator and its performance and compliance with the terms of each Loan Document to which it is a party will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over it or its business, which violation would materially and conditions adversely affect the financial condition, business or operations of this Agreement will conflict the Originator or its properties or materially and adversely affect the performance of its duties under any Loan Document to which it is a party;
(e) There are no actions or proceedings against, or investigations of, the Originator currently pending with regard to which the Originator has received service of process, and no action or result in proceeding against, or investigation of, the Originator is, to the Originator’s knowledge, threatened or otherwise pending before any court, administrative agency or other tribunal that (A) would prohibit its entering into any Loan Document to which it is a breach party or render its obligations thereunder invalid, (B) seeks to prevent the consummation of any of the terms, certificate of formation, operating agreement or transactions contemplated by any legal restriction or any agreement or instrument Loan Document to which the Originator it is now a party or (C) would prohibit or materially and adversely affect the sale and contribution of the Purchased Assets to the Borrower, the performance by the Originator of its obligations under, or the validity or enforceability of, any Loan Document to which it is bound, or constitute a default or result in the violation of any law, rule, regulation, order, judgment or decree to which Originator or its property is subject, or impair the ability of the Trust to realize on the Mortgage Loans, or impair the value of the Mortgage Loans.party;
(ef) No consent, approval, authorization or order of any court or governmental agency or body is required for for: (1) the execution, delivery and performance by the Originator of of, or compliance by the Originator with this Agreementwith, any Loan Document to which it is a party, (2) the sale and contribution of the Purchased Assets to the Borrower, or if required(3) the consummation of the transactions required of it by any Loan Document to which it is a party, except such as shall have been obtained before such date, other than: (A) the filing or recording of financing statements, instruments of assignment and other similar documents necessary in connection with the sale of the Purchased Assets to the Borrower, (B) such consents, approvals, authorizations, qualifications, registrations, filings or notices as have been obtained or made and (C) where the lack of such consent, approval, authorization authorization, qualification, registration, filing or order has been obtained notice is unlikely to have a material adverse effect on its performance hereunder;
(g) Immediately prior to the related Closing Date.sale of the Purchased Assets to the Borrower, the Originator had good and valid title to the Purchased Assets sold by it on such date free and clear of all Liens other than Permitted Liens;
(fh) There The Originator is no actionsolvent, suit, proceeding or investigation pending or is able to pay its knowledge threatened against the Originator which, either individually or in the aggregate, may result in any material adverse change in the business, operations, financial condition, properties or assets of the Originator, or in any material impairment of the right or ability of the Originator debts as they become due and has capital sufficient to carry on its business substantially as now conducted, or and its obligations under each Loan Document to which would draw into question it is a party; it will not be rendered insolvent by the validity execution and delivery of this Agreement or by the Mortgage Loans performance of its obligations under each Loan Document to which it is a party; no petition of bankruptcy (or of any action taken similar Bankruptcy Proceeding) has been filed by or to be contemplated herein, or which would be likely to impair materially the ability of against the Originator to perform under the terms of this Agreement.
(g) The information about the Originator under the heading “The Originator” in the Prospectus relating prior to the Originator does not include an untrue statement of a material fact and does not omit to state a material fact, with respect to the statements made, necessary in order to make the statements in light of the circumstances under which they were made not misleading.
(h) All financial statements provided by the Originator fairly present the pertinent results of operations and changes in financial position for each of such periods and the financial position at the end of each such period of the Originator and its subsidiaries and have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved.date hereof;
(i) There The Originator has transferred the Purchased Assets transferred by it on each Transfer Date without any intent to hinder, delay or defraud any of its creditors;
(j) The Originator has received fair consideration and reasonably equivalent value in exchange for the Purchased Assets sold and contributed by it on each Transfer Date to the Borrower;
(k) The Originator has not dealt with any broker or agent or other Person who might be entitled to a fee, commission or compensation in connection with the transaction contemplated by this Agreement;
(l) The Originator’s principal place of business and chief executive offices are located at 000 Xxxxxxxx Xxxxxx, Suite 310, Palo Alto, California 94301 or at such other address as shall be designated by such party in a written notice to the other parties hereto;
(m) The Originator and the Servicer acknowledge and agree that the Servicing Fee represents reasonable compensation for the performance of the servicing duties hereunder and that the entire Servicing Fee shall be treated by the Servicer and the Originator, for accounting purposes, as compensation for the servicing and administration of the Transferred Loans pursuant to this Agreement; and
(n) The Originator is in compliance with the financial covenants set forth in Section 7.01. It is understood and agreed that the representations and warranties set forth in this Section 3.02 shall survive delivery of the respective Loan Files to Agent or, if a Collateral Custodian has been no material adverse change in appointed, the business, operations, financial condition or assets Collateral Custodian as the agent of the Originator since Agent, and shall inure to the date benefit of the Agent, the Lenders, the Servicer, and the Borrower. Upon discovery by the Originator’s most recent financial statements, the Servicer, the Borrower, or the Agent of a breach of any of the foregoing representations and warranties that materially and adversely affects the value of any item of Collateral or the interests of the Lender Group in any item of Collateral, the party discovering such breach shall give prompt written notice to the other parties. The fact that Agent or any Lender has conducted or has failed to conduct any partial or complete due diligence investigation of the Loan Files shall not affect any rights of the Lender Group under this Agreement.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Hercules Technology Growth Capital Inc)
Representations and Warranties of the Originator. The Originator hereby represents and warrants to the other parties hereto and the Noteholders that as of the Closing Date thatand as of each Transfer Date:
(a) The Originator has been is a corporation duly organized and is organized, validly existing as a limited liability company and in good standing under the laws of Floridathe jurisdiction of its organization, with is duly qualified, in good standing and licensed to carry on its business in each state where the conduct of its business requires it to be so qualified and licensed and has full corporate power and authority to own its assets and conduct property, to carry on its business as presently being conducted.currently conducted and to enter into and perform its obligations under each Basic Document to which it is a party;
(b) The execution and delivery by the Originator of each Basic Document to which it is a party and its performance of and compliance with the terms thereof will not violate the Originator's organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach or acceleration of, any material contract, agreement or other instrument to which the Originator is a party or which may be applicable to the Originator or any of its assets in each case that is likely to affect materially and adversely its ability to carry out the transactions contemplated hereby;
(c) The Originator has the full power and authority to execute enter into and deliver this Agreement and consummate all transactions contemplated by the Basic Documents to perform its obligations hereunderbe consummated by it, and has duly authorized the execution, delivery and performance of this Agreement (including all instruments of transfer each Basic Document to be which it is a party and has duly executed and delivered pursuant each Basic Document to this Agreement) which it is a party; each Basic Document to which it is a party, assuming due authorization, execution and delivery by the Originator and the consummation each of the transactions contemplated hereby have been duly and validly authorized.
(c) This Agreement other parties thereto, constitutes a legalvalid, valid legal and binding obligation of the Originator, enforceable against the Originator it in accordance with its termsthe terms hereof, except as enforceability such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws now relating to or hereafter in effect affecting the enforcement rights of creditors’ rights in general creditors generally, and except as such enforceability may be limited by general equity principles (regardless of equity (whether such enforcement is considered in a proceeding in equity or at law or in equitylaw).;
(d) None of The Originator is not in violation of, and the execution and delivery of this Agreement, each Basic Document to which it is a party by the transactions contemplated hereby, or the fulfillment of, or Originator and its performance and compliance with the terms of each Basic Document to which it is a party will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over it or its business, which violation would materially and conditions adversely affect the financial condition, business or operations of this Agreement will conflict the Originator or its properties or materially and adversely affect the performance of its duties under any Basic Document to which it is a party;
(e) There are no actions or proceedings against, or investigations of, the Originator currently pending with regard to which the Originator has received service of process, and no action or result in proceeding against, or investigation of, the Originator is, to the Originator's knowledge, threatened or otherwise pending before any court, administrative agency or other tribunal that (A) would prohibit its entering into any Basic Document to which it is a breach party or render the Securities invalid, (B) seeks to prevent the issuance of the Securities or the consummation of any of the terms, certificate of formation, operating agreement or transactions contemplated by any legal restriction or any agreement or instrument Basic Document to which the Originator it is now a party or (C) would prohibit or materially and adversely affect the sale and contribution of the Assigned Assets to the Depositor, the performance by the Originator of its obligations under, or the validity or enforceability of, any Basic Document to which it is bound, a party or constitute a default or result in the violation of any law, rule, regulation, order, judgment or decree to which Originator or its property is subject, or impair the ability of the Trust to realize on the Mortgage Loans, or impair the value of the Mortgage Loans.Securities;
(ef) No consent, approval, authorization or order of any court or governmental agency or body is required for for: (1) the execution, delivery and performance by the Originator of of, or compliance by the Originator with this Agreementwith, any Basic Document to which it is a party, (2) the sale and contribution of the Assigned Assets to the Depositor, or if required(3) the consummation of the transactions required of it by any Basic Document to which it is a party, except such as shall have been obtained before such date, other than: (A) the filing or recording of financing statements, instruments of assignment and other similar documents necessary in connection with the sale of the Purchased Assets to the Issuer, (B) such consents, approvals, authorizations, qualifications, registrations, filings or notices as have been obtained or made and (C) where the lack of such consent, approval, authorization authorization, qualification, registration, filing or order has been obtained notice is unlikely to have a material adverse effect on its performance hereunder;
(g) Immediately prior to the related Closing Date.sale of the Assigned Assets to the Depositor, the Originator had good and valid title to the Assigned Assets sold by it on such date free and clear of all Liens other than Permitted Liens;
(fh) There The Originator is no actionsolvent, suit, proceeding or investigation pending or is able to pay its knowledge threatened against the Originator which, either individually or in the aggregate, may result in any material adverse change in the business, operations, financial condition, properties or assets of the Originator, or in any material impairment of the right or ability of the Originator debts as they become due and has capital sufficient to carry on its business substantially as now conducted, or and its obligations under each Basic Document to which would draw into question it is a party; it will not be rendered insolvent by the validity execution and delivery of this Agreement or by the Mortgage Loans performance of its obligations under each Basic Document to which it is a party; no petition of bankruptcy (or of any action taken similar Bankruptcy Proceeding) has been filed by or to be contemplated herein, or which would be likely to impair materially the ability of against the Originator to perform under the terms of this Agreement.
(g) The information about the Originator under the heading “The Originator” in the Prospectus relating prior to the Originator does not include an untrue statement of a material fact and does not omit to state a material fact, with respect to the statements made, necessary in order to make the statements in light of the circumstances under which they were made not misleading.
(h) All financial statements provided by the Originator fairly present the pertinent results of operations and changes in financial position for each of such periods and the financial position at the end of each such period of the Originator and its subsidiaries and have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved.date hereof;
(i) There The Originator has been no material adverse change transferred the Assigned Assets transferred by it on each Transfer Date without any intent to hinder, delay or defraud any of its creditors;
(j) The Originator has received fair consideration and reasonably equivalent value in exchange for the Assigned Assets sold and contributed by it on each Transfer Date to the Depositor;
(k) The Originator has not dealt with any broker or agent or other Person who might be entitled to a fee, commission or compensation in connection with the transaction contemplated by this Agreement;
(l) The Originator's principal place of business and chief executive offices are located at 400 Hamilton Avenue, Suite 310, Palo Alto, California 94301 or at suxx xxxxx xxxxxxx xx shall be designated by such party in a written notice to the other parties hereto;
(m) The Originator and the Servicer acknowledge and agree that the Servicing Fee represents reasonable compensation for the performance of the servicing duties hereunder and that the entire Servicing Fee shall be treated by the Servicer and the Originator, for accounting purposes, as compensation for the servicing and administration of the Transferred Loans pursuant to this Agreement; and
(n) The Originator is in compliance with the financial covenants set forth in Section 7.01. It is understood and agreed that the representations and warranties set forth in this Section 3.02 shall survive delivery of the respective Loan Files to the Collateral Custodian, as the agent of the Indenture Trustee, and shall inure to the benefit of the Noteholders, the Depositor, the Servicer, the Indenture Trustee, the Owner Trustee and the Issuer. Upon discovery by the Originator, the Servicer, the Indenture Trustee or the Issuer of a breach of any of the foregoing representations and warranties that materially and adversely affects the value of any item of Collateral or the interests of the Noteholders in any item of Collateral or in the businessSecurities, operations, financial condition the party discovering such breach shall give prompt written notice to the other parties. The fact that the Noteholders have conducted or assets have failed to conduct any partial or complete due diligence investigation of the Originator since the date Loan Files shall not affect any rights of the Originator’s most recent financial statementsSecurityholders' under this Agreement.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Hercules Technology Growth Capital Inc)
Representations and Warranties of the Originator. The Originator hereby represents and warrants to the other parties hereto and the Noteholders that as of the Closing Date thatand as of each Transfer Date:
(a) The Originator has been is a corporation duly organized and is organized, validly existing as a limited liability company and in good standing under the laws of Floridathe jurisdiction of its organization, with is duly qualified, in good standing and licensed to carry on its business in each state where the conduct of its business requires it to be so qualified and licensed and has full corporate power and authority to own its assets and conduct property, to carry on its business as presently being conducted.currently conducted and to enter into and perform its obligations under each Basic Document to which it is a party;
(b) The execution and delivery by the Originator of each Basic Document to which it is a party and its performance of and compliance with the terms thereof will not violate the Originator’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach or acceleration of, any material contract, agreement or other instrument to which the Originator is a party or which may be applicable to the Originator or any of its assets in each case that is likely to affect materially and adversely its ability to carry out the transactions contemplated hereby;
(c) The Originator has the full power and authority to execute enter into and deliver this Agreement and consummate all transactions contemplated by the Basic Documents to perform its obligations hereunderbe consummated by it, and has duly authorized the execution, delivery and performance of this Agreement (including all instruments of transfer each Basic Document to be which it is a party and has duly executed and delivered pursuant each Basic Document to this Agreement) which it is a party; each Basic Document to which it is a party, assuming due authorization, execution and delivery by the Originator and the consummation each of the transactions contemplated hereby have been duly and validly authorized.
(c) This Agreement other parties thereto, constitutes a legalvalid, valid legal and binding obligation of the Originator, enforceable against the Originator it in accordance with its termsthe terms hereof, except as enforceability such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws now relating to or hereafter in effect affecting the enforcement rights of creditors’ rights in general creditors generally, and except as such enforceability may be limited by general equity principles (regardless of equity (whether such enforcement is considered in a proceeding in equity or at law or in equitylaw).;
(d) None of The Originator is not in violation of, and the execution and delivery of this Agreement, each Basic Document to which it is a party by the transactions contemplated hereby, or the fulfillment of, or Originator and its performance and compliance with the terms of each Basic Document to which it is a party will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over it or its business, which violation would materially and conditions adversely affect the financial condition, business or operations of this Agreement will conflict the Originator or its properties or materially and adversely affect the performance of its duties under any Basic Document to which it is a party;
(e) There are no actions or proceedings against, or investigations of, the Originator currently pending with regard to which the Originator has received service of process, and no action or result in proceeding against, or investigation of, the Originator is, to the Originator’s knowledge, threatened or otherwise pending before any court, administrative agency or other tribunal that (A) would prohibit its entering into any Basic Document to which it is a breach party or render the Securities invalid, (B) seeks to prevent the issuance of the Securities or the consummation of any of the terms, certificate of formation, operating agreement or transactions contemplated by any legal restriction or any agreement or instrument Basic Document to which the Originator it is now a party or (C) would prohibit or materially and adversely affect the sale and contribution of the Assigned Assets to the Depositor, the performance by the Originator of its obligations under, or the validity or enforceability of, any Basic Document to which it is bound, a party or constitute a default or result in the violation of any law, rule, regulation, order, judgment or decree to which Originator or its property is subject, or impair the ability of the Trust to realize on the Mortgage Loans, or impair the value of the Mortgage Loans.Securities;
(ef) No consent, approval, authorization or order of any court or governmental agency or body is required for for: (1) the execution, delivery and performance by the Originator of of, or compliance by the Originator with this Agreementwith, any Basic Document to which it is a party, (2) the sale and contribution of the Assigned Assets to the Depositor, or if required(3) the consummation of the transactions required of it by any Basic Document to which it is a party, except such as shall have been obtained before such date, other than: (A) the filing or recording of financing statements, instruments of assignment and other similar documents necessary in connection with the sale of the Purchased Assets to the Issuer, (B) such consents, approvals, authorizations, qualifications, registrations, filings or notices as have been obtained or made and (C) where the lack of such consent, approval, authorization authorization, qualification, registration, filing or order has been obtained notice is unlikely to have a material adverse effect on its performance hereunder;
(g) Immediately prior to the related Closing Date.sale of the Assigned Assets to the Depositor, the Originator had good and valid title to the Assigned Assets sold by it on such date free and clear of all Liens other than Permitted Liens;
(fh) There The Originator is no actionsolvent, suit, proceeding or investigation pending or is able to pay its knowledge threatened against the Originator which, either individually or in the aggregate, may result in any material adverse change in the business, operations, financial condition, properties or assets of the Originator, or in any material impairment of the right or ability of the Originator debts as they become due and has capital sufficient to carry on its business substantially as now conducted, or and its obligations under each Basic Document to which would draw into question it is a party; it will not be rendered insolvent by the validity execution and delivery of this Agreement or by the Mortgage Loans performance of its obligations under each Basic Document to which it is a party; no petition of bankruptcy (or of any action taken similar Bankruptcy Proceeding) has been filed by or to be contemplated herein, or which would be likely to impair materially the ability of against the Originator to perform under the terms of this Agreement.
(g) The information about the Originator under the heading “The Originator” in the Prospectus relating prior to the Originator does not include an untrue statement of a material fact and does not omit to state a material fact, with respect to the statements made, necessary in order to make the statements in light of the circumstances under which they were made not misleading.
(h) All financial statements provided by the Originator fairly present the pertinent results of operations and changes in financial position for each of such periods and the financial position at the end of each such period of the Originator and its subsidiaries and have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved.date hereof;
(i) There The Originator has been no material adverse change transferred the Assigned Assets transferred by it on each Transfer Date without any intent to hinder, delay or defraud any of its creditors;
(j) The Originator has received fair consideration and reasonably equivalent value in exchange for the Assigned Assets sold and contributed by it on each Transfer Date to the Depositor;
(k) The Originator has not dealt with any broker or agent or other Person who might be entitled to a fee, commission or compensation in connection with the transaction contemplated by this Agreement;
(l) The Originator’s principal place of business and chief executive offices are located at 000 Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxx Xxxx, Xxxxxxxxxx 00000 or at such other address as shall be designated by such party in a written notice to the other parties hereto;
(m) The Originator and the Servicer acknowledge and agree that the Servicing Fee represents reasonable compensation for the performance of the servicing duties hereunder and that the entire Servicing Fee shall be treated by the Servicer and the Originator, for accounting purposes, as compensation for the servicing and administration of the Transferred Loans pursuant to this Agreement; and
(n) The Originator is in compliance with the financial covenants set forth in Section 7.01. It is understood and agreed that the representations and warranties set forth in this Section 3.02 shall survive delivery of the respective Loan Files to the Collateral Custodian, as the agent of the Indenture Trustee, and shall inure to the benefit of the Noteholders, the Depositor, the Servicer, the Indenture Trustee, the Owner Trustee and the Issuer. Upon discovery by the Originator, the Servicer, the Indenture Trustee or the Issuer of a breach of any of the foregoing representations and warranties that materially and adversely affects the value of any item of Collateral or the interests of the Noteholders in any item of Collateral or in the businessSecurities, operations, financial condition the party discovering such breach shall give prompt written notice to the other parties. The fact that the Initial Noteholder has conducted or assets has failed to conduct any partial or complete due diligence investigation of the Originator since the date Loan Files shall not affect any rights of the Originator’s most recent financial statementsSecurityholders’ under this Agreement.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Hercules Technology Growth Capital Inc)
Representations and Warranties of the Originator. The Originator hereby represents and warrants to and agrees with the other parties hereto as of the Closing Date Agents that:
(a) The the Originator has been duly organized is a corporation amalgamated and is validly existing as a limited liability company in good standing under the laws of Florida, with full Canada;
(b) the Originator has all requisite corporate power and authority to own its assets enter into, deliver and conduct its business as presently being conducted.
(b) The Originator has the full power and authority to execute and deliver this Agreement and to perform its obligations hereunder, under this Agency Agreement and the other Transaction Documents to which the Originator is or on the Closing Date will be a party and all necessary action has been or will be taken on or before the Closing Date to authorize the execution, delivery and performance of this Agency Agreement and the other Transaction Documents to which the Originator is or on the Closing Date will be a party, in each case, by the Originator;
(including all instruments c) assuming the due authorization, execution and delivery of transfer to be this Agency Agreement by the parties hereto other than the Originator, and the enforceability of this Agency Agreement against such parties, this Agency Agreement has been duly executed and delivered pursuant to this Agreement) by the Originator and the consummation of the transactions contemplated hereby have been duly and validly authorized.
(c) This Agreement constitutes a legal, valid and binding obligation of the Originator, enforceable against the Originator in accordance with its terms, subject to applicable bankruptcy, insolvency, winding-up, moratorium or reorganization, or other similar laws affecting creditors’ rights generally and to the availability of equitable remedies;
(d) the execution and delivery by the Originator of, and the performance by the Originator of its obligations under, the Transaction Documents to which it is a party will not result in any violation of the articles of amalgamation or by-laws of the Originator or any material violation of any agreement or other instrument binding upon the Originator or any of its assets or undertakings, will not result in any material violation of any statute or any order, rule or regulation of any governmental body, agency or court having jurisdiction over the Originator or of any law applicable to the Originator or any of its assets or undertakings;
(e) no consent, approval, authorization or order of, or qualification with, any governmental body or agency having jurisdiction over the Originator or the Trust is required for the performance by the Originator or the Trust of their respective obligations under any Transaction Document;
(f) there are no legal or governmental proceedings ongoing or, to the Originator’s knowledge, pending or threatened, to which the Originator, the Trust or any of the Originator’s subsidiaries is a party or to which any of the property of the Originator or the Trust is subject, which could have a material adverse effect on the execution, delivery or performance of the Transaction Documents;
(g) the Transaction Documents to which the Originator or the Trust is or on the Closing Date will be a party, when executed and delivered by the Originator or the Trust, as applicable, will be duly authorized by all necessary action and, assuming the due authorization, execution and delivery of the Transaction Documents to which the Originator or the Trust, as applicable, is or on the Closing Date will be a party by the parties thereto other than the Originator or the Trust, as applicable, and the enforceability of such Transaction Documents against such parties, will constitute legal, valid and binding obligations of the Originator or the Trust, as applicable, enforceable against the Originator or the Trust, as applicable, in accordance with their terms, subject to applicable bankruptcy, insolvency, winding-up, moratorium or reorganization, or other similar laws affecting creditors’ rights generally and to the availability of equitable remedies;
(h) the representations and warranties of the Originator and the Trust contained in the Transaction Documents to which the Originator or the Trust, as applicable, is or on the Closing Date will be a party that are made or to be made on or with effect as of the Closing Date will be true and correct on or as of such date; and
(i) the Notes issued under the Indenture, and any Notes to be issued, are when executed, duly executed and duly authorized by the Trust and when delivered and paid for by a purchaser in accordance with the terms of the Prospectus and the Indenture, will be valid and legally binding obligations of the Trust, enforceable in accordance with their terms except as the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws now relating to or hereafter in effect affecting the enforcement of creditors’ rights in general generally, and except as such enforceability may be limited by general principles of equity (whether considered in a proceeding at law or in equity).
(d) None of the execution and delivery of this Agreement, the transactions contemplated hereby, or the fulfillment of, or compliance with the terms and conditions of this Agreement will conflict with or result in a breach of any of the terms, certificate of formation, operating agreement or any legal restriction or any agreement or instrument to which the Originator is now a party or by which it is bound, or constitute a default or result in the violation of any law, rule, regulation, order, judgment or decree to which Originator or its property is subject, or impair the ability of the Trust to realize on the Mortgage Loans, or impair the value of the Mortgage Loans.
(e) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Originator of or compliance by the Originator with this Agreement, or if required, such consent, approval, authorization or order has been obtained prior to the related Closing Dateavailability of equitable remedies.
(f) There is no action, suit, proceeding or investigation pending or to its knowledge threatened against the Originator which, either individually or in the aggregate, may result in any material adverse change in the business, operations, financial condition, properties or assets of the Originator, or in any material impairment of the right or ability of the Originator to carry on its business substantially as now conducted, or which would draw into question the validity of this Agreement or the Mortgage Loans or of any action taken or to be contemplated herein, or which would be likely to impair materially the ability of the Originator to perform under the terms of this Agreement.
(g) The information about the Originator under the heading “The Originator” in the Prospectus relating to the Originator does not include an untrue statement of a material fact and does not omit to state a material fact, with respect to the statements made, necessary in order to make the statements in light of the circumstances under which they were made not misleading.
(h) All financial statements provided by the Originator fairly present the pertinent results of operations and changes in financial position for each of such periods and the financial position at the end of each such period of the Originator and its subsidiaries and have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved.
(i) There has been no material adverse change in the business, operations, financial condition or assets of the Originator since the date of the Originator’s most recent financial statements.
Appears in 1 contract
Samples: Agency Agreement (PHH Corp)
Representations and Warranties of the Originator. The Originator hereby represents and warrants to the other parties hereto and the Lenders that as of the Closing Date thatand as of each Transfer Date after the Closing Date:
(a) The Originator has been is a corporation duly organized and is validly existing as a limited liability company and in good standing under the laws of Florida, with full the jurisdiction of its organization and qualified to do business in any state where the failure to be so qualified reasonably could be expected to have a Material Adverse Change. The Borrower has all requisite power and authority to own and operate its assets and conduct properties, to carry on its business as presently being now conducted and as proposed to be conducted., to enter into the Loan Documents to which it is a party;
(b) The Originator has the full power execution and authority to execute and deliver this Agreement and to perform its obligations hereunder, and the execution, delivery and performance of this Agreement (including all instruments of transfer to be delivered pursuant to this Agreement) by the Originator of each Loan Document to which it is a party and its performance of and compliance with the consummation terms thereof will not violate the Originator’s Governing Documents, conflict with, result in a breach of, or constitute (with due notice or lapse of time or both) a default under any material contractual obligation of the transactions contemplated hereby have been duly and validly authorized.Originator;
(c) This The execution, delivery, and performance by the Originator of this Agreement and the other Loan Documents to which it is a party have been duly authorized by all necessary action on the part of the Originator; each Loan Document to which it is a party, assuming due authorization, execution and delivery by the other party or parties thereto, constitutes a legalvalid, valid legal and binding obligation of the Originator, enforceable against the Originator it in accordance with its termsthe terms thereof, except as enforceability such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws now relating to or hereafter in effect affecting the enforcement rights of creditors’ rights in general creditors generally, and except as such enforceability may be limited by general equity principles (regardless of equity (whether such enforcement is considered in a proceeding in equity or at law or in equitylaw).;
(d) None of the The execution and delivery by the Originator of this Agreement, the transactions contemplated hereby, or the fulfillment of, or compliance with the terms and conditions of this Agreement will conflict with or result in a breach of any of the terms, certificate of formation, operating agreement or any legal restriction or any agreement or instrument each Loan Document to which the Originator is now a party or by and its performance and compliance with the terms of each Loan Document to which it the Originator is bounda party will not violate any provision of federal, state, or constitute a default local law or regulation applicable to the Originator, the Governing Documents of Originator, or any order, judgment, or decree of any court or other Governmental Authority binding on the Originator to the extent such violation would reasonably be expected to result in the violation of any law, rule, regulation, order, judgment or decree to which Originator or its property is subject, or impair the ability of the Trust to realize on the Mortgage Loans, or impair the value of the Mortgage Loans.a Material Adverse Change;
(e) There are no actions, suits, or proceedings pending or, to the best knowledge of Originator, threatened, against Originator, that could reasonably be expected to result in a Material Adverse Change;
(f) No consent, approval, authorization or order of any court or governmental agency or body is required for for: (1) the execution, delivery and performance by the Originator of of, or compliance by the Originator with this Agreementwith, any Loan Document to which it is a party, (2) the sale and contribution of the Purchased Assets to the Borrower, or if required(3) the consummation of the transactions required of it by any Loan Document to which it is a party, except such as shall have been obtained before such date, other than: (A) the filing or recording of financing statements, instruments of assignment and other similar documents necessary in connection with the sale of the Purchased Assets to the Borrower, (B) such consents, approvals, authorizations, qualifications, registrations, filings or notices as have been obtained or made and (C) where the lack of such consent, approval, authorization authorization, qualification, registration, filing or order has been obtained prior notice would not reasonably be expected to the related Closing Date.
(f) There is no action, suit, proceeding or investigation pending or to its knowledge threatened against the Originator which, either individually or in the aggregate, may result in any a material adverse change in the business, operations, financial condition, properties or assets of the Originator, or in any material impairment of the right or ability of the Originator to carry effect on its business substantially as now conducted, or which would draw into question the validity of this Agreement or the Mortgage Loans or of any action taken or to be contemplated herein, or which would be likely to impair materially the ability of the Originator to perform under the terms of this Agreement.performance hereunder;
(g) The information about Immediately prior to the sale of the Purchased Assets to the Borrower, the Originator under the heading “The Originator” in the Prospectus relating had good and valid title to the Originator does not include an untrue statement Purchased Assets sold by it on such date free and clear of a material fact and does not omit to state a material fact, all Liens other than any Lien released contemporaneously with respect to the statements made, necessary in order to make the statements in light of the circumstances under which they were made not misleading.such sale;
(h) All financial statements provided by the The Originator fairly present the pertinent results of operations and changes in financial position for each of such periods and the financial position at the end of each such period of the Originator and its subsidiaries and have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved.is Solvent;
(i) There The Originator has been no material adverse change transferred the Purchased Assets transferred by it on each Transfer Date without any intent to hinder, delay or defraud any of its creditors;
(j) The Originator has received fair consideration and reasonably equivalent value in exchange for the businessPurchased Assets sold and contributed by it on each Transfer Date to the Borrower;
(k) The Originator has not dealt with any broker or agent or other Person who might be entitled to a fee, operationscommission or compensation in connection with the transaction contemplated by this Agreement;
(l) The Originator’s principal place of business and chief executive offices are located at 000 Xxxxxxxx Xxxxxx, financial condition Suite 310, Palo Alto, California 94301 or assets at such other address as shall be designated by such party in a written notice to the other parties hereto;
(m) The Originator and the Servicer acknowledge and agree that the Servicing Fee represents reasonable compensation for the performance of the Originator since servicing duties hereunder and that the date entire Servicing Fee shall be treated by the Servicer and the Originator, for accounting purposes, as compensation for the servicing and administration of the Transferred Loans pursuant to this Agreement; and
(n) The Originator is in compliance with the financial covenants set forth in Section 7.01. It is understood and agreed that the representations and warranties set forth in this Section 3.02 shall survive each Transfer Date and the delivery of the respective Loan Files to the Collateral Custodian as the agent of the Agent, and shall inure to the benefit of the Agent, the Lenders, the Servicer, and the Borrower. Upon discovery by the Originator’s most recent financial statements, the Servicer, the Borrower, or the Agent of a breach of any of the foregoing representations and warranties that materially and adversely affects the value of any item of Collateral or the interests of the Lender Group in any item of Collateral, the party discovering such breach shall give prompt written notice to the other parties. The fact that Agent or any Lender has conducted or has failed to conduct any partial or complete due diligence investigation of the Loan Files shall not affect any rights of the Lender Group under this Agreement.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Hercules Capital, Inc.)
Representations and Warranties of the Originator. The Originator hereby represents and warrants to the other parties hereto and the Lenders that as of the Closing Date thatand as of each Transfer Date:
(a) The Originator has been is a corporation duly organized and is organized, validly existing as a limited liability company and in good standing under the laws of Floridathe jurisdiction of its organization, with full is duly qualified, in good standing and licensed to carry on its business in each state where the conduct of its business requires it to be so qualified and licensed and has corporate power and authority to own its assets and conduct property, to carry on its business as presently being conducted.currently conducted and to enter into and perform its obligations under each Loan Document to which it is a party;
(b) The execution and delivery by the Originator of each Loan Document to which it is a party and its performance of and compliance with the terms thereof will not violate the Originator’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach or acceleration of, any material contract, agreement or other instrument to which the Originator is a party or which may be applicable to the Originator or any of its assets, in each case that is likely to affect materially and adversely its ability to carry out the transactions contemplated hereby;
(c) The Originator has the full power and authority to execute enter into and deliver this Agreement and consummate all transactions contemplated by the Loan Documents to perform its obligations hereunderbe consummated by it, and has duly authorized the execution, delivery and performance of this Agreement (including all instruments of transfer each Loan Document to be which it is a party and has duly executed and delivered pursuant each Loan Document to this Agreement) which it is a party; each Loan Document to which it is a party, assuming due authorization, execution and delivery by the Originator and the consummation each of the transactions contemplated hereby have been duly and validly authorized.
(c) This Agreement other parties thereto, constitutes a legalvalid, valid legal and binding obligation of the Originator, enforceable against the Originator it in accordance with its termsthe terms hereof, except as enforceability such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws now relating to or hereafter in effect affecting the enforcement rights of creditors’ rights in general creditors generally, and except as such enforceability may be limited by general equity principles (regardless of equity (whether such enforcement is considered in a proceeding in equity or at law or in equitylaw).;
(d) None of The Originator is not in violation of, and the execution and delivery of this Agreement, each Loan Document to which it is a party by the transactions contemplated hereby, or the fulfillment of, or Originator and its performance and compliance with the terms of each Loan Document to which it is a party will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over it or its business, which violation would materially and conditions adversely affect the financial condition, business or operations of this Agreement will conflict the Originator or its properties or materially and adversely affect the performance of its duties under any Loan Document to which it is a party;
(e) There are no actions or proceedings against, or investigations of, the Originator currently pending with regard to which the Originator has received service of process, and no action or result in proceeding against, or investigation of, the Originator is, to the Originator’s knowledge, threatened or otherwise pending before any court, administrative agency or other tribunal that (A) would prohibit its entering into any Loan Document to which it is a breach party or render its obligations thereunder invalid, (B) seeks to prevent the consummation of any of the terms, certificate of formation, operating agreement or transactions contemplated by any legal restriction or any agreement or instrument Loan Document to which the Originator it is now a party or (C) would prohibit or materially and adversely affect the sale and contribution of the Purchased Assets to the Buyer, the performance by the Originator of its obligations under, or the validity or enforceability of, any Loan Document to which it is bound, or constitute a default or result in the violation of any law, rule, regulation, order, judgment or decree to which Originator or its property is subject, or impair the ability of the Trust to realize on the Mortgage Loans, or impair the value of the Mortgage Loans.party;
(ef) No consent, approval, authorization or order of any court or governmental agency or body is required for for: (1) the execution, delivery and performance by the Originator of of, or compliance by the Originator with this Agreementwith, any Loan Document to which it is a party, (2) the sale and contribution of the Purchased Assets to the Buyer, or if required(3) the consummation of the transactions required of it by any Loan Document to which it is a party, except such as shall have been obtained before such date, other than: (A) the filing or recording of financing statements, instruments of assignment and other similar documents necessary in connection with the sale of the Purchased Assets to the Buyer, (B) such consents, approvals, authorizations, qualifications, registrations, filings or notices as have been obtained or made and (C) where the lack of such consent, approval, authorization authorization, qualification, registration, filing or order has been obtained notice is unlikely to have a Material Adverse Effect;
(g) Immediately prior to the related Closing Date.sale of the Purchased Assets to the Buyer, the Originator had good and valid title to the Purchased Assets sold by it on such date free and clear of all Liens other than Permitted Liens;
(fh) There The Originator is no actionSolvent, suit, proceeding or investigation pending or is able to pay its knowledge threatened against the Originator which, either individually or in the aggregate, may result in any material adverse change in the business, operations, financial condition, properties or assets of the Originator, or in any material impairment of the right or ability of the Originator debts as they become due and has capital sufficient to carry on its business substantially as now conducted, or and its obligations under each Loan Document to which would draw into question it is a party; it will not be rendered insolvent by the validity execution and delivery of this Agreement or by the Mortgage Loans performance of its obligations under each Loan Document to which it is a party; no petition of bankruptcy (or of any action taken similar Bankruptcy Proceeding) has been filed by or to be contemplated herein, or which would be likely to impair materially the ability of against the Originator to perform under the terms of this Agreement.
(g) The information about the Originator under the heading “The Originator” in the Prospectus relating prior to the Originator does not include an untrue statement of a material fact and does not omit to state a material fact, with respect to the statements made, necessary in order to make the statements in light of the circumstances under which they were made not misleading.
(h) All financial statements provided by the Originator fairly present the pertinent results of operations and changes in financial position for each of such periods and the financial position at the end of each such period of the Originator and its subsidiaries and have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved.date hereof;
(i) There The Originator has been no material adverse change transferred the Purchased Assets transferred by it on each Transfer Date without any intent to hinder, delay or defraud any of its creditors;
(j) The Originator has received fair consideration and reasonably equivalent value in exchange for the businessPurchased Assets sold and contributed by it on each Transfer Date to the Buyer;
(k) The Originator has not dealt with any broker or agent or other Person who might be entitled to a fee, operationscommission or compensation in connection with the transaction contemplated by this Agreement;
(l) The Originator’s principal place of business and chief executive offices are located at 000 Xxxxxxxxxx Xxxxxx, financial condition Xxxxxxxxxx, Xxxxxxxxxxx 00000, or assets at such other address as shall be designated by such party in a prior written notice to the other parties hereto; and
(m) The Originator and the Servicer acknowledge and agree that the Servicing Fee represents reasonable compensation for the performance of the Originator since servicing duties hereunder and that the date entire Servicing Fee shall be treated by the Servicer and the Originator, for accounting purposes, as compensation for the servicing and administration of the Transferred Notes Receivable pursuant to this Agreement. It is understood and agreed that the representations and warranties set forth in this Section 3.02 shall survive delivery of the respective Required Asset Documents to the Collateral Custodian as the agent of the Agent, and shall inure to the benefit of the Agent, the Lenders, the Servicer, and the Buyer. Upon discovery by the Originator’s most recent financial statements, the Servicer, the Buyer, or the Agent of a breach of any of the foregoing representations and warranties that materially and adversely affects the value of any item of Collateral or the interests of the Lender Group in any item of Collateral, the party discovering such breach shall give prompt written notice to the other parties. The fact that Agent or any Lender has conducted or has failed to conduct any partial or complete due diligence investigation of the Note Receivable Documents shall not affect any rights of the Lender Group under this Agreement.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Horizon Technology Finance Corp)
Representations and Warranties of the Originator. The Originator hereby represents and warrants to the other parties hereto as of the Closing Date that:
(a) The Originator has been duly organized and is validly existing as a limited liability company in good standing under the laws of Florida, with full power and authority to own its assets and conduct its business as presently being conducted.
(b) The Originator has the full power and authority to execute and deliver this Agreement and to perform its obligations hereunder, and the execution, delivery and performance of this Agreement (including all instruments of transfer to be delivered pursuant to this Agreement) by the Originator and the consummation of the transactions contemplated hereby have been duly and validly authorized.
(c) This Agreement constitutes a legal, valid and binding obligation of the Originator, enforceable against the Originator in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect affecting the enforcement of creditors’ rights in general and except as such enforceability may be limited by general principles of equity (whether considered in a proceeding at law or in equity).
(d) None of the execution and delivery of this Agreement, the transactions contemplated hereby, or the fulfillment of, or compliance with the terms and conditions of this Agreement will conflict with or result in a breach of any of the terms, certificate of formation, operating agreement or any legal restriction or any agreement or instrument to which the Originator is now a party or by which it is bound, or constitute a default or result in the violation of any law, rule, regulation, order, judgment or decree to which Originator or its property is subject, or impair the ability of the Trust to realize on the Mortgage Loans, or impair the value of the Mortgage Loans.
(e) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Originator of or compliance by the Originator with this Agreement, or if required, such consent, approval, authorization or order has been obtained prior to the related Closing Date.
(f) There is no action, suit, proceeding or investigation pending or to its knowledge threatened against the Originator which, either individually or in the aggregate, may result in any material adverse change in the business, operations, financial condition, properties or assets of the Originator, or in any material impairment of the right or ability of the Originator to carry on its business substantially as now conducted, or which would draw into question the validity of this Agreement or the Mortgage Loans or of any action taken or to be contemplated herein, or which would be likely to impair materially the ability of the Originator to perform under the terms of this Agreement.
(g) The information about the Originator under the heading [“The Originator” ”] in the Prospectus relating to the Originator does not include an untrue statement of a material fact and does not omit to state a material fact, with respect to the statements made, necessary in order to make the statements in light of the circumstances under which they were made not misleading.
(h) All financial statements provided by the Originator fairly present the pertinent results of operations and changes in financial position for each of such periods and the financial position at the end of each such period of the Originator and its subsidiaries and have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved.
(i) There has been no material adverse change in the business, operations, financial condition or assets of the Originator since the date of the Originator’s most recent financial statements.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (First NLC Securitization, Inc.)
Representations and Warranties of the Originator. The Originator hereby represents and warrants to the other parties hereto and the Lenders that as of the Closing Date thatand as of each Transfer Date after the Closing Date:
(a) The Originator has been is a corporation duly organized and is organized, validly existing as a limited liability company and in good standing under the laws of Floridathe jurisdiction of its organization, with is duly qualified, in good standing and licensed to carry on its business in each state where the conduct of its business requires it to be so qualified and licensed and has full corporate power and authority to own its assets and conduct property, to carry on its business as presently being conducted.currently conducted and to enter into and perform its obligations under each Loan Document to which it is a party;
(b) The execution and delivery by the Originator of each Loan Document to which it is a party and its performance of and compliance with the terms thereof will not violate the Originator’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach or acceleration of, any material contract, agreement or other instrument to which the Originator is a party or which may be applicable to the Originator or any of its assets in each case that is likely to affect materially and adversely its ability to carry out the transactions contemplated hereby;
(c) The Originator has the full power and authority to execute enter into and deliver this Agreement and consummate all transactions contemplated by the Loan Documents to perform its obligations hereunderbe consummated by it, and has duly authorized the execution, delivery and performance of this Agreement (including all instruments of transfer each Loan Document to be which it is a party and has duly executed and delivered pursuant each Loan Document to this Agreement) which it is a party; each Loan Document to which it is a party, assuming due authorization, execution and delivery by the Originator and the consummation each of the transactions contemplated hereby have been duly and validly authorized.
(c) This Agreement other parties thereto, constitutes a legalvalid, valid legal and binding obligation of the Originator, enforceable against the Originator it in accordance with its termsthe terms hereof, except as enforceability such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws now relating to or hereafter in effect affecting the enforcement rights of creditors’ rights in general creditors generally, and except as such enforceability may be limited by general equity principles (regardless of equity (whether such enforcement is considered in a proceeding in equity or at law or in equitylaw).;
(d) None of The Originator is not in violation of, and the execution and delivery of this Agreement, each Loan Document to which it is a party by the transactions contemplated hereby, or the fulfillment of, or Originator and its performance and compliance with the terms of each Loan Document to which it is a party will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over it or its business, which violation would materially and conditions adversely affect the financial condition, business or operations of this Agreement will conflict the Originator or its properties or materially and adversely affect the performance of its duties under any Loan Document to which it is a party;
(e) There are no actions or proceedings against, or investigations of, the Originator currently pending with regard to which the Originator has received service of process, and no action or result in proceeding against, or investigation of, the Originator is, to the Originator’s knowledge, threatened or otherwise pending before any court, administrative agency or other tribunal that (A) would prohibit its entering into any Loan Document to which it is a breach party or render its obligations thereunder invalid, (B) seeks to prevent the consummation of any of the terms, certificate of formation, operating agreement or transactions contemplated by any legal restriction or any agreement or instrument Loan Document to which the Originator it is now a party or (C) would prohibit or materially and adversely affect the sale and contribution of the Purchased Assets to the Borrower, the performance by the Originator of its obligations under, or the validity or enforceability of, any Loan Document to which it is bound, or constitute a default or result in the violation of any law, rule, regulation, order, judgment or decree to which Originator or its property is subject, or impair the ability of the Trust to realize on the Mortgage Loans, or impair the value of the Mortgage Loans.party;
(ef) No consent, approval, authorization or order of any court or governmental agency or body is required for for: (1) the execution, delivery and performance by the Originator of of, or compliance by the Originator with this Agreementwith, any Loan Document to which it is a party, (2) the sale and contribution of the Purchased Assets to the Borrower, or if required(3) the consummation of the transactions required of it by any Loan Document to which it is a party, except such as shall have been obtained before such date, other than: (A) the filing or recording of financing statements, instruments of assignment and other similar documents necessary in connection with the sale of the Purchased Assets to the Borrower, (B) such consents, approvals, authorizations, qualifications, registrations, filings or notices as have been obtained or made and (C) where the lack of such consent, approval, authorization authorization, qualification, registration, filing or order has been obtained notice is unlikely to have a material adverse effect on its performance hereunder;
(g) Immediately prior to the related Closing Date.sale of the Purchased Assets to the Borrower, the Originator had good and valid title to the Purchased Assets sold by it on such date free and clear of all Liens other than Permitted Liens;
(fh) There The Originator is no actionsolvent, suit, proceeding or investigation pending or is able to pay its knowledge threatened against the Originator which, either individually or in the aggregate, may result in any material adverse change in the business, operations, financial condition, properties or assets of the Originator, or in any material impairment of the right or ability of the Originator debts as they become due and has capital sufficient to carry on its business substantially as now conducted, or and its obligations under each Loan Document to which would draw into question it is a party; it will not be rendered insolvent by the validity execution and delivery of this Agreement or by the Mortgage Loans performance of its obligations under each Loan Document to which it is a party; no petition of bankruptcy (or of any action taken similar Bankruptcy Proceeding) has been filed by or to be contemplated herein, or which would be likely to impair materially the ability of against the Originator to perform under the terms of this Agreement.
(g) The information about the Originator under the heading “The Originator” in the Prospectus relating prior to the Originator does not include an untrue statement of a material fact and does not omit to state a material fact, with respect to the statements made, necessary in order to make the statements in light of the circumstances under which they were made not misleading.
(h) All financial statements provided by the Originator fairly present the pertinent results of operations and changes in financial position for each of such periods and the financial position at the end of each such period of the Originator and its subsidiaries and have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved.date hereof;
(i) There The Originator has transferred the Purchased Assets transferred by it on each Transfer Date without any intent to hinder, delay or defraud any of its creditors;
(j) The Originator has received fair consideration and reasonably equivalent value in exchange for the Purchased Assets sold and contributed by it on each Transfer Date to the Borrower;
(k) The Originator has not dealt with any broker or agent or other Person who might be entitled to a fee, commission or compensation in connection with the transaction contemplated by this Agreement;
(l) The Originator’s principal place of business and chief executive offices are located at 000 Xxxxxxxx Xxxxxx, Suite 310, Palo Alto, California 94301 or at such other address as shall be designated by such party in a written notice to the other parties hereto;
(m) The Originator and the Servicer acknowledge and agree that the Servicing Fee represents reasonable compensation for the performance of the servicing duties hereunder and that the entire Servicing Fee shall be treated by the Servicer and the Originator, for accounting purposes, as compensation for the servicing and administration of the Transferred Loans pursuant to this Agreement; and
(n) The Originator is in compliance with the financial covenants set forth in Section 7.01. It is understood and agreed that the representations and warranties set forth in this Section 3.02 shall survive delivery of the respective Loan Files to Agent or, if a Collateral Custodian has been no material adverse change in appointed, the business, operations, financial condition or assets Collateral Custodian as the agent of the Originator since Agent, and shall inure to the date benefit of the Agent, the Lenders, the Servicer, and the Borrower. Upon discovery by the Originator’s most recent financial statements, the Servicer, the Borrower, or the Agent of a breach of any of the foregoing representations and warranties that materially and adversely affects the value of any item of Collateral or the interests of the Lender Group in any item of Collateral, the party discovering such breach shall give prompt written notice to the other parties. The fact that Agent or any Lender has conducted or has failed to conduct any partial or complete due diligence investigation of the Loan Files shall not affect any rights of the Lender Group under this Agreement.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Hercules Technology Growth Capital Inc)
Representations and Warranties of the Originator. The Originator hereby represents and warrants to the other parties hereto as of the Closing Date thatfollows:
(a) The Originator has been duly organized and is an organization validly existing as a limited liability company and in good standing under the laws of Floridathe jurisdiction of its organization, with full power and authority is duly qualified to own its assets do business, and conduct is in good standing, in every jurisdiction where the nature of its business as presently being conductedrequires it to be so qualified, except where the failure to be so qualified or in good standing would not reasonably be expected to have a Material Adverse Effect.
(b) The Originator has the full power and authority to execute and deliver this Agreement and to perform its obligations hereunder, and the execution, delivery and performance by the Originator of this Agreement each Transaction Document to which it is a party (including i) are within the Originator’s corporate powers, (ii) have been duly authorized by all instruments necessary corporate action, (iii) do not contravene (1) the Originator’s charter or by-laws, (2) any law, rule or regulation applicable to the Originator, (3) any contractual restriction binding on or affecting the Originator or its property, the violation of which could or (4) any order, writ, judgment, award, injunction or decree binding on the Originator or its property, in each case for clauses (2) through (4) where such contravention would reasonably be expected to have a material adverse effect on the collectibilitycollectability of any outstandingTransferred Receivable or a Material Adverse Effect or a material adverse effect on the Originator or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Originator or its property, Originator’s ability to perform its obligations hereunder or under any other Transaction Document, and (iv) do not result in or require the creation of any Adverse Claim upon or with respect to any of its properties (except for the transfer to be delivered of the Originator’s interest in the Receivables pursuant to this Agreement) ). This Agreement has been duly executed and delivered by the Originator and the consummation a duly authorized officer of the transactions contemplated hereby have been duly and validly authorizedOriginator.
(c) This 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 the Originator of this Agreement or any other document to be delivered hereunder, except for the filing of UCC financing statements which are referred to herein other than those which have been obtained; provided that the right of any assignee of a Receivable the obligor of which is a Government Obligor to enforce such Receivable directly against such obligor may be restricted by the Federal Assignment of Claims Act or any similar applicable law to the extent the Originator or the Buyer shall not have complied with the applicable provisions of any such law in connection with the assignment or subsequent reassignment of any such Receivable.
(d) Each of the Transaction Documents to which it is a party constitutes a the legal, valid and binding obligation of the Originator, Originator enforceable against the Originator in accordance with its terms, except as enforceability may be limited by applicable subject to bankruptcy, insolvency, reorganization, moratorium or and other similar laws now or hereafter in effect affecting the enforcement of creditors’ rights in general generally and except as such enforceability may be limited by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law or in equitylaw).
(d) None of the execution and delivery of this Agreement, the transactions contemplated hereby, or the fulfillment of, or compliance with the terms and conditions of this Agreement will conflict with or result in a breach of any of the terms, certificate of formation, operating agreement or any legal restriction or any agreement or instrument to which the Originator is now a party or by which it is bound, or constitute a default or result in the violation of any law, rule, regulation, order, judgment or decree to which Originator or its property is subject, or impair the ability of the Trust to realize on the Mortgage Loans, or impair the value of the Mortgage Loans.
(e) No consentSales and contributions made pursuant to this Agreement will constitute a valid sale, approval, authorization or order transfer and assignment of any court or governmental agency or body is required for the execution, delivery and performance by the Originator of or compliance by the Originator with this Agreement, or if required, such consent, approval, authorization or order has been obtained prior Receivables to the related Closing DateBuyer, enforceable against creditors of, and purchasers from, the Originator. The Originator shall have no remaining property interest in any Transferred Receivable.
(f) There is no action, suit, proceeding or investigation pending or to The consolidated balance sheets of United Rentals and its knowledge threatened against the Originator which, either individually or in the aggregate, may result in any material adverse change in the business, operations, financial condition, properties or assets of the Originator, or in any material impairment of the right or ability of the Originator to carry on its business substantially Subsidiaries as now conducted, or which would draw into question the validity of this Agreement or the Mortgage Loans or of any action taken or to be contemplated herein, or which would be likely to impair materially the ability of the Originator to perform under the terms of this Agreement.
(g) The information about the Originator under the heading “The Originator” in the Prospectus relating to the Originator does not include an untrue statement of a material fact and does not omit to state a material fact, with respect to the statements made, necessary in order to make the statements in light of the circumstances under which they were made not misleading.
(h) All financial statements provided by the Originator fairly present the pertinent results of operations and changes in financial position for each of such periods and the financial position at the end of each such period its most recent fiscal year, and the related consolidated statements of the Originator income and retained earnings of United Rentals and its subsidiaries and Subsidiaries for such fiscal year, copies of which have been prepared or will be furnished to the Buyer in accordance with generally accepted accounting principles Section 5.01(j) below, fairly present in all material respects the consolidated financial condition of United Rentals and its Subsidiaries as at such date and the consolidated results of the operations of United Rentals and its Subsidiaries for the period ended on such date, all in accordance with GAAP consistently applied throughout applied, and since the periods involved.
(i) There end of its most recent fiscal year there has been no material adverse change in the business, operations, property or financial condition of United Rentals and its Subsidiaries, except as may have previously been disclosed to the Buyer.
(g) There is no pending or, to the Originator’s knowledge, threatened action or proceeding affecting the Originator before any court, governmental agency or arbitrator which maythat would reasonably be expected to materially adversely affect the financial condition or assets operations of the Originator since or the date ability of the Originator to perform its obligations under this Agreement, or which purports to affect the legality, validity or enforceability of this Agreement; the Originator is not in default with respect to any order of any court, arbitration or governmental body except for defaults with respect to orders of governmental agencies which defaultsthat are not material to the business or operations of the Originator’s most recent .
(h) No proceeds of any purchase will be used to acquire any equity security of a class which is registered pursuant to Section 12 of the Securities Exchange Act of 1934. (other than the equity securities of United Rentals).
(i) Each Receivable, together with the Related Security, is owned (prior to its sale or contribution hereunder) by the Originator free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by the Buyer or arising under or permitted by any Transaction Document). When the Buyer makes a purchase or receives a contribution of a Receivable it shall acquire valid ownership of such Transferred Receivable and the Related Security and Collections with respect thereto free and clear of any Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by the Buyer or arising under or permitted by any Transaction Document); provided, that the interest of the Originator in Receivables that represent proceeds of the sale of equipment that has been leased to the Originator may be subject to the lien of the lessor thereof, so long as the Outstanding Balance of Receivables subject to such lien is de minimis relative to the Outstanding Balance of Pool Receivables at such time; provided, further, that the right of any assignee of Receivables the obligor of which is a Government Obligor to enforce such Receivable directly against such obligor may be restricted by the Federal Assignment of Claims Act or any similar applicable law to the extent the Originator or Buyer and/or any assignee thereof shall not have complied with the applicable provisions of any such law in connection with the assignment or subsequent reassignment of any such Receivable. No effective financing statement or other instrument similar in effect covering any Contract or any Transferred Receivable, any interest therein, the Related Security or Collections with respect thereto is on file in any recording office, except those filed in favor of the Buyer relating to this Agreement and those filed pursuant to the Receivables Agreement.
(j) Each report, information, exhibit, financial statementsstatement, document, book, record or report furnished or to be furnished at any time by the Originator to the Buyer in connection with this Agreement is true, complete and accurate in all material respects as of its date or (except as otherwise disclosed to the Buyer at such time) as of the date so furnished.
(k) The principal place of business and chief executive office of the Originator and the office where the Originator keeps its records concerning the Transferred Receivables are located at the address or addresses referred to in Section 5.01(b).
(l) The Originator is not known by and does not use, nor has it been known by or used within the past five years, any tradename or doing-business-as name.
(m) With respect to any programs used by the Originator in the servicing of the Receivables, no sublicensing agreements are necessary in connection with the designation of a new Collection Agent so that such new Collection Agent shall have the benefit of such programs (it being understood, however, that the Collection Agent, if other than United Rentals, shall be required to be bound by a confidentiality agreement reasonably acceptable to the Originator).
(n) All sales, excise or other taxes with respect to the merchandise, insurance or services which are the subject of any Contract for a Receivable have been paid by the Originator when due, except where the failure to pay such sales, excise or other taxes would not reasonably be expected to have a Material Adverse Effect on the Originator or the Buyer or create any material liability against the Buyer, the Administrative Agent, any Purchaser Agent, any Purchaser or any Bank.
(o) The names of the Collection Account Banks and Controlled Account Bank, together with the account numbers of the Collection Accounts and the Controlled Account, are specified in Annex B (as the same may be updated from time to time pursuant to Section 5.01(g) and), the definition of Collection Account or Controlled Account, as applicable, contained in the Receivables Agreement and paragraph (h) of Exhibit IV to the Receivables Agreement).
(p) All right, title and interest of the Originator in and to, and exclusive dominion and control in respect of the Controlled Account hashave been transferred by the Originator to the Buyer, or its designee, free and clear of any Adverse Claim (other than any Adverse Claim arising under or permitted by any Transaction Document). The Originator has no interest in any Collection Account or the Controlled Account.
(q) Each ENB Receivable has been originated pursuant to the terms of a Contract substantially similar to the form of Contract attached as Annex H to the Receivables Agreement, as amended from time to time by the Originator with notice to the Buyer; provided that if any amendment to such form of Contract adversely affects the enforceability of ENB Receivables or the interests of the Buyer therein, such amendment shall require the written consent of the Buyer.
Appears in 1 contract
Representations and Warranties of the Originator. The Originator hereby represents and warrants to the other parties hereto and the Lenders that as of the Closing Date, the Restatement Effective Date thatand as of each Transfer Date:
(a) The Originator has been is a corporation duly organized and is organized, validly existing as a limited liability company and in good standing under the laws of Floridathe jurisdiction of its organization, with full is duly qualified, in good standing and licensed to carry on its business in each state where the conduct of its business requires it to be so qualified and licensed and has corporate power and authority to own its assets and conduct property, to carry on its business as presently being conducted.currently conducted and to enter into and perform its obligations under each Loan Document to which it is a party;
(b) The execution and delivery by the Originator of each Loan Document to which it is a party and its performance of and compliance with the terms thereof will not violate the Originator’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach or acceleration of, any material contract, agreement or other instrument to which the Originator is a party or which may be applicable to the Originator or any of its assets, in each case that is likely to affect materially and adversely its ability to carry out the transactions contemplated hereby;
(c) The Originator has the full power and authority to execute enter into and deliver this Agreement and consummate all transactions contemplated by the Loan Documents to perform its obligations hereunderbe consummated by it, and has duly authorized the execution, delivery and performance of this Agreement (including all instruments of transfer each Loan Document to be which it is a party and has duly executed and delivered pursuant each Loan Document to this Agreement) which it is a party; each Loan Document to which it is a party, assuming due authorization, execution and delivery by the Originator and the consummation each of the transactions contemplated hereby have been duly and validly authorized.
(c) This Agreement other parties thereto, constitutes a legalvalid, valid legal and binding obligation of the Originator, enforceable against the Originator it in accordance with its termsthe terms hereof, except as enforceability such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws now relating to or hereafter in effect affecting the enforcement rights of creditors’ rights in general creditors generally, and except as such enforceability may be limited by general equity principles (regardless of equity (whether such enforcement is considered in a proceeding in equity or at law or in equitylaw).;
(d) None of The Originator is not in violation of, and the execution and delivery of this Agreement, each Loan Document to which it is a party by the transactions contemplated hereby, or the fulfillment of, or Originator and its performance and compliance with the terms of each Loan Document to which it is a party will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over it or its business, which violation would materially and conditions adversely affect the financial condition, business or operations of this Agreement will conflict the Originator or its properties or materially and adversely affect the performance of its duties under any Loan Document to which it is a party;
(e) There are no actions or proceedings against, or investigations of, the Originator currently pending with regard to which the Originator has received service of process, and no action or result in proceeding against, or investigation of, the Originator is, to the Originator’s knowledge, threatened or otherwise pending before any court, administrative agency or other tribunal that (A) would prohibit its entering into any Loan Document to which it is a breach party or render its obligations thereunder invalid, (B) seeks to prevent the consummation of any of the terms, certificate of formation, operating agreement or transactions contemplated by any legal restriction or any agreement or instrument Loan Document to which the Originator it is now a party or (C) would prohibit or materially and adversely affect the sale and contribution of the Purchased Assets to the Buyer, the performance by the Originator of its obligations under, or the validity or enforceability of, any Loan Document to which it is bound, or constitute a default or result in the violation of any law, rule, regulation, order, judgment or decree to which Originator or its property is subject, or impair the ability of the Trust to realize on the Mortgage Loans, or impair the value of the Mortgage Loans.party;
(ef) No consent, approval, authorization or order of any court or governmental agency or body is required for for: (1) the execution, delivery and performance by the Originator of of, or compliance by the Originator with this Agreementwith, any Loan Document to which it is a party, (2) the sale and contribution of the Purchased Assets to the Buyer, or if required(3) the consummation of the transactions required of it by any Loan Document to which it is a party, except such as shall have been obtained before such date, other than: (A) the filing or recording of financing statements, instruments of assignment and other similar documents necessary in connection with the sale of the Purchased Assets to the Buyer, (B) such consents, approvals, authorizations, qualifications, registrations, filings or notices as have been obtained or made and (C) where the lack of such consent, approval, authorization authorization, qualification, registration, filing or order has been obtained notice is unlikely to have a Material Adverse Effect;
(g) Immediately prior to the related Closing Date.sale of the Purchased Assets to the Buyer, the Originator had good and valid title to the Purchased Assets sold by it on such date free and clear of all Liens other than Permitted Liens;
(fh) There The Originator is no actionSolvent, suit, proceeding or investigation pending or is able to pay its knowledge threatened against the Originator which, either individually or in the aggregate, may result in any material adverse change in the business, operations, financial condition, properties or assets of the Originator, or in any material impairment of the right or ability of the Originator debts as they become due and has capital sufficient to carry on its business substantially as now conducted, or and its obligations under each Loan Document to which would draw into question it is a party; it will not be rendered insolvent by the validity execution and delivery of this Agreement or by the Mortgage Loans performance of its obligations under each Loan Document to which it is a party; no petition of bankruptcy (or of any action taken similar Bankruptcy Proceeding) has been filed by or to be contemplated herein, or which would be likely to impair materially the ability of against the Originator to perform under the terms of this Agreement.
(g) The information about the Originator under the heading “The Originator” in the Prospectus relating prior to the Originator does not include an untrue statement of a material fact and does not omit to state a material fact, with respect to the statements made, necessary in order to make the statements in light of the circumstances under which they were made not misleading.
(h) All financial statements provided by the Originator fairly present the pertinent results of operations and changes in financial position for each of such periods and the financial position at the end of each such period of the Originator and its subsidiaries and have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved.date hereof;
(i) There The Originator has been no material adverse change transferred the Purchased Assets transferred by it on each Transfer Date without any intent to hinder, delay or defraud any of its creditors;
(j) The Originator has received fair consideration and reasonably equivalent value in exchange for the businessPurchased Assets sold and contributed by it on each Transfer Date to the Buyer;
(k) The Originator has not dealt with any broker or agent or other Person who might be entitled to a fee, operationscommission or compensation in connection with the transaction contemplated by this Agreement;
(l) The Originator’s principal place of business and chief executive offices are located at 300 Xxxxxxxxxx Xxxxxx, financial condition Xxxxxxxxxx, Xxxxxxxxxxx 00000, or assets at such other address as shall be designated by such party in a prior written notice to the other parties hereto; and
(m) The Originator and the Servicer acknowledge and agree that the Servicing Fee represents reasonable compensation for the performance of the Originator since servicing duties hereunder and that the date entire Servicing Fee shall be treated by the Servicer and the Originator, for accounting purposes, as compensation for the servicing and administration of the Transferred Notes Receivable pursuant to this Agreement. It is understood and agreed that the representations and warranties set forth in this Section 3.02 shall survive delivery of the respective Required Asset Documents to the Collateral Custodian as the agent of the Agent, and shall inure to the benefit of the Agent, the Lenders, the Servicer, and the Buyer. Upon discovery by the Originator’s most recent financial statements, the Servicer, the Buyer, or the Agent of a breach of any of the foregoing representations and warranties that materially and adversely affects the value of any item of Collateral or the interests of the Lender Group in any item of Collateral, the party discovering such breach shall give prompt written notice to the other parties. The fact that Agent or any Lender has conducted or has failed to conduct any partial or complete due diligence investigation of the Note Receivable Documents shall not affect any rights of the Lender Group under this Agreement.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Horizon Technology Finance Corp)
Representations and Warranties of the Originator. The Originator hereby represents and warrants to the other parties hereto and the Lenders that as of the Closing Date thatand as of each Transfer Date after the Closing Date:
(a) The Originator has been is a corporation duly organized and is validly existing as a limited liability company and in good standing under the laws of Florida, with full the jurisdiction of its organization and qualified to do business in any state where the failure to be so qualified reasonably could be expected to have a Material Adverse Change. The Borrower has all requisite power and authority to own and operate its assets and conduct properties, to carry on its business as presently being now conducted and as proposed to be conducted., to enter into the Loan Documents to which it is a party;
(b) The Originator has the full power execution and authority to execute and deliver this Agreement and to perform its obligations hereunder, and the execution, delivery and performance of this Agreement (including all instruments of transfer to be delivered pursuant to this Agreement) by the Originator of each Loan Document to which it is a party and its performance of and compliance with the consummation terms thereof will not violate the Originator’s Governing Documents, conflict with, result in a breach of, or constitute (with due notice or lapse of time or both) a default under any material contractual obligation of the transactions contemplated hereby have been duly and validly authorized.Originator;
(c) This The execution, delivery, and performance by the Originator of this Agreement and the other Loan Documents to which it is a party have been duly authorized by all necessary action on the part of the Originator; each Loan Document to which it is a party, assuming due authorization, execution and delivery by the other party or parties thereto, constitutes a legalvalid, valid legal and binding obligation of the Originator, enforceable against the Originator it in accordance with its termsthe terms thereof, except as enforceability such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws now relating to or hereafter in effect affecting the enforcement rights of creditors’ rights in general creditors generally, and except as such enforceability may be limited by general equity principles (regardless of equity (whether such enforcement is considered in a proceeding in equity or at law or in equitylaw).;
(d) None of the The execution and delivery by the Originator of this Agreement, the transactions contemplated hereby, or the fulfillment of, or compliance with the terms and conditions of this Agreement will conflict with or result in a breach of any of the terms, certificate of formation, operating agreement or any legal restriction or any agreement or instrument each Loan Document to which the Originator is now a party or by and its performance and compliance with the terms of each Loan Document to which it the Originator is bounda party will not violate any provision of federal, state, or constitute a default local law or regulation applicable to the Originator, the Governing Documents of Originator, or any order, judgment, or decree of any court or other Governmental Authority binding on the Originator to the extent such violation would reasonably be expected to result in the violation of any law, rule, regulation, order, judgment or decree to which Originator or its property is subject, or impair the ability of the Trust to realize on the Mortgage Loans, or impair the value of the Mortgage Loans.a Material Adverse Change;
(e) There are no actions, suits, or proceedings pending or, to the best knowledge of Originator, threatened, against Originator, that could reasonably be expected to result in a Material Adverse Change;
(f) No consent, approval, authorization or order of any court or governmental agency or body is required for for: (1) the execution, delivery and performance by the Originator of of, or compliance by the Originator with this Agreementwith, any Loan Document to which it is a party, (2) the sale and contribution of the Purchased Assets to the Borrower, or if required(3) the consummation of the transactions required of it by any Loan Document to which it is a party, except such as shall have been obtained before such date, other than: (A) the filing or recording of financing statements, instruments of assignment and other similar documents necessary in connection with the sale of the Purchased Assets to the Borrower, (B) such consents, approvals, authorizations, qualifications, registrations, filings or notices as have been obtained or made and (C) where the lack of such consent, approval, authorization authorization, qualification, registration, filing or order has been obtained prior notice would not reasonably be expected to the related Closing Date.
(f) There is no action, suit, proceeding or investigation pending or to its knowledge threatened against the Originator which, either individually or in the aggregate, may result in any a material adverse change in the business, operations, financial condition, properties or assets of the Originator, or in any material impairment of the right or ability of the Originator to carry effect on its business substantially as now conducted, or which would draw into question the validity of this Agreement or the Mortgage Loans or of any action taken or to be contemplated herein, or which would be likely to impair materially the ability of the Originator to perform under the terms of this Agreement.performance hereunder;
(g) The information about Immediately prior to the sale of the Purchased Assets to the Borrower, the Originator under the heading “The Originator” in the Prospectus relating had good and valid title to the Originator does not include an untrue statement Purchased Assets sold by it on such date free and clear of a material fact and does not omit to state a material fact, all Liens other than any Lien released contemporaneously with respect to the statements made, necessary in order to make the statements in light of the circumstances under which they were made not misleading.such sale;
(h) All financial statements provided by the The Originator fairly present the pertinent results of operations and changes in financial position for each of such periods and the financial position at the end of each such period of the Originator and its subsidiaries and have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved.is Solvent;
(i) There The Originator has been no material adverse change transferred the Purchased Assets transferred by it on each Transfer Date without any intent to hinder, delay or defraud any of its creditors;
(j) The Originator has received fair consideration and reasonably equivalent value in exchange for the businessPurchased Assets sold and contributed by it on each Transfer Date to the Borrower;
(k) The Originator has not dealt with any broker or agent or other Person who might be entitled to a fee, operationscommission or compensation in connection with the transaction contemplated by this Agreement;
(l) The Originator’s principal place of business and chief executive offices are located at 000 Xxxxxxxx Xxxxxx, financial condition Suite 310, Palo Alto, California 94301 or assets at such other address as shall be designated by such party in a written notice to the other parties hereto;
(m) The Originator and the Servicer acknowledge and agree that the Servicing Fee represents reasonable compensation for the performance of the Originator since servicing duties hereunder and that the date entire Servicing Fee shall be treated by the Servicer and the Originator, for accounting purposes, as compensation for the servicing and administration of the Transferred Loans pursuant to this Agreement; and It is understood and agreed that the representations and warranties set forth in this Section 3.02 shall survive each Transfer Date and the delivery of the respective Loan Files to the Collateral Custodian as the agent of the Agent, and shall inure to the benefit of the Agent, the Lenders, the Servicer, and the Borrower. Upon discovery by the Originator’s most recent financial statements, the Servicer, the Borrower, or the Agent of a breach of any of the foregoing representations and warranties that materially and adversely affects the value of any item of Collateral or the interests of the Lender Group in any item of Collateral, the party discovering such breach shall give prompt written notice to the other parties. The fact that Agent or any Lender has conducted or has failed to conduct any partial or complete due diligence investigation of the Loan Files shall not affect any rights of the Lender Group under this Agreement.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Hercules Capital, Inc.)
Representations and Warranties of the Originator. The Originator hereby represents and warrants to the other parties hereto and the Lenders that as of the Closing Date thatand the Restatement Date and as of each Transfer Date:
(a) The Originator has been is a corporation duly organized and is organized, validly existing as a limited liability company and in good standing under the laws of Floridathe jurisdiction of its organization, with full is duly qualified, in good standing and licensed to carry on its business in each state where the conduct of its business requires it to be so qualified and licensed and has corporate power and authority to own its assets and conduct property, to carry on its business as presently being conducted.currently conducted and to enter into and perform its obligations under each Loan Document to which it is a party;
(b) The execution and delivery by the Originator of each Loan Document to which it is a party and its performance of and compliance with the terms thereof will not violate the Originator’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach or acceleration of, any material contract, agreement or other instrument to which the Originator is a party or which may be applicable to the Originator or any of its assets, in each case that is likely to affect materially and adversely its ability to carry out the transactions contemplated hereby;
(c) The Originator has the full power and authority to execute enter into and deliver this Agreement and consummate all transactions contemplated by the Loan Documents to perform its obligations hereunderbe consummated by it, and has duly authorized the execution, delivery and performance of this Agreement (including all instruments of transfer each Loan Document to be which it is a party and has duly executed and delivered pursuant each Loan Document to this Agreement) which it is a party; each Loan Document to which it is a party, assuming due authorization, execution and delivery by the Originator and the consummation each of the transactions contemplated hereby have been duly and validly authorized.
(c) This Agreement other parties thereto, constitutes a legalvalid, valid legal and binding obligation of the Originator, enforceable against the Originator it in accordance with its termsthe terms hereof, except as enforceability such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws now relating to or hereafter in effect affecting the enforcement rights of creditors’ rights in general creditors generally, and except as such enforceability may be limited by general equity principles (regardless of equity (whether such enforcement is considered in a proceeding in equity or at law or in equitylaw).;
(d) None of The Originator is not in violation of, and the execution and delivery of this Agreement, each Loan Document to which it is a party by the transactions contemplated hereby, or the fulfillment of, or Originator and its performance and compliance with the terms of each Loan Document to which it is a party will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over it or its business, which violation would materially and conditions adversely affect the financial condition, business or operations of this Agreement will conflict the Originator or its properties or materially and adversely affect the performance of its duties under any Loan Document to which it is a party;
(e) There are no actions or proceedings against, or investigations of, the Originator currently pending with regard to which the Originator has received service of process, and no action or result in proceeding against, or investigation of, the Originator is, to the Originator’s knowledge, threatened or otherwise pending before any court, administrative agency or other tribunal that (A) would prohibit its entering into any Loan Document to which it is a breach party or render its obligations thereunder invalid, (B) seeks to prevent the consummation of any of the terms, certificate of formation, operating agreement or transactions contemplated by any legal restriction or any agreement or instrument Loan Document to which the Originator it is now a party or (C) would prohibit or materially and adversely affect the sale and contribution of the Purchased Assets to the Buyer, the performance by the Originator of its obligations under, or the validity or enforceability of, any Loan Document to which it is bound, or constitute a default or result in the violation of any law, rule, regulation, order, judgment or decree to which Originator or its property is subject, or impair the ability of the Trust to realize on the Mortgage Loans, or impair the value of the Mortgage Loans.party;
(ef) No consent, approval, authorization or order of any court or governmental agency or body is required for for: (1) the execution, delivery and performance by the Originator of of, or compliance by the Originator with this Agreementwith, any Loan Document to which it is a party, (2) the sale and contribution of the Purchased Assets to the Buyer, or if required(3) the consummation of the transactions required of it by any Loan Document to which it is a party, except such as shall have been obtained before such date, other than: (A) the filing or recording of financing statements, instruments of assignment and other similar documents necessary in connection with the sale of the Purchased Assets to the Buyer, (B) such consents, approvals, authorizations, qualifications, registrations, filings or notices as have been obtained or made and (C) where the lack of such consent, approval, authorization authorization, qualification, registration, filing or order has been obtained notice is unlikely to have a Material Adverse Effect;
(g) Immediately prior to the related Closing Date.sale of the Purchased Assets to the Buyer, the Originator had good and valid title to the Purchased Assets sold by it on such date free and clear of all Liens other than Permitted Liens;
(fh) There The Originator is no actionSolvent, suit, proceeding or investigation pending or is able to pay its knowledge threatened against the Originator which, either individually or in the aggregate, may result in any material adverse change in the business, operations, financial condition, properties or assets of the Originator, or in any material impairment of the right or ability of the Originator debts as they become due and has capital sufficient to carry on its business substantially as now conducted, or and its obligations under each Loan Document to which would draw into question it is a party; it will not be rendered insolvent by the validity execution and delivery of this Agreement or by the Mortgage Loans performance of its obligations under each Loan Document to which it is a party; no petition of bankruptcy (or of any action taken similar Bankruptcy Proceeding) has been filed by or to be contemplated herein, or which would be likely to impair materially the ability of against the Originator to perform under the terms of this Agreement.
(g) The information about the Originator under the heading “The Originator” in the Prospectus relating prior to the Originator does not include an untrue statement of a material fact and does not omit to state a material fact, with respect to the statements made, necessary in order to make the statements in light of the circumstances under which they were made not misleading.
(h) All financial statements provided by the Originator fairly present the pertinent results of operations and changes in financial position for each of such periods and the financial position at the end of each such period of the Originator and its subsidiaries and have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved.date hereof;
(i) There The Originator has been no material adverse change transferred the Purchased Assets transferred by it on each Transfer Date without any intent to hinder, delay or defraud any of its creditors;
(j) The Originator has received fair consideration and reasonably equivalent value in exchange for the businessPurchased Assets sold and contributed by it on each Transfer Date to the Buyer;
(k) The Originator has not dealt with any broker or agent or other Person who might be entitled to a fee, operationscommission or compensation in connection with the transaction contemplated by this Agreement;
(l) The Originator’s principal place of business and chief executive offices are located at 000 Xxxxxxxxxx Xxxxxx, financial condition Xxxxxxxxxx, Xxxxxxxxxxx 00000, or assets at such other address as shall be designated by such party in a prior written notice to the other parties hereto; and
(m) The Originator and the Servicer acknowledge and agree that the Servicing Fee represents reasonable compensation for the performance of the Originator since servicing duties hereunder and that the date entire Servicing Fee shall be treated by the Servicer and the Originator, for accounting purposes, as compensation for the servicing and administration of the Transferred Notes Receivable pursuant to this Agreement. It is understood and agreed that the representations and warranties set forth in this Section 3.02 shall survive delivery of the respective Required Asset Documents to the Collateral Custodian as the agent of the Agent, and shall inure to the benefit of the Agent, the Lenders, the Servicer, and the Buyer. Upon discovery by the Originator’s most recent financial statements, the Servicer, the Buyer, or the Agent of a breach of any of the foregoing representations and warranties that materially and adversely affects the value of any item of Collateral or the interests of the Lender Group in any item of Collateral, the party discovering such breach shall give prompt written notice to the other parties. The fact that Agent or any Lender has conducted or has failed to conduct any partial or complete due diligence investigation of the Note Receivable Documents shall not affect any rights of the Lender Group under this Agreement.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Horizon Technology Finance Corp)
