Representations and Warranties of the Seller. The Seller hereby represents and warrants to the Owner Trustee that: (a) The Seller has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Delaware, with power and authority to own its properties and to conduct its business as such properties are presently owned and such business is presently conducted, and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing Agreement. (b) The Seller is duly qualified to do business and, where necessary is in good standing (or is exempt from such requirement), and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under the Basic Documents to which it is a party. (c) The Seller has the power and authority to execute and deliver this Agreement, to carry out its terms and to consummate the transactions contemplated herein; and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein have been duly authorized by the Seller by all necessary corporate action. (d) The execution of this Agreement and the consummation of the transactions contemplated herein by the Seller and the fulfillment of the terms of this Agreement by the Seller shall not conflict with, result in any breach of any of the terms and provisions of or constitute (with or without notice or lapse of time) a default under, the certificate of incorporation or by-laws of the Seller, or any indenture, agreement, mortgage, deed of trust or other instrument to which the Seller is a party or by which it is bound, or result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement, mortgage, deed of trust or other instrument (other than pursuant to the Basic Documents), or violate any law or, to the best of the Seller's knowledge, any order, rule or regulation applicable to the Seller of any Governmental Authority having jurisdiction over the Seller or any of its properties.
Appears in 7 contracts
Samples: Trust Agreement (Wholesale Auto Receivables Corp), Trust Agreement (Ace Securities Corp), Trust Agreement (Wholesale Auto Receivables Corp)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Owner Trustee thatDepositor that as of the Closing Date:
(ai) The Seller has been is a corporation duly organized and is organized, validly existing as a corporation and in good standing under the laws of the State of Delaware, with governing its creation and existence and has full corporate power and authority to own its properties and property, to conduct carry on its business as such properties are presently owned and such business is presently conducted, and had at all relevant times, to enter into and now has, power, authority and legal right to acquire and own the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing Agreement.
(b) The Seller is duly qualified to do business and, where necessary is in good standing (or is exempt from such requirement), and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under this Agreement and the Basic Documents to which it is a party.Assignment and Assumption Agreement;
(cii) The execution and delivery by the Seller has of this Agreement and the power Assignment and authority to execute Assumption Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and deliver delivery of this Agreement or the Assignment and Assumption Agreement, to carry out its terms and to consummate nor the consummation of the transactions contemplated herein; and herein or therein contemplated, nor compliance with the provisions hereof or thereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and the consummation of the transactions contemplated herein have hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been duly authorized by obtained, given, effected or taken prior to the Seller by all necessary corporate action.date hereof;
(div) The execution Each of this Agreement and the Assignment and Assumption Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement.
(b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Date, as to each, that:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be insured by a generally acceptable insurer against loss by fire, hazards of extended coverage and such other hazards as are customary in the area where the related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA or FHLMC. If upon origination of the Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related Mortgagor thereunder to maintain the hazard insurance policy at the Mortgagor’s cost and expense, and on the Mortgagor’s failure to do so, authorizes the holder of the Mortgage to obtain and maintain such insurance at such Mortgagor’s cost and expense, and to seek reimbursement therefor from the Mortgagor. Where required by state law or regulation, each Mortgagor has been given an opportunity to choose the carrier of the required hazard insurance, provided the policy is not a “master” or “blanket” hazard insurance policy covering the common facilities of a planned unit development. The hazard insurance policy is the valid and binding obligation of the insurer, is in full force and effect, and will be in full force and effect and inure to the benefit of the Depositor upon the consummation of the transactions contemplated herein by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Seller Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the fulfillment Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the terms of this Agreement by Transferred Mortgage Loans to the Depositor, the Seller shall not conflict was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, of any encumbrance, equity, participation interest, lien, pledge, charge, claim or security interest, and has full right and authority, subject to no interest or participation of, or agreement with, result any other party, to sell and assign each Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in any breach the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Title Insurance Policy or other generally acceptable form of any policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the terms Transferred Mortgage Loan, and provisions its successors and assigns, as to the first priority lien of or constitute the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with or without notice or lapse of time) a default underrespect to the project in which such unit is located. With respect to any Title Insurance Policy, the certificate originator is the sole insured of incorporation or by-laws such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or any indentureomission, agreement, mortgage, deed anything that would impair the coverage of trust or other instrument to which the Seller is a party or by which it is bound, or result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement, mortgage, deed of trust or other instrument mortgagee Title Insurance Policy;
(other than pursuant to the Basic Documents), or violate any law or, to viii) To the best of the Seller's ’s knowledge, no foreclosure action is being threatened or commenced with respect to any orderTransferred Mortgage Loan.
(ix) There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(x) There are no mechanics’ or similar liens or claims which have been filed for work, labor or material (and no rights are outstanding that under the law could give rise to such liens) affecting the related Mortgaged Property which are or may be liens prior to, or equal or coordinate with, the lien of the related Mortgage;
(xi) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, insurance company or similar institution that is supervised and examined by a Federal or State authority, or by a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act;
(xii) Each Transferred Mortgage Loan at the time it was made complied in all material respects with applicable local, state, and federal laws including, but not limited to, all applicable predatory and abusive lending laws;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period);
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loan or regulation applicable (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no Transferred Mortgage Loan is the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the Seller next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” or “predatory” loan under any applicable federal, state or local predatory or abusive lending law (or a similarly classified loan using different terminology under a law imposing heightened regulatory scrutiny or additional legal liability for residential mortgage loans having high interest rates, points and/or fees); no Transferred Mortgage Loan originated on or after November 27, 2003 is a “High-Cost Home Loan” subject to the New Jersey Home Ownership Security Act of any Governmental Authority having jurisdiction over 2003 (N.J.S.A. 46:10B-22 et seq.); no Transferred Mortgage Loan is a “High-Cost Home Loan” subject to the Seller or any of its properties.New Mexico Home Loan Protection Act (N.M.
Appears in 5 contracts
Samples: Mortgage Loan Sale and Assignment Agreement (Structured Adjustable Rate Mortgage Loan Trust Series 2006-3), Mortgage Loan Sale and Assignment Agreement (Structured Adjustable Rate Mortgage Loan Trust Series 2006-5), Mortgage Loan Sale and Assignment Agreement (Structured Adjustable Rate Mortgage Loan Trust Series 2006-4)
Representations and Warranties of the Seller. The Seller hereby represents and warrants to the Owner Trustee that:
(a) The Seller has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Delaware, with power and authority to own its properties and to conduct its business as such properties are presently owned and such business is presently conducted, conducted and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing Agreement.
(b) The Seller is duly qualified to do business and, where necessary is as a foreign corporation in good standing (or is exempt from such requirement)standing, and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under the Basic Documents to which it is a party.
(c) The Seller has the power and authority to execute and deliver this Agreement, Agreement and any other Basic Documents to which the Seller is a party and to carry out its terms terms, the Seller has full power and authority to consummate sell and assign the transactions contemplated hereinproperty to be sold and assigned to and deposited with the Issuer as part of the Trust and the Seller has duly authorized such sale and assignment to the Issuer by all necessary corporate action; and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein have been duly authorized by the Seller by all necessary corporate action.
(d) The execution of this Agreement and the consummation of the transactions contemplated herein by this Agreement and any other Basic Documents to which the Seller is a party, and the fulfillment of the terms of this Agreement by and any other Basic Documents to which the Seller shall is a party do not conflict with, result in any breach of any of the terms and provisions of or constitute (with or without notice or lapse of time) a default under, the certificate of incorporation or by-laws of the Seller, or any indenture, agreement, mortgage, deed of trust agreement or other instrument to which the Seller is a party or by which it is bound, or result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement, mortgage, deed of trust agreement or other instrument (other than pursuant to the Basic Documents), or violate any law or, to the best of the Seller's knowledge, any order, rule or regulation applicable to the Seller of any Governmental Authority court or of any federal or state regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Seller or any of its properties.
Appears in 5 contracts
Samples: Trust Agreement (Capital Auto Receivables Inc), Trust Agreement (Capital Auto Receivables Inc), Trust Agreement (Capital Auto Receivables Asset Trust 2006-1)
Representations and Warranties of the Seller. The Seller hereby represents and warrants to the Owner Trustee that:
(a) The Seller has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Delaware, with power and authority to own its properties and to conduct its business as such properties are presently owned and such business is presently conducted, and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing Agreement.
(b) The Seller is duly qualified to do business and, where necessary is in good standing (or is exempt from such requirement), and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under the Basic Documents to which it is a party.
(c) The Seller has the power and authority to execute and deliver this Agreement, to carry out its terms and to consummate the transactions contemplated herein; and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein have been duly authorized by the Seller by all necessary corporate action.
(d) The execution of this Agreement and the consummation of the transactions contemplated herein by the Seller and the fulfillment of the terms of this Agreement by the Seller shall not conflict with, result in any breach of any of the terms and provisions of or constitute (with or without notice or lapse of time) a default under, the certificate of incorporation or by-laws of the Seller, or any indenture, agreement, mortgage, deed of trust or other instrument to which the Seller is a party or by which it is bound, or result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement, mortgage, deed of trust or other instrument (other than pursuant to the Basic Documents), or violate any law or, to the best of the Seller's ’s knowledge, any order, rule or regulation applicable to the Seller of any Governmental Authority having jurisdiction over the Seller or any of its properties.
Appears in 5 contracts
Samples: Trust Agreement (Superior Wholesale Inventory Financing Trust Ix), Trust Agreement (Superior Wholesale Inventory Financing Trust Xii), Trust Agreement (Wholesale Auto Receivables Corp)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Owner Trustee thatDepositor that as of the Closing Date:
(ai) The Seller has been is a corporation duly organized and is organized, validly existing as a corporation and in good standing under the laws of the State of Delaware, with governing its creation and existence and has full corporate power and authority to own its properties and property, to conduct carry on its business as such properties are presently owned and such business is presently conducted, and had at all relevant times, to enter into and now has, power, authority and legal right to acquire and own the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing Agreement.
(b) The Seller is duly qualified to do business and, where necessary is in good standing (or is exempt from such requirement), and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under this Agreement and the Basic Documents to which it is a party.Assignment and Assumption Agreement;
(cii) The execution and delivery by the Seller of this Agreement has been duly authorized by all necessary corporate action on the power part of the Seller; neither the execution and authority to execute and deliver delivery of this Agreement, to carry out its terms and to consummate Agreement nor the consummation of the transactions contemplated herein; and herein contemplated, nor compliance with the provisions hereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The execution, delivery and performance by the Seller of this Agreement and the consummation of the transactions contemplated herein have hereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) This Agreement has been duly authorized executed and delivered by the Seller and, assuming due authorization, execution and delivery by all necessary corporate actionthe Depositor, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement.
(db) The execution representations and warranties of this the Transferor with respect to the Transferred Mortgage Loans in the Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of the Transferor under the Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the Transferor in the Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the Transferor in the Transfer Agreement, without regard to whether the Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the Transferor fulfills its obligations under the provisions of the Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Date, as to each, that:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be insured by a generally acceptable insurer against loss by fire, hazards of extended coverage and such other hazards as are customary in the area where the related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA or FHLMC. If upon origination of a Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related Mortgagor thereunder to maintain the hazard insurance policy at the Mortgagor’s cost and expense, and on the Mortgagor’s failure to do so, authorizes the holder of the Mortgage to obtain and maintain such insurance at such Mortgagor’s cost and expense, and to seek reimbursement therefor from the Mortgagor. Where required by state law or regulation, each Mortgagor has been given an opportunity to choose the carrier of the required hazard insurance, provided the policy is not a “master” or “blanket” hazard insurance policy covering the common facilities of a planned unit development. The hazard insurance policy is the valid and binding obligation of the insurer, is in full force and effect, and will be in full force and effect and inure to the benefit of the Depositor upon the consummation of the transactions contemplated herein by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Seller Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the fulfillment Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the terms of this Agreement by Transferred Mortgage Loans to the Depositor, the Seller shall not conflict was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, of any encumbrance, equity, participation interest, lien, pledge, charge, claim or security interest, and has full right and authority, subject to no interest or participation of, or agreement with, result any other party, to sell and assign each Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in any breach the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Title Insurance Policy or other generally acceptable form of any policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the terms Transferred Mortgage Loan, and provisions its successors and assigns, as to the first priority lien of or constitute the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with or without notice or lapse of time) a default underrespect to the project in which such unit is located. With respect to any Title Insurance Policy, the certificate originator is the sole insured of incorporation or by-laws such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or any indentureomission, agreement, mortgage, deed anything that would impair the coverage of trust or other instrument to which the Seller is a party or by which it is bound, or result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement, mortgage, deed of trust or other instrument mortgagee Title Insurance Policy;
(other than pursuant to the Basic Documents), or violate any law or, to viii) To the best of the Seller's ’s knowledge, no foreclosure action is being threatened or commenced with respect to any orderTransferred Mortgage Loan.
(ix) There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(x) There are no mechanics’ or similar liens or claims which have been filed for work, labor or material (and no rights are outstanding that under the law could give rise to such liens) affecting the related Mortgaged Property which are or may be liens prior to, or equal or coordinate with, the lien of the related Mortgage;
(xi) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, insurance company or similar institution that is supervised and examined by a Federal or State authority, or by a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act;
(xii) Each Transferred Mortgage Loan at the time it was made complied in all material respects with applicable local, state, and federal laws including, but not limited to, all applicable predatory and abusive lending laws;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period);
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loan or regulation applicable (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no Transferred Mortgage Loan is the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the Seller next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” or “predatory” loan under any applicable federal, state or local predatory or abusive lending law (or a similarly classified loan using different terminology under a law imposing heightened regulatory scrutiny or additional legal liability for residential mortgage loans having high interest rates, points and/or fees); no Transferred Mortgage Loan originated on or after November 27, 2003 is a “High-Cost Home Loan” subject to the New Jersey Home Ownership Security Act of any Governmental Authority having jurisdiction over 2003 (N.J.S.A. 46:10B-22 et seq.); no Transferred Mortgage Loan is a “High-Cost Home Loan” subject to the Seller or any of its properties.New Mexico Home Loan Protection Act (N.M.
Appears in 5 contracts
Samples: Mortgage Loan Sale and Assignment Agreement (GreenPoint Mortgage Funding Trust 2006-Ar4), Mortgage Loan Sale and Assignment Agreement (Greenpoint Mortgage Funding Trust 2007-Ar1), Mortgage Loan Sale and Assignment Agreement (GreenPoint Mortgage Funding Trust 2006-Ar5)
Representations and Warranties of the Seller. The Seller hereby represents and warrants to the Owner Trustee that:
(a) The Seller has been is duly organized and is validly existing as a corporation Maryland real estate investment trust in good standing under the laws of the State of DelawareMaryland, with power and authority to own its properties and to conduct its business as such properties are presently currently owned and such business is presently conducted, and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing Agreement.
(b) The Seller is duly qualified to do business and, where necessary is in good standing (or is exempt from such requirement), and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under the Basic Documents to which it is a party.
(c) The Seller has the power and authority to execute and deliver this Agreement, Agreement and to carry out its terms terms; the Seller has full power and authority to consummate transfer and assign the transactions contemplated hereinproperty to be transferred and assigned to and deposited with the Trust and the Seller has duly authorized such transfer and assignment and deposit to the Trust by all necessary trust action; and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein have has been duly authorized by the Seller by all necessary corporate trust action.
(dc) The execution of this Agreement and the consummation of the transactions contemplated herein by the Seller this Agreement and the fulfillment of the terms of this Agreement by the Seller shall hereof do not conflict with, result in any breach of any of the terms and provisions of of, or constitute (with or without notice or lapse of time) a default under, the certificate declaration of incorporation trust or by-laws of the Seller, or any indenture, agreement, mortgage, deed of trust agreement or other instrument to which the Seller is a party or by which it is bound, or ; nor result in the creation or imposition of any Lien lien upon any of its properties pursuant to the terms terns of any such indenture, agreement, mortgage, deed of trust agreement or other instrument (other than pursuant to the Basic Documents), or ; nor violate any law or, to the best of the Seller's knowledge, any order, rule or regulation applicable to the Seller of any Governmental Authority court or of any Federal or state regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Seller or any of its properties.
(d) There are no proceedings or investigations pending or notice of which has been received in writing before any court, regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Seller or its properties: (x) asserting the invalidity of this Agreement, (y) seeking to prevent the consummation of any of the transactions contemplated by this Agreement or (z) seeking any determination or ruling that should reasonably be expected to materially and adversely affect the performance by the Seller of its obligations under, or the validity or enforceability of, this Agreement.
(e) The representations and warranties of the Seller in Article III of the Sale and Servicing Agreement are true and correct.
(f) The Seller has duly executed and delivered this Agreement, and this Agreement constitutes the legal, valid and binding obligation of the Seller, enforceable against the Seller, in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by the application of equitable principles.
(g) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or otherwise) or operations of the Seller or its properties or might have consequences that would materially and adversely affect its performance hereunder.
(h) The Seller will hold itself out to the public under its own name as a separate and distinct entity from the Trust and conduct its business so as not to mislead others as to the identity of the Trust.
Appears in 5 contracts
Samples: Trust Agreement (Accredited Mortgage Loan REIT Trust), Trust Agreement (Accredited Mortgage Loan Trust 2004-4), Trust Agreement (Accredited Mortgage Loan Trust 2005-1)
Representations and Warranties of the Seller. The Seller hereby warrants and represents to, and warrants to covenants with, the Owner Trustee Assignor and Assignee that:
(a) The Seller has been duly organized is not a natural person or a general partnership and is duly organized, validly existing as a corporation and in good standing under the laws of the State jurisdiction of Delawareits formation, with and has all requisite power and authority to own its properties service and to conduct its business as such properties are presently owned and such business is presently conducted, and had at all relevant times, and now has, power, authority and legal right to acquire and own purchase the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing AgreementMortgage Loans.
(b) The Seller is duly qualified to do business and, where necessary is in good standing (or is exempt from such requirement), and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under the Basic Documents to which it is a party.
(c) The Seller has the full power and authority to execute execute, deliver and deliver perform under this Assignment Agreement, to carry out its terms and to consummate the transactions contemplated set forth herein; and the execution, delivery and performance of this Agreement and the . The consummation of the transactions contemplated herein have been duly authorized by this Assignment Agreement is in the Seller by all necessary corporate action.
(d) The execution of this Agreement and the consummation ordinary course of the transactions contemplated herein by the Seller Seller’s business and the fulfillment of the terms of this Agreement by the Seller shall will not conflict with, or result in any a breach of of, any of the terms and terms, conditions or provisions of or constitute (with or without notice or lapse of time) a default under, the certificate of incorporation Seller’s charter or by-laws of the Sellerlaws, or any indenturelegal restriction, agreement, mortgage, deed of trust or other any material agreement or instrument to which the Seller is now a party or by which it is bound, or result in the creation or imposition violation of any Lien upon any law, rule, regulation, order, judgment or decree to which the Seller or its property is subject. The execution, delivery and performance by the Seller of its properties pursuant to this Assignment Agreement, and the terms consummation by it of any such indenturethe transactions contemplated hereby, agreement, mortgage, deed of trust or other instrument (other than pursuant to the Basic Documents), or violate any law or, to the best have been duly authorized by all necessary action of the Seller's knowledge. This Assignment Agreement has been duly executed and delivered by the Seller and constitutes the valid and legally binding obligation of the Seller enforceable against the Seller in accordance with its respective terms except as enforceability thereof may be limited by bankruptcy, insolvency, or reorganization or other similar laws now or hereinafter in effect relating to creditors’ rights generally and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or in law.
(c) No material consent, approval, order or authorization of, or declaration, filing or registration with, any ordergovernmental entity is required to be obtained or made by the Seller in connection with the execution, rule delivery or regulation applicable to performance by the Seller of any Governmental Authority having jurisdiction over this Assignment Agreement, or the consummation by it of the transactions contemplated hereby.
(d) As of the date hereof, the Seller is not in default under the Sale Agreement or any the Servicing Agreement.
(e) No event has occurred or has failed to occur, during the period commencing on the date on which the Assignor acquired the Mortgage Loans and ending on the date hereof, inclusive, which would make the representations and warranties set forth in Section 2.1 of its propertiesthe Servicing Agreement untrue if such representations and warranties were made effective as of the date hereof.
Appears in 5 contracts
Samples: Assignment, Assumption and Recognition Agreement (GSR Mortgage Loan Trust 2006-6f), Assignment, Assumption and Recognition Agreement (GSR Mortgage Loan Trust 2006-Oa1), Assignment, Assumption and Recognition Agreement (GSR Mortgage Loan Trust 2007-Ar2)
Representations and Warranties of the Seller. The Seller hereby warrants and represents to, and warrants to covenants with, the Owner Trustee Assignor and Assignee that:
(a) The Seller has been duly organized is not a natural person or a general partnership and is duly organized, validly existing as a corporation and in good standing under the laws of the State jurisdiction of Delawareits formation, with and has all requisite power and authority to own its properties service and to conduct its business as such properties are presently owned and such business is presently conducted, and had at all relevant times, and now has, power, authority and legal right to acquire and own purchase the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing AgreementMortgage Loans.
(b) The Seller is duly qualified to do business and, where necessary is in good standing (or is exempt from such requirement), and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under the Basic Documents to which it is a party.
(c) The Seller has the full power and authority to execute execute, deliver and deliver perform under this Assignment Agreement, to carry out its terms and to consummate the transactions contemplated set forth herein; and the execution, delivery and performance of this Agreement and the . The consummation of the transactions contemplated herein have been duly authorized by this Assignment Agreement is in the Seller by all necessary corporate action.
(d) The execution of this Agreement and the consummation ordinary course of the transactions contemplated herein by the Seller Seller’s business and the fulfillment of the terms of this Agreement by the Seller shall will not conflict with, or result in any a breach of of, any of the terms and terms, conditions or provisions of or constitute (with or without notice or lapse of time) a default under, the certificate of incorporation Seller’s charter or by-laws of the Sellerlaws, or any indenturelegal restriction, agreement, mortgage, deed of trust or other any material agreement or instrument to which the Seller is now a party or by which it is bound, or result in the creation or imposition violation of any Lien upon any law, rule, regulation, order, judgment or decree to which the Seller or its property is subject. The execution, delivery and performance by the Seller of its properties pursuant to this Assignment Agreement, and the terms consummation by it of any such indenturethe transactions contemplated hereby, agreement, mortgage, deed of trust or other instrument (other than pursuant to the Basic Documents), or violate any law or, to the best have been duly authorized by all necessary action of the Seller's knowledge. This Assignment Agreement has been duly executed and delivered by the Seller and constitutes the valid and legally binding obligation of the Seller enforceable against the Seller in accordance with its respective terms except as enforceability thereof may be limited by bankruptcy, insolvency, or reorganization or other similar laws now or hereinafter in effect relating to creditors’ rights generally and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or in law.
(c) No material consent, approval, order or authorization of, or declaration, filing or registration with, any ordergovernmental entity is required to be obtained or made by the Seller in connection with the execution, rule delivery or regulation applicable to performance by the Seller of any Governmental Authority having jurisdiction over this Assignment Agreement, or the consummation by it of the transactions contemplated hereby.
(d) As of the date hereof, the Seller is not in default under either of the Sale Agreement or any the Servicing Agreement.
(e) No event has occurred or has failed to occur, during the period commencing on the date on which the Assignor acquired the Mortgage Loans and ending on the date hereof, inclusive, which would make the representations and warranties set forth in Section 2.1 of its propertiesthe Servicing Agreement untrue if such representations and warranties were made effective as of the date hereof.
(f) Pursuant to Section 6.07 of the Sale Agreement, the Seller hereby represents and warrants, for the benefit of the Assignor, the Assignee and the Trust, that the representations and warranties set forth in Section 3.02 of the Sale Agreement, with respect to the Mortgage Loans, are true and correct as of the Closing Date (as such term is defined in the Sale Agreement), and the representations and warranties set forth in Section 3.01 of the Sale Agreement, with respect to the Seller, are true and correct as of date hereof as if such representations and warranties were made on the date hereof.
Appears in 5 contracts
Samples: Assignment, Assumption and Recognition Agreement (GSR Mortgage Loan Trust 2006-6f), Assignment, Assumption and Recognition Agreement (GSR Mortgage Loan Trust 2006-10f), Assignment, Assumption and Recognition Agreement (GSR 2006-5f)
Representations and Warranties of the Seller. The Seller hereby represents and warrants to the Owner Trustee Purchaser that:
(a) The Seller has been is an entity duly organized and is validly existing as a corporation in good standing under the laws of the State Grand Duchy of DelawareLuxembourg and has the requisite right, with power and authority to own its properties and to conduct its business as such properties are presently owned and such business is presently conducted, and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing Agreement.
(b) The Seller is duly qualified to do business and, where necessary is in good standing (or is exempt from such requirement)authority, and has obtained taken all necessary licenses actions necessary, to execute, deliver and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under this Agreement. This Agreement has been duly executed and delivered by the Basic Documents to which it Seller and (assuming the due authorization, execution and delivery hereof by the Purchaser) is a party.
(c) valid and binding obligation of the Seller, enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles. The Seller has the power execution and authority to execute and deliver delivery of this Agreement, to carry out its terms and to consummate the transactions contemplated herein; compliance by the Seller with all the provisions of, and the executionperformance by the Seller of its obligations under, delivery and performance of this Agreement and the consummation of the transactions contemplated herein have been duly authorized by the Seller by all necessary corporate action.
(d) The execution of in this Agreement and the consummation of the transactions contemplated herein by the Seller and the fulfillment of the terms of this Agreement by the Seller shall will not conflict with, with or result in any a breach or violation of any of the terms and or provisions of of, or constitute (with or without notice or lapse of time) a default under, (i) the certificate constitutive documents of incorporation the Seller, any instrument, contract or other agreement to which the Seller or by which the Seller or any of its properties or assets or the Purchased Shares may be bound or subject, in each case, the breach or violation of which or default under which would be reasonably expected to have a material adverse effect on the ability of the Seller to comply with its obligations hereunder, or (ii) any law, statute or any order, rule, regulation, order, writ, injunction, determination, award, judgment or decree of any court or governmental agency or body having jurisdiction over the Seller or the Purchased Shares or any of its subsidiaries or any of its properties, or any stock exchange authority or self-regulatory organization (each, a “Governmental Authority”); and, other than the filing of a Form 4 and a Schedule 13D under the United States Securities Exchange Act of 1934, as amended (the “Exchange Act”), by the Seller or an affiliate thereof, no consent, approval, authorization, order, registration, clearance or qualification or notification of, with or to any Governmental Authority is required for the sale and delivery of the Purchased Shares by the Seller under this Agreement;
(b) The Seller is, and immediately prior to delivery of the Purchased Shares to the Purchaser will be, the sole beneficial and record owner of the Purchased Shares, and has and will have valid title to the Purchased Shares, free and clear of all liens, encumbrances, equities, charges, security interests, claims or other interests of others, and the Purchaser, when the Purchased Shares are delivered in accordance with this Agreement, will be entitled to all the rights of a shareholder of the Company conferred by the Articles of Incorporation, the by-laws of the SellerCompany and applicable law;
(c) The Purchased Shares are not subject to any conflicting sale, transfer, assignment, or any indentureagreement (other than this Agreement) (i) to assign, agreementconvey, mortgageor transfer, deed in whole or in part, any of trust the Purchased Shares or (ii) that otherwise affects or restricts the sale or affects in any manner the Purchased Shares, and upon consummation of the Purchase, the Purchaser will receive valid title to the Purchased Shares, free and clear of any encumbrance, liens, claims, charges, security interests, or other instrument interests of others;
(d) There are no legal or governmental proceedings pending to which the Seller is a party or by of which it any property of the Seller is boundthe subject that, if determined adversely to the Seller, would individually or result in the creation or imposition of any Lien upon any of aggregate have a material adverse effect on the Seller’s ability to perform its properties pursuant to the terms of any such indentureobligations under this Agreement, agreement, mortgage, deed of trust or other instrument (other than pursuant to the Basic Documents), or violate any law orand, to the best of the Seller's ’s knowledge, no such proceedings are threatened or contemplated by Governmental Authorities or threatened by others; and
(e) Neither the Seller nor any orderperson (including without limitation Lazard Frères & Co., rule LLC) acting on its behalf has offered or regulation applicable sold any Purchased Shares by means of any general solicitation or general advertising within the meaning of Rule 502(c) under the Securities Act.
(f) Without limitation to Section 5(k) of this Agreement, the Seller is solely responsible for its investment and other decisions with respect to this Agreement and is not relying on any representation or warranty of, or advice from, the Purchaser or the Company or any of their respective affiliates in connection with any such decisions, and neither the Purchaser, the Company, nor any of their respective affiliates are acting as an adviser to or fiduciary of the Seller in connection with this Agreement;
(g) The Seller has sufficient knowledge, experience and access to professional advice to make its own legal, tax, accounting, financial and other evaluation of the merits and risks of entering into this Agreement, has reviewed carefully this Agreement with its financial, legal and tax advisers and has determined that entering into this Agreement is consistent with the Seller’s objectives. Without limitation of the foregoing, or of any other provisions of this Agreement, the Seller acknowledges and understands that this Agreement may involve legal, tax and regulatory considerations that are highly dependent on facts and circumstances related to itself, that the Seller will have sufficient information regarding such facts and circumstances to determine the legal, tax and regulatory consequences of this Agreement and the transactions contemplated herein for the Seller and that it, together with its legal, tax and financial advisers, will be solely responsible for determining and evaluating such consequences and making its own independent decisions with respect to this Agreement and the transactions contemplated herein based on such determinations and evaluations and any other factors or considerations deemed relevant by the Seller or its advisers;
(h) The Seller has received such information concerning the Company and the Purchased Shares, and has been given the opportunity to ask such questions and to receive answers as the Seller deems sufficient, based on information provided by Company to the Seller, to make an informed investment decision with respect to the Purchased Shares;
(i) The Seller of any Governmental Authority having jurisdiction over is not, and after giving effect to the Seller transactions contemplated in this Agreement will not be, a person acting together with the Purchaser or any of its propertiesaffiliates within the meaning of Rule 13d-5 of the Securities Act;
(j) The Seller understands that the Purchaser and any affiliates thereof are relying on the truth and accuracy of these representations; and
(k) Unless otherwise specified, the representations and warranties of the Seller contained in this Section 4 are made only at and as of the date hereof and as of the Closing.
Appears in 5 contracts
Samples: Stock Purchase Agreement (Anglo American PLC), Stock Purchase Agreement (Anglo American PLC), Stock Purchase Agreement (Anglo American PLC)
Representations and Warranties of the Seller. The Seller hereby represents and warrants to the Owner Trustee that:
(a) The Seller has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Delaware, with power and authority to own its properties and to conduct its business as such properties are presently owned and such business is presently conducted, conducted and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing Agreement.
(b) The Seller is duly qualified to do business and, where necessary is as a foreign corporation in good standing (or is exempt from such requirement)standing, and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under the Basic Documents to which it is a party.
(c) The Seller has the power and authority to execute and deliver this Agreement, Agreement and to carry out its terms terms, the Seller has full power and authority to consummate sell and assign the transactions contemplated hereinproperty to be sold and assigned to and deposited with the Issuer as part of the Trust and the Seller has duly authorized such sale and assignment to the Issuer by all necessary corporate action; and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein have been duly authorized by the Seller by all necessary corporate action.
(d) The execution of this Agreement and the consummation of the transactions contemplated herein by the Seller this Agreement and the fulfillment of the terms of this Agreement by the Seller shall do not conflict with, result in any breach of any of the terms and provisions of or constitute (with or without notice or lapse of time) a default under, the certificate of incorporation or by-laws of the Seller, or any indenture, agreement, mortgage, deed of trust agreement or other instrument to which the Seller is a party or by which it is bound, or result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement, mortgage, deed of trust agreement or other instrument (other than pursuant to the Basic Documents), or violate any law or, to the best of the Seller's knowledge, any order, rule or regulation applicable to the Seller of any Governmental Authority court or of any federal or state regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Seller or any of its properties.
Appears in 5 contracts
Samples: Trust Agreement (Capital Auto Receivables Inc), Trust Agreement (Capital Auto Receivables Inc), Trust Agreement (Capital Auto Receivables Inc)
Representations and Warranties of the Seller. 15.1 The Seller hereby represents and warrants to the Owner Trustee that:Purchaser that as at the Signature Date (which representations and warranties are deemed to be repeated by each Party on the Commercial Operations Date):
(a) The 15.1.1 the Seller has been is duly organized and is incorporated, validly existing as a corporation in good standing and has complied fully with all requirements existing under the laws of the State jurisdiction of Delaware, with its organisation or incorporation and all other applicable Laws of Tanzania;
15.1.2 the Seller has full power and authority to own carry on its properties business and to conduct its business as such properties are presently owned and such business is presently conductedenter into, legally bind itself by, and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing Agreement.
(b) The Seller is duly qualified to do business and, where necessary is in good standing (or is exempt from such requirement), and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under under, this Agreement and the Basic other agreements comprising the Project Documents to which it is a party.and/or the Security Package;
(c) The 15.1.3 this Agreement has been duly authorized, executed, and delivered by the Seller has the power and authority to execute constitutes its legal, valid and deliver this Agreement, to carry out its terms and to consummate the transactions contemplated herein; and binding obligation;
15.1.4 the execution, delivery delivery, and performance of this Agreement and each agreement comprising the consummation of the transactions contemplated herein have been duly authorized by the Seller by all necessary corporate action.Security Package does not, and will not, constitute a violation of:
(d) The execution of this Agreement and the consummation of the transactions contemplated herein by the Seller and the fulfillment of the terms of this Agreement by the Seller shall not conflict with15.1.4.1 any statute, result in any breach judgment, order, decree or regulation or rule of any court, governmental authority or arbitrator of the terms and provisions of competent jurisdiction applicable or constitute (with or without notice or lapse of time) a default under, the certificate of incorporation or by-laws of relating to the Seller, its assets or its businesses; or
15.1.4.2 the Seller's [NAME OF PRIMARY CONSTITUTIONAL DOCUMENTS, E.G., ARTICLES OF ASSOCIATION] or other organic documents or any indenture, agreement, mortgage, deed of trust contract or other instrument agreement to which the Seller it is a party or by which it is or its property may be bound;
15.1.5 there are no outstanding judgments against the Seller it, or result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement, mortgage, deed of trust or other instrument (other than pursuant to the Basic Documents), or violate any law orand, to the best knowledge of the Seller's knowledge, any order, rule or regulation applicable to [the Seller no action, claim, suit or proceeding is pending or threatened against the Seller before any court, governmental authority or arbitrator of any Governmental Authority having competent jurisdiction over that could reasonably be expected to affect materially and adversely the financial condition or operations of the Seller or the ability of the Seller to perform its obligations under this Agreement or any other agreement comprising the Security Package or which purports to affect the legality, validity or enforceability of this Agreement or any other agreement comprising the Security Package;
15.1.6 the Seller is not in default under any agreement to which it is a party or by which it or its propertiesproperty may be bound, nor in any default of any technical or financial obligation, which could have a material adverse effect on the ability of the Seller to perform its obligations under this Agreement or any other agreement comprising the Security Package; and
15.1.7 no information given by the Seller in relation to this Agreement or any agreement in the Security Package or in the proposal submitted by the Seller to the Purchaser in respect of the subject matter of this Agreement contains any misstatement of fact or omits to state a fact which would be materially adverse to the enforcement of the rights and remedies of the Purchaser or which would be necessary to make any statement, representation or warranty contained herein or therein true and correct in all material respects.
Appears in 5 contracts
Samples: Power Purchase Agreement, Power Purchase Agreement, Power Purchase Agreement
Representations and Warranties of the Seller. 2.1 The Seller hereby warrants, covenants and represents and warrants to the Owner Trustee Purchaser with the intention of inducing the Purchaser to enter into this Agreement that:
(a) The immediately prior to and at the Closing, the Seller has been duly organized shall be the legal and is validly existing as a corporation in good standing under the laws beneficial owner of the State of DelawarePurchased Shares and on the Closing Date, with power and authority to own its properties and to conduct its business as such properties are presently owned and such business is presently conducted, and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables contemplated to be transferred Seller shall transfer to the Trust pursuant to Purchaser the Trust Sale Purchased Shares free and Servicing Agreement.clear of all liens, restrictions, covenants or adverse claims of any kind or character;
(b) The Seller is duly qualified to do business and, where necessary is in good standing (or is exempt from such requirement), and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under the Basic Documents to which it is a party.
(c) The Seller has the legal power and authority to execute and deliver this Agreement, Agreement and all other documents required to carry out its terms be executed and delivered by the Seller hereunder and to consummate the transactions contemplated hereinhereby; and and
(c) the executionSeller is, delivery and performance of this Agreement and or has been during the consummation past ninety (90) days, an officer, director, 10% or greater shareholder or "affiliate" of the transactions contemplated herein have been duly authorized by Company, as that term is defined in Rule 144 promulgated under the Seller by all necessary corporate action.United States Securities Act of 1933, as amended (the "Securities Act");
(d) The execution of this Agreement and the consummation of the transactions contemplated herein by the Seller and the fulfillment of the terms of this Agreement by the Seller shall not conflict with, result in any breach of any of the terms and provisions of or constitute (with or without notice or lapse of time) a default under, the certificate of incorporation or by-laws of the Seller, or any indenture, agreement, mortgage, deed of trust or other instrument to which the Seller is a party or by which it is bound, or result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement, mortgage, deed of trust or other instrument (other than pursuant to the Basic Documents), or violate any law or, to the best of the Seller's knowledge, information and belief of the Seller there are no circumstances that may result in any order, rule or regulation applicable material adverse effect to the Company or the value of the Purchased Shares that are now in existence or may hereafter arise;
(e) as of the Closing Date the Seller shall not be indebted to the Company and the Company shall not be indebted to the Seller;
(f) the Seller does not now, nor will it prior to or on the Closing Date, own, either directly or indirectly, or exercise direction or control over any common shares of the Company other than the Purchased Shares;
(g) the authorized capital of the Company consists of 75,000,000 common shares, par value $0.001, of which a total of 4,990,000 common shares have been validly issued, are outstanding and are fully paid and non-assessable;
(h) no person, firm or corporation has any right, agreement, warrant or option, present or future, contingent or absolute, or any right capable of becoming a right, agreement or option to require the Company to issue any shares in its capital or to convert any securities of the Company or of any Governmental Authority having jurisdiction over other company into shares in the capital of the Company;
(i) as of the closing, the liabilities of the Company whether accrued, contingent or otherwise, shall be less than $3,000.00; and the Seller will pay any outstanding liability of the Company with the Purchase Price
(j) the Company has good and marketable title to all of its assets, and such assets are free and clear of any financial encumbrances not disclosed in the Financial Statements;
(k) the Company has filed all reports required to be filed by it under the Securities Act and the United States Securities Exchange Act of 1934, as amended (the “Exchange Act”), including pursuant to Section 13(a) or 15(d) of the Exchange Act, (the “SEC Reports”) on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. As of their respective dates, the SEC Reports complied in all material respects with the requirements of the Securities Act and the Exchange Act and the rules and regulations of the United States Securities and Exchange Commission (the “Commission”) promulgated thereunder, and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The financial statements of the Company included in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and regulations of the Commission with respect thereto as in effect at the time of filing;
(l) the Company is not a party to or bound by any agreement or understanding granting registration or anti-dilution rights to any person with respect to any of its properties.equity or debt securities; no person has a right to purchase or acquire or receive any equity or debt security of the Company;
(m) the Company is in compliance with the applicable provisions of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated thereunder;
(n) contemporaneously herewith, the Seller as a director shall appoint a representative of the Buyer to the Board of Directors of the Company;
(o) the Seller and all other officers and directors of the Company shall tendered their resignations as officers and directors of the Company, to be effective on the Closing Date;
(p) the Seller agrees to execute and deliver such other documents and to perform such other acts as shall be necessary to effectuate the purposes of this Agreement
(q) there are no claims threatened or against or affecting the Company nor are there any actions, suits, judgments, proceedings or investigations pending or, threatened against or affecting the Company, at law or in equity, before or by any Court, administrative agency or other tribunal or any governmental authority or any legal basis for same; and,
Appears in 4 contracts
Samples: Affiliate Stock Purchase Agreement (Liberty Vision, Inc.), Affiliate Stock Purchase Agreement (Liberty Vision, Inc.), Affiliate Stock Purchase Agreement (Liberty Vision, Inc.)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Owner Trustee thatDepositor that as of the Closing Date:
(ai) The the Seller has been is a corporation duly organized and is organized, validly existing as a corporation and in good standing under the laws of the State of Delaware, with governing its creation and existence and has full corporate power and authority to own its properties and to conduct property, carry on its business as such properties are presently owned conducted and such business is presently conducted, enter into and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing Agreement.
(b) The Seller is duly qualified to do business and, where necessary is in good standing (or is exempt from such requirement), and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under the Basic Documents to which it is a party.Assignment and Assumption Agreement and this Agreement;
(cii) The the execution and delivery by the Seller has of the power Assignment and authority to execute Assumption Agreement and deliver this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of the Assignment and Assumption Agreement or this Agreement, to carry out its terms and to consummate nor the consummation of the transactions contemplated herein; and therein or herein contemplated, nor compliance with the provisions thereof or hereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) the execution, delivery and performance by the Seller of the Assignment and Assumption Agreement and this Agreement and the consummation of the transactions contemplated herein have thereby and hereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) each of the Assignment and Assumption Agreement and this Agreement has been duly authorized executed and delivered by the Seller and, assuming due authorization, execution and delivery by all necessary corporate actionthe Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by the Assignment and Assumption Agreement or this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under the Assignment and Assumption Agreement or this Agreement.
(db) The execution representations and warranties of this each Transferor with respect to the Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations made by it pursuant to Sections 1.04(b)(xii)¸(xiii), (xiv), (xv), (xvii) and (xviii), shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), (xiii), (xiv), (xv), (xvii) and (xviii) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than those representations and warranties made pursuant to Sections 1.04(b)(xii), (xiii), (xiv), (xv), (xvii) and (xviii)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans (except in the case of those representation and warranties made by it pursuant to 1.04(b)(xii), (xiii), (xiv), (xv), (xvii) and (xviii)) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder, as to each, that, as of the Closing Date:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be insured by a generally acceptable insurer against loss by fire, hazards of extended coverage and such other hazards as are customary in the area where the related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of Xxxxxx Xxx or Xxxxxxx Mac. If upon origination of the Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related Mortgagor thereunder to maintain the hazard insurance policy at the Mortgagor’s cost and expense, and on the Mortgagor’s failure to do so, authorizes the holder of the Mortgage to obtain and maintain such insurance at such Mortgagor’s cost and expense, and to seek reimbursement therefor from the Mortgagor. Where required by state law or regulation, each Mortgagor has been given an opportunity to choose the carrier of the required hazard insurance, provided the policy is not a “master” or “blanket” hazard insurance policy covering the common facilities of a planned unit development. The hazard insurance policy is the valid and binding obligation of the insurer, is in full force and effect, and will be in full force and effect and inure to the benefit of the Depositor upon the consummation of the transactions contemplated herein by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of such Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Seller Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the fulfillment Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the terms of this Agreement by Transferred Mortgage Loans to the Depositor, the Seller shall not conflict was the sole owner of record and holder of each Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, of any encumbrance, equity, participation interest, lien, pledge, charge, claim or security interest, and has full right and authority, subject to no interest or participation of, or agreement with, result any other party, to sell and assign each Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in any breach the locality where the related Mortgaged Property is located or (ii) an ALTA Mortgagee Title Insurance Policy or other generally acceptable form of any policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the terms Transferred Mortgage Loan, and provisions its successors and assigns, as to the first priority lien of or constitute the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with or without notice or lapse of time) a default underrespect to the project in which such unit is located. With respect to any Title Insurance Policy, the certificate originator is the sole insured of incorporation or by-laws such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or any indentureomission, agreement, mortgage, deed anything that would impair the coverage of trust or other instrument to which the Seller is a party or by which it is bound, or result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement, mortgage, deed of trust or other instrument mortgagee Title Insurance Policy;
(other than pursuant to the Basic Documents), or violate any law or, to viii) To the best of the Seller's ’s knowledge, no foreclosure action is being threatened or commenced with respect to any orderTransferred Mortgage Loan. There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, rule in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or regulation earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(ix) There are no mechanics’ or similar liens or claims which have been filed for work, labor or material (and no rights are outstanding that under the law could give rise to such liens) affecting the related Mortgaged Property which are or may be liens prior to, or equal or coordinate with, the lien of the related Mortgage;
(x) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution that is supervised and examined by a Federal or State authority, or by a mortgagee approved by the Secretary of Housing and Urban Development pursuant to sections 203 and 211 of the National Housing Act;
(xi) Each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2;
(xii) Each Transferred Mortgage Loan, at the time it was originated, complied in all material respects with applicable local, state and federal laws, including, but not limited to, all applicable local, state and federal predatory and abusive lending laws;
(xiii) No Transferred Mortgage Loan is a “High Cost Loan” or “Covered Loan,” as applicable, as such terms are defined in the then current Standard & Poor’s LEVELS® Glossary. In addition, no Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home,” or “predatory” loan under any applicable federal, state or local predatory or abusive lending law (or a similarly classified loan using different terminology under a law imposing heightened regulatory scrutiny or additional legal liability for residential mortgage loans having high interest rates, points and/or fees);
(xiv) No Transferred Mortgage Loan was at the time of origination subject to the Seller Home Ownership and Equity Protection Act of any Governmental Authority having jurisdiction over the Seller 1994 (15 U.S.C. § 1602(c)), Regulation Z (12 CFR 226.32) or any comparable state law;
(xv) No Transferred Mortgage Loan was originated (or modified) on or after March 1, 2002 and before March 7, 2003 which is secured by a mortgaged property located in Georgia;
(xvi) [Reserved]; and
(xvii) The information set forth in the Prepayment Charge Schedules included as part of the Mortgage Loan Schedules at Schedules A and B (including the Prepayment Charge Summary attached thereto) is complete, true and correct in all material respects on the date or dates on which such information is furnished and each Prepayment Charge is permissible, originated in compliance with, and enforceable in accordance with its propertiesterms under, applicable federal, state and local law (except to the extent that the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws affecting creditor’s rights generally or the collectibility thereof may be limited due to acceleration in connection with foreclosure).
Appears in 4 contracts
Samples: Mortgage Loan Sale and Assignment Agreement (Lehman Mortgage Trust 2006-6), Mortgage Loan Sale and Assignment Agreement (LMT 2006-4), Mortgage Loan Sale and Assignment Agreement (Lehman Mortgage Trust 2006-2)
Representations and Warranties of the Seller. The Seller hereby represents and warrants to the Owner Trustee that:Purchaser that the statements contained in this Section 4, with respect to such Seller, are correct and complete as of the date of this Agreement and will be correct and complete as of the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement throughout this Section 4).
(a) The Seller has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Delaware, with power and authority to own its properties and to conduct its business as such properties are presently owned and such business is presently conducted, and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing Agreement.
(b) The Seller is duly qualified to do business and, where necessary is in good standing (or is exempt from such requirement), and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under the Basic Documents to which it is a party.
(c) The Seller has the power and authority to execute execute, deliver and perform its obligations under this Agreement and to sell, assign, transfer and deliver this Agreementto the Purchaser the Seller Shares as contemplated hereby. No permit, to carry out its terms consent, approval or authorization of, or declaration, filing or registration with any governmental or regulatory authority or consent of any third party is required in connection with the execution and to consummate the transactions contemplated herein; and the execution, delivery and performance by Seller of this Agreement and the consummation of the transactions contemplated herein have been duly authorized by the Seller by all necessary corporate actionhereby.
(db) The Neither the execution and delivery of this Agreement and Agreement, nor the consummation of the transactions contemplated herein hereby or compliance with the terms and conditions hereof by the Seller and the fulfillment of the terms of this Agreement by the Seller shall not conflict with, will violate or result in any a breach of any term or provision of the terms and provisions of any agreement to which any Seller is bound or is a party, or be in conflict with or constitute (with or without notice or lapse of time) a default under, or cause the certificate of incorporation or by-laws acceleration of the Seller, or maturity of any indenture, agreement, mortgage, deed obligation of trust or other instrument to which the Seller is a party or by which it is bound, or result in the creation or imposition of under any Lien upon any of its properties pursuant to the terms of any such indenture, agreement, mortgage, deed of trust or other instrument (other than pursuant to the Basic Documents), existing agreement or violate any law ororder, to the best of the Seller's knowledgewrit, any orderinjunction, decree, statute, rule or regulation applicable to the Seller or any properties or assets of the Seller.
(c) This Agreement has been duly and validly executed by the Seller, and constitutes the valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency or other laws affecting creditors' rights generally or by limitations, on the availability of equitable remedies.
(d) The Seller shall indemnify, defend and hold harmless Purchaser from and against all liabilities incurred by Purchaser, directly or indirectly, including without limitation, all reasonable attorney's fees and court costs, arising out of or in connection with the purchase of the Seller's respective Seller Shares set forth in this Agreement, except where fraud, intent to defraud or default of payment evolves on the part of Purchaser.
(e) The Seller owns the Seller Shares free and clear of all liens, charges, security interests, encumbrances, claims of others, options, warrants, purchase rights, contracts, commitments, equities or other claims or demands of any Governmental Authority having jurisdiction over kind (collectively, "Liens"), and upon delivery of the Seller Shares to the Purchaser, the Purchaser will acquire good, valid and marketable title thereto free and clear of all Liens. The Seller is not a party to any option, warrant, purchase right, or other contract or commitment that could require the Seller to sell, transfer, or otherwise dispose of any capital stock of its propertiesthe Company (other than pursuant to this Agreement). The Seller is not a party to any voting trust, proxy, or other agreement or understanding with respect to the voting of any capital stock of the Company.
Appears in 4 contracts
Samples: Stock Purchase Agreement (Americas Diamond Corp.), Stock Purchase Agreement (Specializer Inc.), Stock Purchase Agreement (Guru Health Inc)
Representations and Warranties of the Seller. The Seller hereby represents and warrants to the Owner Trustee thatBuyer as follows:
(a) The Seller has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Delawarenecessary legal capacity, with power and authority to own its properties execute, deliver and to conduct its business as such properties are presently owned and such business is presently conducted, and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing Agreement.
(b) The Seller is duly qualified to do business and, where necessary is in good standing (or is exempt from such requirement), and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under the Basic Documents to which it is a party.
(c) The Seller has the power and authority to execute and deliver this Agreement, to carry out its the terms and provisions of this Agreement and to consummate the transactions contemplated herein; hereby, and has taken all necessary action to authorize the execution, delivery and performance of this Agreement;
(b) This Agreement has been duly and validly authorized, executed and delivered by Seller and, assuming due authorization, execution and delivery by and on behalf of Buyer, constitutes a legal, valid and binding obligation of Seller, enforceable in accordance with its terms;
(c) As of the date hereof, the Sale ADSs are fully paid and non-assessable;
(d) As of the date hereof, Seller is the owner, beneficially and of record, of the Sale ADSs, free and clear of any Liens, and will transfer at Closing to Buyer good and valid title to the Sale ADSs, free and clear of any Liens;
(e) As of the date hereof, other than the Sale ADSs, Seller is not the owner, beneficially or of record, of any ADSs or Shares;
(f) The execution and delivery of this Agreement do not, and the consummation of the transactions contemplated herein have been duly authorized by the Seller by all necessary corporate action.
hereby will not, (di) The execution of this Agreement and the consummation violate or conflict with any provision of the transactions contemplated herein by the Seller and the fulfillment of the terms of this Agreement by the Seller shall not conflict withtrust, result in any breach of any of the terms and provisions of charter or constitute (with or without notice or lapse of time) a default under, the certificate of incorporation organizational documents or by-laws or comparable documents of the Seller, (ii) result in the imposition of any Liens under, cause or permit the acceleration of any obligation under, or violate or conflict with the terms, conditions or provisions of, any note, indenture, security agreement, mortgagelease, deed of trust guaranty, joint venture agreement, or other contract, agreement or instrument to which the Seller is a party or by which it Seller or any of the Sale ADSs is bound, or (iii) result in the creation a breach or imposition violation by such Seller of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement, mortgage, deed of trust or other instrument (other than pursuant to the Basic Documents), or violate any law or, to the best of the Seller's knowledge, any orderlaw, rule or regulation applicable or any order, injunction, judgment or decree of any court, governmental authority or regulatory agency;
(g) There exists no restriction upon the sale and delivery to Buyer of the Sale ADSs by Seller, nor is Seller required to obtain the approval of any person or entity or any court, governmental authority or regulatory agency to effect the sale of such ADSs in accordance with the terms hereof;
(h) There are no claims for brokerage commissions or finder’s fees or agent’s commissions or other like payment in connection with this Agreement or the transactions contemplated hereby; and
(i) Seller has (i) timely paid all Taxes required to be paid by it with respect to the Seller acquisition, ownership or disposition of the Sale ADSs, and (ii) timely filed with the relevant governmental authority such Tax Returns required to be filed by it, and all such Tax Returns were true, correct and complete. The term “Tax” or “Taxes” means all net income, gross income, gross receipts, sales, use, ad valorem, transfer, excess profits, franchise, profits, license, withholding, payroll, employment, unemployment social security, excise, severance, stamp, occupation, premium, property, disability, capital stock, capital gains or windfall profits taxes, customs duties or other taxes, fees, assessments or governmental charges of any Governmental Authority having jurisdiction over the Seller kind whatsoever, together with any interest and penalties, additions to tax or additional amounts imposed with respect thereto. The term “Tax Return” means any of its propertiesreturn, report, declaration, form, documentation, filing, claim for refund or information statement relating to Taxes, including any schedule or attachment thereto, and including any amendment thereof.
Appears in 4 contracts
Samples: American Depositary Share Purchase Agreement (Metlife Inc), American Depositary Share Purchase Agreement (Metlife Inc), American Depositary Share Purchase Agreement (Metlife Inc)
Representations and Warranties of the Seller. The Seller hereby represents and warrants to each Purchaser, each Purchaser Agent and the Owner Trustee thatAdministrator, on and as of the Closing Date, the date of each subsequent Purchase and each subsequent Reinvestment, as follows:
(a) The Seller has been is duly organized and is formed, validly existing as a corporation and in good standing under the laws of its jurisdiction of organization, and it is duly qualified to do business as a foreign limited liability company in each jurisdiction where the State conduct of Delaware, with power and authority to own its properties and to conduct its business as such properties are presently owned and such business is presently conducted, and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables contemplated requires it to be transferred so qualified, except where the failure to the Trust pursuant to the Trust Sale and Servicing Agreementbe so qualified would not have a Material Adverse Effect.
(b) The execution, delivery and performance by the Seller is duly qualified to do business and, where necessary is in good standing (or is exempt from such requirement), of this Agreement and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under the Basic other Transaction Documents to which it is a party.
(c) The Seller has the power and authority to execute and deliver this Agreement, to carry out including its terms and to consummate the transactions contemplated herein; and the execution, delivery and performance of this Agreement and the consummation use of the transactions contemplated herein proceeds of Purchases and Reinvestments, (i) are within its powers; (ii) have been duly authorized by the Seller by all necessary corporate action.
(d) The execution of this Agreement and the consummation of the transactions contemplated herein by the Seller and the fulfillment of the terms of this Agreement by the Seller shall organizational action except where failure to obtain any such authorization would not conflict with, result in any breach of any of the terms and provisions of a Material Adverse Effect; (iii) do not contravene or constitute (with or without notice or lapse of time) result in a default underunder or conflict with (A) its constitutional documents; (B) any law, the certificate of incorporation rule or by-laws of the Sellerregulation applicable to it except where such contravention, default or conflict would not have a Material Adverse Effect; (C) any indenture, loan agreement, mortgage, deed of trust or other material agreement or instrument to which the Seller it is a party or by which it is bound; or (D) any order, writ, judgment, award, injunction or decree binding on or affecting it or any of its property; and (iv) do not result in or require the creation or imposition of any Lien Adverse Claim upon or with respect to any of its properties pursuant except under the Transaction Documents. This Agreement and the other Transaction Documents to the terms of any such indenturewhich it is a party have been duly executed and delivered by it.
(c) No authorization, agreementapproval, mortgageconsent, deed of trust order or other instrument (other than pursuant action by, and no notice to the Basic Documents), or violate any law or, to the best of the Seller's knowledgefiling with, any orderGovernmental Authority or other Person that has not been made or obtained is required for the due execution, rule or regulation applicable to delivery and performance by the Seller of any Governmental Authority having jurisdiction over the Seller this Agreement or any other Transaction Document to which it is a party, other than the filing of its propertiesthe Uniform Commercial Code financing statements and continuation statements.
Appears in 4 contracts
Samples: Receivables Purchase Agreement (Vistra Corp.), Receivables Purchase Agreement (Vistra Corp.), Receivables Purchase Agreement (Vistra Energy Corp.)
Representations and Warranties of the Seller. The Seller hereby represents and warrants to the Owner Trustee Buyer that, as of the date hereof and as of the Closing Date:
(a) The Seller has been 3.1 It is duly organized and is validly existing as a corporation in good standing under the laws of the State jurisdiction of Delawareits organization or incorporation and, with if relevant under such laws, in good standing.
3.2 It has the power to execute and authority to own its properties deliver this Agreement and to conduct perform its business as such properties are presently owned and such business is presently conducted, and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing Agreement.
(b) The Seller is duly qualified to do business and, where necessary is in good standing (or is exempt from such requirement)obligations hereunder, and has obtained taken all necessary licenses action to authorize such execution, delivery and approvals in all jurisdictions in which performance.
3.3 The execution and delivery by the ownership or lease Seller of property or this Agreement, and the conduct performance of its business requires such qualificationsobligations hereunder, except where does not violate or conflict with (i) any law applicable to it; (ii) any provision of its constitutional documents; or (iii) any order or judgment of any court or other agency of government applicable to it or any of its assets or any contractual restriction binding on or affecting it or any of its assets, except, in the failure to so qualify or obtain licenses or approvals case of (i) and (iii), as would not have a material adverse effect on its ability to perform performance of its obligations under the Basic Documents to which it is a party.
(c) The Seller has the power and authority to execute and deliver this Agreement, to carry out its terms and to consummate the transactions contemplated herein; and the execution, delivery and performance of this Agreement and or on the consummation of the transactions contemplated herein by this Agreement.
3.4 All governmental and other consents that are required to have been duly authorized obtained by the Seller by all necessary corporate action.
(d) The execution of it with respect to this Agreement and the consummation of the transactions contemplated herein by this Agreement have been obtained and are in full force and effect and all conditions of any such consents required to be complied with on or prior to the Seller date hereof or the Closing Date, as applicable, have been complied with.
3.5 Its obligations hereunder constitute its legal, valid and the fulfillment of binding obligations, enforceable in accordance with the terms of this Agreement (subject to applicable bankruptcy, reorganization, insolvency, moratorium or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application (regardless of whether enforcement is sought in a proceeding in equity or at law)).
3.6 It is the beneficial owner of the Purchased Note and will transfer and deliver to the Buyer on the Closing Date valid title to the Purchased Note, free and clear of any lien, encumbrance or any other such limitation or restriction, except for the pledge over the Purchased Note under that certain Listco Convertible Note Pledge Agreement dated November 4, 2015 and as supplemented by a Supplement to Listco Convertible Note Pledge Agreement dated on or about the Closing Date, between the Seller and China Merchants Bank Co., Ltd. Tianjin Pilot Free Trade Zone Branch, the release of which will be completed by the Seller shall not conflict with, result in any breach of any above-mentioned bank no later than the Delivery Date.
3.7 The terms of the terms Purchase are the result of bilateral negotiations between the parties.
3.8 Except for the representations and provisions of or constitute (with or without notice or lapse of time) a default underwarranties made by the Buyer in Section 2, the certificate of incorporation or by-laws Seller hereby acknowledges that none of the Seller, Buyer or any indentureaffiliate or representative of the Buyer has made or makes any other express, agreement, mortgage, deed of trust implied or other instrument to which the Seller is a party statutory representation or by which it is bound, or result in the creation or imposition of any Lien upon any of its properties pursuant warranty with respect to the terms of any such indentureBuyer, agreement, mortgage, deed of trust the Purchased Note or other instrument (other than pursuant to the Basic Documents), or violate any law or, to the best of the Seller's knowledge, any order, rule or regulation applicable to the Seller of any Governmental Authority having jurisdiction over the Seller or any of its propertiestransaction contemplated by this Agreement.
Appears in 4 contracts
Samples: Note Transfer Agreement (Ho Chi Sing), Note Transfer Agreement (Ho Chi Sing), Note Transfer Agreement (Ho Chi Sing)
Representations and Warranties of the Seller. The Seller hereby represents and warrants to the Owner Trustee and the Note Insurer that:
(a) The Seller has been duly organized and is validly existing as a corporation in good standing under the laws of the State of DelawareCalifornia, with power and authority to own its properties and to conduct its business as such properties are presently owned and such business is presently conducted, and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing Agreement.
(b) The Seller is duly qualified to do business and, where necessary is as a foreign corporation in good standing (or is exempt from such requirement)standing, and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under the Basic Documents to which it is a party.
(c) The Seller has the power and authority to execute and deliver this Agreement, Agreement and to carry out its terms terms; the Seller has full power and authority to consummate sell and assign the transactions contemplated hereinproperty to be sold and assigned to and deposited with the Trust, and the Seller has duly authorized such sale and assignment to the Trust by all necessary corporate action; and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein have been duly authorized by the Seller by all necessary corporate action.
(d) The execution of this Agreement and the consummation of the transactions contemplated herein by the Seller this Agreement and the fulfillment of the terms of this Agreement by the Seller shall do not conflict with, result in any breach of any of the terms and provisions of or constitute (with or without notice or lapse of time) a default under, the certificate articles of incorporation or by-laws of the Seller, or any indenture, agreement, mortgage, deed of trust agreement or other instrument to which the Seller is a party or by which it is bound, or ; nor result in the creation or imposition of any Lien lien upon any of its properties pursuant to the terms of any such indenture, agreement, mortgage, deed of trust agreement or other instrument (other than pursuant to the Basic Operative Documents), or ; nor violate any law or, to the best of the Seller's knowledge, any order, rule or regulation applicable to the Seller of any Governmental Authority court or of any federal or state regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Seller or any of its properties.
(e) There are no proceedings or investigations pending or notice of which has been received in writing before any court, regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Seller or its properties: (i) asserting the invalidity of this Agreement, (ii) seeking to prevent the consummation of any of the transactions contemplated by this Agreement or (iii) seeking any determination or ruling that might materially and adversely affect the performance by the Seller of its obligations under, or the validity or enforceability of, this Agreement.
(f) The representations and warranties of the Seller in Section 2.1 of the Sale and Servicing Agreement are true and correct.
(g) The Trust is not required to register as an investment company under the Investment Company Act and is not under the control of a Person required to so register.
Appears in 4 contracts
Samples: Trust Agreement (First Alliance Mortgage Co /De/), Trust Agreement (First Alliance Mortgage Loan Trust 1998-1a), Trust Agreement (First Alliance Mortgage Loan Trust 1998-1f)
Representations and Warranties of the Seller. The Seller hereby represents and warrants to the Owner Trustee that:
(a) The Seller has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Delaware, with power and authority to own its properties and to conduct its business as such properties are presently owned and such business is presently conducted, conducted and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing AgreementReceivables.
(b) The Seller is duly qualified to do business and, where necessary is as a foreign corporation in good standing (or is exempt from such requirement)standing, and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under the Basic Documents to which it is a party.
(c) The Seller has the power and authority to execute and deliver this Agreement, Agreement and to carry out its terms terms, the Seller has full power and authority to consummate sell and assign the transactions contemplated hereinproperty to be sold and assigned to and deposited with the Issuer as part of the Trust and the Seller has duly authorized such sale and assignment to the Issuer by all necessary corporate action; and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein have been duly authorized by the Seller by all necessary corporate action.
(d) The execution of this Agreement and the consummation of the transactions contemplated herein by the Seller this Agreement and the fulfillment of the terms of this Agreement by the Seller shall do not conflict with, result in any breach of any of the terms and provisions of or constitute (with or without notice or lapse of time) a default under, the certificate of incorporation or by-laws of the Seller, or any indenture, agreement, mortgage, deed of trust agreement or other instrument to which the Seller is a party or by which it is bound, or result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement, mortgage, deed of trust agreement or other instrument (other than pursuant to the Basic Documents), or violate any law or, to the best of the Seller's knowledge, any order, rule or regulation applicable to the Seller of any Governmental Authority court or of any federal or state regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Seller or any of its properties.
Appears in 4 contracts
Samples: Trust Agreement (Capital Auto Receivables Inc), Trust Agreement (Capital Auto Receivables Inc), Trust Agreement (Capital Auto Receivables Inc)
Representations and Warranties of the Seller. The Seller hereby represents makes the following representations and warrants to the Owner Trustee thatwarranties:
(a) The Seller has been is a corporation or other such legal entity duly organized and is organized, validly existing as a corporation and in good standing under the laws of the State state in which it was formed or incorporated, is duly qualified to do business in and is in good standing under the laws of Delawarethe State, with is not in violation of any provision of its articles of incorporation or by-laws, has the power and authority to own its properties property and assets, to conduct carry on its business as such properties are presently owned now being conducted by it and such business is presently conductedto execute, deliver and had at all relevant timesperform this Agreement. To the best of Seller's knowledge, and now has, power, authority and legal right to acquire and own the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing Agreement.
(b) The Seller is duly qualified to do business and, where necessary is in good standing (or is exempt from such requirement), and has obtained all necessary licenses and approvals in all jurisdictions every jurisdiction in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under the Basic Documents to which it qualification is a partynecessary.
(cb) The Seller has the power and authority to execute and deliver this Agreement, to carry out its terms and to consummate the transactions contemplated herein; and the execution, delivery and performance of this Agreement and the consummation of the transactions by the Seller herein contemplated herein have been duly authorized by all material requisite action on the Seller by all necessary corporate action.
(d) The execution part of this Agreement and the consummation of the transactions contemplated herein by the Seller and the fulfillment will not violate any provision of the terms of this Agreement by the Seller shall not conflict withlaw, result in any breach order or judgment of any court or agency of the terms and provisions of government, or constitute (with or without notice or lapse of time) a default under, the certificate of incorporation or by-laws of the Seller, or any material indenture, agreement, mortgage, deed of trust agreement or other instrument to which the Seller is a party or by which it or any of its property is subject to or bound, or be in conflict with or result in the creation a breach of or imposition constitute (with due notice and/or lapse of any Lien upon any of its properties pursuant to the terms of time) a material default under any such indenture, agreement, mortgage, deed of trust agreement or other instrument instrument.
(c) This Agreement constitutes the legal, valid and binding obligations of the Seller enforceable against the Seller in accordance with its terms subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other than pursuant laws affecting creditors' rights generally and subject to the Basic Documents)general principles of equity, regardless of whether considered in a proceeding in equity or violate any law at law.
(d) There is no substantive action or proceeding pending or, to the best knowledge of the Seller's knowledge, threatened by or against the Seller by or before any ordercourt or administrative agency that might adversely affect the ability of the Seller to perform its obligations under this Agreement and all material authorizations, rule consents and approvals of governmental bodies or regulation applicable agencies required to be obtained by the Seller as of the date hereof in connection with the execution and delivery of this Agreement or in connection with the performance of the obligations of the Seller hereunder have been obtained.
(e) The Seller is solvent. No action has been instituted, with respect to the Seller of any Governmental Authority having jurisdiction over Seller, by the Seller or by another person or entity of a bankruptcy, reorganization, moratorium, liquidation or similar insolvency proceeding or other relief under any bankruptcy or insolvency law affecting creditor's rights or petition have been presented or instituted for its winding-up or liquidation.
(f) The Seller will shut down operations of its propertiesthe Facility unless the Department enters into this Agreement to purchase the Energy at the Purchase Price.
Appears in 4 contracts
Samples: Interim Energy Purchase Agreement, Interim Energy Purchase Agreement, Interim Energy Purchase Agreement
Representations and Warranties of the Seller. The Upon the execution of the applicable Terms Agreement, the Seller hereby represents and warrants to each Underwriter as of the Owner Trustee thatdate hereof and as of the Closing Date (unless otherwise specified) as follows:
(a) The Seller has been duly organized and is validly existing as a corporation Virginia banking corporation, in good standing under the laws of the State Commonwealth of DelawareVirginia. The Seller has, with in all material respects, full power and authority to own its properties and to conduct its business as such properties are presently owned and such business is presently conducteddescribed in the Prospectus, and had at all relevant timesto execute, deliver and now has, power, authority and legal right to acquire and own perform the Receivables contemplated to be transferred to Purchase Agreement, the Trust pursuant to the Trust Sale Pooling and Servicing Agreement.
(b) The Seller , this Agreement and the applicable Terms Agreement, and to consummate the transactions contemplated by the Receivables Purchase Agreement, the Pooling and Servicing Agreement, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and, where necessary and is in good standing (or is exempt from such requirementrequirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in all jurisdictions each jurisdiction in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain such licenses or and approvals (i) would not have a material adverse effect on the Seller and its subsidiaries, taken as a whole, or (ii) would have a material adverse effect on the Seller’s ability to perform its obligations under the Basic Documents to which it is a party.
(c) The Seller has the power and authority to execute and deliver this Agreement, to carry out its terms and to consummate the transactions contemplated herein; by the Receivables Purchase Agreement, the Pooling and Servicing Agreement, this Agreement and the applicable Terms Agreement.
(b) The execution, delivery and performance by the Seller of this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreement and the Pooling and Servicing Agreement, and the consummation of the transactions contemplated herein hereby and thereby have been duly authorized by the Seller by all necessary corporate action.
(d) The action on the part of the Seller. Neither the execution and delivery by the Seller of this Agreement and such instruments, nor the consummation performance by the Seller of the transactions contemplated herein or therein contemplated, nor the compliance by the Seller and with the fulfillment of the terms of this Agreement by the Seller shall not provisions hereof or thereof, will (i) conflict with, with or result in any a breach of any of the material terms and provisions of of, or constitute (with or without notice or lapse of time) a material default under, any of the certificate provisions of incorporation the Articles of Incorporation or byBy-laws of the Seller, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, mortgage, deed of trust contract or other instrument to which the Seller is a party or by which it is bound, or (iv) result in the creation or imposition of any Lien lien, charge or encumbrance upon any of its properties the Seller’s property pursuant to the terms of any such indenture, agreement, mortgage, deed of trust contract or other instrument instrument.
(c) The Seller has duly executed and delivered this Agreement and the applicable Terms Agreement.
(d) The Seller has authorized the conveyance of the Receivables and the conveyance of an interest in the Seller’s interest in any related Funds Collateral to the Company under the Receivables Purchase Agreement.
(e) The Bank has delivered to the Representatives complete and correct copies of publicly available portions of the Consolidated Reports of Condition and Income of the Bank for the year ended December 31, 2005, as submitted to the Governors of the Federal Reserve System. Except as set forth in or contemplated in the Prospectus, there has been no material adverse change in the condition (financial or otherwise) of the Bank since December 31, 2005.
(f) Each of the Pooling and Servicing Agreement and the Receivables Purchase Agreement constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other than similar laws now or hereafter in effect relating to creditors’ rights in general and the rights of creditors of state banking corporations, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Seller or in the event of any moratorium or similar occurrence affecting the Seller and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the transfer of the Receivables pursuant to the Basic Documents)Receivables Purchase Agreement, have been or violate any law orwill be taken or obtained on or before the Closing Date.
(g) The Master Trust is not now, to and following the best issuance of the Seller's knowledgeCollateral Certificate, any orderwill not be, rule or regulation applicable required to be registered under the Investment Company Act of 1940, as amended (the “1940 Act”).
(h) The representations and warranties of the Seller of any Governmental Authority having jurisdiction over in the Seller or any of its propertiesPooling and Servicing Agreement and the Receivables Purchase Agreement are true and correct in all material respects.
Appears in 4 contracts
Samples: Underwriting Agreement (Capital One Funding, LLC), Underwriting Agreement (Capital One Master Trust), Underwriting Agreement (Capital One Master Trust)
Representations and Warranties of the Seller. The Seller hereby represents and warrants to the Owner Trustee that:Purchaser that the statements contained in this Section 4, with respect to the Seller, are correct and complete as of the date of this Agreement and will be correct and complete as of the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement throughout this Section 4).
(a) The Seller has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Delaware, with power and authority to own its properties and to conduct its business as such properties are presently owned and such business is presently conducted, and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing Agreement.
(b) The Seller is duly qualified to do business and, where necessary is in good standing (or is exempt from such requirement), and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under the Basic Documents to which it is a party.
(c) The Seller has the power and authority to execute execute, deliver and perform its obligations under this Agreement and to sell, assign, transfer and deliver this Agreementto the Purchaser the Seller Shares as contemplated hereby. No permit, to carry out its terms consent, approval or authorization of, or declaration, filing or registration with any governmental or regulatory authority or consent of any third party is required in connection with the execution and to consummate the transactions contemplated herein; and the execution, delivery and performance by Seller of this Agreement and the consummation of the transactions contemplated herein have been duly authorized by the Seller by all necessary corporate actionhereby.
(db) The Neither the execution and delivery of this Agreement and Agreement, nor the consummation of the transactions contemplated herein hereby or compliance with the terms and conditions hereof by the Seller and the fulfillment of the terms of this Agreement by the Seller shall not conflict with, will violate or result in any a breach of any term or provision of the terms and provisions of any agreement to which any Seller is bound or is a party, or be in conflict with or constitute (with or without notice or lapse of time) a default under, or cause the certificate of incorporation or by-laws acceleration of the Seller, or maturity of any indenture, agreement, mortgage, deed obligation of trust or other instrument to which the Seller is a party or by which it is bound, or result in the creation or imposition of under any Lien upon any of its properties pursuant to the terms of any such indenture, agreement, mortgage, deed of trust or other instrument (other than pursuant to the Basic Documents), existing agreement or violate any law ororder, to the best of the Seller's knowledgewrit, any orderinjunction, decree, statute, rule or regulation applicable to the Seller or any properties or assets of the Seller.
(c) This Agreement has been duly and validly executed by the Seller, and constitutes the valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency or other laws affecting creditors' rights generally or by limitations, on the availability of equitable remedies.
(d) The Seller shall indemnify, defend and hold harmless Purchaser from and against all liabilities incurred by Purchaser, directly or indirectly, including without limitation, all reasonable attorney’s fees and court costs, arising out of or in connection with the purchase of the Seller Shares set forth in this Agreement, except where fraud, intent to defraud or default of payment evolves on the part of Purchaser.
(e) The Seller owns the Seller Shares free and clear of all liens, charges, security interests, encumbrances, claims of others, options, warrants, purchase rights, contracts, commitments, equities or other claims or demands of any Governmental Authority having jurisdiction over kind (collectively, “Liens”), and upon delivery of the Seller Shares to the Purchaser, the Purchaser will acquire good, valid and marketable title thereto free and clear of all Liens. The Seller is not a party to any option, warrant, purchase right, or other contract or commitment that could require the Seller to sell, transfer, or otherwise dispose of any capital stock of its propertiesthe Company (other than pursuant to this Agreement). The Seller is not a party to any voting trust, proxy, or other agreement or understanding with respect to the voting of any capital stock of the Company.
Appears in 4 contracts
Samples: Stock Purchase Agreement (Corridor Ventures, LLC), Stock Purchase Agreement (Corridor Ventures I Acquisition Corp.), Stock Purchase Agreement (Corridor Ventures II Acquisition Corp.)
Representations and Warranties of the Seller. The Seller hereby represents and warrants to the Owner Trustee Purchaser that:
(a) The Seller has been is an entity duly organized and is validly existing as a corporation in good standing under the laws of the State Grand Duchy of DelawareLuxembourg and has the requisite right, with power and authority to own its properties and to conduct its business as such properties are presently owned and such business is presently conducted, and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing Agreement.
(b) The Seller is duly qualified to do business and, where necessary is in good standing (or is exempt from such requirement)authority, and has obtained taken all necessary licenses actions necessary, to execute, deliver and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under this Agreement. This Agreement has been duly executed and delivered by the Basic Documents to which it Seller and (assuming the due authorization, execution and delivery hereof by the Purchaser) is a party.
(c) valid and binding obligation of the Seller, enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles. The Seller has the power execution and authority to execute and deliver delivery of this Agreement, to carry out its terms and to consummate the transactions contemplated herein; compliance by the Seller with all the provisions of, and the executionperformance by the Seller of its obligations under, delivery and performance of this Agreement and the consummation of the transactions contemplated herein have been duly authorized by the Seller by all necessary corporate action.
(d) The execution of in this Agreement and the consummation of the transactions contemplated herein by the Seller and the fulfillment of the terms of this Agreement by the Seller shall will not conflict with, with or result in any a breach or violation of any of the terms and or provisions of of, or constitute (with or without notice or lapse of time) a default under, (i) the certificate constitutive documents of incorporation the Seller, any instrument, contract or other agreement to which the Seller or by which the Seller or any of its properties or assets or the Purchased Shares may be bound or subject, in each case, the breach or violation of which or default under which would be reasonably expected to have a material adverse effect on the ability of the Seller to comply with its obligations hereunder, or (ii) any law, statute or any order, rule, regulation, order, writ, injunction, determination, award, judgment or decree of any court or governmental agency or body having jurisdiction over the Seller or the Purchased Shares or any of its subsidiaries or any of its properties, or any stock exchange authority or self-regulatory organization (each, a “Governmental Authority”); and, other than the filing of a Form 4 and a Schedule 13D under the United States Securities Exchange Act of 1934, as amended (the “Exchange Act”), by the Seller or an affiliate thereof, no consent, approval, authorization, order, registration, clearance or qualification or notification of, with or to any Governmental Authority is required for the sale and delivery of the Purchased Shares by the Seller under this Agreement;
(b) The Seller is, and immediately prior to delivery of the Purchased Shares to the Purchaser will be, the sole beneficial and record owner of the Purchased Shares, and has and will have valid title to the Purchased Shares, free and clear of all liens, encumbrances, equities, charges, security interests, claims or other interests of others, and the Purchaser, when the Purchased Shares are delivered in accordance with this Agreement, will be entitled to all the rights of a shareholder of the Company conferred by the Articles of Incorporation, the by-laws of the SellerCompany and applicable law;
(c) The Purchased Shares are not subject to any conflicting sale, transfer, assignment, or any indentureagreement (other than this Agreement) (i) to assign, agreementconvey, mortgageor transfer, deed in whole or in part, any of trust the Purchased Shares or (ii) that otherwise affects or restricts the sale or affects in any manner the Purchased Shares, and upon consummation of the Purchase, the Purchaser will receive valid title to the Purchased Shares, free and clear of any encumbrance, liens, claims, charges, security interests, or other instrument interests of others;
(d) There are no legal or governmental proceedings pending to which the Seller is a party or by of which it any property of the Seller is boundthe subject that, if determined adversely to the Seller, would individually or result in the creation or imposition of any Lien upon any of aggregate have a material adverse effect on the Seller’s ability to perform its properties pursuant to the terms of any such indentureobligations under this Agreement, agreement, mortgage, deed of trust or other instrument (other than pursuant to the Basic Documents), or violate any law orand, to the best of the Seller's ’s knowledge, no such proceedings are threatened or contemplated by Governmental Authorities or threatened by others; and
(e) Neither the Seller nor any orderperson (including without limitation Lazard Frères & Co., rule LLC) acting on its behalf has offered or regulation applicable sold any Purchased Shares by means of any general solicitation or general advertising within the meaning of Rule 502(c) under the Securities Act.
(f) The Seller is solely responsible for its investment and other decisions with respect to this Agreement and is not relying on any representation or warranty of, or advice from, the Purchaser or the Company or any of their respective affiliates in connection with any such decisions, and neither the Purchaser, the Company, nor any of their respective affiliates are acting as an adviser to or fiduciary of the Seller in connection with this Agreement;
(g) The Seller has sufficient knowledge, experience and access to professional advice to make its own legal, tax, accounting, financial and other evaluation of the merits and risks of entering into this Agreement, has reviewed carefully this Agreement with its financial, legal and tax advisers and has determined that entering into this Agreement is consistent with the Seller’s objectives. Without limitation of the foregoing, or of any other provisions of this Agreement, the Seller acknowledges and understands that this Agreement may involve legal, tax and regulatory considerations that are highly dependent on facts and circumstances related to itself, that the Seller will have sufficient information regarding such facts and circumstances to determine the legal, tax and regulatory consequences of this Agreement and the transactions contemplated herein for the Seller and that it, together with its legal, tax and financial advisers, will be solely responsible for determining and evaluating such consequences and making its own independent decisions with respect to this Agreement and the transactions contemplated herein based on such determinations and evaluations and any other factors or considerations deemed relevant by the Seller or its advisers;
(h) The Seller has received such information concerning the Company and the Purchased Shares, and has been given the opportunity to ask such questions and to receive answers as the Seller deems sufficient, based on information provided by Company to the Seller, to make an informed investment decision with respect to the Purchased Shares;
(i) The Seller of any Governmental Authority having jurisdiction over is not, and after giving effect to the Seller transactions contemplated in this Agreement will not be, a person acting together with the Purchaser or any of its propertiesaffiliates within the meaning of Rule 13d-5 of the Securities Act; and
(j) The Seller is not a United States person or a foreign person controlled by a United States person within the meaning of Regulation X of the Board of Governors of the United States Federal Reserve System (“Regulation X”).
(k) Unless otherwise specified, the representations and warranties of the Seller contained in this Section 4 are made only at and as of the date hereof.
Appears in 4 contracts
Samples: Stock Purchase Agreement (Anglo American PLC), Stock Purchase Agreement (Anglo American PLC), Stock Purchase Agreement (Anglo American PLC)
Representations and Warranties of the Seller. The Seller hereby represents and warrants to the Owner Trustee that:Purchaser that the statements contained in this Section 4, with respect to such Seller, are correct and complete as of the date of this Agreement and will be correct and complete as of the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement throughout this Section 4).
(a) The Seller has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Delaware, with power and authority to own its properties and to conduct its business as such properties are presently owned and such business is presently conducted, and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing Agreement.
(b) The Seller is duly qualified to do business and, where necessary is in good standing (or is exempt from such requirement), and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under the Basic Documents to which it is a party.
(c) The Seller has the power and authority to execute execute, deliver and perform its obligations under this Agreement and to sell, assign, transfer and deliver this Agreementto the Purchaser the Seller Shares as contemplated hereby. No permit, to carry out its terms consent, approval or authorization of, or declaration, filing or registration with any governmental or regulatory authority or consent of any third party is required in connection with the execution and to consummate the transactions contemplated herein; and the execution, delivery and performance by Seller of this Agreement and the consummation of the transactions contemplated herein have been duly authorized by the Seller by all necessary corporate actionhereby.
(db) The Neither the execution and delivery of this Agreement and Agreement, nor the consummation of the transactions contemplated herein hereby or compliance with the terms and conditions hereof by the Seller and the fulfillment of the terms of this Agreement by the Seller shall not conflict with, will violate or result in any a breach of any term or provision of the terms and provisions of any agreement to which any Seller is bound or is a party, or be in conflict with or constitute (with or without notice or lapse of time) a default under, or cause the certificate of incorporation or by-laws acceleration of the Seller, or maturity of any indenture, agreement, mortgage, deed obligation of trust or other instrument to which the Seller is a party or by which it is bound, or result in the creation or imposition of under any Lien upon any of its properties pursuant to the terms of any such indenture, agreement, mortgage, deed of trust or other instrument (other than pursuant to the Basic Documents), existing agreement or violate any law ororder, to the best of the Seller's knowledgewrit, any orderinjunction, decree, statute, rule or regulation applicable to the Seller or any properties or assets of the Seller.
(c) This Agreement has been duly and validly executed by the Seller, and constitutes the valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency or other laws affecting creditors' rights generally or by limitations, on the availability of equitable remedies.
(d) The Seller shall indemnify, defend and hold harmless Purchaser from and against all liabilities incurred by Purchaser, directly or indirectly, including without limitation, all reasonable attorney’s fees and court costs, arising out of or in connection with the purchase of the Seller’s respective Seller Shares set forth in this Agreement, except where fraud, intent to defraud or default of payment evolves on the part of Purchaser.
(e) The Seller owns the Seller Shares free and clear of all liens, charges, security interests, encumbrances, claims of others, options, warrants, purchase rights, contracts, commitments, equities or other claims or demands of any Governmental Authority having jurisdiction over kind (collectively, “Liens”), and upon delivery of the Seller Shares to the Purchaser, the Purchaser will acquire good, valid and marketable title thereto free and clear of all Liens. The Seller is not a party to any option, warrant, purchase right, or other contract or commitment that could require the Seller to sell, transfer, or otherwise dispose of any capital stock of its propertiesthe Company (other than pursuant to this Agreement). The Seller is not a party to any voting trust, proxy, or other agreement or understanding with respect to the voting of any capital stock of the Company.
(f) The Seller is outside the United States as of the date of the execution and delivery of this Agreement and will be outside the United States at the time of the closing of the sale of the Seller Shares; provided, however, that delivery of the Seller Shares may be effected within the United States through the Seller’s agent as long as the Purchaer is outside the United States at the time of any such delivery. No selling concession, fee or other remuneration was or will be paid in connection with such offer or sale of the Seller Shares. The Seller has not engaged in any “Directed Selling Efforts” (as defined in Regulation S, the Securities Act of 1933, as amended (the “Securities Act”)).
Appears in 4 contracts
Samples: Stock Purchase Agreement (Punchline Resources Ltd.), Stock Purchase Agreement (T & G Apothecary Inc), Stock Purchase Agreement (Net Profits Ten Inc.)
Representations and Warranties of the Seller. The Seller hereby represents and warrants to the Owner Trustee Purchaser that:
(a) The 4.1.1 the Seller has been duly organized and is a corporation validly existing as a corporation in good standing under the laws of the State of Delaware, with Delaware and has the corporate power to enter into and authority to own its properties perform the transactions contemplated by the Transaction Documents and to conduct its business as such properties are presently owned and such business is presently conducted, and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing Agreement.
(b) The Seller is duly qualified to do business and, where necessary as a foreign corporation and is in good standing (or is exempt from such requirement), and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease State of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under the Basic Documents to which it is a party.Oregon;
(c) The Seller has the power and authority to execute and deliver this Agreement, to carry out its terms and to consummate the transactions contemplated herein; and 4.1.2 the execution, delivery and performance of this Agreement the Transaction Documents have been duly authorised by all necessary corporate action on the part of the Seller;
4.1.3 each consent required by the Seller to authorise, or required by it in connection with the execution, delivery, performance, legality, validity or enforceability of the Transaction Documents has been obtained and is in full force and effect, and there is no default in the consummation observance or performance of any of the conditions and restrictions (if any) imposed on or in connection therewith;
4.1.4 the entry by the Seller into, and performance by the Seller of the transactions contemplated herein have been duly authorized by by, the Seller by all necessary corporate action.
(d) The execution of this Agreement Transaction Documents do not and the consummation of the transactions contemplated herein by the Seller and the fulfillment of the terms of this Agreement by the Seller shall will not conflict with, result in : (1) any breach of law or regulation or any of official or judicial order applicable to the terms and provisions of or constitute Seller; (with or without notice or lapse of timeii) a default under, the certificate of incorporation or by-laws constitutional documents of the Seller, ; or (iii) any indenture, agreement, mortgage, deed of trust material agreement or other instrument document to which the Seller is a party or by which it is bound, the Seller or result in the creation or imposition of any Lien upon any of its properties pursuant is bound or require any consent, approval or authorization of, the giving of notice to the terms or registration with or taking any other action under any applicable law or regulation in respect of any such indenturegovernmental authority with jurisdiction, agreement, mortgage, deed of trust except as otherwise set forth in this Agreement;
4.1.5 no litigation or other instrument (other than pursuant to the Basic Documents)proceeding before any court, administrative agency or violate any law government body is pending or, to the best of the Seller's knowledge’s knowledge threatened against the Seller, any orderthe outcome of which could materially adversely affect the validity of the Transaction Documents or the rights, rule benefits or regulation applicable interest of the Purchaser conveyed hereunder;
4.1.6 the Seller holds good title to the Aircraft, free and clear of all Encumbrances other than those created or granted by or through Purchaser, and upon Delivery, Seller shall convey to Purchaser, its successors and assigns, good title to the Aircraft, free and clear of any Governmental Authority and all Encumbrances other than those created or granted by or through Purchaser;
4.1.7 the Seller holds all licenses, certificates, permits and franchises from the FAA and all other appropriate agencies of the United States of America and/or other governmental authorities or political subdivisions thereof having jurisdiction over necessary to authorize Seller to perform its obligations under the Seller or any of its propertiesTransaction Documents; and each such certificate, permit and franchise is in full force and effect.
Appears in 4 contracts
Samples: Aircraft Purchase Agreement (Erickson Air-Crane Inc), Aircraft Purchase Agreement (Erickson Air-Crane Inc), Aircraft Purchase Agreement (Erickson Air-Crane Inc)
Representations and Warranties of the Seller. The Seller hereby represents and warrants to the Owner Trustee that:
(a) The Seller has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Delaware, with power and authority to own its properties and to conduct its business as such properties are presently owned and such business is presently conducted, conducted and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing AgreementReceivables.
(b) The Seller is duly qualified to do business and, where necessary is as a foreign corporation in good standing (or is exempt from such requirement)standing, and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under the Basic Documents to which it is a party.
(c) The Seller has the power and authority to execute and deliver this Agreement, Agreement and to carry out its terms terms, the Seller has full power and authority to consummate sell and assign the transactions contemplated herein; property to be sold and assigned to and deposited with the Trust, and the Seller has duly authorized such sale and assignment to the Trust by all necessary corporate action, and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein have been duly authorized by the Seller by all necessary corporate action.
(d) The execution of this Agreement and the consummation of the transactions contemplated herein by the Seller this Agreement and the fulfillment of the terms of this Agreement by the Seller shall do not conflict with, result in any breach of any of the terms and provisions of or constitute (with or without notice or lapse of time) a default under, the certificate of incorporation or by-laws of the Seller, or any indenture, agreement, mortgage, deed of trust agreement or other instrument to which the Seller is a party or by which it is bound, or result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement, mortgage, deed of trust agreement or other instrument (other than pursuant to the Basic Documents), or violate any law or, to the best of the Seller's knowledge, any order, rule or regulation applicable to the Seller of any Governmental Authority court or of any federal or state regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Seller or any of its properties.
(e) This Agreement, when duly executed and delivered, shall constitute a legal, valid and binding obligation of the Seller enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights in general and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law.
(f) There are no proceedings or, to the Seller's knowledge, investigations pending or, to the Seller's knowledge, threatened before any court, regulatory body, administrative agency or other tribunal or governmental instrumentality having jurisdiction over the Seller or its properties (i) asserting the invalidity of this Agreement or any Certificates issued pursuant hereto or, (ii) seeking to prevent the issuance of such Certificates or the consummation of any of the transactions contemplated by this Agreement or (iii) seeking any determination or ruling that might materially and adversely affect the performance by the Seller of its obligations under, or the validity or enforceability of, such Certificates or this Agreement.
Appears in 3 contracts
Samples: Trust Agreement (Navistar Financial Retail Receivables Corporation), Trust Agreement (Navistar Financial Retail Receivables Corporation), Trust Agreement (Navistar Financial Retail Receivables Corporation)
Representations and Warranties of the Seller. The Seller hereby represents represents, warrants and warrants covenants to the Owner Trustee thatTrustee, the Certificate Insurer and the Owners that as of the Startup Day:
(a) The Seller has been is a corporation duly organized and is organized, validly existing as a corporation and in good standing under the laws of the State of Delaware, with power governing its creation and authority to own its properties existence and to conduct its business as such properties are presently owned and such business is presently conducted, and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing Agreement.
(b) The Seller is duly qualified to do business and, where necessary is in good standing (or is exempt from such requirement), and has obtained all necessary licenses and approvals as a foreign corporation in all jurisdictions each jurisdiction in which the ownership or lease nature of property its business, or the conduct of its business requires properties owned or leased by it, make such qualificationsqualification necessary, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on the Seller, the Owners, the Trust and the Certificate Insurer. The Seller has all requisite corporate power and authority to own and operate its ability properties, to perform carry out its business as currently conducted and as proposed to be conducted and to enter into and discharge its obligations under this Agreement and the Basic other Operative Documents to which it is a party.
(c) The Seller has the power and authority to execute and deliver this Agreement, to carry out its terms and to consummate the transactions contemplated herein; and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein have been duly authorized by the Seller by all necessary corporate action.
(db) The execution of this Agreement and the consummation of the transactions contemplated herein by the Seller and the fulfillment of the terms delivery of this Agreement by the Seller shall not conflict with, result in any breach and its performance and compliance with the terms of any this Agreement and the other Operative Documents to which it is a party have been duly authorized by all necessary corporate action on the part of the terms Seller and provisions will not (i) violate the Seller's Certificate of Incorporation or Bylaws, (ii) constitute a default (or an event which, with or without notice or lapse of time, or both, would constitute a default) a default under, the certificate of incorporation or by-laws of the Sellerresult in a breach of, or any indenturematerial contract, agreement, mortgage, deed of trust agreement or other instrument to which the Seller is a party or by which it the Seller is boundbound or (iii) violate any statute or any order, rule or result in the creation or imposition regulation of any Lien upon court, governmental agency or body or other tribunal having jurisdiction over the Seller or any of its properties pursuant properties, except where the failure to so comply would not have a material adverse effect on the Seller, the Owners, the Trust and the Certificate Insurer.
(c) This Agreement and the other Operative Documents to which the Seller is a party, assuming due authorization, execution and delivery by the other parties hereto and thereto, each constitutes a valid, legal and binding obligation of the Seller, enforceable against it in accordance with the terms hereof and thereof, except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally and by general principles of equity (whether considered in a proceeding or action in equity or at law).
(d) The Seller is not in default with respect to any order or decree of any such indenturecourt or any order, agreementregulation or demand of any federal, mortgagestate, deed of trust municipal or other instrument governmental agency, which default would materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or the consequences of which would materially and adversely affect its performance hereunder and under the other than pursuant Operative Documents to which the Basic Documents), or violate any law Seller is a party.
(e) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller which litigation is likely to have consequences that would prohibit its entering into this Agreement or that would materially and adversely affect the condition (financial or otherwise) or operations of the Seller or its properties or is likely to have consequences that would materially and adversely affect its performance hereunder.
(f) No certificate of an officer, statement furnished in writing or report delivered pursuant to the terms hereof by the Seller contains any orderuntrue statement of a material fact or omits to state any material fact necessary to make the certificate, rule statement or regulation applicable report not misleading.
(g) The statements contained in the Registration Statement which describe the Seller or matters or activities for which the Seller is responsible in accordance with the Operative Documents or which are attributable to the Seller therein are true and correct in all material respects. The Registration Statement does not contain any untrue statement of a material fact with respect to the Seller, or omit to state any material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading.
(h) Upon the receipt of each Mortgage Loan (including the related Note) and other items of the Trust Estate by the Trustee under this Agreement, the Trust will have good title to such Mortgage Loan (including the related Note) and such other items of the Trust Estate free and clear of any Governmental Authority having jurisdiction over lien, charge, mortgage, encumbrance or rights of others, except as set forth in item (ix) of Schedule I (other than liens which will be simultaneously released).
(i) Neither the Seller nor any affiliate thereof will report on any financial statement any part of the Servicing Fee as an adjustment to the sales price of the Mortgage Loans.
(j) All actions, approvals, consents, waivers, exemptions, variances, franchises, orders, permits, authorizations, rights and licenses required to be taken, given or obtained to or by the Seller, as the case may be, by or from any federal, state or other governmental authority or agency (other than any such actions, approvals, etc., under any state securities laws, real estate syndication or "Blue Sky" statutes, as to which the Seller makes no such representation or warranty), that are necessary or advisable in connection with the purchase and sale of the Certificates and the execution and delivery by the Seller of the Operative Documents to which it is a party, have been duly taken, given or obtained, as the case may be, are in full force and effect on the date hereof, are not subject to any pending proceedings or appeals (administrative, judicial or otherwise) and either the time within which any appeal therefrom may be taken or review thereof may be obtained has expired or no review thereof may be obtained or appeal therefrom taken, and are adequate to authorize the consummation of the transactions contemplated by this Agreement and the other Operative Documents on the part of the Seller and the performance by the Seller of its obligations under this Agreement and such of the other Operative Documents to which it is a party.
(k) The origination practices used by the Seller or, to the Seller's knowledge, the respective originators of the Mortgage Loans with respect to such Mortgage Loans have been in all material respects, legal, proper, prudent and customary in the mortgage lending business in the jurisdiction in which the related Mortgaged Properties are located.
(l) The Seller is not insolvent, nor will it be made insolvent by the transfer of the Mortgage Loans, nor is the Seller aware of any pending insolvency of the Seller, the Depositor or the Master Servicer.
(m) The transfer, assignment and conveyance of the Notes and the Mortgages by the Seller hereunder are not subject to the bulk transfer laws or any similar statutory provisions in effect in any applicable jurisdiction.
(n) The transactions contemplated by this Agreement are in the ordinary course of business of the Seller. It is understood and agreed that the representations and warranties set forth in this Section 3.03 shall survive delivery of the respective Mortgage Loans to the Trustee. Upon discovery by any of the Master Servicer, the Seller, the Depositor, the Certificate Insurer or the Trustee (each, for purposes of this paragraph, a "party") of a breach of any of the representations and warranties set forth in this Section 3.03 which materially and adversely affects the interests of the Owners or the Certificate Insurer, the party discovering such breach shall give prompt written notice to the other parties. The Seller hereby covenants and agrees that within 60 days of its propertiesdiscovery or its receipt of notice of breach, it shall cure such breach in all material respects or, with respect to a breach of clause (h) above, the Seller may (or may cause an affiliate of the Seller to) on the Monthly Remittance Date next succeeding such discovery or receipt of notice (i) substitute in lieu of any Mortgage Loan not in compliance with clause (h) a Qualified Replacement Mortgage Loan and, if the outstanding principal amount of such Qualified Replacement Mortgage Loan as of the applicable Replacement Cut-Off Date is less than the Loan Balance of such Mortgage Loan as of such Replacement Cut-Off Date, deliver an amount equal to such difference together with the aggregate amount of (A) all Delinquency Advances and Servicing Advances theretofore made with respect to such Mortgage Loan, to the extent unreimbursed to the Master Servicer and (B) all Delinquency Advances and Servicing Advances which the Master Servicer has theretofore failed to remit with respect to such Mortgage Loan (a "Substitution Adjustment") to the Master Servicer for deposit in the Collection Account or (ii) purchase such Mortgage Loan from the Trust at the Loan Purchase Price, which purchase price shall be delivered to the Master Servicer for deposit in the Collection Account. Notwithstanding any provision of this Agreement to the contrary, with respect to any Mortgage Loan which is not in default or as to which no default is imminent, no repurchase or substitution pursuant to Section 3.03, 3.04 or 3.06 shall be made unless the Seller obtains for the Trustee and the Certificate Insurer an opinion of counsel experienced in federal income tax matters to the effect that such a repurchase or substitution would not constitute a Prohibited Transaction for the Trust or otherwise subject the Trust to tax and would not jeopardize the status of the Trust as a REMIC (a "REMIC Opinion") addressed to the Trustee and the Certificate Insurer and acceptable to the Certificate Insurer and the Trustee. Any Mortgage Loan as to which repurchase or substitution was delayed pursuant to this Section shall be repurchased or substituted for (subject to compliance with Sections 3.03, 3.04 or 3.06, as the case may be) upon the earlier of (a) the occurrence of a default or imminent default with respect to such Mortgage Loan and (b) receipt by the Trustee and the Certificate Insurer of a REMIC Opinion.
Appears in 3 contracts
Samples: Pooling and Servicing Agreement (Block Mortgage Finance Inc Asset Backed Cert Series 1999 2), Pooling and Servicing Agreement (Block Mortgage Finance Asset Backed Certificates Ser 1999 1), Pooling and Servicing Agreement (Block Mortgage Finance Inc Asset Backed Cert Series 1998 2)
Representations and Warranties of the Seller. The Seller hereby represents and warrants to the Owner Trustee thatPurchaser as follows:
(a) The Seller has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Delaware, with power and authority to own its properties and to conduct its business as such properties are presently owned and such business is presently conducted, and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing Agreement.
(b) The Seller is duly qualified to do business and, where necessary is in good standing (or is exempt from such requirement), and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under the Basic Documents to which it is a party.
(c) The Seller has the power and authority to execute and deliver this Agreement, to carry out its terms and to consummate the transactions contemplated herein; and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein Amendment have been duly authorized by the Seller by all necessary corporate actionand this Amendment constitutes a legal, valid, binding and enforceable obligation of the Seller.
(db) The execution execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein Amendment by the Seller and is not contrary to the fulfillment provisions of the terms articles of this Agreement by association and/or other constitutional documents of the Seller shall and does not conflict with, and will not result in any breach of any of the terms and provisions of of, or constitute (with or without notice or lapse of time) a default under, the certificate of incorporation any instrument or by-laws of the Seller, or any indenture, agreement, mortgage, deed of trust or other instrument agreement to which the Seller is a party or by which it is bound.
(c) The Seller is acquiring the Conversion Shares and the Additional Repayment Shares in the ordinary course of business for its own account and not with a view towards, or result for resale in connection with, the public sale or distribution thereof, except pursuant to sales registered under the Securities Act or under an exemption from such registration and in compliance with applicable federal and state securities laws, and the Seller does not have a present arrangement to effect any distribution of the Conversion Shares and the Additional Repayment Shares to or through any person or entity.
(d) At the time the Seller was offered the Conversion Shares and the Additional Repayment Shares, it was, and at the date hereof it is, an “accredited investor”, as defined in Rule 501(a) under the Securities Act. The Seller is not a registered broker dealer registered under Section 15(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or a member of the Financial Industry Regulatory Authority, Inc. or an entity engaged in the creation business of being a broker dealer. The Seller is not affiliated with any broker dealer registered under Section 15(a) of the Exchange Act, or imposition a member of any Lien upon any the Financial Industry Regulatory Authority, Inc. or an entity engaged in the business of being a broker dealer.
(e) The Seller, either alone or together with its properties pursuant representatives, has such knowledge, sophistication and experience in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment in the Conversion Shares and the Additional Repayment Shares, and has so evaluated the merits and risks of such investment. The Seller understands that it must bear the economic risk of this investment in the Conversion Shares and the Additional Repayment Shares indefinitely, and is able to bear such risk and is able to afford a complete loss of such investment.
(f) The Seller has been afforded: (i) the opportunity to ask such questions as it has deemed necessary of, and to receive answers from, the Purchaser and its representatives concerning the terms and conditions of any such indenture, agreement, mortgage, deed the offering of trust or other instrument the Conversion Shares and the Additional Repayment Shares and the merits and risks of investing in the Conversion Shares and the Additional Repayment Shares; (ii) access to information (other than material non-public information) about the Purchaser and its subsidiaries and their respective financial condition, results of operations, business, properties, management and prospects sufficient to enable it to evaluate its investment in the Conversion Shares and the Additional Repayment Shares; and (iii) the opportunity to obtain such additional information that the Purchaser possesses or can acquire without unreasonable effort or expense that is necessary for the Seller to make an informed investment decision with respect to the investment in the Conversion Shares and the Additional Repayment Shares. The Seller acknowledges that either it has access to or has received copies of the reports required to be filed by the Purchaser under the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, together with any materials filed or furnished by the Basic DocumentsPurchaser under the Exchange Act.
(g) The Seller understands that the Conversion Shares and the Additional Repayment Shares are characterized as “restricted securities” under the U.S. federal securities laws inasmuch as they are being acquired from the Purchaser in a transaction not involving a public offering and that under such laws and applicable regulations such securities may be resold without registration under the Securities Act only in certain limited circumstances.
(h) It is understood that, except as provided in the Registration Rights Agreement, certificates evidencing the Conversion Shares and the Additional Repayment Shares shall bear the following legend: THESE SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY APPLICABLE STATE SECURITIES LAWS AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN COMPLIANCE WITH APPLICABLE STATE SECURITIES LAWS OR BLUE SKY LAWS.
(i) The Seller understands that nothing in this Amendment or violate any law or, to the best other materials presented by or on behalf of the Seller's knowledge, any order, rule or regulation applicable Purchaser to the Seller in connection with the acquisition of the Conversion Shares and the Additional Repayment Shares constitutes legal, tax or investment advice. The Seller has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with its acquisition of the Conversion Shares and the Additional Repayment Shares.
(j) The Seller has not engaged any brokers, finders or agents, and neither the Purchaser nor the Seller has, nor will, incur, directly or indirectly, as a result of any Governmental Authority having jurisdiction over action by the Seller Seller, any liability for brokerage or finders’ fees or agents’ commissions or any of its propertiessimilar charges in connection with the transactions contemplated by this Amendment.
Appears in 3 contracts
Samples: Conditional Share Purchase Agreement and Conversion Agreement (CareDx, Inc.), Conditional Share Purchase Agreement and Conversion Agreement (CareDx, Inc.), Conditional Share Purchase Agreement and Conversion Agreement (CareDx, Inc.)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Owner Trustee thatDepositor that as of the Closing Date:
(ai) The the Seller has been is a corporation duly organized and is organized, validly existing as a corporation and in good standing under the laws of the State of Delaware, with governing its creation and existence and has full corporate power and authority to own its properties and to conduct property, carry on its business as such properties are presently owned conducted and such business is presently conducted, enter into and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing Agreement.
(b) The Seller is duly qualified to do business and, where necessary is in good standing (or is exempt from such requirement), and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under the Basic Documents to which it is a party.Assignment and Assumption Agreement and this Agreement;
(cii) The the execution and delivery by the Seller has of the power Assignment and authority to execute Assumption Agreement and deliver this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of the Assignment and Assumption Agreement or this Agreement, to carry out its terms and to consummate nor the consummation of the transactions contemplated herein; and therein or herein contemplated, nor compliance with the provisions thereof or hereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) the execution, delivery and performance by the Seller of the Assignment and Assumption Agreement and this Agreement and the consummation of the transactions contemplated herein have thereby and hereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) each of the Assignment and Assumption Agreement and this Agreement has been duly authorized executed and delivered by the Seller and, assuming due authorization, execution and delivery by all necessary corporate actionthe Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by the Assignment and Assumption Agreement or this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under the Assignment and Assumption Agreement or this Agreement.
(db) The execution representations and warranties of this each Transferor with respect to the Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations made by it pursuant to Sections 1.04(b)(xii), (xiii), (xiv), (xv), (xvi) and (xvii), shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), (xiii), (xiv), (xv), (xvi) and (xvii) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than any representations and warranties made pursuant to Sections 1.04(b)(xii), (xiii), (xiv), (xv), (xvi) and (xvii) by it) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans (other than any representations and warranties made by it pursuant to Sections 1.04(b)(xii), (xiii), (xiv), (xv), (xvi) and (xvii)) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder, as to each that, as of the Closing Date:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be insured by a generally acceptable insurer against loss by fire, hazards of extended coverage and such other hazards as are customary in the area where the related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of Xxxxxx Mae or Xxxxxxx Mac. If upon origination of the Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available), a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect, which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related Mortgagor thereunder to maintain the hazard insurance policy at the Mortgagor’s cost and expense, and on the Mortgagor’s failure to do so, authorizes the holder of the Mortgage to obtain and maintain such insurance at such Mortgagor’s cost and expense, and to seek reimbursement therefor from the Mortgagor. Where required by state law or regulation, each Mortgagor has been given an opportunity to choose the carrier of the required hazard insurance, provided the policy is not a “master” or “blanket” hazard insurance policy covering the common facilities of a planned unit development. The hazard insurance policy is the valid and binding obligation of the insurer, is in full force and effect, and will be in full force and effect and inure to the benefit of the Depositor upon the consummation of the transactions contemplated herein by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) The related Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of such Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Seller Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the fulfillment Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the terms of this Agreement by Transferred Mortgage Loans to the Depositor, the Seller shall not conflict was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, of any encumbrance, equity, participation interest, lien, pledge, charge, claim or security interest, and has full right and authority, subject to no interest or participation of, or agreement with, result any other party, to sell and assign each Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in any breach the locality where the related Mortgaged Property is located or (ii) an ALTA Mortgagee Title Insurance Policy or other generally acceptable form of any policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the terms Transferred Mortgage Loan, and provisions its successors and assigns, as to the first priority lien of or constitute the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with or without notice or lapse of time) a default underrespect to the project in which such unit is located. With respect to any Title Insurance Policy, the certificate originator is the sole insured of incorporation or by-laws such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) No foreclosure action is being threatened or commenced with respect to any indentureTransferred Mortgage Loan. There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, agreementin the case of any Cooperative Loan, mortgagethe related cooperative unit) and each such property is undamaged by waste, deed of trust fire, earthquake or earth movement, windstorm, flood, tornado or other instrument casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the Seller premises were intended;
(ix) There are no mechanics’ or similar liens or claims which have been filed for work, labor or material (and no rights are outstanding that under the law could give rise to such liens) affecting the related Mortgaged Property which are or may be liens prior to, or equal or coordinate with, the lien of the related Mortgage;
(x) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, insurance company or similar institution that is supervised and examined by a Federal or State authority, or by a mortgagee approved by the Secretary of Housing and Urban Development pursuant to sections 203 and 211 of the National Housing Act;
(xi) Each Transferred Mortgage Loan is a party or “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2;
(xii) Each Transferred Mortgage Loan at the time it was made complied in all material respects with applicable local, state and federal laws, including, but not limited to, all applicable predatory, abusive and fair lending laws; and, specifically, (a) no Transferred Mortgage Loan secured by which it a Mortgaged Property located in New Jersey is bound, or result a “High-Cost Home Loan” as defined in the creation or imposition of any Lien upon any of its properties pursuant to New Jersey Home Ownership Act effective November 27, 2003 (N.J.S.A. 46:10B-22 et seq.); (b) no Transferred Mortgage Loan secured by a Mortgaged Property located in New Mexico is a “High-Cost Home Loan” as defined in the terms of any such indentureNew Mexico Home Loan Protection Act effective January 1, agreement, mortgage, deed of trust or other instrument 2004 (other than pursuant to the Basic Documents), or violate any law or, to the best of the Seller's knowledge, any order, rule or regulation applicable to the Seller of any Governmental Authority having jurisdiction over the Seller or any of its properties.N.M.
Appears in 3 contracts
Samples: Mortgage Loan Sale and Assignment Agreement (LXS 2007-3), Mortgage Loan Sale and Assignment Agreement (LXS 2007-8h), Mortgage Loan Sale and Assignment Agreement (Lehman XS Trust 2007-1)
Representations and Warranties of the Seller. The Seller hereby represents and warrants to the Owner Trustee that:
(a) The Seller has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Delaware, with power and authority to own its properties and to conduct its business as such properties are presently owned and such business is presently conducted, conducted and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing Agreement.
(b) The Seller is duly qualified to do business and, where necessary is as a foreign corporation in good standing (or is exempt from such requirement)standing, and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under the Basic Documents to which it is a party.
(c) The Seller has the power and authority to execute and deliver this Agreement, Agreement and the other Basic Documents to which the Seller is a party and to carry out its terms terms, the Seller has full power and authority to consummate sell and assign the transactions contemplated hereinproperty to be sold and assigned to and deposited with the Issuer as part of the Trust and the Seller has duly authorized such sale and assignment to the Issuer by all necessary corporate action; and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein have been duly authorized by the Seller by all necessary corporate action.
(d) The execution of this Agreement and the consummation of the transactions contemplated herein by this Agreement and any other Basic Documents to which the Seller is a party, and the fulfillment of the terms of this Agreement by and any other Basic Documents to which the Seller shall is a party do not conflict with, result in any breach of any of the terms and provisions of or constitute (with or without notice or lapse of time) a default under, the certificate of incorporation or by-laws of the Seller, or any indenture, agreement, mortgage, deed of trust agreement or other instrument to which the Seller is a party or by which it is bound, or result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement, mortgage, deed of trust agreement or other instrument (other than pursuant to the Basic Documents), or violate any law or, to the best of the Seller's knowledge, any order, rule or regulation applicable to the Seller of any Governmental Authority court or of any federal or state regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Seller or any of its properties.
Appears in 3 contracts
Samples: Trust Agreement (Capital Auto Receivables Inc), Trust Agreement (Capital Auto Receivables Inc), Trust Agreement (Capital Auto Receivables Inc)
Representations and Warranties of the Seller. The Seller hereby represents and warrants to the Owner Trustee Trustee, as of the Closing Date, that:
(a) The Seller has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Delaware, with power and authority to own its properties and to conduct its business as such properties are presently owned and such business is presently conducted, conducted and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing AgreementContracts.
(b) The Seller is duly qualified to do business and, where necessary is as a foreign corporation in good standing (or is exempt from such requirement)standing, and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under the Basic Documents to which it is a party.
(c) The Seller has the power and authority to execute and deliver this Agreement, Agreement and to carry out its terms terms, the Seller has full power and authority to consummate sell and assign the transactions contemplated hereinproperty to be sold and assigned to and deposited with, as part of, the Trust and the Seller has duly authorized such sale and assignment to the Trust by all necessary corporate action; and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein have been duly authorized by the Seller by all necessary corporate action.
(d) The execution of this Agreement and the consummation of the transactions contemplated herein by the Seller this Agreement and the fulfillment of the terms of this Agreement by the Seller shall do not conflict with, result in any breach of any of the terms and provisions of or constitute (with or without notice or lapse of time) a default under, the under its certificate of incorporation or by-laws of the Seller, or any indenture, agreement, mortgage, deed of trust agreement or other instrument to which the Seller is a party or by which it is bound, or result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement, mortgage, deed of trust agreement or other instrument (other than pursuant to or as contemplated by the Basic Documents), or violate any law or, to the best of the Seller's its knowledge, any order, rule or regulation applicable to the Seller of any Governmental Authority court or of any federal or state regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Seller or any of its properties.
Appears in 3 contracts
Samples: Trust Agreement (Cit Group Securitization Corp Ii), Trust Agreement (Cit Group Securitization Corp Ii), Trust Agreement (Cit Group Inc)
Representations and Warranties of the Seller. The Upon the execution of the applicable Terms Agreement, the Seller hereby represents and warrants to each Underwriter as of the Owner Trustee thatdate hereof and as of the Closing Date (unless otherwise specified) as follows:
(a) The Seller has been duly organized and is validly existing as a corporation national banking association, in good standing under the laws of the State of DelawareUnited States. The Seller has, with in all material respects, full power and authority to own its properties and to conduct its business as such properties are presently owned and such business is presently conducteddescribed in the Prospectus, and had at all relevant timesto execute, deliver and now has, power, authority and legal right to acquire and own perform the Receivables contemplated to be transferred to Purchase Agreement, the Trust pursuant to the Trust Sale Pooling and Servicing Agreement.
(b) The Seller , this Agreement and the applicable Terms Agreement, and to consummate the transactions contemplated by the Receivables Purchase Agreement, the Pooling and Servicing Agreement, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and, where necessary and is in good standing (or is exempt from such requirementrequirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in all jurisdictions each jurisdiction in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain such licenses or and approvals (i) would not have a material adverse effect on the Seller and its subsidiaries, taken as a whole, or (ii) would have a material adverse effect on the Seller’s ability to perform its obligations under the Basic Documents to which it is a party.
(c) The Seller has the power and authority to execute and deliver this Agreement, to carry out its terms and to consummate the transactions contemplated herein; by the Receivables Purchase Agreement, the Pooling and Servicing Agreement, this Agreement and the applicable Terms Agreement.
(b) The execution, delivery and performance by the Seller of this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreement and the Pooling and Servicing Agreement, and the consummation of the transactions contemplated herein hereby and thereby have been duly authorized by the Seller by all necessary corporate action.
(d) The action on the part of the Seller. Neither the execution and delivery by the Seller of this Agreement and such instruments, nor the consummation performance by the Seller of the transactions contemplated herein or therein contemplated, nor the compliance by the Seller and with the fulfillment of the terms of this Agreement by the Seller shall not provisions hereof or thereof, will (i) conflict with, with or result in any a breach of any of the material terms and provisions of of, or constitute (with or without notice or lapse of time) a material default under, any of the certificate provisions of incorporation the Articles of Association or byBy-laws of the Seller, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, mortgage, deed of trust contract or other instrument to which the Seller is a party or by which it is bound, or (iv) result in the creation or imposition of any Lien lien, charge or encumbrance upon any of its properties the Seller’s property pursuant to the terms of any such indenture, agreement, mortgage, deed of trust contract or other instrument instrument.
(c) The Seller has duly executed and delivered this Agreement and the applicable Terms Agreement.
(d) The Seller has authorized the conveyance of the Receivables and the conveyance of an interest in the Seller’s interest in any related Funds Collateral to the Company under the Receivables Purchase Agreement.
(e) The Bank has delivered to the Representatives complete and correct copies of publicly available portions of the Consolidated Reports of Condition and Income of the Bank for the year ended December 31, 2007, as submitted to the Governors of the Federal Reserve System. Except as set forth in or contemplated in the Prospectus, there has been no material adverse change in the condition (financial or otherwise) of the Bank since December 31, 2007.
(f) Each of the Pooling and Servicing Agreement and the Receivables Purchase Agreement constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other than similar laws now or hereafter in effect relating to creditors’ rights in general and the rights of creditors of state banking corporations, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Seller or in the event of any moratorium or similar occurrence affecting the Seller and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the transfer of the Receivables pursuant to the Basic Documents)Receivables Purchase Agreement, have been or violate any law orwill be taken or obtained on or before the Closing Date.
(g) The Master Trust is not now, to and following the best issuance of the Seller's knowledgeCollateral Certificate, any orderwill not be, rule or regulation applicable required to be registered under the Investment Company Act of 1940, as amended (the “1940 Act”).
(h) The representations and warranties of the Seller of any Governmental Authority having jurisdiction over in the Seller or any of its propertiesPooling and Servicing Agreement and the Receivables Purchase Agreement are true and correct in all material respects.
Appears in 3 contracts
Samples: Underwriting Agreement (Capital One Master Trust), Underwriting Agreement (Capital One Master Trust), Underwriting Agreement (Capital One Funding, LLC)
Representations and Warranties of the Seller. The Seller hereby warrants and represents to, and warrants to covenants with, the Owner Trustee Assignee that:
(a) The Seller has been duly organized representations and is validly existing as a corporation warranties contained in good standing under the laws Sections 4.1(i)-(vi) of the State Purchase Agreement are deemed to be made as of Delaware, with power and authority to own its properties and to conduct its business as such properties are presently owned and such business is presently conductedthe date of this Assignment Agreement, and had at all relevant times, such representations and now has, power, authority warranties are true and legal right to acquire and own correct as of the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing date of this Assignment Agreement.
(b) The No offsets, counterclaims or other defenses are available to the Seller is duly qualified with respect to do business and, where necessary is in good standing (or is exempt from such requirement), and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property Purchase Agreement or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under the Basic Documents to which it is a partyMortgage Loans.
(c) The Seller has not waived or agreed to any waiver under, or agreed to any amendment or other modification of, the power Purchase Agreement or the Mortgage Loans, including without limitation the transfer of the servicing obligations under the Purchase Agreement. The Seller has no knowledge of, and authority to execute and deliver this has not received notice of, any waivers under or amendments or other modifications of, or assignments of rights or obligations under or defaults under, the Purchase Agreement, to carry out its terms and to consummate or the transactions contemplated herein; and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein have been duly authorized by the Seller by all necessary corporate actionMortgage Loans.
(d) The execution of this Agreement and Neither the consummation Seller nor anyone acting on its behalf has offered, transferred, pledged, sold or otherwise disposed of the transactions contemplated herein by Mortgage Loans, any interest in the Seller and the fulfillment Mortgage Loans or any other similar security to, or solicited any offer to buy or accept a transfer, pledge or other disposition of the terms of this Agreement by Mortgage Loans, any interest in the Seller shall not conflict Mortgage Loans or any other similar security from, or otherwise approached or negotiated with respect to the Mortgage Loans, any interest in the Mortgage Loans or any other similar security with, result any person in any breach manner, or made by general solicitation by means of general advertising or in any other manner, or taken any other action that would constitute a distribution of the terms and provisions of Mortgage Loans under the 1933 Act or constitute (with or without notice or lapse of time) a default under, that would render the certificate of incorporation or by-laws disposition of the Seller, or any indenture, agreement, mortgage, deed Mortgage Loans a violation of trust or other instrument to which the Seller is a party or by which it is bound, or result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement, mortgage, deed of trust or other instrument (other than pursuant to the Basic Documents), or violate any law or, to the best Section 5 of the Seller's knowledge, any order, rule 1933 Act or regulation applicable to the Seller of any Governmental Authority having jurisdiction over the Seller or any of its propertiesrequire registration pursuant thereto.
Appears in 3 contracts
Samples: Assignment, Assumption and Recognition Agreement (GSR Mortgage Loan Trust 2007-3f), Assignment, Assumption and Recognition Agreement (GSR Mortgage Loan Trust 2007-1f), Assignment, Assumption and Recognition Agreement (GSR Mortgage Loan Trust 2007-2f)
Representations and Warranties of the Seller. The Seller hereby represents and warrants to the Owner Trustee other parties hereto as of the Closing Date that:
(a) The Seller has been duly organized and is validly existing as a corporation Maryland business trust in good standing under the laws of the State of DelawareMaryland, with full power and authority to own its properties assets and to conduct its business as such properties are presently owned and such business is presently being conducted, and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing Agreement.
(b) The Seller is duly qualified to do business and, where necessary is in good standing (or is exempt from such requirement), and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under the Basic Documents to which it is a party.
(c) The Seller has the full entity power and authority to execute and deliver this Agreement, to carry out its terms Agreement and to consummate the transactions contemplated herein; 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 Seller and the consummation of the transactions contemplated herein hereby have been duly authorized by and validly authorized.
(c) This Agreement constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except as enforceability may be limited by all necessary corporate actionapplicable 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) The None of the execution and delivery of this Agreement, the sale of the Mortgage Loans by the Seller, the transactions contemplated hereby, or the fulfillment of or compliance with the terms and conditions of this Agreement and the consummation of the transactions contemplated herein by the Seller and the fulfillment of the terms of this Agreement by the Seller shall not will conflict with, with or result in any a breach of any of the terms and provisions of or constitute (with or without notice or lapse of time) a default underterms, the certificate of incorporation or by-laws of the Sellerincorporation, bylaws or any indenture, agreement, mortgage, deed of trust legal restriction or other any agreement or instrument to which the Seller is now a party or by which it is bound, or constitute a default or result in the creation or imposition violation of any Lien upon law, rule, regulation, order, judgment or decree to which the Seller or its property is subject, or impair the ability of the Issuing Entity 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 Seller of or compliance by the Seller with this Agreement or the sale of the Mortgage Loans as evidenced by the consummation of the transactions contemplated by 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 Seller which, either individually or in the aggregate, may result in any material adverse change in the business, operations, financial condition, properties pursuant or assets of the Seller, or in any material impairment of the right or ability of the Seller 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 contemplated herein, or which would be likely to impair materially the ability of the Seller to perform under the terms of any such indenturethis Agreement.
(g) The transfer, agreement, mortgage, deed assignment and conveyance of trust or other instrument (other than the Mortgage Loans by the Seller pursuant to the Basic Documents), or violate any law or, this Agreement are not subject to the best bulk transfer or any similar statutory provisions in effect in any applicable jurisdiction.
(h) The Seller is solvent and the sale of the Mortgage Loans will not cause the Seller to become insolvent. The sale of the Mortgage Loans is not undertaken to hinder, delay or defraud any of the Seller's knowledgecreditors.
(i) The consideration received by the Seller upon the sale of the Mortgage Loans under this Agreement constitutes fair consideration and reasonably equivalent value for the Mortgage Loans.
(j) The Seller has determined that the disposition of the Mortgage Loans from Seller to Depositor pursuant to this Agreement will be afforded sale treatment for accounting purposes, any order, rule or regulation applicable all on a non-consolidated basis.
(k) The Seller has not transferred the Mortgage Loans to the Seller of Depositor with any Governmental Authority having jurisdiction over the Seller intent to hinder, delay or defraud any of its propertiescreditors.
(l) The Seller has not dealt with any broker, investment banker, agent or other Person that may be entitled to any commission or compensation in the connection with the sale of the Mortgage Loans.
(m) Immediately prior to the transfer by the Seller to the Depositor of each Mortgage Loan, the Seller had good and equitable title to each Mortgage Loan, subject to no prior lien, claim, participation interest, mortgage, security interest, pledge, charge or other encumbrance or other interest of any nature. On and after the transfer by the Seller to the Depositor of each Mortgage Loan, the Depositor will have good and equitable title to each Mortgage Loan, subject to no prior lien, claim, participation interest, mortgage, security interest, pledge, charge or other encumbrance or other interest of any nature.
Appears in 3 contracts
Samples: Pooling Agreement (Luminent Mortgage Trust 2006-7), Pooling Agreement (Luminent Mortgage Trust 2006-6), Pooling Agreement (Luminent Mortgage Trust 2007-1)
Representations and Warranties of the Seller. The Seller hereby represents and warrants to the Owner Trustee that:Purchaser that the statements in this Section 4 are true, complete and correct in all respects as of the date hereof and shall be true, complete and correct in all respects as of the Closing as if made at and as of such time, except to the extent that any such representation and warranty, by its terms, is expressly limited to a specific date, in which case, as of such specific date.
(a) The Seller has been duly organized and is validly existing as a corporation in good standing under the laws As of the State Closing, the Seller shall (i) have good and valid title to the Shares to be sold by the Seller to the Purchaser, free and clear of Delawareany liens, with encumbrances, equities and claims, and (ii) have full right, power and authority to own its properties effect the sale and delivery of such Shares to conduct its business as the Purchaser; and upon the delivery of, against payment for, such properties Shares pursuant to this Agreement, the Purchaser shall acquire good and valid title thereto, free and clear of any liens, encumbrances, equities and claims. There are presently owned and such business is presently conductedno outstanding securities, and had at all relevant timesoptions, and now haswarrants, powercalls, authority and legal rights, conversion rights, preemptive rights, rights of first refusal, redemption rights, repurchase rights, plans, “tag-along” or “drag along” rights, commitments, agreements, arrangements or undertakings giving any person other than the Purchaser a right to acquire and own acquire, directly or indirectly, any of the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing AgreementShares.
(b) The Seller is duly qualified to do business andhas full right, where necessary is in good standing (or is exempt from such requirement), and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under the Basic Documents to which it is a party.
(c) The Seller has the power and authority to execute and deliver this Agreement and to perform his obligations under this Agreement. This Agreement has been duly authorized, executed and delivered by or on behalf of the Seller. The execution and delivery of this Agreement, to carry out its terms and to consummate the transactions contemplated herein; and the execution, delivery and performance of this Agreement and the consummation by the Seller of the transactions contemplated herein have been duly authorized and the fulfillment by the Seller by all necessary corporate action.
(d) The execution of this Agreement and the consummation of the transactions contemplated herein by the Seller and the fulfillment of the terms hereof will not require any consent, approval, authorization, or order of this Agreement by the Seller shall any court, regulatory body, administrative agency or other governmental body and will not conflict with, result in any a breach of any of the terms and provisions of of, or constitute (with or without notice or lapse of time) a default under, the certificate of incorporation or by-laws of the Seller, or any indenture, agreement, mortgage, deed of trust or other agreement or instrument to which the Seller is a party or by which it is boundparty, or result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement, mortgage, deed of trust or other instrument (other than pursuant to the Basic Documents), or violate any law or, to the best of the Seller's knowledge, any order, rule or regulation applicable to the Seller of any Governmental Authority court or of any regulatory body or administrative agency or other governmental body having jurisdiction over the Seller or the Shares.
(c) As of the Closing, no consent, approval or waiver is required under any instrument or agreement to which the Seller is a party or by which the Seller or the Shares are bound or under which Seller is entitled to any right or benefit in connection with the sale by the Seller of its propertiesShares to the Purchaser under this Agreement.
Appears in 3 contracts
Samples: Stock Purchase Agreement (BGC Partners, Inc.), Stock Purchase Agreement (BGC Partners, Inc.), Stock Purchase Agreement (BGC Partners, Inc.)
Representations and Warranties of the Seller. The Upon the execution of the applicable Terms Agreement, the Seller hereby represents and warrants to each Underwriter as of the Owner Trustee thatdate hereof and as of the Closing Date (unless otherwise specified) as follows:
(a) The Seller has been duly organized and is validly existing as a corporation national banking association, in good standing under the laws of the State of DelawareUnited States. The Seller has, with in all material respects, full power and authority to own its properties and to conduct its business as such properties are presently owned and such business is presently conducteddescribed in the Disclosure Materials, and had at all relevant timesto execute, deliver and now has, power, authority and legal right to acquire and own perform the Receivables contemplated to be transferred to Purchase Agreement, the Trust pursuant to the Trust Sale Pooling and Servicing Agreement.
(b) The Seller , the Asset Representations Review Agreement, the Transfer Agreement, this Agreement and the applicable Terms Agreement, and to consummate the transactions contemplated by the Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and, where necessary and is in good standing (or is exempt from such requirementrequirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in all jurisdictions each jurisdiction in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain such licenses or and approvals (i) would not have a material adverse effect on the Seller and its subsidiaries, taken as a whole, or (ii) would have a material adverse effect on the Seller’s ability to perform its obligations under the Basic Documents to which it is a party.
(c) The Seller has the power and authority to execute and deliver this Agreement, to carry out its terms and to consummate the transactions contemplated herein; by the Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement, this Agreement and the applicable Terms Agreement.
(b) The execution, delivery and performance by the Seller of this Agreement, the applicable Terms Agreement, the Asset Representations Review Agreement, the Transfer Agreement, the Receivables Purchase Agreement and the Pooling and Servicing Agreement, and the consummation of the transactions contemplated herein hereby and thereby have been duly authorized by the Seller by all necessary corporate action.
(d) The action on the part of the Seller. Neither the execution and delivery by the Seller of this Agreement and such instruments, nor the consummation performance by the Seller of the transactions contemplated herein or therein contemplated, nor the compliance by the Seller and with the fulfillment of the terms of this Agreement by the Seller shall not provisions hereof or thereof, will (i) conflict with, with or result in any a breach of any of the material terms and provisions of of, or constitute (with or without notice or lapse of time) a material default under, any of the certificate provisions of incorporation the Articles of Association or byBy-laws of the Seller, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, mortgage, deed of trust contract or other instrument to which the Seller is a party or by which it is bound, or (iv) result in the creation or imposition of any Lien lien, charge or encumbrance upon any of its properties the Seller’s property pursuant to the terms of any such indenture, agreement, mortgage, deed of trust contract or other instrument instrument.
(c) The Seller has duly executed and delivered this Agreement and the applicable Terms Agreement.
(d) The Seller has authorized the conveyance of the Receivables and the conveyance of an interest in the Seller’s interest in any related Funds Collateral to the Company under the Receivables Purchase Agreement.
(e) Complete and correct copies of publicly available portions of the Consolidated Reports of Condition and Income of the Bank for the year ended December 31, 2015 and the quarter ended March 31, 2016, as submitted to the Governors of the Federal Reserve System by the Bank, are publicly available through xxxxx://xxx.xxxxx.xxx/public/ManageFacsimiles.aspx. Except as set forth in or contemplated in the Preliminary Prospectus, there has been no material adverse change in the condition (financial or otherwise) of the Bank since December 31, 2015.
(f) Each of the Pooling and Servicing Agreement, the Receivables Purchase Agreement, the Transfer Agreement and the Asset Representations Review Agreement constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other than similar laws now or hereafter in effect relating to creditors’ rights in general and the rights of creditors of national banking associations, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Seller or in the event of any moratorium or similar occurrence affecting the Seller and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any court, governmental agency or body or official required in connection with the transfer of the Receivables pursuant to the Basic DocumentsReceivables Purchase Agreement, have been or will be taken or obtained on or before the Closing Date.
(g) (i) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the Investment Company Act of 1940, as amended (the “1940 Act”).
(ii) The Master Trust is not now, and immediately following the issuance of the Notes pursuant to the Indenture will not be, a “covered fund” for purposes of regulations adopted under Section 13 of the Bank Holding Company Act of 1956 (hereinafter referred to as the “Xxxxxxx Rule”). In reaching this conclusion, although other statutory or regulatory exclusions or exemptions under the 1940 Act or the Xxxxxxx Rule may be available, the Seller has relied on the exclusion from registration set forth in Rule 3a-7 under the 1940 Act.
(h) The representations and warranties of the Seller in the Pooling and Servicing Agreement and the Receivables Purchase Agreement are true and correct in all material respects.
(i) The Seller has provided a written representation to each of the Hired NRSROs (as defined below), which satisfied the requirements of paragraph (a)(3)(iii) of Rule 17g-5 of the Exchange Act (“Rule 17g-5”), as amended (the “17g-5 Representation”). The Seller has complied, and will continue to comply, with the 17g-5 Representation, other than any breach of the 17g-5 Representation that would not have a material adverse effect on the Notes.
(j) The Seller has not engaged any third party to provide due diligence services within the meaning of Rule 17g-10(d)(1) under the Exchange Act or violate obtained any law or, third-party due diligence report within the meaning of Rule 15Ga-2(d) under the Exchange Act with respect to the best of assets held by the Seller's knowledge, any order, rule Master Trust or regulation applicable to the Seller of any Governmental Authority having jurisdiction over transactions contemplated by this Agreement or the Seller or any of its propertiesother Program Agreements.
Appears in 3 contracts
Samples: Underwriting Agreement (Capital One Multi Asset Execution Trust), Underwriting Agreement (Capital One Multi Asset Execution Trust), Underwriting Agreement (Capital One Multi Asset Execution Trust)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Owner Trustee thatDepositor that as of the Closing Date:
(ai) The Seller has been is a corporation duly organized and is organized, validly existing as a corporation and in good standing under the laws of the State of Delaware, with governing its creation and existence and has full corporate power and authority to own its properties and property, to conduct carry on its business as such properties are presently owned and such business is presently conducted, and had at all relevant times, to enter into and now has, power, authority and legal right to acquire and own the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing Agreement.
(b) The Seller is duly qualified to do business and, where necessary is in good standing (or is exempt from such requirement), and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under this Agreement and the Basic Documents to which it is a party.Assignment and Assumption Agreement;
(cii) The execution and delivery by the Seller has of this Agreement and the power Assignment and authority to execute Assumption Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and deliver delivery of this Agreement or the Assignment and Assumption Agreement, to carry out its terms and to consummate nor the consummation of the transactions contemplated herein; and herein or therein contemplated, nor compliance with the provisions hereof or thereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and the consummation of the transactions contemplated herein have hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been duly authorized by obtained, given, effected or taken prior to the Seller by all necessary corporate action.date hereof;
(div) The execution Each of this Agreement and the Assignment and Assumption Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement.
(b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix), 1.04(b)(xx) and 1.04(b)(xxi)) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix), 1.04(b)(xx) and 1.04(b)(xxi) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix), 1.04(b)(xx) and 1.04(b)(xxi)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Date, as to each, that:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be insured by a generally acceptable insurer against loss by fire, hazards of extended coverage and such other hazards as are customary in the area where the related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA or FHLMC. If upon origination of a Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related Mortgagor thereunder to maintain the hazard insurance policy at the Mortgagor’s cost and expense, and on the Mortgagor’s failure to do so, authorizes the holder of the Mortgage to obtain and maintain such insurance at such Mortgagor’s cost and expense, and to seek reimbursement therefor from the Mortgagor. Where required by state law or regulation, each Mortgagor has been given an opportunity to choose the carrier of the required hazard insurance, provided the policy is not a “master” or “blanket” hazard insurance policy covering the common facilities of a planned unit development. The hazard insurance policy is the valid and binding obligation of the insurer, is in full force and effect, and will be in full force and effect and inure to the benefit of the Depositor upon the consummation of the transactions contemplated herein by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Seller Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the fulfillment Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the terms of this Agreement by Transferred Mortgage Loans to the Depositor, the Seller shall not conflict was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, of any encumbrance, equity, participation interest, lien, pledge, charge, claim or security interest, and has full right and authority, subject to no interest or participation of, or agreement with, result any other party, to sell and assign each Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in any breach the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Title Insurance Policy or other generally acceptable form of any policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the terms Transferred Mortgage Loan, and provisions its successors and assigns, as to the first priority lien of or constitute the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with or without notice or lapse of time) a default underrespect to the project in which such unit is located. With respect to any Title Insurance Policy, the certificate originator is the sole insured of incorporation or by-laws such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or any indentureomission, agreement, mortgage, deed anything that would impair the coverage of trust or other instrument to which the Seller is a party or by which it is bound, or result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement, mortgage, deed of trust or other instrument mortgagee Title Insurance Policy;
(other than pursuant to the Basic Documents), or violate any law or, to viii) To the best of the Seller's ’s knowledge, no foreclosure action is being threatened or commenced with respect to any orderTransferred Mortgage Loan.
(ix) There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(x) There are no mechanics’ or similar liens or claims which have been filed for work, labor or material (and no rights are outstanding that under the law could give rise to such liens) affecting the related Mortgaged Property which are or may be liens prior to, or equal or coordinate with, the lien of the related Mortgage;
(xi) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, insurance company or similar institution that is supervised and examined by a Federal or State authority, or by a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act;
(xii) Each Transferred Mortgage Loan at the time it was made complied in all material respects with applicable local, state, and federal laws including, but not limited to, all applicable predatory and abusive lending laws;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period);
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loan or regulation applicable (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no Transferred Mortgage Loan is the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the Seller next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” or “predatory” loan under any applicable federal, state or local predatory or abusive lending law (or a similarly classified loan using different terminology under a law imposing heightened regulatory scrutiny or additional legal liability for residential mortgage loans having high interest rates, points and/or fees); no Transferred Mortgage Loan originated on or after November 27, 2003 is a “High-Cost Home Loan” subject to the New Jersey Home Ownership Security Act of any Governmental Authority having jurisdiction over 2003 (N.J.S.A. 46:10B-22 et seq.); no Transferred Mortgage Loan is a “High-Cost Home Loan” subject to the Seller or any of its properties.New Mexico Home Loan Protection Act (N.M.
Appears in 3 contracts
Samples: Mortgage Loan Sale and Assignment Agreement (Structured Adjustable Rate Mortgage Loan Trust Series 2007-6), Mortgage Loan Sale and Assignment Agreement (Lehman XS Trust Series 2006-16n), Mortgage Loan Sale and Assignment Agreement (Lehman XS Trust Series 2006-12n)
Representations and Warranties of the Seller. The Upon the execution of the applicable Terms Agreement, the Seller hereby represents and warrants to each Underwriter as of the Owner Trustee thatdate hereof and as of the Closing Date (unless otherwise specified) as follows:
(a) The Seller has been duly organized and is validly existing as a corporation national banking association, in good standing under the laws of the State of DelawareUnited States. The Seller has, with in all material respects, full power and authority to own its properties and to conduct its business as such properties are presently owned and such business is presently conducteddescribed in the Disclosure Materials, and had at all relevant timesto execute, deliver and now has, power, authority and legal right to acquire and own perform the Receivables contemplated to be transferred to Purchase Agreement, the Trust pursuant to the Trust Sale Pooling and Servicing Agreement.
(b) The Seller , this Agreement and the applicable Terms Agreement, and to consummate the transactions contemplated by the Receivables Purchase Agreement, the Pooling and Servicing Agreement, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and, where necessary and is in good standing (or is exempt from such requirementrequirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in all jurisdictions each jurisdiction in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain such licenses or and approvals (i) would not have a material adverse effect on the Seller and its subsidiaries, taken as a whole, or (ii) would have a material adverse effect on the Seller’s ability to perform its obligations under the Basic Documents to which it is a party.
(c) The Seller has the power and authority to execute and deliver this Agreement, to carry out its terms and to consummate the transactions contemplated herein; by the Receivables Purchase Agreement, the Pooling and Servicing Agreement, this Agreement and the applicable Terms Agreement.
(b) The execution, delivery and performance by the Seller of this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreement and the Pooling and Servicing Agreement, and the consummation of the transactions contemplated herein hereby and thereby have been duly authorized by the Seller by all necessary corporate action.
(d) The action on the part of the Seller. Neither the execution and delivery by the Seller of this Agreement and such instruments, nor the consummation performance by the Seller of the transactions contemplated herein or therein contemplated, nor the compliance by the Seller and with the fulfillment of the terms of this Agreement by the Seller shall not provisions hereof or thereof, will (i) conflict with, with or result in any a breach of any of the material terms and provisions of of, or constitute (with or without notice or lapse of time) a material default under, any of the certificate provisions of incorporation the Articles of Association or byBy-laws of the Seller, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, mortgage, deed of trust contract or other instrument to which the Seller is a party or by which it is bound, or (iv) result in the creation or imposition of any Lien lien, charge or encumbrance upon any of its properties the Seller’s property pursuant to the terms of any such indenture, agreement, mortgage, deed of trust contract or other instrument instrument.
(c) The Seller has duly executed and delivered this Agreement and the applicable Terms Agreement.
(d) The Seller has authorized the conveyance of the Receivables and the conveyance of an interest in the Seller’s interest in any related Funds Collateral to the Company under the Receivables Purchase Agreement.
(e) Complete and correct copies of publicly available portions of the Consolidated Reports of Condition and Income of the Bank for the year ended December 31, 2014 and the quarters ended March 31, 2015 and June 30, 2015, as submitted to the Governors of the Federal Reserve System by the Bank, are publicly available through xxxxx://xxx.xxxxx.xxx/public/ManageFacsimiles.aspx. Except as set forth in or contemplated in the Prospectus, there has been no material adverse change in the condition (financial or otherwise) of the Bank since December 31, 2014.
(f) Each of the Pooling and Servicing Agreement and the Receivables Purchase Agreement constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other than similar laws now or hereafter in effect relating to creditors’ rights in general and the rights of creditors of national banking associations, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Seller or in the event of any moratorium or similar occurrence affecting the Seller and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any court, governmental agency or body or official required in connection with the transfer of the Receivables pursuant to the Basic DocumentsReceivables Purchase Agreement, have been or will be taken or obtained on or before the Closing Date.
(g) (i) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the Investment Company Act of 1940, as amended (the “1940 Act”).
(ii) The Master Trust is not now, and immediately following the issuance of the Notes pursuant to the Indenture will not be, a “covered fund” for purposes of regulations adopted under Section 13 of the Bank Holding Company Act of 1956 (hereinafter referred to as the “Xxxxxxx Rule”). In reaching this conclusion, although other statutory or regulatory exclusions or exemptions under the 1940 Act or the Xxxxxxx Rule may be available, the Seller has relied on the exclusion from registration set forth in Rule 3a-7 under the 1940 Act.
(h) The representations and warranties of the Seller in the Pooling and Servicing Agreement and the Receivables Purchase Agreement are true and correct in all material respects.
(i) The Seller has provided a written representation to each of the Hired NRSROs (as defined below), or violate any law or, to which satisfied the best requirements of paragraph (a)(3)(iii) of Rule 17g-5 of the Seller's knowledgeExchange Act (“Rule 17g-5”), as amended (the “17g-5 Representation”). The Seller has complied, and will continue to comply, with the 17g-5 Representation, other than any order, rule or regulation applicable to breach of the 17g-5 Representation that would not have a material adverse effect on the Notes.
(j) Neither the Seller of any Governmental Authority having jurisdiction over the Seller or nor any of its propertiesaffiliates has engaged any third party to provide due diligence services within the meaning of Rule 17g-10(d)(1) under the Exchange Act or obtained any third-party due diligence report within the meaning of Rule 15Ga-2(d) under the Exchange Act with respect to the assets held by the Master Trust or the transactions contemplated by this Agreement or the other Program Agreements.
Appears in 3 contracts
Samples: Underwriting Agreement (Capital One Multi Asset Execution Trust), Underwriting Agreement (Capital One Multi Asset Execution Trust), Underwriting Agreement (Capital One Multi Asset Execution Trust)
Representations and Warranties of the Seller. The Seller hereby represents and warrants to the Owner Trustee Purchaser as of the Closing Date that:
(ai) The the Seller has been is a Maryland corporation, duly organized and is validly existing as a corporation and in good standing under the laws of the State of DelawareMaryland, with and has the corporate power and authority to own its properties assets and to conduct its transact the business as such properties are presently owned and such business in which it is presently conducted, and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing Agreement.
(b) currently engaged. The Seller is duly qualified to do business and, where necessary as a foreign corporation and is in good standing (or is exempt from such requirement), and has obtained all necessary licenses and approvals in all jurisdictions each jurisdiction in which the ownership character of the business transacted by it or lease of property any properties owned or the conduct of its business leased by it requires such qualifications, except where qualification and in which the failure so to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under the Basic Documents to which it is a party.business, properties, assets, or condition (financial or other) of the Seller;
(cii) The the Seller has the corporate power and authority to execute make, execute, deliver and deliver perform this Agreement and all of the transactions contemplated under the Agreement, including the power, authority and capacity to hold and sell each Mortgage Loan, and has taken all necessary corporate action to authorize the execution, delivery and performance of this Agreement. When executed and delivered, this Agreement will constitute the legal, valid and binding obligation of the Seller enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally and by the availability of equitable remedies;
(iii) the Seller is not required to obtain the consent of any other party or any consent, license, approval or authorization from, or registration or declaration with, any governmental authority, bureau or agency in connection with the execution, delivery, performance, validity or enforceability of this Agreement, except for such consent, license, approval or authorization, or registration or declaration, as shall have been obtained or filed, as the case may be, prior to carry out its terms and to consummate the transactions contemplated herein; Closing Date;
(iv) it is not in violation of, and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein have been duly authorized by the Seller by all necessary corporate action.
(d) The execution will not violate, any provision of this Agreement and any existing law or regulation or any order or decree of any court or any order or decree of any federal, state or municipal governmental agency applicable to the consummation Seller or any provision of the transactions contemplated herein by the Seller and the fulfillment of the terms of this Agreement by the Seller shall not conflict with, result in any breach of any of the terms and provisions of or constitute (with or without notice or lapse of time) a default under, the certificate articles of incorporation or by-laws bylaws of the Seller, or constitute a material breach of any mortgage, indenture, agreement, mortgage, deed of trust contract or other instrument agreement to which the Seller is a party or by which it the Seller may be bound;
(v) no litigation or administrative proceeding of or before any court, tribunal or governmental body is boundcurrently pending, or result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement, mortgage, deed of trust or other instrument (other than pursuant to the Basic Documents), or violate any law or, to the best knowledge of the Seller's knowledgeSeller threatened, any order, rule or regulation applicable to the Seller of any Governmental Authority having jurisdiction over against the Seller or any of its propertiesproperties or with respect to this Agreement which in the opinion of the Seller has a reasonable likelihood of resulting in a material adverse effect on the transactions contemplated by this Agreement;
(vi) the Seller has been organized in conformity with the requirements for qualification as a REIT and currently qualifies as a REIT; the Seller has filed an election to be treated as a REIT for federal income tax purposes; and the Seller has operated in a manner and will continue to operate in a manner that will enable it to continue to maintain its current qualification as a REIT;
(vii) the Mortgage Loans are not being transferred by the Seller with any intent to hinder, delay or defraud any creditors of the Seller;
(viii) immediately prior to the delivery of each Mortgage Loan, the related Mortgage was held of record solely for the account of the Seller and the Seller was the owner of the related Mortgage Note, in the event that it retains record title, it shall retain such record title to each Mortgage, each related Mortgage Note and the related Mortgage Files with respect thereto in trust for the Purchaser or its assignee as the owner thereof and only for the purpose of servicing or supervising the servicing of each such Mortgage Loan;
(ix) the consummation of the transactions contemplated by this Agreement are in the Seller’s ordinary course of business, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by it pursuant to this Agreement are not subject to the bulk transfer or any similar statutory provisions; and
(x) the written statements, reports and other documents prepared and furnished or to be prepared and furnished by the Seller pursuant to this Agreement or in connection with the transactions contemplated hereby taken in the aggregate do not contain any untrue statement of material fact or omit to state a material fact necessary to make the statements contained therein not misleading. It is understood and agreed that the representations and warranties set forth in this Section 3.01 shall survive the sale and assignment of the Mortgage Loans to the Purchaser.
Appears in 3 contracts
Samples: Mortgage Loan Purchase Agreement (Fieldstone Mortgage Investment Trust, Series 2006-2), Mortgage Loan Purchase Agreement (Fieldstone Mortgage Investment CORP), Mortgage Loan Purchase Agreement (Fieldstone Mortgage Investment CORP)
Representations and Warranties of the Seller. The Upon the execution of the applicable Terms Agreement, the Seller hereby represents and warrants to each Underwriter as of the Owner Trustee thatdate hereof and as of the Closing Date (unless otherwise specified) as follows:
(a) The Seller has been duly organized and is validly existing as a corporation Virginia banking corporation, in good standing under the laws of the State Commonwealth of DelawareVirginia. The Seller has, with in all material respects, full power and authority to own its properties and to conduct its business as such properties are presently owned and such business is presently conducteddescribed in the Prospectus, and had at all relevant timesto execute, deliver and now has, power, authority and legal right to acquire and own perform the Receivables contemplated to be transferred to Purchase Agreement, the Trust pursuant to the Trust Sale Pooling and Servicing Agreement.
(b) The Seller , this Agreement and the applicable Terms Agreement, and to consummate the transactions contemplated by the Receivables Purchase Agreement, the Pooling and Servicing Agreement, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and, where necessary and is in good standing (or is exempt from such requirementrequirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in all jurisdictions each jurisdiction in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain such licenses or and approvals (i) would not have a material adverse effect on the Seller and its subsidiaries, taken as a whole, or (ii) would have a material adverse effect on the Seller’s ability to perform its obligations under the Basic Documents to which it is a party.
(c) The Seller has the power and authority to execute and deliver this Agreement, to carry out its terms and to consummate the transactions contemplated herein; by the Receivables Purchase Agreement, the Pooling and Servicing Agreement, this Agreement and the applicable Terms Agreement.
(b) The execution, delivery and performance by the Seller of this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreement and the Pooling and Servicing Agreement, and the consummation of the transactions contemplated herein hereby and thereby have been duly authorized by the Seller by all necessary corporate action.
(d) The action on the part of the Seller. Neither the execution and delivery by the Seller of this Agreement and such instruments, nor the consummation performance by the Seller of the transactions contemplated herein or therein contemplated, nor the compliance by the Seller and with the fulfillment of the terms of this Agreement by the Seller shall not provisions hereof or thereof, will (i) conflict with, with or result in any a breach of any of the material terms and provisions of of, or constitute (with or without notice or lapse of time) a material default under, any of the certificate provisions of incorporation the Articles of Incorporation or byBy-laws of the Seller, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, mortgage, deed of trust contract or other instrument to which the Seller is a party or by which it is bound, or (iv) result in the creation or imposition of any Lien lien, charge or encumbrance upon any of its properties the Seller’s property pursuant to the terms of any such indenture, agreement, mortgage, deed of trust contract or other instrument instrument.
(c) The Seller has duly executed and delivered this Agreement and the applicable Terms Agreement.
(d) The Seller has authorized the conveyance of the Receivables and the conveyance of an interest in the Seller’s interest in any related Funds Collateral to the Company under the Receivables Purchase Agreement.
(e) The Bank has delivered to the Representatives complete and correct copies of publicly available portions of the Consolidated Reports of Condition and Income of the Bank for the year ended December 31, 2006, as submitted to the Governors of the Federal Reserve System. Except as set forth in or contemplated in the Prospectus, there has been no material adverse change in the condition (financial or otherwise) of the Bank since December 31, 2006.
(f) Each of the Pooling and Servicing Agreement and the Receivables Purchase Agreement constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other than similar laws now or hereafter in effect relating to creditors’ rights in general and the rights of creditors of state banking corporations, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Seller or in the event of any moratorium or similar occurrence affecting the Seller and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the transfer of the Receivables pursuant to the Basic Documents)Receivables Purchase Agreement, have been or violate any law orwill be taken or obtained on or before the Closing Date.
(g) The Master Trust is not now, to and following the best issuance of the Seller's knowledgeCollateral Certificate, any orderwill not be, rule or regulation applicable required to be registered under the Investment Company Act of 1940, as amended (the “1940 Act”).
(h) The representations and warranties of the Seller of any Governmental Authority having jurisdiction over in the Seller or any of its propertiesPooling and Servicing Agreement and the Receivables Purchase Agreement are true and correct in all material respects.
Appears in 3 contracts
Samples: Underwriting Agreement (Capital One Master Trust), Underwriting Agreement (Capital One Funding, LLC), Underwriting Agreement (Capital One Master Trust)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Owner Trustee thatDepositor that as of the Closing Date:
(ai) The Seller has been is a corporation duly organized and is organized, validly existing as a corporation and in good standing under the laws of the State of Delaware, with governing its creation and existence and has full corporate power and authority to own its properties and property, to conduct carry on its business as such properties are presently owned and such business is presently conducted, and had at all relevant times, to enter into and now has, power, authority and legal right to acquire and own the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing Agreement.
(b) The Seller is duly qualified to do business and, where necessary is in good standing (or is exempt from such requirement), and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under this Agreement and the Basic Documents to which it is a party.Assignment and Assumption Agreement;
(cii) The execution and delivery by the Seller has of this Agreement and the power Assignment and authority to execute Assumption Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and deliver delivery of this Agreement or the Assignment and Assumption Agreement, to carry out its terms and to consummate nor the consummation of the transactions contemplated herein; and herein or therein contemplated, nor compliance with the provisions hereof or thereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and the consummation of the transactions contemplated herein have hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been duly authorized by obtained, given, effected or taken prior to the Seller by all necessary corporate action.date hereof;
(div) The execution Each of this Agreement and the Assignment and Assumption Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement.
(b) The representations and warranties of the Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of the Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix), 1.04(b)(xx), 1.04(b)(xxi) and 1.04(b)(xxii)) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix), 1.04(b)(xx), 1.04(b)(xxi) and 1.04(b)(xxii) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix), 1.04(b)(xx), 1.04(b)(xxi) and 1.04(b)(xxii)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the Transferor in such Transfer Agreement, without regard to whether the Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Date, as to each, that:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be insured by a generally acceptable insurer against loss by fire, hazards of extended coverage and such other hazards as are customary in the area where the related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA or FHLMC. If upon origination of a Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related Mortgagor thereunder to maintain the hazard insurance policy at the Mortgagor’s cost and expense, and on the Mortgagor’s failure to do so, authorizes the holder of the Mortgage to obtain and maintain such insurance at such Mortgagor’s cost and expense, and to seek reimbursement therefor from the Mortgagor. Where required by state law or regulation, each Mortgagor has been given an opportunity to choose the carrier of the required hazard insurance, provided the policy is not a “master” or “blanket” hazard insurance policy covering the common facilities of a planned unit development. The hazard insurance policy is the valid and binding obligation of the insurer, is in full force and effect, and will be in full force and effect and inure to the benefit of the Depositor upon the consummation of the transactions contemplated herein by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Seller Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the fulfillment Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the terms of this Agreement by Transferred Mortgage Loans to the Depositor, the Seller shall not conflict was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, of any encumbrance, equity, participation interest, lien, pledge, charge, claim or security interest, and has full right and authority, subject to no interest or participation of, or agreement with, result any other party, to sell and assign each Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in any breach the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Title Insurance Policy or other generally acceptable form of any policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the terms Transferred Mortgage Loan, and provisions its successors and assigns, as to the first priority lien of or constitute the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with or without notice or lapse of time) a default underrespect to the project in which such unit is located. With respect to any Title Insurance Policy, the certificate originator is the sole insured of incorporation or by-laws such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or any indentureomission, agreement, mortgage, deed anything that would impair the coverage of trust or other instrument to which the Seller is a party or by which it is bound, or result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement, mortgage, deed of trust or other instrument mortgagee Title Insurance Policy;
(other than pursuant to the Basic Documents), or violate any law or, to viii) To the best of the Seller's ’s knowledge, no foreclosure action is being threatened or commenced with respect to any orderTransferred Mortgage Loan.
(ix) There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(x) There are no mechanics’ or similar liens or claims which have been filed for work, labor or material (and no rights are outstanding that under the law could give rise to such liens) affecting the related Mortgaged Property which are or may be liens prior to, or equal or coordinate with, the lien of the related Mortgage;
(xi) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, insurance company or similar institution that is supervised and examined by a Federal or State authority, or by a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act;
(xii) Each Transferred Mortgage Loan at the time it was made complied in all material respects with applicable local, state, and federal laws including, but not limited to, all applicable predatory and abusive lending laws;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period);
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loan or regulation applicable (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no Transferred Mortgage Loan is the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the Seller next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” or “predatory” loan under any applicable federal, state or local predatory or abusive lending law (or a similarly classified loan using different terminology under a law imposing heightened regulatory scrutiny or additional legal liability for residential mortgage loans having high interest rates, points and/or fees); no Transferred Mortgage Loan originated on or after November 27, 2003 is a “High-Cost Home Loan” subject to the New Jersey Home Ownership Security Act of any Governmental Authority having jurisdiction over 2003 (N.J.S.A. 46:10B-22 et seq.); no Transferred Mortgage Loan is a “High-Cost Home Loan” subject to the Seller or any of its properties.New Mexico Home Loan Protection Act (N.M.
Appears in 3 contracts
Samples: Mortgage Loan Sale and Assignment Agreement (Lehman XS Trust Series 2006-Gp3), Mortgage Loan Sale and Assignment Agreement (Lehman XS Trust Series 2006-Gp4), Mortgage Loan Sale and Assignment Agreement (Lehman XS Trust Series 2006-Gp2)
Representations and Warranties of the Seller. The Seller hereby represents and warrants to the Owner Trustee and the Note Insurer that:
(a) The Seller has been is duly organized and is validly existing as a corporation in good standing under the laws of the State of Delaware, with power and authority to own its properties and to conduct its business as such properties are presently currently owned and such business is presently conducted, and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing Agreement.
(b) The Seller is duly qualified to do business and, where necessary is in good standing (or is exempt from such requirement), and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under the Basic Documents to which it is a party.
(c) The Seller has the power and authority to execute and deliver this Agreement, Agreement and to carry out its terms terms; the Seller has full power and authority to consummate transfer and assign the transactions contemplated hereinproperty to be transferred and assigned to and deposited with the Trust and the Seller has duly authorized such transfer and assignment and deposit to the Trust by all necessary corporate action; and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein have has been duly authorized by the Seller by all necessary corporate action.
(dc) The execution of this Agreement and the consummation of the transactions contemplated herein by the Seller this Agreement and the fulfillment of the terms of this Agreement by the Seller shall hereof do not conflict with, result in any breach of any of the terms and provisions of of, or constitute (with or without notice or lapse of time) a default under, the certificate articles of incorporation or by-laws of the Seller, or any indenture, agreement, mortgage, deed of trust agreement or other instrument to which the Seller is a party or by which it is bound, or ; nor result in the creation or imposition of any Lien lien upon any of its properties pursuant to the terms terns of any such indenture, agreement, mortgage, deed of trust agreement or other instrument (other than pursuant to the Basic Documents), or ; nor violate any law or, to the best of the Seller's knowledge, any order, rule or regulation applicable to the Seller of any Governmental Authority court or of any Federal or state regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Seller or any of its properties.
(d) There are no proceedings or investigations pending or notice of which has been received in writing before any court, regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Seller or its properties: (x) asserting the invalidity of this Agreement, (y) seeking to prevent the consummation of any of the transactions contemplated by this Agreement or (z) seeking any determination or ruling that should reasonably be expected to materially and adversely affect the performance by the Seller of its obligations under, or the validity or enforceability of, this Agreement.
(e) The representations and warranties of the Seller in Article III of the Sale and Servicing Agreement are true and correct.
(f) The Seller has duly executed and delivered this Agreement, and this Agreement constitutes the legal, valid and binding obligation of the Seller, enforceable against the Seller, in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by the application of equitable principles.
(g) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or otherwise) or operations of the Seller or its properties or might have consequences that would materially and adversely affect its performance hereunder.
(h) The Seller will hold itself out to the public under its own name as a separate and distinct entity from the Sponsor and the Trust and conduct its business so as not to mislead others as to the identity of the Trust. Without limiting the generality of the foregoing, all oral and written communications, including without limitations, all letters, invoices, contracts, statements and applications will be made solely in the name of the Trust if they are made on behalf of the Trust and solely in the name of the Seller if they are made on behalf of the Seller.
Appears in 3 contracts
Samples: Trust Agreement (Accredited Mortgage Loan Trust 2003-3), Trust Agreement (Accredited Home Lenders Inc Mortgage Loan Trust 2004-1), Trust Agreement (Accredited Mortgage Loan Trust 2003-2)
Representations and Warranties of the Seller. The Seller hereby represents and warrants to the Owner Trustee thatBuyer as follows:
(a) The Seller has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Delawarenecessary legal capacity, with power and authority to own its properties execute, deliver and to conduct its business as such properties are presently owned and such business is presently conducted, and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing Agreement.
(b) The Seller is duly qualified to do business and, where necessary is in good standing (or is exempt from such requirement), and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under the Basic Documents to which it is a party.
(c) The Seller has the power and authority to execute and deliver this Agreement, to carry out its the terms and provisions of this Agreement and to consummate the transactions contemplated herein; hereby, and has taken all necessary action to authorize the execution, delivery and performance of this Agreement;
(b) This Agreement has been duly and validly authorized, executed and delivered by Seller and, assuming due authorization, execution and delivery by and on behalf of Buyer, constitutes a legal, valid and binding obligation of Seller, enforceable in accordance with its terms;
(c) As of the date hereof Seller is the owner, beneficially and of record, of the Sale Shares, free and clear of any Liens and will transfer at Closing to Buyer good and valid title to the Sale Shares free and clear of any Liens;
(d) The execution and delivery of this Agreement do not, and the consummation of the transactions contemplated herein have been duly authorized by the Seller by all necessary corporate action.
hereby will not, (di) The execution of this Agreement and the consummation violate or conflict with any provision of the transactions contemplated herein by the Seller and the fulfillment of the terms of this Agreement by the Seller shall not conflict withtrust, result in any breach of any of the terms and provisions of charter or constitute (with or without notice or lapse of time) a default under, the certificate of incorporation organizational documents or by-laws or comparable documents of the Seller, (ii) result in the imposition of any Liens under, cause or permit the acceleration of any obligation under, or violate or conflict with the terms, conditions or provisions of, any note, indenture, security agreement, mortgagelease, deed of trust guaranty, joint venture agreement, or other contract, agreement or instrument to which the Seller is a party or by which it Seller or any of the Sale Shares is bound, or (iii) result in the creation a breach or imposition violation by such Seller of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement, mortgage, deed of trust or other instrument (other than pursuant to the Basic Documents), or violate any law or, to the best of the Seller's knowledge, any orderlaw, rule or regulation applicable or any order, injunction, judgment or decree of any court, governmental authority or regulatory agency;
(e) There exists no restriction upon the sale and delivery to Buyer of the Sale Shares by Seller, nor is Seller required to obtain the approval of any person or entity or any court, governmental authority or regulatory agency to effect the sale of such Shares in accordance with the terms hereof;
(f) There are no claims for brokerage commissions or finder’s fees or agent’s commissions or other like payment in connection with this Agreement or the transactions contemplated hereby; and
(g) Seller has (i) timely paid all Taxes required to be paid by it with respect to the Seller acquisition, ownership or disposition of the Sale Shares, and (ii) timely filed with the relevant governmental authority such Tax Returns required to be filed by it, and all such Tax Returns were true, correct and complete. The term “Tax” or “Taxes” means all net income, gross income, gross receipts, sales, use, ad valorem, transfer, excess profits, franchise, profits, license, withholding, payroll, employment, unemployment social security, excise, severance, stamp, occupation, premium, property, disability, capital stock, capital gains or windfall profits taxes, customs duties or other taxes, fees, assessments or governmental charges of any Governmental Authority having jurisdiction over the Seller kind whatsoever, together with any interest and penalties, additions to tax or additional amounts imposed with respect thereto. The term “Tax Return” means any of its propertiesreturn, report, declaration, form, documentation, filing, claim for refund or information statement relating to Taxes, including any schedule or attachment thereto, and including any amendment thereof.
Appears in 3 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (Renren Inc.), Stock Purchase Agreement (Expedia, Inc.)
Representations and Warranties of the Seller. The Seller hereby represents and warrants to the Owner Trustee thatPurchaser as follows:
(a) The Seller has been is a duly organized formed and is validly existing as a corporation in good standing limited partnership organized under the laws of the State of Delaware, with power Delaware and authority to own its properties and is qualified under the laws of the State of California to conduct its business as such properties are presently owned and such business is presently conducted, and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing Agreementtherein.
(b) The Seller is duly qualified to do business and, where necessary is in good standing (or is exempt from such requirement), and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under the Basic Documents to which it is a party.
(c) The Seller has the full, legal right, power and authority to execute and deliver this AgreementAgreement and all documents now or hereafter to be executed by the Seller pursuant to this Agreement (collectively, to carry out its terms and the "Seller's Documents"), to consummate the transactions transaction contemplated herein; hereby, and to perform its obligations hereunder and under the execution, delivery and performance of this Seller's Documents.
(c) This Agreement and the Seller's Documents do not and will not contravene any provision of the limited partnership agreement of the Seller, any judgment, order, decree, writ or injunction issued against the Seller, or, to the Seller's actual knowledge, any provision of any laws or governmental ordinances, rules, regulations, orders or requirements (collectively, the "Laws") applicable to the Seller. The consummation of the transactions contemplated herein have been duly authorized hereby will not result in a breach or constitute a default or event of default by the Seller by all necessary corporate actionunder any agreement to which the Seller or any of its assets are subject or bound and will not result in a violation of any Laws applicable to the Seller.
(d) The execution Seller has no actual knowledge of this Agreement and the consummation any leases, licenses or other occupancy agreements affecting any portion of the transactions contemplated herein Property (collectively, the "Leases") on the date hereof, except for the Leases listed in Schedule 7 annexed hereto and made a part hereof. To Seller's actual knowledge, the copies of the Leases furnished by the Seller to the Purchaser are true and complete. To the fulfillment of Seller's actual knowledge, the terms of this Agreement Leases are in full force and effect, without any material default by the Seller shall thereunder. To the Seller's actual knowledge, except as listed on Schedule 7, the Seller has not conflict withgiven or received any notice of default which remains uncured or unsatisfied, result in any breach of with respect to any of the terms and provisions of or constitute Leases.
(with or without notice or lapse of timee) a default under, the certificate of incorporation or by-laws of To the Seller's actual knowledge, there are no pending actions, suits, proceedings or any indenture, agreement, mortgage, deed of trust or other instrument investigations to which the Seller is a party before any court or other governmental authority with respect to the Property owned by which it is boundthe Seller except as set forth on Schedule 8 hereto.
(f) Except as disclosed on Schedule 9 hereto, or result since the date the Seller acquired legal and beneficial title to the Property (i) to Seller's actual knowledge, neither Seller nor any third party has engaged in the creation generation, use, manufacture, treatment, storage or imposition disposal of any Lien upon any Hazardous Substance (as hereinafter defined) on the Property in violation of its properties pursuant to the terms of any such indenture, agreement, mortgage, deed of trust or other instrument Applicable Environmental Law (other than pursuant to the Basic Documentsas hereinafter defined), the cost of correction or violate any law or, to remediation of which would have a material adverse effect upon the best value of the Property, and (ii) to Seller's actual knowledge, neither Seller nor any order, rule or regulation applicable to the Seller of third party has received any Governmental Authority written notice from any governmental authority having jurisdiction over the Property of any violation of Applicable Environmental Law with respect to the Property which requires corrective action, the cost of which would have a material adverse effect upon the value of the Property. Disclosure of any matter on Schedule 9 hereto shall not constitute any admission by Seller that such matter was material or a violation of Applicable Environmental Law. As used in this Agreement, the term "Hazardous Substance" shall mean any substance, chemical or waste that is currently listed as hazardous, toxic or dangerous under Applicable Environmental Law. As used in this Agreement, the term "Applicable Environmental Law" shall mean the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. 9601 et seq.; the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. 6901, et seq.; the Water Pollution Control Act, 33 U.S.C. 1251 et seq.; the Clean Air Act, 42 U.S.C. 7401 et seq.; and the Toxic Substances Control Act, 15 U.S.C. 2601 et seq.; as the foregoing have been amended from time to time to the date of its propertiesthis Agreement; and any similar federal, state and local laws and ordinances and the regulations implementing such statutes in effect on the date hereof imposing liability or establishing standards of conduct for environmental protection.
Appears in 3 contracts
Samples: Not Specified (Witter Dean Realty Income Partnership I Lp), Not Specified (Witter Dean Realty Income Partnership Iv L P), Not Specified (Witter Dean Realty Income Partnership Ii Lp)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Owner Trustee thatDepositor that as of the Closing Date:
(ai) The Seller has been is a corporation duly organized and is organized, validly existing as a corporation and in good standing under the laws of the State of Delaware, with governing its creation and existence and has full corporate power and authority to own its properties and property, to conduct carry on its business as such properties are presently owned and such business is presently conducted, and had at all relevant times, to enter into and now has, power, authority and legal right to acquire and own the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing Agreement.
(b) The Seller is duly qualified to do business and, where necessary is in good standing (or is exempt from such requirement), and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under this Agreement and the Basic Documents to which it is a party.Assignment and Assumption Agreement;
(cii) The execution and delivery by the Seller of this Agreement has been duly authorized by all necessary corporate action on the power part of the Seller; neither the execution and authority to execute and deliver delivery of this Agreement, to carry out its terms and to consummate nor the consummation of the transactions contemplated herein; and herein contemplated, nor compliance with the provisions hereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The execution, delivery and performance by the Seller of this Agreement and the consummation of the transactions contemplated herein have hereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) This Agreement has been duly authorized executed and delivered by the Seller and, assuming due authorization, execution and delivery by all necessary corporate actionthe Depositor constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement.
(db) The execution representations and warranties of this each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix), 1.04(b)(xx) and 1.04(b)(xxi)) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix), 1.04(b)(xx) and 1.04(b)(xxi) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix), 1.04(b)(xx) and 1.04(b)(xxi)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Date, as to each, that:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be insured by a generally acceptable insurer against loss by fire, hazards of extended coverage and such other hazards as are customary in the area where the related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA or FHLMC. If upon origination of a Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related Mortgagor thereunder to maintain the hazard insurance policy at the Mortgagor’s cost and expense, and on the Mortgagor’s failure to do so, authorizes the holder of the Mortgage to obtain and maintain such insurance at such Mortgagor’s cost and expense, and to seek reimbursement therefor from the Mortgagor. Where required by state law or regulation, each Mortgagor has been given an opportunity to choose the carrier of the required hazard insurance, provided the policy is not a “master” or “blanket” hazard insurance policy covering the common facilities of a planned unit development. The hazard insurance policy is the valid and binding obligation of the insurer, is in full force and effect, and will be in full force and effect and inure to the benefit of the Depositor upon the consummation of the transactions contemplated herein by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Seller Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the fulfillment Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the terms of this Agreement by Transferred Mortgage Loans to the Depositor, the Seller shall not conflict was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, of any encumbrance, equity, participation interest, lien, pledge, charge, claim or security interest, and has full right and authority, subject to no interest or participation of, or agreement with, result any other party, to sell and assign each Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in any breach the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Title Insurance Policy or other generally acceptable form of any policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the terms Transferred Mortgage Loan, and provisions its successors and assigns, as to the first priority lien of or constitute the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with or without notice or lapse of time) a default underrespect to the project in which such unit is located. With respect to any Title Insurance Policy, the certificate originator is the sole insured of incorporation or by-laws such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or any indentureomission, agreement, mortgage, deed anything that would impair the coverage of trust or other instrument to which the Seller is a party or by which it is bound, or result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement, mortgage, deed of trust or other instrument mortgagee Title Insurance Policy;
(other than pursuant to the Basic Documents), or violate any law or, to viii) To the best of the Seller's ’s knowledge, no foreclosure action is being threatened or commenced with respect to any orderTransferred Mortgage Loan.
(ix) There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(x) There are no mechanics’ or similar liens or claims which have been filed for work, labor or material (and no rights are outstanding that under the law could give rise to such liens) affecting the related Mortgaged Property which are or may be liens prior to, or equal or coordinate with, the lien of the related Mortgage;
(xi) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, insurance company or similar institution that is supervised and examined by a Federal or State authority, or by a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act;
(xii) Each Transferred Mortgage Loan at the time it was made complied in all material respects with applicable local, state, and federal laws including, but not limited to, all applicable predatory and abusive lending laws;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period);
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loan or regulation applicable (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no Transferred Mortgage Loan is the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the Seller next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” or “predatory” loan under any applicable federal, state or local predatory or abusive lending law (or a similarly classified loan using different terminology under a law imposing heightened regulatory scrutiny or additional legal liability for residential mortgage loans having high interest rates, points and/or fees); no Transferred Mortgage Loan originated on or after November 27, 2003 is a “High-Cost Home Loan” subject to the New Jersey Home Ownership Security Act of any Governmental Authority having jurisdiction over 2003 (N.J.S.A. 46:10B-22 et seq.); no Transferred Mortgage Loan is a “High-Cost Home Loan” subject to the Seller or any of its properties.New Mexico Home Loan Protection Act (N.M.
Appears in 3 contracts
Samples: Mortgage Loan Sale and Assignment Agreement (Lehman XS Trust Series 2007-2n), Mortgage Loan Sale and Assignment Agreement (Lehman XS 2007-4n), Mortgage Loan Sale and Assignment Agreement (Lehman XS Trust Series 2007-7n)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Owner Trustee thatDepositor that as of the Closing Date:
(ai) The the Seller has been is a corporation duly organized and is organized, validly existing as a corporation and in good standing under the laws of the State of Delaware, with governing its creation and existence and has full corporate power and authority to own its properties and to conduct property, carry on its business as such properties are presently owned conducted and such business is presently conducted, enter into and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing Agreement.
(b) The Seller is duly qualified to do business and, where necessary is in good standing (or is exempt from such requirement), and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under the Basic Documents to which it is a party.Assignment and Assumption Agreement and this Agreement;
(cii) The the execution and delivery by the Seller has of the power Assignment and authority to execute Assumption Agreement and deliver this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of the Assignment and Assumption Agreement or this Agreement, to carry out its terms and to consummate nor the consummation of the transactions contemplated herein; and therein or herein contemplated, nor compliance with the provisions thereof or hereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) the execution, delivery and performance by the Seller of the Assignment and Assumption Agreement and this Agreement and the consummation of the transactions contemplated herein have thereby and hereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) each of the Assignment and Assumption Agreement and this Agreement has been duly authorized executed and delivered by the Seller and, assuming due authorization, execution and delivery by all necessary corporate actionthe Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by the Assignment and Assumption Agreement or this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under the Assignment and Assumption Agreement or this Agreement.
(db) The execution representations and warranties of this each Transferor with respect to the Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations made by it pursuant to Sections 1.04(b)(xii), (xiii), (xiv), (xv), (xvi) and (xvii), shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), (xiii), (xiv), (xv), (xvi) and (xvii) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than any representations and warranties made pursuant to Sections 1.04(b)(xii), (xiii), (xiv), (xv), (xvi) and (xvii) by it) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans (other than any representations and warranties made by it pursuant to Sections 1.04(b)(xii), (xiii), (xiv), (xv), (xvi) and (xvii)) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder, as to each that, as of the Closing Date:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be insured by a generally acceptable insurer against loss by fire, hazards of extended coverage and such other hazards as are customary in the area where the related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of Xxxxxx Xxx or Xxxxxxx Mac. If upon origination of the Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available), a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect, which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related Mortgagor thereunder to maintain the hazard insurance policy at the Mortgagor’s cost and expense, and on the Mortgagor’s failure to do so, authorizes the holder of the Mortgage to obtain and maintain such insurance at such Mortgagor’s cost and expense, and to seek reimbursement therefor from the Mortgagor. Where required by state law or regulation, each Mortgagor has been given an opportunity to choose the carrier of the required hazard insurance, provided the policy is not a “master” or “blanket” hazard insurance policy covering the common facilities of a planned unit development. The hazard insurance policy is the valid and binding obligation of the insurer, is in full force and effect, and will be in full force and effect and inure to the benefit of the Depositor upon the consummation of the transactions contemplated herein by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) The related Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of such Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Seller Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the fulfillment Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the terms of this Agreement by Transferred Mortgage Loans to the Depositor, the Seller shall not conflict was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, of any encumbrance, equity, participation interest, lien, pledge, charge, claim or security interest, and has full right and authority, subject to no interest or participation of, or agreement with, result any other party, to sell and assign each Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in any breach the locality where the related Mortgaged Property is located or (ii) an ALTA Mortgagee Title Insurance Policy or other generally acceptable form of any policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the terms Transferred Mortgage Loan, and provisions its successors and assigns, as to the first priority lien of or constitute the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with or without notice or lapse of time) a default underrespect to the project in which such unit is located. With respect to any Title Insurance Policy, the certificate originator is the sole insured of incorporation or by-laws such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) No foreclosure action is being threatened or commenced with respect to any indentureTransferred Mortgage Loan. There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, agreementin the case of any Cooperative Loan, mortgagethe related cooperative unit) and each such property is undamaged by waste, deed of trust fire, earthquake or earth movement, windstorm, flood, tornado or other instrument casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the Seller premises were intended;
(ix) There are no mechanics’ or similar liens or claims which have been filed for work, labor or material (and no rights are outstanding that under the law could give rise to such liens) affecting the related Mortgaged Property which are or may be liens prior to, or equal or coordinate with, the lien of the related Mortgage;
(x) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, insurance company or similar institution that is supervised and examined by a Federal or State authority, or by a mortgagee approved by the Secretary of Housing and Urban Development pursuant to sections 203 and 211 of the National Housing Act;
(xi) Each Transferred Mortgage Loan is a party or “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2;
(xii) Each Transferred Mortgage Loan at the time it was made complied in all material respects with applicable local, state and federal laws, including, but not limited to, all applicable predatory, abusive and fair lending laws; and, specifically, (a) no Transferred Mortgage Loan secured by which it a Mortgaged Property located in New Jersey is bound, or result a “High-Cost Home Loan” as defined in the creation or imposition of any Lien upon any of its properties pursuant to New Jersey Home Ownership Act effective November 27, 2003 (N.J.S.A. 46:10B-22 et seq.); (b) no Transferred Mortgage Loan secured by a Mortgaged Property located in New Mexico is a “High-Cost Home Loan” as defined in the terms of any such indentureNew Mexico Home Loan Protection Act effective January 1, agreement, mortgage, deed of trust or other instrument 2004 (other than pursuant to the Basic Documents), or violate any law or, to the best of the Seller's knowledge, any order, rule or regulation applicable to the Seller of any Governmental Authority having jurisdiction over the Seller or any of its properties.N.M.
Appears in 3 contracts
Samples: Mortgage Loan Sale and Assignment Agreement (Lehman XS Trust 2006-20), Mortgage Loan Sale and Assignment Agreement (Lehman XS Trust 2007-9), Mortgage Loan Sale and Assignment Agreement (Lehman XS Trust 2007-11)
Representations and Warranties of the Seller. The Seller hereby represents and warrants to the Owner Trustee that:
(a) The Seller has been is duly organized and is validly existing as a Nevada corporation in good standing under the laws of the State of Delaware, with power and authority to own its properties and to conduct its business as such properties are presently currently owned and such business is presently conducted, and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing Agreement.
(b) The Seller is duly qualified to do business and, where necessary is as a foreign corporation in good standing (or is exempt from such requirement), and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of its property or the conduct of its business requires shall require such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under the Basic Documents to which it is a party.
(c) The Seller has the corporate power and authority to execute and deliver this Agreement, Agreement and to carry out its terms terms; the Seller has full power and authority to consummate sell and assign the transactions contemplated hereinproperty to be sold and assigned to and deposited with the Trust and the Seller has duly authorized such sale and assignment and deposit to the Trust by all necessary corporate action; and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein have has been duly authorized by the Seller by all necessary corporate action.
(d) The execution of this Agreement and the consummation of the transactions contemplated herein by the Seller this Agreement and the fulfillment of the terms of this Agreement by the Seller shall hereof do not conflict with, result in any breach of any of the terms and provisions of of, or constitute (with or without notice or lapse of time) a default under, the certificate articles of incorporation association or by-laws of the Seller, or any material indenture, agreement, mortgage, deed of trust agreement or other instrument to which the Seller is a party or by which it is bound, or ; nor result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement, mortgage, deed of trust agreement or other instrument (other than pursuant to the Basic Documents), or ; nor violate any law or, to the best of the Seller's knowledge, any order, rule or regulation applicable to the Seller of any Governmental Authority court or of any Federal or state regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Seller or any of its properties.
(e) To the Seller's best knowledge, there are no proceedings or investigations pending or threatened before any court, regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Seller or its properties: (A) asserting the invalidity of the Trust Agreement, (B) seeking to prevent the consummation of any of the transactions contemplated by the Trust Agreement or (C) seeking any determination or ruling that might materially and adversely affect the performance by the Seller of its obligations under, or the validity or enforceability of, the Trust Agreement.
Appears in 3 contracts
Samples: Trust Agreement (Chec Asset Receivables Corp), Trust Agreement (Avco Abs Receivables Corp), Trust Agreement (Chec Asset Receivables Corp)
Representations and Warranties of the Seller. The Seller hereby represents and warrants to the Owner Trustee Purchaser that:
(a) The Seller has been duly organized This Agreement constitutes valid and is validly existing as a corporation in good standing under the laws binding obligations of the State Seller, enforceable against the Seller in accordance with its terms, subject to applicable Bankruptcy Laws and other laws or equitable principles of Delaware, with power and authority to own its properties and to conduct its business as such properties are presently owned and such business is presently conducted, and had at all relevant times, and now has, power, authority and legal right to acquire and own general application affecting the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing Agreementrights of creditors generally.
(b) The Option Shares are free and clear of any claim, pledge, charge, lien, preemptive rights, marital rights, restrictions on transfers, proxies, voting agreements and any other encumbrance whatsoever, except as contemplated by this Agreement. The Seller has not entered into or is a party to any agreement that would give any Person any right or claim in or to the Option Shares. The Seller is duly qualified to do business and, where necessary is in good standing (or is exempt from such requirement), not insolvent and has obtained all necessary licenses and approvals in all jurisdictions in which neither the ownership or lease execution of property or this Agreement by the conduct Seller nor the performance by the Seller of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under this Agreement will render the Basic Documents to which it is a partySeller insolvent.
(c) The Seller has the power and authority to execute and deliver this Agreement, to carry out its terms and to consummate the transactions contemplated herein; and the execution, delivery and performance of this Agreement and the consummation is not a resident or citizen of the transactions contemplated herein have been duly authorized by the Seller by all necessary corporate actionPRC.
(d) The Neither the execution of this Agreement and the consummation of the transactions contemplated herein by the Seller and the fulfillment of the terms or delivery of this Agreement by the Seller shall not conflict with, result in any breach of nor the fulfillment or compliance by the Seller with any of the terms and provisions of or constitute (hereof shall, with or without the giving of notice or lapse and/or the passage of time, (i) conflict with, or result in a breach of the terms, conditions or provisions of, or constitute a default under, the certificate of incorporation under any agreement or by-laws of the Seller, or any indenture, agreement, mortgage, deed of trust or other instrument to which the Seller is a party or by which he or his property is or may be bound, or (ii) require any consent, license, permit, authorization, approval or other action by any Person which has not yet been obtained or received. The execution, delivery and performance of this Agreement by the Seller and compliance with the provisions hereof by the Seller do not, and shall not, violate any provision of any Law to which the Seller is subject or by which it is bound.
(e) There are no lawsuits, actions or result in the creation proceedings (or imposition of any Lien upon any of its properties pursuant to the terms best knowledge of any such indenturethe Seller, agreementinvestigations), mortgage, deed of trust claims or demands or other instrument (other than pursuant to the Basic Documents), or violate any law proceedings pending or, to the best of the knowledge of the Seller's knowledge, any orderthreatened against the Seller which, rule or regulation applicable if resolved in a manner adverse to the Seller Seller, would adversely affect the right or ability of any Governmental Authority having jurisdiction over the Seller or any of its propertiesto carry out his obligations set forth in this Agreement.
Appears in 3 contracts
Samples: Shares Purchase Option Agreement, Shares Purchase Option Agreement (China Zenix Auto International LTD), Option Agreement (Southern China Livestock, Inc.)
Representations and Warranties of the Seller. The Seller hereby represents and warrants to the Owner Trustee Purchaser that:
(a) The Seller has been duly organized and is a corporation validly existing as a corporation and in good standing under the laws of the State of Delaware, with power and authority to own its properties and to conduct its business as such properties are presently owned and such business is presently conducted, and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing Agreement.
(b) The Seller is duly qualified to do business and, where necessary is in good standing (or is exempt from such requirement), and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under the Basic Documents to which it is a party.
(c) The Seller has the power and authority to execute and deliver this Agreement, to carry out its terms and to consummate the transactions contemplated herein; and authorized the execution, delivery and performance of this Agreement Purchase Agreement, and the consummation each of the transactions contemplated herein have been duly authorized hereby. No other action is necessary to authorize such execution, delivery and performance, and upon such execution and delivery, this Purchase Agreement shall constitute a valid and binding obligation of Seller, enforceable against Seller in accordance with its terms.
(c) Other than with respect to NYSE’s approval of the SLAP, no consent, approval, authorization or order of any court, governmental agency or body or arbitrator having jurisdiction over Seller is required for the execution, delivery or performance by Seller of its obligations hereunder, including without limitation the Seller by all necessary corporate actionsale of the Shares.
(d) The execution of this Agreement and Neither the consummation sale of the transactions contemplated herein by Shares nor the Seller and the fulfillment performance of the terms of this Agreement by the Seller shall not Seller’s obligations hereunder will violate, conflict with, result in any a breach of any of the terms and provisions of of, or constitute a default (or an event that, with or without the giving of notice or the lapse of time, or both, would constitute a default) a default under, under (i) the certificate of incorporation incorporation, bylaws or by-laws other organizational documents of the Seller; (ii) any decree, judgment, order, law, treaty, rule, regulation or determination of any court, governmental agency or body or arbitrator having jurisdiction over Seller or any indenture, agreement, mortgage, deed of trust its assets or other instrument properties; or (iii) the terms of any material agreement to which the Seller is a party or by to which it any of Seller’s properties is bound, or result in subject.
(e) Seller has good and marketable title to the creation or imposition Shares. The Shares are free and clear of any Lien upon security interest, lien, claim or other encumbrance or any restriction on transfer, other than those imposed by the Securities Act and any state securities laws (collectively, “Encumbrances”), and will be transferred to Purchaser free of any Encumbrances.
(f) The sale of the Shares by Seller is not part of a plan or scheme to evade the registration requirements of the Securities Act. Neither Seller nor any Person acting on behalf of Seller has offered or sold any of its properties pursuant to the terms Shares by any means that would be deemed a “general solicitation” under the provisions of any such indenture, agreement, mortgage, deed of trust or other instrument (other than pursuant to the Basic Documents), or violate any law or, to the best Regulation D of the Seller's knowledgeSecurities Act.
(g) Except for the representations and warranties contained above in this Section 2, any order, rule or regulation applicable to the Seller Purchaser acknowledges and agrees that none of any Governmental Authority having jurisdiction over the Seller or any Affiliates of Seller nor any other Person has made or makes any other express, implied or statutory representation or warranty with respect to Purchaser’s acquisition of the Shares, including any representations or warranties as to Seller, its propertiesbusiness, prospects, financial condition, operations or otherwise.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Forest Laboratories Inc), Stock Purchase Agreement (Forest Laboratories Inc)
Representations and Warranties of the Seller. The Seller hereby warrants and represents to, and warrants to covenants with, the Owner Trustee Assignor and Assignee that:
(a) The Seller has been duly organized is not a natural person or a general partnership and is duly organized, validly existing as a corporation and in good standing under the laws of the State jurisdiction of Delawareits formation, with and has all requisite power and authority to own its properties service and to conduct its business as such properties are presently owned and such business is presently conducted, and had at all relevant times, and now has, power, authority and legal right to acquire and own purchase the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing AgreementMortgage Loans.
(b) The Seller is duly qualified to do business and, where necessary is in good standing (or is exempt from such requirement), and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under the Basic Documents to which it is a party.
(c) The Seller has the full power and authority to execute execute, deliver and deliver perform under this Assignment Agreement, to carry out its terms and to consummate the transactions contemplated set forth herein; and the execution, delivery and performance of this Agreement and the . The consummation of the transactions contemplated herein have been duly authorized by this Assignment Agreement is in the Seller by all necessary corporate action.
(d) The execution of this Agreement and the consummation ordinary course of the transactions contemplated herein by the Seller Seller’s business and the fulfillment of the terms of this Agreement by the Seller shall will not conflict with, or result in any a breach of of, any of the terms and terms, conditions or provisions of or constitute (with or without notice or lapse of time) a default under, the certificate of incorporation Seller’s charter or by-laws of the Sellerlaws, or any indenturelegal restriction, agreement, mortgage, deed of trust or other any material agreement or instrument to which the Seller is now a party or by which it is bound, or result in the creation or imposition violation of any Lien upon any law, rule, regulation, order, judgment or decree to which the Seller or its property is subject. The execution, delivery and performance by the Seller of its properties pursuant to this Assignment Agreement, and the terms consummation by it of any such indenturethe transactions contemplated hereby, agreement, mortgage, deed of trust or other instrument (other than pursuant to the Basic Documents), or violate any law or, to the best have been duly authorized by all necessary action of the Seller's knowledge. This Assignment Agreement has been duly executed and delivered by the Seller and constitutes the valid and legally binding obligation of the Seller enforceable against the Seller in accordance with its respective terms except as enforceability thereof may be limited by bankruptcy, insolvency, or reorganization or other similar laws now or hereinafter in effect relating to creditors’ rights generally and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or in law.
(c) No material consent, approval, order or authorization of, or declaration, filing or registration with, any ordergovernmental entity is required to be obtained or made by the Seller in connection with the execution, rule delivery or regulation applicable to performance by the Seller of any Governmental Authority having jurisdiction over this Assignment Agreement, or the consummation by it of the transactions contemplated hereby.
(d) As of the date hereof, the Seller is not in default under the either of the Sale Agreements or any either of its propertiesthe Servicing Agreements.
(e) No event has occurred or has failed to occur, during the period commencing on the date on which the Assignor acquired the Mortgage Loans and ending on the date hereof, inclusive, which would make the representations and warranties set forth in Section 2.1 of either of the Servicing Agreements untrue if such representations and warranties were made effective as of the date hereof.
Appears in 2 contracts
Samples: Assignment, Assumption and Recognition Agreement (GSR Mortgage Loan Trust 2006-2f), Assignment, Assumption and Recognition Agreement (GSR Mortgage Loan Trust 2006-1f)
Representations and Warranties of the Seller. The Seller hereby represents represents, warrants and warrants covenants to the Owner Trustee thatDepositor, the Trustee, the Certificate Insurer and the Owners that as of the Startup Day:
(a) The Seller has been is a corporation duly organized formed and is validly existing as a corporation in good standing under the laws governing its creation and existence, is in compliance with the laws of each state in which any -44- Property or the State of Delaware, with power and authority to own its properties and to conduct its business as such properties are presently owned and such business is presently conducted, and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing Agreement.
(b) The Seller is duly qualified to do located or doing business and, where necessary and is in good standing (or is exempt from such requirement), and has obtained all necessary licenses and approvals in all jurisdictions each jurisdiction in which the ownership or lease nature of property its business, or the conduct of properties owned or leased by it make such qualification necessary. The Seller has all requisite authority to own and operate its properties, to carry out its business requires such qualifications, except where the failure as presently conducted and as proposed to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability be conducted and to perform enter into and discharge its obligations under this Agreement and the Basic other Operative Documents to which it is a party.
(cb) The Seller has the power execution and authority to execute and deliver this Agreement, to carry out its terms and to consummate the transactions contemplated herein; and the execution, delivery and performance of this Agreement and the consummation other Operative Documents to which it is a party by the Seller and its performance and compliance with the terms of this Agreement and the transactions contemplated herein other Operative Documents to which it is a party have been duly authorized by the Seller by all necessary corporate action.
(d) The execution action on the part of this Agreement and the consummation of the transactions contemplated herein by the Seller and will not violate the fulfillment of the terms of this Agreement by the Seller shall not conflict with, result in any breach of any of the terms and provisions of Seller's Charter or Bylaws or constitute a default (or an event which, with or without notice or lapse of time, or both, would constitute a default) a default under, the certificate of incorporation or by-laws of the Sellerresult in a breach of, or any indenturematerial contract, agreement, mortgage, deed of trust agreement or other instrument to which the Seller is a party or by which it the Seller is boundbound or violate any statute or any order, rule or result in the creation or imposition regulation of any Lien upon court, governmental agency or body or other tribunal having jurisdiction over the Seller or any of its properties pursuant properties.
(c) This Agreement and the other Operative Documents to which the Seller is a party, assuming due authorization, execution and delivery by the other parties hereto and thereto, each constitutes a valid, legal and binding obligation of the Seller, enforceable against it in accordance with the terms hereof and thereof, except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally and by general principles of equity (whether considered in a proceeding or action in equity or at law).
(d) The Seller is not in default with respect to any order or decree of any such indenturecourt or any order, agreementregulation or demand of any federal, mortgagestate, deed municipal or governmental agency, which default could materially and adversely affect the condition (financial or other) or operations of trust the Seller or its properties or the consequences of which could materially and adversely affect its performance hereunder and under the other instrument Operative Documents to which the Seller is a party.
(other than pursuant e) No litigation, proceeding or investigation is pending with respect to which the Basic Documents), or violate any law Seller has received service of process or, to the best of the Seller's knowledge, threatened against the Seller which litigation, proceeding or investigation might have consequences that would prohibit its entering into this Agreement or any order, rule other Operative Documents to which it is a party or regulation applicable that would materially and adversely affect the condition (financial or otherwise) or operations of the Seller or its properties or might have consequences that would materially and adversely affect the validity or enforceability of the Home Equity Loans or the Seller's performance hereunder and under the other Operative Documents to which the Seller is a party.
(f) The statements contained in the Registration Statement which describe the Seller or matters or activities for which the Seller is responsible in accordance with the Operative Documents or which are attributed to the Seller therein are true and correct in all material respects, and the Registration Statement does not contain any untrue statement of any Governmental Authority having jurisdiction over a material fact with respect to the Seller or omit to state a material fact required to be stated therein or necessary in order to make the statements contained therein with respect to the Seller not misleading.
(g) Upon the receipt of each Home Equity Loan (including the related Note) and other items of the Trust Estate by the Trustee under this Agreement, the Trust will have good title to such Home Equity Loan (including the related Note) and such other items of the Trust Estate free and clear of any lien, charge, mortgage, encumbrance or rights of others, except as set forth in Section 3.04 (b) (ix) (other than liens which will be simultaneously released).
(h) All actions, approvals, consents, waivers, exemptions, variances, franchises, orders, permits, authorizations, rights and licenses required to be taken, given or obtained, as the case may be, by or from any federal, state or other governmental authority or agency (other than any such actions, approvals, etc. under any state securities laws, real estate syndication or "Blue Sky" statutes, as to which the Seller makes no such representation or warranty), that are necessary or advisable in connection with the purchase and sale of the Certificates and the execution and delivery by the Seller of the Operative Documents to which it is a party, have been duly taken, given or obtained, as the case may be, are in full force and effect on the date hereof, are not subject to any pending proceedings or appeals (administrative, judicial or otherwise) and either the time within which any appeal therefrom may be taken or review thereof may be obtained has expired or no review thereof may be obtained or appeal therefrom taken, and are adequate to authorize the consummation of the transactions contemplated by this Agreement and the other Operative Documents on the part of the Seller and the performance by the Seller of its obligations under this Agreement and such of the other Operative Documents to which it is a party.
(i) The origination practices used by the Seller with respect to the Home Equity Loans have been, in all material respects, legal, proper, prudent and customary in the mortgage lending business.
(j) The transactions contemplated by this Agreement are in the ordinary course of business of the Seller.
(k) Neither the Trustee nor the Seller has any obligation to register the Trust as an investment company under the Investment Company Act of 1940, as amended.
(l) The Seller is not insolvent, nor will it be made insolvent by the transfer of the Home Equity Loans, nor is the Seller aware of any pending insolvency.
(m) The Seller received fair consideration and reasonably equivalent value in exchange for the sale of the interests in the Home Equity Loans.
(n) The Seller did not sell any interest in any Home Equity Loan with any intent to hinder, delay or defraud any of its propertiescreditors.
(o) No material adverse change affecting any security for the Class A Certificates has occurred prior to delivery of and payment for the Class A Certificates.
(p) The Seller is not in default under any agreement involving financial obligations or on any outstanding obligation which would materially adversely impact the financial condition or operations of the Seller or legal documents associated with the transaction contemplated by this Agreement.
(q) To the best knowledge of the Seller, there has been no material adverse change in any information submitted by the Seller in writing to the Certificate Insurer with respect to the transactions contemplated by this Agreement (unless such information was subsequently supplemented in writing to the Certificate Insurer).
(r) The sale, transfer, assignment and conveyance of Home Equity Loans by the Seller pursuant to the Loan Sale Agreement is not subject to and will not result in any tax, fee or governmental charge payable by the Seller, the Depositor or the Trustee to any federal, state or local government ("Transfer Taxes") other than Transfer Taxes which have or will be paid by the Seller as due. The Seller shall pay, and otherwise indemnify and hold the Certificate Insurer harmless, on an after-tax basis, from and against any and all such Transfer Taxes (it being understood that the Certificate Insurer shall have no obligation to pay such Transfer Taxes).
(s) No certificate of an officer, statement furnished in writing or report delivered pursuant to the terms hereof by the Seller contains any untrue statement of a material fact or omits to state any material fact necessary to make the certificate, statement or report not misleading. It is understood and agreed that the representations and warranties set forth in this Section 3.03 shall survive delivery of the respective Home Equity Loans to the Trustee. Upon discovery by any of the Depositor, the Servicer, the Custodian, any Sub-Servicer, any Owner, the Seller, the Certificate Insurer or the Trustee (each, for purposes of this paragraph, a "party") of a breach of any of the representations and warranties set forth in this Section 3.03 which materially and adversely affects the interests of the Owners or the interests of the Certificate Insurer, the party discovering such breach shall give prompt written notice to the other parties. The Seller hereby covenants and agrees that within 60 days of its discovery or its receipt of notice of breach, it shall cure such breach in all material respects or, with respect to a breach of clause (g) above, the Seller may (or may cause an affiliate of the Seller to) on or prior to the second Monthly Remittance Date next succeeding such discovery or receipt of notice (i) substitute in lieu of any Home Equity Loan not in compliance with clause (g) a Qualified Replacement Mortgage and, if the outstanding principal amount of such Qualified Replacement Mortgage as of the applicable Replacement Cut-Off Date is less than the outstanding principal balance of such Home Equity Loan as of such Replacement Cut-Off Date, deliver an amount (a "Substitution Amount") equal to such difference together with the aggregate amount of (A) all Delinquency Advances and Servicing Advances theretofore made with respect to such Home Equity Loan and (B) all accrued and unpaid interest with respect to such Home Equity Loan to the Servicer for deposit in the Principal and Interest Account or (ii) purchase such Home Equity Loan from the Trust at the Loan Purchase Price, which purchase price shall be delivered to the Servicer for deposit in the Principal and Interest Account. Notwithstanding any provision of this Agreement to the contrary, with respect to any Home Equity Loan which is not in default or as to which no default is imminent, no repurchase or substitution pursuant to Section 3.03, 3.04 or 3.06 shall be made unless the Seller obtains for the Trustee and the Certificate Insurer at the
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (DLJ Commercial Mort Corp Comm Mort Pass THR Cer Ser 1998-Cg1), Pooling and Servicing Agreement (DLJ Mortgage Acceptance Corp)
Representations and Warranties of the Seller. The Seller hereby represents and warrants to Buyer as of the Owner Trustee thatdate hereof and as of the date of the Closing as follows:
(a) The Seller has been is duly organized and is organized, validly existing as a corporation and in good standing under the laws of the State state of Delaware, with its organization and has all the requisite power and authority to own own, lease and otherwise hold and operate its properties assets and to conduct its business as such properties are presently owned and such business it is presently currently being conducted, and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing Agreement.
(bi) The Seller is duly qualified has full power and authority to do business and, where necessary is in good standing (or is exempt from such requirement), enter into and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under this Agreement; (ii) the Basic Documents to which execution and delivery of this Agreement by the Seller and the consummation by it is of the Transaction have been duly authorized by all necessary corporate action; (iii) this Agreement has been duly executed and delivered by the Seller; and (iv) this Agreement constitutes a partyvalid and binding obligation of the Seller enforceable against the Seller in accordance with its terms.
(c) The Seller has (i) good and valid title to the power Shares, and authority (ii) owns the Shares free and clear of all liens, claims, security interests, pledges, mortgages, deeds of trust, rights of first refusal, restrictions (other than restrictions and applicable restrictive legends under applicable federal and state securities laws) and other encumbrances (“Liens”), other than Liens which will automatically release simultaneously with the Closing. For the avoidance of doubt, the Shares to execute and deliver this Agreement, to carry out its terms and to consummate the transactions contemplated herein; and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein have been duly authorized be sold by the Seller are beneficially owned and are not borrowed securities or being sold short by the Seller. The sale and delivery of the Shares by the Seller as contemplated by this Agreement are not subject to any preemptive right, “tag along” or similar right, or right of redemption or repurchase. Upon delivery of the Shares to the Buyer as provided in Section 1, the Seller will transfer good and valid title to the Shares, in each case free and clear of all necessary corporate actionLiens other than Liens created by the Buyer.
(d) The execution of this Agreement Seller (i) is sophisticated with respect to financial matters and transactions in securities, including the Common Stock, and the consummation related risks; (ii) independently has determined that it has adequate information concerning the business, properties, assets, financial condition and prospects of Tiptree to make an informed decision regarding the transactions contemplated herein by Transaction; (iii) without reliance upon the Buyer, Tiptree or their affiliates and based on such information as the Seller has deemed appropriate in its independent judgment, has made its own analyses and decisions to enter into the Transaction; and (iv) is not relying on any communication (written or oral) from a Buyer Party as investment advice or as a recommendation to sell the Shares. The Seller acknowledges that the Buyer has made no representations or warranties to the Seller except as expressly set forth herein.
(e) The Seller understands and acknowledges that the Buyer and its affiliates possess confidential, material non-public information with respect to Tiptree and its business, properties, assets, financial condition and prospects (the “Information”) that has not been communicated to the Seller and that may impact the fulfillment value of the terms of this Agreement by Shares. The Seller further understands and acknowledges that the Seller shall not conflict with, result in any breach of any of the terms and provisions of or constitute (with or without notice or lapse of time) a default under, the certificate of incorporation or by-laws of Information might be material to the Seller, or any indenture, agreement, mortgage, deed of trust or other instrument ’s decision to which the Seller is a party or by which it is bound, or result engage in the creation or imposition Transaction and acknowledges that it has determined to engage in the Transaction without the benefit of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement, mortgage, deed of trust or other instrument (other than pursuant to the Basic Documents), or violate any law or, to the best of the Seller's knowledge, any order, rule or regulation applicable to the Seller of any Governmental Authority having jurisdiction over the Seller or any of its propertiesInformation and that it has material and beneficial reasons for doing so.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Tiptree Inc.), Stock Purchase Agreement (Tiptree Financial Inc.)
Representations and Warranties of the Seller. The Seller hereby represents and warrants to the Owner Trustee thatCompany as follows:
(a) The Seller has been duly organized formed and is validly existing as a corporation limited partnership in good standing under the laws of the State of Delaware, with power Delaware and authority to own its properties and to conduct its business as such properties are presently owned and such business is presently conducted, and had at all relevant times, and now has, has the power, authority and legal right capacity to acquire execute and own deliver this Agreement, to perform the Receivables Seller’s obligations hereunder, and to consummate the transactions contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing Agreementhereby.
(b) The execution and delivery of this Agreement by the Seller is duly qualified and the consummation by the Seller of the transactions contemplated hereby: (i) do not require the consent, approval, authorization, order, registration or qualification of, or (except for filings pursuant to do business andSection 16 or Regulation 13D under the Exchange Act) filing by the Seller with, where necessary is in good standing any governmental authority or regulatory authority, including any stock exchange or self-regulatory organization, or court, or body or arbitrator having jurisdiction over the Seller and (or is exempt from such requirement), and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications, ii) except where the failure to so qualify or obtain licenses or approvals as would not have a material adverse effect on its the ability of the Seller to perform its obligations consummate the transactions contemplated by this Agreement, do not and will not constitute or result in a breach, violation or default, or cause the acceleration or termination of any obligation or right of the Seller or any other party thereto, under the Basic Documents (A) any note, bond, mortgage, deed, indenture, lien, instrument, contract, agreement, lease or license, whether written or oral, express or implied, to which it the Seller is a party, (B) the Seller’s organizational documents or (C) any statute, law, ordinance, decree, order, injunction, rule, directive, judgment or regulation of any court, administrative or regulatory body, including any stock exchange or self-regulatory organization, governmental authority, arbitrator, mediator or similar body.
(c) This Agreement has been duly executed and delivered by the Seller and, assuming the due execution and delivery of this Agreement by the Company, constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws of general application affecting enforcement of creditors’ rights generally and general principles of equity. The Seller has the power and authority duly taken all necessary limited partnership action to execute and deliver this Agreement, to carry out its terms and to consummate the transactions contemplated herein; and authorize the execution, delivery and performance of this Agreement and the consummation transactions contemplated hereby and all consents, approvals, authorizations and orders required for the Seller’s execution and delivery of this Agreement and performance of the transactions contemplated herein hereby have been duly authorized by the Seller by all necessary corporate actionobtained and are in full force and effect.
(d) The execution of this Agreement and Seller is the consummation sole record owner of the transactions contemplated herein by Shares. The Seller has good, valid and marketable title to the Seller Shares free and the fulfillment of the terms of this Agreement by the Seller shall not conflict with, result in any breach clear of any of the terms and provisions of or constitute (with or without notice or lapse of time) a default underlien, the certificate of incorporation or by-laws of the Sellerencumbrance, or any indenturepledge, agreementcharge, security interest, mortgage, deed of trust title retention agreement, option, equity or other instrument to which the Seller is a party adverse claim or by which it is bound, or result in the creation or imposition rights of any Lien upon third party whatsoever (except for restrictions pursuant to applicable federal and state securities laws), and has not, in whole or in part, (i) assigned, transferred, hypothecated, pledged or otherwise disposed of the Shares or its ownership or other rights in such Shares or (ii) given any person or entity any transfer order, power of its properties attorney or other authority of any nature whatsoever with respect to such Shares. Following the Repurchase Transaction, and against payment made pursuant to this Agreement, good, valid and marketable title to the Shares, free and clear of any lien, encumbrance, pledge, charge, security interest, mortgage, title retention agreement, option, equity or other adverse claim (except for (x) restrictions pursuant to applicable federal and state securities laws and (y) agreements, equity or other claim or rights of holder of capital, profits and other interests pursuant to the terms Amended and Restated Limited Partnership Agreement of any such indentureAP VIII Aegis Holdings, agreementL.P., mortgagea Delaware limited partnership), deed of trust or other instrument (other than pursuant will pass to the Basic Documents)Company.
(e) There is no action, suit, proceeding or violate any law investigation pending or, to the best Seller’s knowledge, currently threatened that questions the validity of this Agreement, or the right of the Seller's knowledgeSeller to enter into this Agreement or to consummate the transactions contemplated by this Agreement. There are presently no outstanding judgments, decrees or orders of any ordercourt or any governmental or administrative agency against the Seller which questions the validity of this Agreement or the right of the Seller to consummate the transactions contemplated by this Agreement.
(f) The Seller has not incurred any obligation or liability, rule contingent or regulation applicable otherwise, for any brokerage or finder’s fee, agent’s commission or other similar payments to any third party in connection with the transactions contemplated by this Agreement.
(g) Seller has been furnished with such documents, materials and information as Seller deems necessary or appropriate for evaluating the financial condition of the Company, including information regarding the Repurchase Transaction, and has had the opportunity to ask questions of, and receive answers from, the officers of the Company, concerning the Company and the terms and conditions of the Repurchase Transaction. The Seller acknowledges and explicitly agrees that although it has received certain information from the Company as to its financial condition and other matters and the Repurchase Transaction, the Seller understands that the Shares may be worth more than the Purchase Price to be paid to the Seller of any Governmental Authority having jurisdiction over the Seller or any of its propertiesSeller.
Appears in 2 contracts
Samples: Stock Repurchase Agreement, Stock Repurchase Agreement (Presidio, Inc.)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Owner Trustee that:
(ai) The Seller has been is a corporation duly organized and is organized, validly existing as a corporation and in good standing under the laws of the State of Delaware, with power and authority to own its properties and to conduct its business as such properties are presently owned and such business is presently conducted, and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing Agreement.;
(b) The Seller is duly qualified to do business and, where necessary is in good standing (or is exempt from such requirement), and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under the Basic Documents to which it is a party.
(cii) The Seller has the power and authority taken all necessary action to execute and deliver this Agreement, to carry out its terms and to consummate the transactions contemplated herein; and authorize the execution, delivery and performance of this Agreement by it, and has the consummation of power and authority to execute, deliver and perform this Agreement and all the transactions contemplated herein have hereby, including, but not limited to, the power and authority to sell, assign and transfer the Mortgage Loans and the Marriott Desert Springs Parent Loan in accordance with this Agreement;
(iii) This Agreement has been duly authorized and validly authorized, executed and delivered by the Seller and assuming the due authorization, execution and delivery of this Agreement by each other party hereto, this Agreement and all necessary corporate action.of the obligations of the Seller hereunder are the legal, valid and binding obligations of the Seller, enforceable in accordance with the terms of this Agreement, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, liquidation, receivership, moratorium or other laws relating to or affecting creditors' rights generally, or by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law);
(div) The execution and delivery of this Agreement and the consummation performance of the transactions contemplated herein its obligations hereunder by the Seller and the fulfillment will not conflict with any provision of the terms its certificate of this Agreement by incorporation or bylaws, or any law or regulation to which the Seller shall not is subject, or conflict with, result in any a breach of any of the terms and provisions of or constitute a default under (or an event which with or without notice or lapse of time) time or both would constitute a default under, the certificate of incorporation or by-laws ) any of the Sellerterms, conditions or provisions of any indenture, agreement, mortgage, deed of trust agreement or other instrument to which the Seller is a party or by which it is bound, or any order or decree applicable to the Seller, or result in the creation or imposition of any Lien upon lien on any of its properties pursuant to the terms of any such indenture, agreement, mortgage, deed of trust or other instrument (other than pursuant to the Basic Documents), or violate any law or, to the best of the Seller's knowledgeassets or property, which would materially and adversely affect the ability of the Seller to carry out the transactions contemplated by this Agreement. The Seller has obtained any orderconsent, rule approval, authorization or regulation applicable to order of any court or governmental agency or body required for the execution, delivery and performance by the Seller of any Governmental Authority having jurisdiction over this Agreement;
(v) There is no action, suit or proceeding pending against the Seller in any court or by or before any other governmental agency or instrumentality which would materially and adversely affect the ability of the Seller to carry out its propertiesobligations under this Agreement; and
(vi) The Trustee, if not the owner of the related Mortgage Loan and the Marriott Desert Springs Parent Loan, will have a valid and perfected security interest of first priority in each of the Mortgage Loans and the Marriott Desert Springs Parent Loan and any proceeds thereof.
(b) It is understood and agreed that the representations and warranties set forth in this Section 2.03 shall survive delivery of the respective Mortgage Files to the Trustee until the termination of this Agreement, and shall inure to the benefit of the Certificateholders and the Master Servicer.
(c) Upon discovery by the Custodian, the Master Servicer, the Special Servicer, or the Trustee of a breach of any representation or warranty of the applicable Responsible Party in the Loan Sale Agreement or the Responsible Party Agreement, as the case may be, with respect to any Mortgage Loan or the Marriott Desert Springs Parent Loan, as the case may be, or that any document required to be included in the Mortgage File does not conform to the requirements of Section 2.01, such Person shall give prompt notice thereof to the applicable Responsible Party and the Seller, and such Responsible Party shall, to the extent such Responsible Party is obligated to cure or repurchase the related Mortgage Loan or the Marriott Desert Springs Parent Loan, as the case may be, under the terms of the Loan Sale Agreement or the Responsible Party Agreement, as the case may be, either cure such breach or repurchase said Mortgage Loan or the Marriott Desert Springs Parent Loan, as the case may be, at the Repurchase Price within 90 days of the receipt of notice of the breach; it being understood and agreed that none of the Custodian, the Master Servicer, the Special Servicer, and the Trustee has an obligation to conduct any investigation with respect to such matters (except, in the case of the Mortgage Files, to the extent provided in Section 2.01); provided, however, that in the event that such breach or non-conformity is capable of being cured but not within such 90 day period and the applicable Responsible Party has commenced and is diligently proceeding with the cure of such breach or non-conformity within such 90 day period (other than a breach that would cause a related Mortgage Loan to fail to qualify as a Qualified Mortgage), the applicable Responsible Party shall have an additional 90 days to complete such cure; provided, further, that with respect to such additional 90 day period such Responsible Party shall have delivered an officer's certificate to the Trustee and the Master Servicer setting forth the reason such breach is not capable of being cured within the initial 90 day period and what actions such Responsible Party is pursuing in connection with the cure thereof and stating that such Responsible Party anticipates that such breach will be cured within the additional 90 day period.
(d) Upon receipt by the Master Servicer from the applicable Responsible Party of the Repurchase Price for the repurchased Mortgage Loan or the Marriott Desert Springs Parent Loan, as the case may be, the Master Servicer shall deposit such amount in the Collection Account or the Class M Collection Account, as applicable, and the Trustee, pursuant to Section 3.11, shall, upon receipt of a certificate of a Servicing Officer certifying as to the receipt by the Master Servicer of the Repurchase Price and the deposit of the Repurchase Price into the Collection Account or the Class M Collection Account, as applicable, pursuant to this Section 2.03(d), release or cause to be released to the applicable Responsible Party the related Mortgage File and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as shall be prepared by the Master Servicer to vest in the applicable Responsible Party any Mortgage Loan or the Marriott Desert Springs Parent Loan, as the case may be, released pursuant hereto, and any rights of the applicable Responsible Party in, to and under the Loan Sale Agreement or Responsible Party Agreement, as the case may be, as it relates to such Mortgage Loan or the Marriott Desert Springs Parent Loan, as the case may be, that were initially transferred to the Trust Fund under Section 2.01, and the Trustee and the Master Servicer shall have no further responsibility with regard to such Mortgage File.
(e) In the event that the applicable Responsible Party incurs any expense in connection with curing a breach of a representation or warranty pursuant to Section 2.03(c) which also constitutes a default under the related Mortgage Loan or the Marriott Desert Springs Parent Loan, as the case may be, such Responsible Party shall have a right, subrogated to that of the Trustee, as successor to the mortgagee, to recover the amount of such expenses from the related Borrower. The Master Servicer shall use reasonable efforts in recovering, or assisting the applicable Responsible Party in recovering, from the related Borrower the amount of any such expenses.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Commercial Mortgage Pass Through Cert Series 1998 Gl Ii), Pooling and Servicing Agreement (Commercial Mortgage Pass Through Cert Series 1998 Gl Ii)
Representations and Warranties of the Seller. The Seller hereby represents and warrants to the Owner Trustee that:
(a) The Seller has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Delaware, with power and authority to own its properties and to conduct its business as such properties are presently owned and such business is presently conducted, conducted and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing AgreementReceivables.
(b) The Seller is duly qualified to do business and, where necessary is as a foreign corporation in good standing (or is exempt from such requirement)standing, and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under the Basic Documents to which it is a party.
(c) The Seller has the power and authority to execute and deliver this Agreement, Agreement and to carry out its terms terms, the Seller has full power and authority to consummate sell and assign the transactions contemplated hereinproperty to be sold and assigned to and deposited with the Owner Trustee on behalf of the Trust, and the Seller has duly authorized such sale and assignment to the Owner Trustee, on behalf of the Trust, by all necessary corporate action; and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein have been duly authorized by the Seller by all necessary corporate action.
(d) The execution of this Agreement and the consummation of the transactions contemplated herein by the Seller this Agreement and the fulfillment of the terms of this Agreement by the Seller shall do not conflict with, result in any breach of any of the terms and provisions of or constitute (with or without notice or lapse of time) a default under, the certificate of incorporation or by-laws of the Seller, or any indenture, agreement, mortgage, deed of trust agreement or other instrument to which the Seller is a party or by which it is bound, or result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement, mortgage, deed of trust agreement or other instrument (other than pursuant to the Basic Documents), or violate any law or, to the best of the Seller's knowledge, any order, rule or regulation applicable to the Seller of any Governmental Authority court or of any federal or state regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Seller or any of its properties.
(e) This Agreement, when duly executed and delivered, shall constitute a legal, valid and binding obligation of the Seller enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights in general and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law.
(f) There are no proceedings or, to the Seller's knowledge, investigations pending or, to the Seller's knowledge, threatened before any court, regulatory body, administrative agency or other tribunal or governmental instrumentality having jurisdiction over the Seller or its properties (i) asserting the invalidity of this Agreement or any Certificates issued pursuant hereto or, (ii) seeking to prevent the issuance of such Certificates or the consummation of any of the transactions contemplated by this Agreement or (iii) seeking any determination or ruling that might materially and adversely affect the performance by the Seller of its obligations under, or the validity or enforceability of, such Certificates or this Agreement.
Appears in 2 contracts
Samples: Trust Agreement (Navistar Financial Retail Receivables Corporation), Trust Agreement (Navistar Financial Retail Receivables Corporation)
Representations and Warranties of the Seller. The Seller hereby represents and warrants to the Owner Trustee thatas follows:
(a) The Seller has been is a corporation duly organized and is incorporated, validly existing as a corporation and in good standing under the laws of its jurisdiction of incorporation, and is duly qualified to do business, and is in good standing as a foreign corporation, in every jurisdiction where the State nature of Delaware, with power and authority to own its properties and to conduct its business as such properties are presently owned and such business is presently conducted, and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables contemplated requires it to be transferred so qualified, unless the failure to the Trust pursuant so qualify could not reasonably be expected to the Trust Sale and Servicing Agreementhave a Material Adverse Effect.
(b) The execution, delivery and performance by the Seller is duly qualified to do business and, where necessary is in good standing (or is exempt from such requirement), and has obtained all necessary licenses and approvals in all jurisdictions in which of the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under the Basic Transaction Documents to which it is a party.
(c) The Seller has , including the power and authority to execute and deliver this Agreement, to carry out its terms and to consummate the transactions contemplated herein; Seller’s sale of Receivables hereunder and the execution, delivery and performance of this Agreement and the consummation Seller’s use of the transactions contemplated herein proceeds of Purchases, (i) are within the Seller’s corporate powers, (ii) have been duly authorized by the Seller by all necessary corporate action.
action and (diii) The execution of this Agreement and will not (A) violate (1) the consummation of the transactions contemplated herein by the Seller and the fulfillment of the terms of this Agreement by the Seller shall not conflict with, result in any breach of any of the terms and provisions of or constitute (with or without notice or lapse of time) a default under, the Seller’s certificate of incorporation or by-laws of laws, (2) any Law applicable to the Seller, except to the extent such violation could not reasonably be expected to have a Material Adverse Effect or (3) any provision of any material indenture, agreementcertificate of designation for preferred stock, mortgage, deed of trust agreement or other instrument to which the Seller is a party or by which it or any of its property is boundor may be bound or (B) be in conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under, give rise to a right of or result in any cancellation of any right or acceleration of any payment obligations under any such material indenture, certificate of designation for preferred stock, agreement or other instrument and (iv) do not result in or require the creation or imposition of any Lien Adverse Claim upon or with respect to any of its properties (except as created pursuant to the terms of any such indenture, agreement, mortgage, deed of trust Transaction Documents).
(c) No authorization or approval or other instrument action by, and no notice to or filing with, any Official Body is required for the due execution, delivery and performance by the Seller of the Transaction Documents to which it is a party or any other document to be delivered by it thereunder, except for (other than pursuant i) the filing of the financing statements referred to in Section 4.1 of the Receivables Transfer Agreement (which financing statements shall have been delivered to the Basic Documents)Administrative Agent prior to the Restatement Effective Date) and (ii) such as have been obtained or made and are in full force and effect.
(d) Each of the Transaction Documents to which the Seller is a party has been duly executed and delivered by the Seller and constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms, subject to (i) the effects of bankruptcy, insolvency, moratorium, reorganization or violate other similar laws affecting creditors’ rights generally, (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (iii) implied covenants of good faith and fair dealing.
(e) Since December 31, 2006, no Material Adverse Effect has occurred.
(f) Except as set forth on Schedule II, (i) as of the initial Purchase Date, there are no actions, suits or proceedings at law or in equity or by or before any law Official Body or in arbitration now pending or, to the best actual knowledge of a Responsible Officer of the Seller's knowledge, any order, rule threatened in writing against or regulation applicable to the Seller of any Governmental Authority having jurisdiction over affecting the Seller or any of its propertiesbusiness, property or rights and (ii) as of each Reporting Date, there are no actions, suits or proceedings at law or in equity or by or before any Official Body or in arbitration or, to the actual knowledge of a Responsible Officer of the Seller, threatened in writing against or affecting the Seller or any of its business, property or rights, which could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(g) No proceeds of any Purchase will be used to purchase or carry, or to extend credit to others for the purpose of purchasing or carrying, “margin stock” within the meaning of Regulation T, U or X promulgated by the Board of Governors of the Federal Reserve System from time to time.
(h) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(i) Immediately prior to each Purchase of Receivables from the Seller hereunder, the Seller will be the owner of such Receivables and all Receivables Property with respect thereto, free and clear of any Adverse Claim. Upon each Purchase, the Buyer shall have acquired a valid and perfected ownership interest in each Receivable now existing or hereafter arising and in the Receivables Property with respect thereto, in each case free and clear of any Adverse Claim (other than Adverse Claims created by the Buyer or its assigns).
(j) Each report delivered pursuant to Section 2.11 of the Receivables Transfer Agreement (if prepared by the Seller or any of its Affiliates, or to the extent that information contained therein is supplied by the Seller or an Affiliate), information, exhibit, document, book, record or report furnished in writing at any time by or on behalf of the Seller in connection with the Transaction Documents is 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 Seller is located in its jurisdiction of incorporation or organization specified in Exhibit C for the purposes of Section 9-307 of the UCC as in effect in the State of New York.
(l) The names and addresses of all the Lock-Box Banks, together with the account numbers of the Lock-Box Accounts, are as specified in Exhibit A (as the same may be updated from time to time pursuant to Section 5.01(g)).
(m) In the past five (5) years, the Seller has not used any corporate name, tradename or doing-business-as name other than the name in which it has executed this Agreement and the other names listed on Exhibit C. The Seller’s Federal Employer Identification Number and, if organized in a jurisdiction other than Delaware, its organizational identification number is as set forth on Exhibit C.
(n) The Seller is not an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940, as amended.
(i) The fair value of the assets of the Seller, at a fair valuation, exceed the debts and liabilities, direct, subordinated, contingent or otherwise, of the Seller; (ii) the present fair saleable value of the property of the Seller is greater than the amount that will be required to pay the probable liability of the Seller on its debts and other liabilities, direct, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured; (iii) the Seller will be able to pay its debts and liabilities, direct, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured; and (iv) the Seller does not have unreasonably small capital with which to conduct the businesses in which it is engaged as such businesses are now conducted and are proposed to be conducted following the Restatement Effective Date.
(p) Each Receivable treated as or represented by the Seller to be an Eligible Receivable as of any Purchase Date was an Eligible Receivable on such date.
(q) All Obligors with respect to Receivables sold by the Seller hereunder have been instructed to remit all their payments in respect of Receivables directly to a Lock-Box Account.
(r) The transfers of Receivables by the Seller to the Buyer pursuant to this Agreement, and all other transactions between the Seller and the Buyer, have been and will be made in good faith and without intent to hinder, delay or defraud creditors of the Seller.
(s) The Seller and its ERISA Affiliates are in compliance with the applicable provisions of ERISA and the provisions of the Code relating to Plans and the regulations and published interpretations thereunder and any similar applicable non U.S. law, except for such noncompliance that could not reasonably be expected to have a Material Adverse Effect. No Reportable Event has occurred during the past five years as to which the Seller or any ERISA Affiliate was required to file a report with the Pension Benefit Guaranty Corporation, other than reports that have been filed and reports the failure of which to file could not reasonably be expected to have a Material Adverse Effect. As of the Restatement Effective Date, the present value of all benefit liabilities under each Plan of the Seller and the ERISA Affiliates (based on those assumptions used to fund such Plan), did not as of the last annual valuation date applicable thereto for which a valuation is available, exceed the value of the assets of such Plan by an amount that could reasonably be expected to have a Material Adverse Effect and the present value of all benefit liabilities of all underfunded Plans (on a termination basis and based on those assumptions used to fund each such Plan), did not as of the last annual valuation dates applicable thereto for which valuations are available, exceed the value of the assets of all such underfunded Plans by an amount that could reasonably be expected to have a Material Adverse Effect. None of the Seller and the ERISA Affiliates has incurred or could reasonably be expected to incur any Withdrawal Liability that could reasonably be expected to have a Material Adverse Effect. None of the Seller and the ERISA Affiliates has received any written notification that any Multiemployer Plan is in reorganization or has been terminated within the meaning of Title IV of ERISA, or has knowledge that any Multiemployer Plan is reasonably expected to be in reorganization or to be terminated, where such reorganization or termination has had or could reasonably be expected to have, through increases in the contributions required to be made to such Plan or otherwise, a Material Adverse Effect.
(t) No event has occurred and is continuing and no condition exists which constitutes a Termination Event.
(u) Except as set forth on Schedule III, the Seller has filed or caused to be filed all material tax returns and has paid or caused to be paid or made adequate provision for all material taxes due and payable by it and all material assessments received by it except to the extent that non-payment: (i) is being contested in good faith; or (ii) could not reasonably be expected to result in a Material Adverse Effect.
(v) The assignment of each Receivable and the related Receivables Property the subject of any Purchase on the related Purchase Date and the fulfillment of the terms hereof will not violate any applicable Law or any material contractual obligation by which the Seller or any of its property may be bound.
(w) The Seller has performed and complied in all respects with the terms of the Contract relating to each Purchased Receivable that is treated as or represented by the Seller or any of its Affiliates to be an Eligible Receivable, except to the extent that such failure to comply could not reasonably be expected to have a Material Adverse Effect.
(x) The Seller and the Collection Agent have the capability: (i) at any given time to identify each individual Purchased Receivable and (ii) to track Collections in respect of each such Receivable and each of the Receivables that have been or will be sold by the Seller to the Buyer in accordance herewith.
(y) The Seller has complied in all material respects with its Credit and Collection Policy in regard to each Purchased Receivable that is treated as or represented by the Seller to be an Eligible Receivable.
Appears in 2 contracts
Samples: Receivables Purchase Agreement (Nalco Holding CO), Receivables Purchase Agreement (Nalco Finance Holdings LLC)
Representations and Warranties of the Seller. The Seller -------------------------------------------- hereby represents and warrants to the Owner Trustee that:
(a) The Seller has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Delaware, with power and authority to own its properties and to conduct its business as such properties are presently owned and such business is presently conducted, conducted and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing AgreementReceivables.
(b) The Seller is duly qualified to do business and, where necessary is as a foreign corporation in good standing (or is exempt from such requirement)standing, and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under the Basic Documents to which it is a party.
(c) The Seller has the power and authority to execute and deliver this Agreement, Agreement and to carry out its terms terms, the Seller has full power and authority to consummate sell and assign the transactions contemplated hereinproperty to be sold and assigned to and deposited with the Owner Trustee on behalf of the Trust, and the Seller has duly authorized such sale and assignment to the Owner Trustee, on behalf of the Trust, by all necessary corporate action; and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein have been duly authorized by the Seller by all necessary corporate action.
(d) The execution of this Agreement and the consummation of the transactions contemplated herein by the Seller this Agreement and the fulfillment of the terms of this Agreement by the Seller shall do not conflict with, result in any breach of any of the terms and provisions of or constitute (with or without notice or lapse of time) a default under, the certificate of incorporation or by-laws of the Seller, or any indenture, agreement, mortgage, deed of trust agreement or other instrument to which the Seller is a party or by which it is bound, or result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement, mortgage, deed of trust agreement or other instrument (other than pursuant to the Basic Documents), or violate any law or, to the best of the Seller's knowledge, any order, rule or regulation applicable to the Seller of any Governmental Authority court or of any federal or state regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Seller or any of its properties.
(e) This Agreement, when duly executed and delivered, shall constitute a legal, valid and binding obligation of the Seller enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights in general and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law.
(f) There are no proceedings or, to the Seller's knowledge, investigations pending or, to the Seller's knowledge, threatened before any court, regulatory body, administrative agency or other tribunal or governmental instrumentality having jurisdiction over the Seller or its properties (i) asserting the invalidity of this Agreement or any Certificates issued pursuant hereto or, (ii) seeking to prevent the issuance of such Certificates or the consummation of any of the transactions contemplated by this Agreement or (iii) seeking any determination or ruling that might materially and adversely affect the performance by the Seller of its obligations under, or the validity or enforceability of, such Certificates or this Agreement.
Appears in 2 contracts
Samples: Trust Agreement (Navistar Financial Retail Receivables Corporation), Trust Agreement (Navistar Financial Retail Receivables Corporation)
Representations and Warranties of the Seller. The Seller hereby represents makes the following representations and warrants warranties to the Owner Trustee thatPurchaser, which may be relied on by any subsequent purchasers of the Purchaser’s capital stock and their counsel:
(a) The Seller has been duly organized owns the Shares free and is validly existing as a corporation in good standing under the laws clear of the State all any and all liens, claims, encumbrances, preemptive rights, right of Delaware, with power first refusal and authority to own its properties and to conduct its business as such properties are presently owned and such business is presently conducted, and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing Agreementadverse interests of any kind.
(b) The Seller is duly qualified to do business and, where necessary is in good standing (or is exempt from such requirement), and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under the Basic Documents to which it is a party.
(c) The Seller has the requisite power and authority to execute and deliver enter into this Agreement, to carry out its terms Agreement and to consummate the transactions contemplated herein; hereby and otherwise to carry out Seller’s obligations hereunder. No consent, approval or agreement of any individual or entity is required to be obtained by the execution, delivery Seller in connection with the execution and performance by the Seller of this Agreement or the execution and performance by the consummation Seller of any agreements, instruments or other obligations entered into in connection with this Agreement.
(c) There is no private or governmental action, suit, proceeding, claim, arbitration or investigation pending before any agency, court or tribunal, foreign or domestic, or, to the Seller’s knowledge, threatened against the Seller or any of Seller’s properties. There is no judgment, decree or order against the Seller that could prevent, enjoin, alter or delay any of the transactions contemplated herein have been duly authorized by the Seller by all necessary corporate actionthis Agreement.
(d) The execution of this Agreement and the consummation of the transactions contemplated herein by the Seller and the fulfillment of the terms of this Agreement by the Seller shall not conflict withThere are no material claims, result in any breach of any of the terms and provisions of actions, suits, proceedings, inquiries, labor disputes or constitute (with or without notice or lapse of time) a default under, the certificate of incorporation or by-laws of the Seller, or any indenture, agreement, mortgage, deed of trust or other instrument to which the Seller is a party or by which it is bound, or result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement, mortgage, deed of trust or other instrument (other than pursuant to the Basic Documents), or violate any law investigations pending or, to the best of the Seller's ’s knowledge, any order, rule or regulation applicable to the Seller of any Governmental Authority having jurisdiction over threatened against the Seller or any of its propertiesassets, at law or in equity or by or before any governmental entity or in arbitration or mediation. No bankruptcy, receivership or debtor relief proceedings are pending or, to the Seller’s knowledge, threatened against the Seller.
(e) The Seller is aware of the Company’s business affairs and financial condition and has reached an informed and knowledgeable decision to sell the Shares.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Zurvita Holdings, Inc.), Stock Purchase Agreement (Zurvita Holdings, Inc.)
Representations and Warranties of the Seller. The Seller hereby represents and warrants to and agrees with the Owner Trustee Underwriters that:
(a) The Seller has been is a duly organized and is validly existing as a corporation in good standing organized under the laws of the State of Delaware, Delaware with the power and authority to own its properties and to conduct its business as such properties are presently currently owned and such business is presently conducted, except for such power and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing Agreement.
(b) The Seller is duly qualified to do business and, where necessary is in good standing (or is exempt from such requirement), and has obtained all necessary licenses and approvals in all jurisdictions in absence of which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on the Seller or its ability to perform consummate the transactions contemplated by its obligations under the Basic Documents.
(b) The Seller has full legal right, power, and authority to enter into its Basic Documents and to which it is a partycarry out, give effect to, and consummate the transactions contemplated thereby in accordance with the terms thereof.
(c) On or before the Closing Date, its Basic Documents will have been duly authorized, executed and delivered by the Seller. The Seller has the power and authority to execute and deliver this Agreement, to carry out its terms and to consummate the transactions contemplated herein; and the execution, delivery and performance of this Agreement its Basic Documents and the consummation issuance and sale of the transactions contemplated herein have been duly authorized by the Seller by all necessary corporate action.
(d) The execution of this Agreement Notes and the consummation of the transactions contemplated herein by the Seller and the fulfillment of compliance with the terms of this Agreement by the Seller shall and provisions thereof will not conflict with, result in any a breach or violation of any of the terms and provisions of of, or constitute (with or without notice or lapse of time) a default under, the certificate of incorporation or by-laws bylaws of the Seller, Seller or any indenture, agreement, mortgage, deed of trust agreement or other instrument to which the Seller is a party or by which it the Seller is bound, bound or result in the creation or imposition of any Lien upon to which any of its the properties pursuant of the Seller is subject that could reasonably be expected to have a material adverse effect on the terms of any such indenture, agreement, mortgage, deed of trust or other instrument (other than pursuant to transactions contemplated by the Basic Documents), .
(d) There are no legal or violate any law governmental proceedings pending or, to the best knowledge of the Seller's knowledge, any orderthreatened, rule against the Seller, or regulation applicable to the Seller of any Governmental Authority having jurisdiction over which the Seller or any of its propertiesproperties is subject, of a character required to be disclosed in the Prospectus that are not disclosed in the Prospectus.
(e) The Seller is not and, after giving effect to the offering and sale of the Notes and the application of the proceeds thereof as described in the Prospectus, will not be an "investment company" as defined in the 1940 Act.
(f) The representations and warranties made by the Seller in its Basic Documents will be true and correct in all material respects on and as of the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (Education Capital I LLC), Underwriting Agreement (Education Capital I LLC)
Representations and Warranties of the Seller. The Upon the execution of the applicable Terms Agreement, the Seller hereby represents and warrants to each Underwriter as of the Owner Trustee thatdate hereof and as of the Closing Date (unless otherwise specified) as follows:
(a) The Seller has been duly organized and is validly existing as a corporation national banking association, in good standing under the laws of the State of DelawareUnited States. The Seller has, with in all material respects, full power and authority to own its properties and to conduct its business as such properties are presently owned and such business is presently conducteddescribed in the Disclosure Materials, and had at all relevant timesto execute, deliver and now has, power, authority and legal right to acquire and own perform the Receivables contemplated to be transferred to Purchase Agreement, the Trust pursuant to the Trust Sale Pooling and Servicing Agreement.
(b) The Seller , this Agreement and the applicable Terms Agreement, and to consummate the transactions contemplated by the Receivables Purchase Agreement, the Pooling and Servicing Agreement, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and, where necessary and is in good standing (or is exempt from such requirementrequirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in all jurisdictions each jurisdiction in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain such licenses or and approvals (i) would not have a material adverse effect on the Seller and its subsidiaries, taken as a whole, or (ii) would have a material adverse effect on the Seller’s ability to perform its obligations under the Basic Documents to which it is a party.
(c) The Seller has the power and authority to execute and deliver this Agreement, to carry out its terms and to consummate the transactions contemplated herein; by the Receivables Purchase Agreement, the Pooling and Servicing Agreement, this Agreement and the applicable Terms Agreement.
(b) The execution, delivery and performance by the Seller of this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreement and the Pooling and Servicing Agreement, and the consummation of the transactions contemplated herein hereby and thereby have been duly authorized by the Seller by all necessary corporate action.
(d) The action on the part of the Seller. Neither the execution and delivery by the Seller of this Agreement and such instruments, nor the consummation performance by the Seller of the transactions contemplated herein or therein contemplated, nor the compliance by the Seller and with the fulfillment of the terms of this Agreement by the Seller shall not provisions hereof or thereof, will (i) conflict with, with or result in any a breach of any of the material terms and provisions of of, or constitute (with or without notice or lapse of time) a material default under, any of the certificate provisions of incorporation the Articles of Association or byBy-laws of the Seller, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, mortgage, deed of trust contract or other instrument to which the Seller is a party or by which it is bound, or (iv) result in the creation or imposition of any Lien lien, charge or encumbrance upon any of its properties the Seller’s property pursuant to the terms of any such indenture, agreement, mortgage, deed of trust contract or other instrument instrument.
(c) The Seller has duly executed and delivered this Agreement and the applicable Terms Agreement.
(d) The Seller has authorized the conveyance of the Receivables and the conveyance of an interest in the Seller’s interest in any related Funds Collateral to the Company under the Receivables Purchase Agreement.
(e) Complete and correct copies of publicly available portions of the Consolidated Reports of Condition and Income of the Bank for the year ended December 31, 2014 and the quarter ended March 31, 2015, as submitted to the Governors of the Federal Reserve System by the Bank, are publicly available through xxxxx://xxx.xxxxx.xxx/public/ManageFacsimiles.aspx. Except as set forth in or contemplated in the Prospectus, there has been no material adverse change in the condition (financial or otherwise) of the Bank since December 31, 2014.
(f) Each of the Pooling and Servicing Agreement and the Receivables Purchase Agreement constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other than similar laws now or hereafter in effect relating to creditors’ rights in general and the rights of creditors of national banking associations, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Seller or in the event of any moratorium or similar occurrence affecting the Seller and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any court, governmental agency or body or official required in connection with the transfer of the Receivables pursuant to the Basic DocumentsReceivables Purchase Agreement, have been or will be taken or obtained on or before the Closing Date.
(g) (i) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the Investment Company Act of 1940, as amended (the “1940 Act”).
(ii) The Master Trust is not now, and immediately following the issuance of the Notes pursuant to the Indenture will not be, a “covered fund” for purposes of regulations adopted under Section 13 of the Bank Holding Company Act of 1956 (hereinafter referred to as the “Xxxxxxx Rule”). In reaching this conclusion, although other statutory or regulatory exclusions or exemptions under the 1940 Act or the Xxxxxxx Rule may be available, the Seller has relied on the exclusion from registration set forth in Rule 3a-7 under the 1940 Act.
(h) The representations and warranties of the Seller in the Pooling and Servicing Agreement and the Receivables Purchase Agreement are true and correct in all material respects.
(i) The Seller has provided a written representation to each of the Hired NRSROs (as defined below), or violate any law or, to which satisfied the best requirements of paragraph (a)(3)(iii) of Rule 17g-5 of the Seller's knowledgeExchange Act (“Rule 17g-5”), as amended (the “17g-5 Representation”). The Seller has complied, and will continue to comply, with the 17g-5 Representation, other than any order, rule or regulation applicable to breach of the 17g-5 Representation that would not have a material adverse effect on the Notes.
(j) Neither the Seller of any Governmental Authority having jurisdiction over the Seller or nor any of its propertiesaffiliates has engaged any third-party to provide due diligence services within the meaning of Rule 17g-10(d)(1) under the Exchange Act or obtained any third-party due diligence report within the meaning of Rule 15Ga-2(d) under the Exchange Act with respect to the assets held by the Master Trust or the transactions contemplated by this Agreement or the other Program Agreements.
Appears in 2 contracts
Samples: Underwriting Agreement (Capital One Multi Asset Execution Trust), Underwriting Agreement (Capital One Multi Asset Execution Trust)
Representations and Warranties of the Seller. The Seller hereby represents and warrants to the Owner Trustee thatBuyer as follows:
(a) The Seller has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Delawarenecessary legal capacity, with power and authority to own its properties execute, deliver and to conduct its business as such properties are presently owned and such business is presently conducted, and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing Agreement.
(b) The Seller is duly qualified to do business and, where necessary is in good standing (or is exempt from such requirement), and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under the Basic Documents to which it is a party.
(c) The Seller has the power and authority to execute and deliver this Agreement, to carry out its the terms and provisions of this Agreement and to consummate the transactions contemplated herein; hereby, and has taken all necessary action to authorize the execution, delivery and performance of this Agreement;
(b) This Agreement has been duly and validly authorized, executed and delivered by Seller and, assuming due authorization, execution and delivery by and on behalf of Buyer, constitutes a legal, valid and binding obligation of Seller, enforceable in accordance with its terms;
(c) As of the date hereof, the Sale ADSs are fully paid and non-assessable;
(d) As of the date hereof, Seller is the owner, beneficially and of record, of the Sale ADSs, free and clear of any Liens, and will transfer at Closing to Buyer good and valid title to the Sale ADSs, free and clear of any Liens;
(e) As of the date hereof, other than the Sale ADSs, Seller is not the owner, beneficially or of record, of any ADSs or Shares;
(f) The execution and delivery of this Agreement do not, and the consummation of the transactions contemplated herein have been duly authorized by the Seller by all necessary corporate action.
hereby will not, (di) The execution of this Agreement and the consummation violate or conflict with any provision of the transactions contemplated herein by the Seller and the fulfillment of the terms of this Agreement by the Seller shall not conflict withtrust, result in any breach of any of the terms and provisions of charter or constitute (with or without notice or lapse of time) a default under, the certificate of incorporation organizational documents or by-laws or comparable documents of the Seller, result in the imposition of any Liens under, cause or permit the acceleration of any obligation under, or violate or conflict with the terms, conditions or provisions of, any note, indenture, security agreement, mortgagelease, deed of trust guaranty, joint venture agreement, or other contract, agreement or instrument to which the Seller is a party or by which it Seller or any of the Sale ADSs is bound, or result in the creation a breach or imposition violation by such Seller of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement, mortgage, deed of trust or other instrument (other than pursuant to the Basic Documents), or violate any law or, to the best of the Seller's knowledge, any orderlaw, rule or regulation applicable or any order, injunction, judgment or decree of any court, governmental authority or regulatory agency;
(g) There exists no restriction upon the sale and delivery to Buyer of the Sale ADSs by Seller, nor is Seller required to obtain the approval of any person or entity or any court, governmental authority or regulatory agency to effect the sale of such ADSs in accordance with the terms hereof;
(h) There are no claims for brokerage commissions or finder’s fees or agent’s commissions or other like payment in connection with this Agreement or the transactions contemplated hereby; and
(i) Seller has (i) timely paid all Taxes required to be paid by it with respect to the Seller acquisition, ownership or disposition of the Sale ADSs, and (ii) timely filed with the relevant governmental authority such Tax Returns required to be filed by it, and all such Tax Returns were true, correct and complete. The term “Tax” or “Taxes” means all net income, gross income, gross receipts, sales, use, ad valorem, transfer, excess profits, franchise, profits, license, withholding, payroll, employment, unemployment social security, excise, severance, stamp, occupation, premium, property, disability, capital stock, capital gains or windfall profits taxes, customs duties or other taxes, fees, assessments or governmental charges of any Governmental Authority having jurisdiction over the Seller or any of its properties.kind
Appears in 2 contracts
Samples: American Depositary Share Purchase Agreement (Metlife Inc), American Depositary Share Purchase Agreement (Metlife Inc)
Representations and Warranties of the Seller. The Seller hereby represents and warrants to the Owner Trustee T&D that:
(a) The Seller has been is a __________, duly organized and is organized, validly existing as a corporation and in good standing under the laws of the State of Delaware, with power ________ and authority to own its properties and to conduct its business as such properties are presently owned and such business is presently conducted, and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing Agreement.
(b) The Seller is duly qualified to do business and, where necessary is in good standing (or is exempt from such requirement), and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership where such qualification is required or lease of property or the conduct of its business requires where such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability qualification is necessary for it to perform its obligations under the Basic Documents to which it is a partyhereunder.
(cb) The Seller has the full power and authority to execute and deliver this Agreementcarry on its business as now being conducted, to carry out enter into this Agreement and perform its terms and to consummate the transactions contemplated herein; and the obligations hereunder. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein have been duly authorized by the Seller by all necessary corporate action.
(d) The execution of this Agreement or other organizational action and the consummation of the transactions contemplated herein by the Seller do not and the fulfillment of the terms of this Agreement by the Seller shall will not contravene its organizational documents or conflict with, result in any a breach of any of the terms and provisions of of, or constitute entitle Seller (with or without due notice or lapse of timetime or both) to terminate, accelerate or declare a default under, the certificate of incorporation any agreement or by-laws of the Seller, or any indenture, agreement, mortgage, deed of trust or other instrument to which the Seller it is a party or by which it is bound. The execution, or delivery and performance of this Agreement by Seller will not result in the creation or imposition any violation by it of any Lien upon law, any of its properties pursuant to the terms order of any such indenture, agreement, mortgage, deed of trust court or other instrument (other than pursuant to the Basic Documents), or violate any law or, to the best agency of the Seller's knowledge, any ordergovernment, rule or regulation applicable to it. Seller is not a party to, nor subject to or bound by, any judgment, injunction or decree of any court or other governmental entity which may restrict or interfere with the performance of this Agreement by it.
(c) This Agreement is the legal, valid and binding obligation of Seller, enforceable against it in accordance with its terms, except as such enforcement may be subject to bankruptcy, insolvency, reorganization, fraudulent conveyance, avoidance, preferential transfer, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and by general principles of equity that may limit the availability of equitable remedies and contractual obligations generally (regardless of whether the issue of enforceability is considered in a proceeding in equity or at law), and the remedy of specific performance and injunctive relief may be subject to the discretion of the court before which any proceeding therefore may be brought.
(d) No consent, waiver, order, approval, authorization or order of, or registration, qualification or filing with, any court or other governmental agency or authority is required for the execution, delivery and performance by Seller of this Agreement and the consummation by Seller of the transactions contemplated hereby, except such consents which have been obtained, and as to such consents the same are final, are in full force and effect, and are not subject to any Governmental Authority having jurisdiction over appeal or further judicial or administrative proceedings. No consent or waiver of any party to any contract to which Seller is a party or by which Seller is bound is required for the execution, delivery and performance by Seller of this Agreement.
(e) There is no action, suit, grievance, arbitration or proceeding (other than proceedings of general applicability to the electrical generation, transmission and distribution industry and proceedings in the ordinary course of business to obtain authorizations, approvals and permits) pending or, to the knowledge of Seller, threatened against or affecting Seller at law or in equity, before any federal, state, municipal or other governmental court, department, commission, board, arbitrator, bureau, agency or instrumentality which prohibits or impairs Seller’s ability to execute and deliver this Agreement or to consummate any of the transactions contemplated hereby.
(f) There are no bankruptcy or insolvency proceedings pending or being contemplated by Seller or any _______________, or, to its knowledge, threatened against Seller or ________________.
(g) No Event of Default with respect to Seller has occurred and is continuing and no such event or circumstance would occur as a result of Seller entering into or performing its propertiesobligations under this Agreement.
Appears in 2 contracts
Samples: Capacity and Associated Energy Purchase and Sale Agreement, Capacity and Associated Energy Purchase and Sale Agreement
Representations and Warranties of the Seller. The Seller hereby represents and warrants to as follows as of the Owner Trustee thatdate hereof and as of the date of each purchase or reinvestment hereunder:
(a) The Seller has been is a corporation duly organized formed and is validly existing as a corporation in good standing under the laws of the State of Delaware, with power and authority is duly qualified to own its properties do business, and to conduct is in good standing, in every jurisdiction where the nature of its business as such properties are presently owned and such business is presently conducted, and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables contemplated requires it to be transferred to the Trust pursuant to the Trust Sale and Servicing Agreementso qualified.
(b) The execution, delivery and performance by the Seller is of the Transaction Documents, including the Seller's use of the proceeds of purchases and reinvestments, (i) are within the Seller's corporate powers, (ii) have been duly qualified authorized by all necessary corporate action, (iii) do not contravene (1) the Seller's certificate of incorporation or by-laws, (2) any law, rule or regulation applicable to do business andthe Seller, where necessary is in good standing (3) any contractual restriction binding on or is exempt from such requirement)affecting the Seller or its property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the Seller or its property, and has obtained all necessary licenses and approvals (iv) do not result in all jurisdictions in which or require the ownership creation of any Adverse Claim upon or lease of property or the conduct with respect to any of its business requires such qualificationsproperties (except as created pursuant to this Agreement). Each of the Transaction Documents has been duly executed and delivered by the Seller.
(c) No authorization or approval or other action by, except where and no notice to or filing with, any governmental authority or regulatory body is required for the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under due execution, delivery and performance by the Basic Seller of the Transaction Documents to which it is a party.
(c) The Seller has the power and authority party or any other document to execute and deliver this Agreement, to carry out its terms and to consummate the transactions contemplated herein; and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein be delivered thereunder other than those that have been duly authorized by obtained or made and except for the Seller by all necessary corporate actionfiling of UCC financing statements which are referred to therein.
(d) The execution of this Agreement and the consummation Each of the transactions contemplated herein by the Seller and the fulfillment of the terms of this Agreement by the Seller shall not conflict with, result in any breach of any of the terms and provisions of or constitute (with or without notice or lapse of time) a default under, the certificate of incorporation or by-laws of the Seller, or any indenture, agreement, mortgage, deed of trust or other instrument Transaction Documents to which the Seller is a party constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law.
(e) The opening pro forma balance sheet of the Seller as of April 30, 2004, giving effect to the initial purchase to be made under this Agreement, a copy of which it is boundhas been furnished to the Agent, or result fairly presents the financial condition of the Seller as of such date, in accordance with generally accepted accounting principles, and since its formation there has been no (i) material adverse change in the creation business, operations, property or imposition financial condition of the Seller or (ii) other event or circumstance which has had or will have a Material Adverse Effect.
(f) There is no pending or (to the best knowledge of the Seller) threatened action or proceeding affecting the Seller before any court, governmental agency or arbitrator. The Seller is not in default in any material respect of any Lien upon any of its properties pursuant to the terms order of any such indenturecourt, agreementarbitrator or governmental agency.
(g) No proceeds of any purchase or reinvestment will be used for a purpose that violates or would be inconsistent with, mortgageRegulation T, deed U or X promulgated by the Board of trust Governors of the Federal Reserve System from time to time.
(h) Each Receivable treated as or represented to be a Pool Receivable is owned by the Seller free and clear of any Adverse Claim (except as created in favor of the Agent and the Purchaser hereunder). The Purchaser has acquired a valid and perfected first priority ownership interest or security interest in each Pool Receivable now existing or hereafter arising and in the Related Security and Collections with respect thereto, in each case free and clear of any Adverse Claim. No effective financing statement or other instrument similar in effect is filed in any recording office listing the Seller as debtor, covering any Receivable, Related Security or Collections except such as may be filed in favor of the Agent in accordance with this Agreement. No effective financing statement or other instrument similar in effect, is filed in any recording office listing the Originator as debtor, covering any Receivable, Related Security or Collections except such as may be filed in favor of the Seller and assigned to the Agent in accordance with this Agreement.
(i) Each Monthly Report (if prepared by any Transaction Party or one of their respective Affiliates, or to the extent that information contained therein is supplied by any Transaction Party or an Affiliate), information, exhibit, financial statement, document, book, record or report furnished or to be furnished in writing at any time by or on behalf of any Transaction Party to the Agent, the Purchaser in connection with this Agreement is or will be accurate in all material respects as of its date or (except as otherwise disclosed to the Agent or the Purchaser, as the case may be, at such time) as of the date so furnished, and no such Monthly Report, information, exhibit, financial statement, document, book, record or report, as of its date, contains or will contain any untrue statement of a material fact or omits or will omit to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not materially misleading.
(j) The principal place of business of the Seller and the office where the Seller keeps its records concerning the Receivables are located at the address or addresses referred to in Section 5.01(b).
(k) The names and addresses of all the Blocked Account Banks together with the number of the Lock-Boxes and the account numbers of the Blocked Accounts of the Seller at or maintained by such Blocked Account Banks are as specified in Schedule II hereto, as such Schedule II may be updated from time to time pursuant to Section 5.01(g).
(l) Each purchase of a Receivable Interest and each reinvestment of Collections in Receivables will constitute (i) a "current transaction" within the meaning of Section 3(a)(3) of the Securities Act of 1933, as amended, and (ii) a purchase or other acquisition of notes, drafts, acceptances, open accounts receivable or other obligations representing part or all of the sales price of merchandise or services within the meaning of Section 3(c)(5) of the Investment Company Act of 1940, as amended.
(m) In the past five (5) years, the Seller has not used any corporate name, tradename or doing-business-as name other than pursuant the name in which it has executed this Agreement.
(n) The Seller was formed on May 4, 2004 and the Seller did not engage in any business activities prior to the Basic Documents), or violate any law or, to date of this Agreement. The Seller has no Subsidiaries. Columbia Gas of Ohio directly owns 100% of the best capital stock of the Seller, free and clear of any Adverse Claims.
(i) The fair value of the property of the Seller is greater than the total amount of liabilities, including contingent liabilities, of the Seller, (ii) the present fair salable value of the assets of the Seller is not less than the amount that will be required to pay all probable liabilities of the Seller on its debts as they become absolute and matured, (iii) the Seller does not intend to, and does not believe that it will, incur debts or liabilities beyond the Seller's knowledgeabilities to pay such debts and liabilities as they mature and (iv) the Seller is not engaged in a business or a transaction, any orderand is not about to engage in a business or a transaction, rule for which the Seller's property would constitute unreasonably small capital.
(p) With respect to each Receivable, the Seller (i) shall have received such Receivable as a contribution to the capital of the Seller by Originator or regulation applicable (ii) shall have purchased such Receivable from Originator in exchange for payment (made by the Seller to Originator in accordance with the provisions of the Sale Agreement) of cash, Purchase Price Credits (as defined in the Sale Agreement), Deferred Purchase Price, or a combination thereof in an amount which constitutes fair consideration and reasonably equivalent value. Each such sale referred to in clause (ii) of the preceding sentence shall not have been made for or on account of an antecedent debt owed by Originator to the Seller and no such sale or capital contribution is or may be voidable or subject to avoidance under any section of any Governmental Authority having jurisdiction over the United States Bankruptcy Code.
(q) The Seller or and its ERISA Affiliates are in compliance in all material respects with ERISA, and no Adverse Claim exists in favor of the Pension Benefit Guaranty Corporation on any of its propertiesthe Receivables.
(r) Each Receivable included as an Eligible Receivable in the calculation of the Net Receivables Pool Balance on any Monthly Report satisfies the requirements of eligibility contained in the definition of "Eligible Receivable" as of the date of the information reported in such Monthly Report.
(s) On the date of each purchase and reinvestment hereunder (and after giving effect thereto), the sum of the Receivable Interests does not exceed 100% except to the extent that Collections set aside and held for the benefit of the Purchaser pursuant to Section 2.04(b)(iii) would cause the sum of the Receivable Interests to be less than or equal to 100% if such funds were applied to the reduction of Capital.
(t) Each of the representations and warranties set forth on Annex G are true and correct.
Appears in 2 contracts
Samples: Receivables Purchase Agreement (Columbia Energy Group), Receivables Purchase Agreement (Columbia Energy Group)
Representations and Warranties of the Seller. The Seller hereby represents and warrants 12.1 For the purpose of inducing the Township to the Owner Trustee that:
(a) The Seller has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Delaware, with power and authority to own its properties and to conduct its business as such properties are presently owned and such business is presently conducted, and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing Agreement.
(b) The Seller is duly qualified to do business and, where necessary is in good standing (or is exempt from such requirement), and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under the Basic Documents to which it is a party.
(c) The Seller has the power and authority to execute and deliver enter into this Agreement, to carry out its terms Agreement and to consummate the transactions contemplated herein; hereby pursuant to the terms and conditions hereof, the Seller represents and warrants to the Township as follows:
a) The Seller is the owner in fee simple of the Property herein agreed to be conveyed to the Township and, if an individual, is over eighteen years of age.
b) Each Party executing and delivering this Agreement and all documents to be executed and delivered in regard to the consummation of the transaction contemplated hereby on behalf of the Seller has due and proper authority to execute and deliver same. The Seller has the full right, power and authority to sell and convey the Property to the Township as provided herein and to carry out its obligations hereunder without the joinder or consent of any other person or entity or governmental body or agency or the order of any court, and the executionSeller has due and proper authority to execute and deliver all documents related to the consummation of the transactions.
c) The Property is now and has been held in peaceable and undisturbed possession by the Seller since said Property was acquired and the title has never been disputed, questioned or rejected to the Seller’s knowledge or belief, nor does the Seller know any facts by reason of which said possession or title may be disputed or questioned, or by reason of which any claim to any part of the Property or any interest therein adverse to that of the Seller which might be set up or made.
d) No contract for the sale of the Property has been made and no option to purchase the same has been given to anyone other than the Township. The Seller will not sell, mortgage, encumber or otherwise dispose of the Property or any part thereof prior to the Closing Date, except to the Township.
e) The Seller will not permit anyone who is not, as of the Effective Date, a tenant or occupant of the Property to occupy the Property subsequent to the date of this Agreement.
f) Except as otherwise identified herein, no tenants, persons or entities hold or possess any right to use or occupy the Property. There are no verbal or written leases currently affecting the Property, except as set forth on Exhibit 2. The Seller does not hold any funds as tenants’ security deposits in connection with the Property, except as set forth on Exhibit 2. Seller agrees that upon the Effective Date the Township or its employees, agents or consultants are hereby authorized to (i) deliver to the tenants a ninety (90) day notice of vacation letter and (ii) negotiate with the tenants as to the termination of their current leases and, if the Township so chooses, execution of new short term occupancy agreements to be effective as of the date of the Closing.
g) Within five (5) days of the Effective Date, the Seller will provide the Township copies of all maintenance or service contracts or other contracts relating to the maintenance and operation of the Property (“Service Contracts”), if any. A list of the Service Contracts is attached hereto as Exhibit 3. The Seller represents that all payments under such Service Contracts are current. At least five (5) days prior to the Closing Date, the Township shall notify the Seller in writing which Service Contracts, if any, the Township elects to have assigned to the Township. Effective as of the Closing Date, the Seller shall assign to the Township any Service Contract that the Township elects to have assigned to the Township. The Seller shall, at the Seller’s sole cost and expense, terminate all Service Contracts not assigned to the Township effective as of the Closing Date.
h) No labor has been performed or material furnished for the Property (i) for which the Seller has not heretofore fully paid, (ii) for which a Notice of Unpaid Balance and Right to File Lien Claim, construction lien, mechanic’s or materialman’s lien or liens, or any other lien, can be claimed by any person, Party or entity.
i) The Seller acknowledges that all legal work necessary to transfer title shall be performed by the Seller’s attorney at the Seller’s sole expense.
j) The Seller warrants that no person has been employed, directly or indirectly to solicit or secure this Agreement in violation of N.J.S.A. 52:34-15 et seq.
k) The Seller has no knowledge of any pending or threatened legal action of any kind or character whatsoever affecting the Property which will in any manner interfere with the transfer of possession or title upon consummation hereof, nor has the Seller knowledge that any such action is presently contemplated.
l) The execution and delivery and performance of this Agreement and the consummation of the transactions herein contemplated herein have been duly authorized by the Seller by all necessary corporate action.
(d) The execution of this Agreement and the consummation of the transactions contemplated herein by the Seller and the fulfillment of the terms of this Agreement by the Seller shall will not conflict withwith any applicable law, result in ordinance, regulation, statute, rule, restriction or any breach judgment, order or decree of any of the terms and provisions of or constitute (with or without notice or lapse of time) a default under, the certificate of incorporation or by-laws of the Seller, or any indenture, agreement, mortgage, deed of trust or other instrument to which the Seller is a party or by which it is bound, or result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement, mortgage, deed of trust or other instrument (other than pursuant to the Basic Documents), or violate any law or, to the best of the Seller's knowledge, any order, rule or regulation applicable to the Seller of any Governmental Authority court having jurisdiction over the Seller or the Property.
m) The Seller has no actual knowledge of, and has received no notice of, any outstanding violation of, and the Property is currently in compliance with, any governmental law, rule, statute, ordinance, or regulation affecting the Property, including, without limitation, any applicable laws, rules, regulations, ordinances, permits, orders and directives relating to environmental protection. In the event the Seller receives a notice or notices of its propertiesany violation(s) subsequent to the date hereof, it will immediately provide the Township with a copy of same and will expeditiously correct same prior to the Closing Date.
Appears in 2 contracts
Representations and Warranties of the Seller. The Seller hereby represents and warrants warrants, as of the date hereof and as of the date of each Purchase and each Capital Increase, before and after giving effect to such Purchase or Capital Increase and to the Owner Trustee application of the proceeds therefrom, as though made on and as of such date, other than any such representations and warranties that, by their terms, refer to a specific date other than the date of said Purchase or Capital Increase, in which case as of such dates, as follows:
(a) The Seller has been is a corporation duly organized and is incorporated, validly existing as a corporation and in good standing under the laws of the State jurisdiction indicated at the beginning of Delawarethis Agreement, with power and authority is duly qualified to own its properties do business, and to conduct is in good standing, in every jurisdiction where the nature of its business as such properties are presently owned and such business is presently conducted, and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables contemplated requires it to be transferred so qualified, except to the Trust pursuant extent that any failure to be so qualified or in good standing as a foreign entity could not reasonably be expected to have a Material Adverse Effect. The Seller has no Subsidiaries. All of the Trust Sale and Servicing Agreementoutstanding shares of stock of the Seller are owned by PolyOne Canada.
(b) The execution, delivery and performance by the Seller is duly qualified to do business and, where necessary is in good standing (or is exempt from such requirement), and has obtained all necessary licenses and approvals in all jurisdictions in which of the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under the Basic Transaction Documents to which it is a party.
(c) The Seller has party and the power other documents delivered by it hereunder, and authority to execute and deliver this Agreement, to carry out its terms and to consummate the transactions contemplated herein; hereby and thereby, including the execution, delivery and performance of this Agreement and the consummation Seller’s use of the transactions contemplated herein proceeds of Purchases, reinvestments and Capital Increases, are within the Seller’s corporate powers, have been duly authorized by the Seller by all necessary corporate action.
, do not (di) The execution of this Agreement and contravene the consummation of the transactions contemplated herein by the Seller and the fulfillment of the terms of this Agreement by the Seller shall not conflict withSeller’s articles or by-laws, (ii) violate any applicable law, rule, regulation, order, writ, judgment, injunction, decree, determination or award, or (iii) breach or result in any breach of any of the terms and provisions of or constitute (with or without notice or lapse of time) a default under, the certificate of incorporation or by-laws of the Seller, or any indenture, agreement, mortgage, deed of trust or other instrument to which the Seller is a party or by which it is bound, or result in the creation acceleration of (or imposition entitle any party to accelerate) the maturity of any Lien obligation of the Seller under, or result in or require the creation of any lien upon or security interest in any property of its properties the Seller pursuant to the terms of of, any such indenture, agreement, mortgage, deed of trust Contract or any other agreement or instrument (other than pursuant to the Basic Documents), any Transaction Document) binding on or violate any law or, to the best of the Seller's knowledge, any order, rule or regulation applicable to the Seller of any Governmental Authority having jurisdiction over affecting the Seller or any of its properties.
(c) No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority is required for the due execution, delivery and performance by the Seller of any Transaction Document to which it is a party or any other agreement or document delivered hereunder or for the perfection of or the exercise by any Indemnified Party of its rights and remedies under the Transaction Documents and such other agreements or documents, except for the filings of the financing statements referred to in Article III.
(d) This Agreement has been, and each other Transaction Document to which the Seller is a party when delivered will have been, duly executed and delivered by the Seller. This Agreement is, and the other Transaction Documents to which the Seller is or will be a party when delivered hereunder will be, the legal, valid and binding obligations of the Seller enforceable against the Seller in accordance with their respective terms, subject to bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and to general equitable principles.
(e) Since December 31, 2006, there has been no Material Adverse Change and there have been no events or developments that, in the aggregate, have had a Material Adverse Effect.
(f) There is no action, suit, investigation, litigation or proceeding pending or, to the knowledge of the Seller, threatened in any court or before any arbitrator or governmental instrumentality that (i) could reasonably be expected to result in a Material Adverse Change or (ii) restrains, prevents or imposes or can reasonably be expected to impose materially adverse conditions upon the Transaction Documents or the transactions contemplated thereby.
(g) No proceeds of any Purchase or reinvestment or Capital Increase will be used to acquire any security in any transaction which is subject to Sections 13 and 14 of the Securities Exchange Act of 1934.
(h) Immediately prior to the time of the initial Purchase, the Seller is the legal and beneficial owner of the Pool Receivables and Related Security with respect thereto, in each case free and clear of any Adverse Claim. Upon each Purchase or reinvestment, the Seller shall Transfer to the Agent on behalf of the Owners (and the Agent on behalf of the Owners shall acquire) a valid 100% ownership interest in each Pool Receivable then existing or thereafter arising and in the Related Security and Collections with respect thereto, free and clear of any Adverse Claim, which ownership interest shall be a perfected first priority ownership interest upon the filing of the financing statements referred to in Section 3.01(b) (ix). No effective financing statement or other instrument similarly in effect covering any Contract or any Pool Receivable or Related Security or Collections with respect thereto is on file in any recording office, except those filed in favor of the Agent relating to this Agreement or in favor of the Seller and the Agent relating to the Canadian Receivables Sale Agreement.
(i) Each Seller Report, Receivables Report (if prepared by the Seller or one of its Affiliates, or to the extent that information contained therein is supplied by the Seller or any Affiliate thereof), information, exhibit, financial statement, or other report or document furnished or to be furnished at any time by or on behalf of the Seller to the Agent or any Owner in connection with this Agreement is and will be accurate in all material respects as of its date or as of the date so furnished, and no such report or document contains, or will contain, as of its date of delivery or the date so furnished, any untrue statement of a material fact or omits to state, or will omit to state, as of its date of delivery or the date so furnished, a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not misleading.
(j) The jurisdiction of incorporation, organizational identification number (if any), and the address(es) of the principal place of business and chief executive office of the Seller and the office where the Seller keeps its Records concerning the Receivables, are as set forth in Schedule III hereto (or, by notice to the Agent in accordance with Section 5.01(c), at such other locations in jurisdictions, within Canada, where all actions required by Section 6.05(a) have been taken and completed).
(k) The names and addresses of all the Lock-Box Banks, together with the lock-box numbers related to, and the account numbers and owners (the Seller or the Canadian Originator) of, the Lock-Box Accounts at such Lock-Box Banks, are specified in Schedule I hereto (or such other Lock-Box Banks and/or such other Lock-Box Accounts as have been notified to the Agent in accordance with Section 5.03(d)).
(l) Since the date of its formation, the Seller has not engaged in any activity other than as contemplated by the Transaction Documents or entered into any commitment or incurred any Debt other than pursuant to, or as permitted under the Transaction Documents.
(m) The Seller has not maintained, contributed to or incurred or assumed any obligation with respect to any Plan, Multiemployer Plan or Welfare Plan.
(n) The Seller has not sold, assigned, transferred, pledged or hypothecated any interest in any Pool Receivable or the Collections with respect thereto to any Person other than as contemplated by this Agreement or that has been released by the Agent from the Receivables Pool.
(o) The Seller has complied with the Credit and Collection Policy in all material respects and since the date of this Agreement there has been no change in the Credit and Collection Policy except as permitted hereunder.
(p) The Seller has not extended or modified the terms of any Pool Receivable or the Contract under which any such Pool Receivable arose, except in accordance with the Credit and Collection Policy.
(q) Except under the Lock-Box Agreements, the Seller has not granted any Person dominion or control of any Lock-Box Account, or the right to take dominion or control over any Lock-Box Account at a future time or upon the occurrence of a future event.
(r) With respect to each Transfer to it of any Pool Receivables, the Seller has either (i) purchased such Pool Receivables from the Canadian Originator in exchange for payment (made by the Seller to the Canadian Originator in accordance with the provisions of the Canadian Receivables Sale Agreement) in an amount which constitutes fair consideration and approximates fair market value for such Pool Receivables and in a sale the terms and conditions of which (including, without limitation, the purchase price thereof) reasonably approximate an arm’s-length transaction between unaffiliated parties or (ii) acquired such Pool Receivables from the Canadian Originator as a capital contribution in accordance with the provisions of the Canadian Receivables Sale Agreement. No such sale, and no such contribution, has been made for or on account of an antecedent debt owed by the Canadian Originator to the Seller and no such sale or contribution is or may be voidable or subject to avoidance under any section of the U.S. Bankruptcy Code or any Canadian Insolvency Statute (as defined in the Canadian Receivables Sale Agreement).
(s) The Seller has filed, or caused to be filed or be included in, all tax reports and returns (federal, state, provincial, local and foreign), if any, required to be filed by it and paid, or caused to be paid, all amounts of taxes, including interest and penalties, required to be paid by it, except for such taxes
(i) as are being contested in good faith by proper proceedings and (ii) against which adequate reserves shall have been established in accordance with and to the extent required by GAAP, but only so long as the proceedings referred to in clause (i) above would not subject the Agent or any other Indemnified Party to any civil or criminal penalty or liability or involve any material risk of the loss, sale or forfeiture of any property, rights or interests covered hereunder or under the Canadian Receivables Sale Agreement.
(t) The Seller is not an “investment company” or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company”, as such terms are defined in the Investment Company Act of 1940, as amended.
(u) Both before and after giving effect to (i) each Purchase to be made on the Effective Date or such other date as Purchases requested hereunder are made, (ii) the disbursement of the proceeds of any Capital Investment, (iii) the consummation of each other transaction contemplated by the other Transaction Documents and (iv) the payment and accrual of all transaction costs in connection with the foregoing, the Seller is Solvent, and also satisfies the other tests set out in Section 3.01(v) of the Canadian Receivables Sale Agreement.
Appears in 2 contracts
Samples: Receivables Purchase Agreement (Polyone Corp), Receivables Purchase Agreement (Polyone Corp)
Representations and Warranties of the Seller. The In order to induce the Purchaser to purchase the GMET Shares, the Seller hereby represents represents, warrants and warrants covenants to the Owner Trustee thatPurchaser as follows:
(a) a. The Seller has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Delaware, with full power and authority to own its properties sell, assign and transfer the GMET Shares. The Seller holds record and beneficial title to the GMET Shares. When the GMET Shares are accepted for payment by the Purchaser, the Purchaser will acquire good, marketable and unencumbered title in and to conduct its business the GMET Shares, free and clear of any and all liens, restrictions, claims, charges and encumbrances. The Seller will, upon request, execute any signature guarantees or additional documents deemed reasonably necessary by the Purchaser or the Company to complete the sale, assignment and transfer of the GMET Shares.
b. The Seller is an “accredited investor” as such properties are presently owned and such business is presently conducteddefined in Rule 501 of Regulation D promulgated under the Securities Act, and had at all relevant timesthe Seller, or those persons retained by the Seller, have knowledge, skill and now hasexperience in financial, power, authority business and legal right investment matters to acquire carefully consider and own appraise the Receivables contemplated decision to be transferred sell the GMET Shares to the Trust pursuant to the Trust Sale and Servicing AgreementPurchaser.
c. The Seller is (a) familiar with the business and financial aspects of the Company, (b) The Seller is duly qualified to do business andentering into this Agreement freely and fully informed of the past performance of the Company and the potential performance of the Company in the future, where necessary is in good standing (or is exempt from such requirement), and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under the Basic Documents to which it is a party.
(c) an experienced and knowledgeable investor in the oil and gas exploration industry, and (d) capable of evaluating the merits of disposing of the GMET Shares.
d. The Seller acknowledges that (i) prior to entering into this Agreement, the Seller accepted the duty to complete its own due diligence and has completed its own satisfactory independent investigation and due diligence of the Company and the Company’s business and prospects, has been furnished all information in connection therewith as the Seller or professionals hired by the Seller deemed appropriate concerning this Agreement. The Seller has had an opportunity to ask questions of, and receive satisfactory answers from the power Company and authority its representatives or agents concerning the Seller’s decision whether to execute sell the GMET Shares, and deliver this Agreementall such questions have been answered to the Seller’s full satisfaction. The Purchaser assumes no responsibility for any information furnished by or on behalf of the Company, to carry out its terms and to consummate the transactions contemplated herein; and the executionSeller agrees to release and hold harmless the Purchaser and its officers, delivery directors, partners, employees and performance of this Agreement agents from and against any liability resulting or arising from such information. The Purchaser does not make or has not made any representations, warranties or statements about the consummation Company, the value of the transactions contemplated herein have GMET Shares or the fairness of the purchase price offered for the GMET Shares. The Seller has only relied on statements made by or on behalf of the Company in basing the decision to sell the GMET Shares hereunder.
e. This Agreement has been duly authorized by the Seller by all necessary corporate action.
(d) The execution of this Agreement executed and the consummation of the transactions contemplated herein delivered by the Seller and the fulfillment of the terms of this Agreement constitutes, and each other agreement, instrument, or document executed or to be executed by the Seller shall not conflict within connection with the transactions contemplated hereby has been, result in any breach of any of or when executed will be, duly executed and delivered by the terms Seller and provisions of constitutes, or constitute (with or without notice or lapse of time) when executed and delivered will constitute, a default under, the certificate of incorporation or by-laws valid and legally binding obligation of the Seller, or any indentureenforceable against the Seller in accordance with their respective terms except as may be limited by bankruptcy, agreementinsolvency, mortgage, deed of trust reorganization or other instrument laws of general application relating to which or affecting the Seller is a party or by which it is boundenforcement of creditors’ rights generally, or result in and the creation or imposition effect of any Lien upon rules of law governing the availability of equitable remedies.
f. The parties hereto understand and acknowledge that Xxxxxxxx & Knight LLP represents only the Seller, and not any of its properties pursuant the other parties, in connection with the purchase of the GMET Shares under this Agreement. Each of the parties hereto confirms that such party has been advised to consult with such party’s own legal counsel, accountants and financial advisors with respect to the terms and the legal, financial and tax implications of any such indenture, agreement, mortgage, deed of trust or other instrument (other than pursuant to the Basic Documents), or violate any law or, to the best of the Seller's knowledge, any order, rule or regulation applicable to the Seller of any Governmental Authority having jurisdiction over the Seller or any of its propertiesthis Agreement.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (North Shore Energy, LLC), Purchase and Sale Agreement (Yorktown Energy Partners Iv Lp)
Representations and Warranties of the Seller. The Upon the execution of the applicable Terms Agreement, the Seller hereby represents and warrants to each Underwriter as of the Owner Trustee thatdate hereof and as of the Closing Date (unless otherwise specified) as follows:
(a) The Seller has been duly organized and is validly existing as a corporation national banking association, in good standing under the laws of the State of DelawareUnited States. The Seller has, with in all material respects, full power and authority to own its properties and to conduct its business as such properties are presently owned and such business is presently conducteddescribed in the Prospectus, and had at all relevant timesto execute, deliver and now has, power, authority and legal right to acquire and own perform the Receivables contemplated to be transferred to Purchase Agreement, the Trust pursuant to the Trust Sale Pooling and Servicing Agreement.
(b) The Seller , this Agreement and the applicable Terms Agreement, and to consummate the transactions contemplated by the Receivables Purchase Agreement, the Pooling and Servicing Agreement, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and, where necessary and is in good standing (or is exempt from such requirementrequirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in all jurisdictions each jurisdiction in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain such licenses or and approvals (i) would not have a material adverse effect on the Seller and its subsidiaries, taken as a whole, or (ii) would have a material adverse effect on the Seller’s ability to perform its obligations under the Basic Documents to which it is a party.
(c) The Seller has the power and authority to execute and deliver this Agreement, to carry out its terms and to consummate the transactions contemplated herein; by the Receivables Purchase Agreement, the Pooling and Servicing Agreement, this Agreement and the applicable Terms Agreement.
(b) The execution, delivery and performance by the Seller of this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreement and the Pooling and Servicing Agreement, and the consummation of the transactions contemplated herein hereby and thereby have been duly authorized by the Seller by all necessary corporate action.
(d) The action on the part of the Seller. Neither the execution and delivery by the Seller of this Agreement and such instruments, nor the consummation performance by the Seller of the transactions contemplated herein or therein contemplated, nor the compliance by the Seller and with the fulfillment of the terms of this Agreement by the Seller shall not provisions hereof or thereof, will (i) conflict with, with or result in any a breach of any of the material terms and provisions of of, or constitute (with or without notice or lapse of time) a material default under, any of the certificate provisions of incorporation the Articles of Association or byBy-laws of the Seller, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, mortgage, deed of trust contract or other instrument to which the Seller is a party or by which it is bound, or (iv) result in the creation or imposition of any Lien lien, charge or encumbrance upon any of its properties the Seller’s property pursuant to the terms of any such indenture, agreement, mortgage, deed of trust contract or other instrument instrument.
(c) The Seller has duly executed and delivered this Agreement and the applicable Terms Agreement.
(d) The Seller has authorized the conveyance of the Receivables and the conveyance of an interest in the Seller’s interest in any related Funds Collateral to the Company under the Receivables Purchase Agreement.
(e) The Bank has delivered to the Representatives complete and correct copies of publicly available portions of the Consolidated Reports of Condition and Income of the Bank for the year ended December 31, 2008, as submitted to the Governors of the Federal Reserve System. Except as set forth in or contemplated in the Prospectus, there has been no material adverse change in the condition (financial or otherwise) of the Bank since December 31, 2008.
(f) Each of the Pooling and Servicing Agreement and the Receivables Purchase Agreement constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other than similar laws now or hereafter in effect relating to creditors’ rights in general and the rights of creditors of state banking corporations, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Seller or in the event of any moratorium or similar occurrence affecting the Seller and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the transfer of the Receivables pursuant to the Basic Documents)Receivables Purchase Agreement, have been or violate any law orwill be taken or obtained on or before the Closing Date.
(g) The Master Trust is not now, to and following the best issuance of the Seller's knowledgeCollateral Certificate, any orderwill not be, rule or regulation applicable required to be registered under the Investment Company Act of 1940, as amended (the “1940 Act”).
(h) The representations and warranties of the Seller of any Governmental Authority having jurisdiction over in the Seller or any of its propertiesPooling and Servicing Agreement and the Receivables Purchase Agreement are true and correct in all material respects.
Appears in 2 contracts
Samples: Underwriting Agreement (Capital One Master Trust), Underwriting Agreement (Capital One Master Trust)
Representations and Warranties of the Seller. The Seller hereby represents and warrants to the Owner Trustee T&D that:
(a) The Seller has been is a corporation, duly organized and is organized, validly existing as a corporation and in good standing under the laws of the State of Delaware, with power ________ and authority to own its properties and to conduct its business as such properties are presently owned and such business is presently conducted, and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing Agreement.
(b) The Seller is duly qualified to do business and, where necessary is in good standing (or is exempt from such requirement), and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership where such qualification is required or lease of property or the conduct of its business requires where such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability qualification is necessary for it to perform its obligations under the Basic Documents to which it is a partyhereunder.
(cb) The Seller has the full power and authority to execute and deliver this Agreementcarry on its business as now being conducted, to carry out enter into this Agreement and perform its terms and to consummate the transactions contemplated herein; and the obligations hereunder. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein have been duly authorized by the Seller by all necessary corporate action.
(d) The execution of this Agreement or other organizational action and the consummation of the transactions contemplated herein by the Seller do not and the fulfillment of the terms of this Agreement by the Seller shall will not contravene its organizational documents or conflict with, result in any a breach of any of the terms and provisions of of, or constitute entitle Seller (with or without due notice or lapse of timetime or both) to terminate, accelerate or declare a default under, the certificate of incorporation any agreement or by-laws of the Seller, or any indenture, agreement, mortgage, deed of trust or other instrument to which the Seller it is a party or by which it is bound. The execution, or delivery and performance of this Agreement by Seller will not result in the creation or imposition any violation by it of any Lien upon law, any of its properties pursuant to the terms order of any such indenture, agreement, mortgage, deed of trust court or other instrument (other than pursuant to the Basic Documents), or violate any law or, to the best agency of the Seller's knowledge, any ordergovernment, rule or regulation applicable to it. Seller is not a party to, nor subject to or bound by, any judgment, injunction or decree of any court or other governmental entity which may restrict or interfere with the performance of this Agreement by it.
(c) This Agreement is the legal, valid and binding obligation of Seller, enforceable against it in accordance with its terms, except as such enforcement may be subject to bankruptcy, insolvency, reorganization, fraudulent conveyance, avoidance, preferential transfer, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and by general principles of equity that may limit the availability of equitable remedies and contractual obligations generally (regardless of whether the issue of enforceability is considered in a proceeding in equity or at law), and the remedy of specific performance and injunctive relief may be subject to the discretion of the court before which any proceeding therefore may be brought.
(d) No consent, waiver, order, approval, authorization or order of, or registration, qualification or filing with, any court or other governmental agency or authority is required for the execution, delivery and performance by Seller of this Agreement and the consummation by Seller of the transactions contemplated hereby, except such consents which have been obtained, and as to such consents the same are final, are in full force and effect, and are not subject to any Governmental Authority having jurisdiction over appeal or further judicial or administrative proceedings. No consent or waiver of any party to any contract to which Seller is a party or by which Seller is bound is required for the execution, delivery and performance by Seller of this Agreement.
(e) There is no action, suit, grievance, arbitration or proceeding (other than proceedings of general applicability to the electrical generation, transmission and distribution industry and proceedings in the ordinary course of business to obtain authorizations, approvals and permits) pending or, to the knowledge of Seller, threatened against or affecting Seller at law or in equity, before any federal, state, municipal or other governmental court, department, commission, board, arbitrator, bureau, agency or instrumentality which prohibits or impairs Seller’s ability to execute and deliver this Agreement or to consummate any of its propertiesthe transactions contemplated hereby.
Appears in 2 contracts
Samples: Capacity Purchase and Sale Agreement, Demand Resource Capacity Purchase and Sale Agreement
Representations and Warranties of the Seller. The Seller hereby represents and warrants to the Buyer (unless otherwise noted) as of the date hereof and the Closing Date that: Owner Trustee that:
(a) of Partnership Interest The Seller has been is the legal and beneficial owner of the relevant Purchased Partnership Interests to be sold, assigned and transferred by it under this Agreement, free and clear of any and all encumbrances other than any Transfer Restrictions. Authorization The Seller is duly organized and is organized, validly existing as a corporation and in good standing under the laws of the State its jurisdiction of Delaware, with power and authority to own its properties and to conduct its business as such properties are presently owned and such business is presently conducted, and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing Agreement.
(b) The Seller is duly qualified to do business and, where necessary is in good standing (or is exempt from such requirement), and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under the Basic Documents to which it is a party.
(c) formation. The Seller has the requisite partnership or corporate power and authority authority, as the case may be, to execute enter into this Agreement and deliver this Agreement, to carry out its terms and to consummate the transactions contemplated herein; hereby. The execution and the execution, delivery and performance of this Agreement by the Seller and the consummation of the transactions contemplated herein hereby by the Seller have been duly authorized by all necessary partnership or corporate actions, as the case may be, on the part of the Seller. This Agreement constitutes a valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except to the extent that such enforceability may be limited by all necessary corporate action.
(d) The bankruptcy, insolvency, moratorium or other similar laws affecting or relating to the enforcement of creditors’ rights or by general principles of equity. No Conflict Neither the execution and delivery of this Agreement and Agreement, nor the consummation of the transactions contemplated herein by the Seller and the fulfillment of the terms of this Agreement by the Seller shall not hereby, will conflict with, with or result in any a breach or violation of any of the terms and or provisions of the organizational documents of the Seller or result in the breach or violation of any of the terms or provisions of, or constitute (with or without notice or lapse of time) a default under, the certificate of incorporation any material agreement or by-laws of the Seller, or any indenture, agreement, mortgage, deed of trust or other instrument to which the Seller is a party or by which it the Seller is bound, or nor will any such action result in any violation of the creation or imposition provisions of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement, mortgage, deed of trust statute or other instrument (other than pursuant to the Basic Documents), or violate any law or, to the best of the Seller's knowledge, any order, rule or regulation applicable to the Seller of any Governmental Authority court or governmental agency or body having jurisdiction over the Seller or any its property. The execution and delivery by the Seller of this Agreement and the performance by the Seller of its propertiesobligations hereunder will not require any consent or approval of, or any filing or registration with, any creditor of the Seller, any governmental agency or court or other third party. No Lawsuits There is no arbitration, lawsuit, proceeding or investigation pending or, to the best knowledge of the Seller, threatened against it that would prevent or delay the consummation of the transactions contemplated hereby or call into question the validity thereof. There is no action, suit or other proceeding pending or threatened by the Seller against others relating in any way to the Purchased Partnership Interests or the Partnership. Transferability The Seller will transfer the Purchased Partnership Interests to be sold, assigned and transferred by it under this Agreement free and clear of all encumbrances other than the Transfer Restrictions.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Esl Partners, L.P.), Purchase and Sale Agreement (Esl Partners, L.P.)
Representations and Warranties of the Seller. The Upon the execution of the applicable Terms Agreement, the Seller hereby represents and warrants to each Underwriter as of the Owner Trustee thatdate hereof and as of the Closing Date (unless otherwise specified) as follows:
(a) The Seller has been duly organized and is validly existing as a corporation national banking association, in good standing under the laws of the State of DelawareUnited States. The Seller has, with in all material respects, full power and authority to own its properties and to conduct its business as such properties are presently owned and such business is presently conducteddescribed in the Prospectus, and had at all relevant timesto execute, deliver and now has, power, authority and legal right to acquire and own perform the Receivables contemplated to be transferred to Purchase Agreement, the Trust pursuant to the Trust Sale Pooling and Servicing Agreement.
(b) The Seller , this Agreement and the applicable Terms Agreement, and to consummate the transactions contemplated by the Receivables Purchase Agreement, the Pooling and Servicing Agreement, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and, where necessary and is in good standing (or is exempt from such requirementrequirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in all jurisdictions each jurisdiction in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain such licenses or and approvals (i) would not have a material adverse effect on the Seller and its subsidiaries, taken as a whole, or (ii) would have a material adverse effect on the Seller’s ability to perform its obligations under the Basic Documents to which it is a party.
(c) The Seller has the power and authority to execute and deliver this Agreement, to carry out its terms and to consummate the transactions contemplated herein; by the Receivables Purchase Agreement, the Pooling and Servicing Agreement, this Agreement and the applicable Terms Agreement.
(b) The execution, delivery and performance by the Seller of this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreement and the Pooling and Servicing Agreement, and the consummation of the transactions contemplated herein hereby and thereby have been duly authorized by the Seller by all necessary corporate action.
(d) The action on the part of the Seller. Neither the execution and delivery by the Seller of this Agreement and such instruments, nor the consummation performance by the Seller of the transactions contemplated herein or therein contemplated, nor the compliance by the Seller and with the fulfillment of the terms of this Agreement by the Seller shall not provisions hereof or thereof, will (i) conflict with, with or result in any a breach of any of the material terms and provisions of of, or constitute (with or without notice or lapse of time) a material default under, any of the certificate provisions of incorporation the Articles of Association or byBy-laws of the Seller, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, mortgage, deed of trust contract or other instrument to which the Seller is a party or by which it is bound, or (iv) result in the creation or imposition of any Lien lien, charge or encumbrance upon any of its properties the Seller’s property pursuant to the terms of any such indenture, agreement, mortgage, deed of trust contract or other instrument instrument.
(c) The Seller has duly executed and delivered this Agreement and the applicable Terms Agreement.
(d) The Seller has authorized the conveyance of the Receivables and the conveyance of an interest in the Seller’s interest in any related Funds Collateral to the Company under the Receivables Purchase Agreement.
(e) Complete and correct copies of publicly available portions of the Consolidated Reports of Condition and Income of the Bank for the year ended December 31, 2012, as submitted to the Governors of the Federal Reserve System by the Bank, are publicly available through xxxxx://xxx.xxxxx.xxx/public/ManageFacsimiles.aspx. Except as set forth in or contemplated in the Prospectus, there has been no material adverse change in the condition (financial or otherwise) of the Bank since December 31, 2012.
(f) Each of the Pooling and Servicing Agreement and the Receivables Purchase Agreement constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other than similar laws now or hereafter in effect relating to creditors’ rights in general and the rights of creditors of national banking associations, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Seller or in the event of any moratorium or similar occurrence affecting the Seller and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any court, governmental agency or body or official required in connection with the transfer of the Receivables pursuant to the Basic DocumentsReceivables Purchase Agreement, have been or will be taken or obtained on or before the Closing Date.
(g) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the Investment Company Act of 1940, as amended (the “1940 Act”).
(h) The representations and warranties of the Seller in the Pooling and Servicing Agreement and the Receivables Purchase Agreement are true and correct in all material respects.
(i) The Seller has provided a written representation to each of the Hired NRSROs (as defined below), or violate any law or, to which satisfied the best requirements of paragraph (a)(3)(iii) of Rule 17g-5 of the Seller's knowledgeExchange Act (“Rule 17g-5”), as amended (the “17g-5 Representation”). The Seller has complied, and will continue to comply, with the 17g-5 Representation, other than any order, rule or regulation applicable to breach of the Seller of any Governmental Authority having jurisdiction over 17g-5 Representation that would not have a material adverse effect on the Seller or any of its propertiesNotes.
Appears in 2 contracts
Samples: Underwriting Agreement (Capital One Master Trust), Underwriting Agreement (Capital One Funding, LLC)
Representations and Warranties of the Seller. The Upon the execution of the applicable Terms Agreement, the Seller hereby represents and warrants to each Underwriter as of the Owner Trustee thatdate hereof and as of the Closing Date (unless otherwise specified) as follows:
(a) The Seller has been duly organized and is validly existing as a corporation national banking association, in good standing under the laws of the State of DelawareUnited States. The Seller has, with in all material respects, full power and authority to own its properties and to conduct its business as such properties are presently owned and such business is presently conducteddescribed in the Prospectus, and had at all relevant timesto execute, deliver and now has, power, authority and legal right to acquire and own perform the Receivables contemplated to be transferred to Purchase Agreement, the Trust pursuant to the Trust Sale Pooling and Servicing Agreement.
(b) The Seller , this Agreement and the applicable Terms Agreement, and to consummate the transactions contemplated by the Receivables Purchase Agreement, the Pooling and Servicing Agreement, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and, where necessary and is in good standing (or is exempt from such requirementrequirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in all jurisdictions each jurisdiction in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain such licenses or and approvals (i) would not have a material adverse effect on the Seller and its subsidiaries, taken as a whole, or (ii) would have a material adverse effect on the Seller’s ability to perform its obligations under the Basic Documents to which it is a party.
(c) The Seller has the power and authority to execute and deliver this Agreement, to carry out its terms and to consummate the transactions contemplated herein; by the Receivables Purchase Agreement, the Pooling and Servicing Agreement, this Agreement and the applicable Terms Agreement.
(b) The execution, delivery and performance by the Seller of this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreement and the Pooling and Servicing Agreement, and the consummation of the transactions contemplated herein hereby and thereby have been duly authorized by the Seller by all necessary corporate action.
(d) The action on the part of the Seller. Neither the execution and delivery by the Seller of this Agreement and such instruments, nor the consummation performance by the Seller of the transactions contemplated herein or therein contemplated, nor the compliance by the Seller and with the fulfillment of the terms of this Agreement by the Seller shall not provisions hereof or thereof, will (i) conflict with, with or result in any a breach of any of the material terms and provisions of of, or constitute (with or without notice or lapse of time) a material default under, any of the certificate provisions of incorporation the Articles of Incorporation or byBy-laws of the Seller, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, mortgage, deed of trust contract or other instrument to which the Seller is a party or by which it is bound, or (iv) result in the creation or imposition of any Lien lien, charge or encumbrance upon any of its properties the Seller’s property pursuant to the terms of any such indenture, agreement, mortgage, deed of trust contract or other instrument instrument.
(c) The Seller has duly executed and delivered this Agreement and the applicable Terms Agreement.
(d) The Seller has authorized the conveyance of the Receivables and the conveyance of an interest in the Seller’s interest in any related Funds Collateral to the Company under the Receivables Purchase Agreement.
(e) The Bank has delivered to the Representatives complete and correct copies of publicly available portions of the Consolidated Reports of Condition and Income of the Bank for the year ended December 31, 2006, as submitted to the Governors of the Federal Reserve System. Except as set forth in or contemplated in the Prospectus, there has been no material adverse change in the condition (financial or otherwise) of the Bank since December 31, 2006.
(f) Each of the Pooling and Servicing Agreement and the Receivables Purchase Agreement constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other than similar laws now or hereafter in effect relating to creditors’ rights in general and the rights of creditors of state banking corporations, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Seller or in the event of any moratorium or similar occurrence affecting the Seller and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the transfer of the Receivables pursuant to the Basic Documents)Receivables Purchase Agreement, have been or violate any law orwill be taken or obtained on or before the Closing Date.
(g) The Master Trust is not now, to and following the best issuance of the Seller's knowledgeCollateral Certificate, any orderwill not be, rule or regulation applicable required to be registered under the Investment Company Act of 1940, as amended (the “1940 Act”).
(h) The representations and warranties of the Seller of any Governmental Authority having jurisdiction over in the Seller or any of its propertiesPooling and Servicing Agreement and the Receivables Purchase Agreement are true and correct in all material respects.
Appears in 2 contracts
Samples: Underwriting Agreement (Capital One Funding, LLC), Underwriting Agreement (Capital One Master Trust)
Representations and Warranties of the Seller. The Upon the execution of the applicable Terms Agreement, the Seller hereby represents and warrants to each Underwriter as of the Owner Trustee thatdate hereof and as of the Closing Date (unless otherwise specified) as follows:
(a) The Seller has been duly organized and is validly existing as a corporation national banking association, in good standing under the laws of the State of DelawareUnited States. The Seller has, with in all material respects, full power and authority to own its properties and to conduct its business as such properties are presently owned and such business is presently conducteddescribed in the Prospectus, and had at all relevant timesto execute, deliver and now has, power, authority and legal right to acquire and own perform the Receivables contemplated to be transferred to Purchase Agreement, the Trust pursuant to the Trust Sale Pooling and Servicing Agreement.
(b) The Seller , this Agreement and the applicable Terms Agreement, and to consummate the transactions contemplated by the Receivables Purchase Agreement, the Pooling and Servicing Agreement, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and, where necessary and is in good standing (or is exempt from such requirementrequirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in all jurisdictions each jurisdiction in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain such licenses or and approvals (i) would not have a material adverse effect on the Seller and its subsidiaries, taken as a whole, or (ii) would have a material adverse effect on the Seller’s ability to perform its obligations under the Basic Documents to which it is a party.
(c) The Seller has the power and authority to execute and deliver this Agreement, to carry out its terms and to consummate the transactions contemplated herein; by the Receivables Purchase Agreement, the Pooling and Servicing Agreement, this Agreement and the applicable Terms Agreement.
(b) The execution, delivery and performance by the Seller of this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreement and the Pooling and Servicing Agreement, and the consummation of the transactions contemplated herein hereby and thereby have been duly authorized by the Seller by all necessary corporate action.
(d) The action on the part of the Seller. Neither the execution and delivery by the Seller of this Agreement and such instruments, nor the consummation performance by the Seller of the transactions contemplated herein or therein contemplated, nor the compliance by the Seller and with the fulfillment of the terms of this Agreement by the Seller shall not provisions hereof or thereof, will (i) conflict with, with or result in any a breach of any of the material terms and provisions of of, or constitute (with or without notice or lapse of time) a material default under, any of the certificate provisions of incorporation the Articles of Association or byBy-laws of the Seller, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, mortgage, deed of trust contract or other instrument to which the Seller is a party or by which it is bound, or (iv) result in the creation or imposition of any Lien lien, charge or encumbrance upon any of its properties the Seller’s property pursuant to the terms of any such indenture, agreement, mortgage, deed of trust contract or other instrument instrument.
(c) The Seller has duly executed and delivered this Agreement and the applicable Terms Agreement.
(d) The Seller has authorized the conveyance of the Receivables and the conveyance of an interest in the Seller’s interest in any related Funds Collateral to the Company under the Receivables Purchase Agreement.
(e) Complete and correct copies of publicly available portions of the Consolidated Reports of Condition and Income of the Bank for the year ended December 31, 2013, as submitted to the Governors of the Federal Reserve System by the Bank, are publicly available through xxxxx://xxx.xxxxx.xxx/public/ManageFacsimiles.aspx. Except as set forth in or contemplated in the Prospectus, there has been no material adverse change in the condition (financial or otherwise) of the Bank since December 31, 2013.
(f) Each of the Pooling and Servicing Agreement and the Receivables Purchase Agreement constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other than similar laws now or hereafter in effect relating to creditors’ rights in general and the rights of creditors of national banking associations, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Seller or in the event of any moratorium or similar occurrence affecting the Seller and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any court, governmental agency or body or official required in connection with the transfer of the Receivables pursuant to the Basic DocumentsReceivables Purchase Agreement, have been or will be taken or obtained on or before the Closing Date.
(g) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the Investment Company Act of 1940, as amended (the “1940 Act”). The Master Trust does not rely on the exemption from the definition of “investment company” in Section 3(c)(1) or 3(c)(7) of the 1940 Act.
(h) The representations and warranties of the Seller in the Pooling and Servicing Agreement and the Receivables Purchase Agreement are true and correct in all material respects.
(i) The Seller has provided a written representation to each of the Hired NRSROs (as defined below), or violate any law or, to which satisfied the best requirements of paragraph
(a) (3)(iii) of Rule 17g-5 of the Seller's knowledgeExchange Act (“Rule 17g-5”), as amended (the “17g-5 Representation”). The Seller has complied, and will continue to comply, with the 17g-5 Representation, other than any order, rule or regulation applicable to breach of the Seller of any Governmental Authority having jurisdiction over 17g-5 Representation that would not have a material adverse effect on the Seller or any of its propertiesNotes.
Appears in 2 contracts
Samples: Underwriting Agreement (Capital One Master Trust), Underwriting Agreement (Capital One Master Trust)
Representations and Warranties of the Seller. The Seller hereby represents and warrants to the Owner Trustee other parties hereto as of the Closing Date that:
(a) The Seller has been duly organized and is validly existing as a corporation limited liability company in good standing under the laws of the State of DelawareMaryland, with full power and authority to own its properties assets and to conduct its business as such properties are presently owned and such business is presently being conducted, and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing Agreement.
(b) The Seller is duly qualified to do business and, where necessary is in good standing (or is exempt from such requirement), and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under the Basic Documents to which it is a party.
(c) The Seller has the full entity power and authority to execute and deliver this Agreement, to carry out its terms Agreement and to consummate the transactions contemplated herein; 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 Seller and the consummation of the transactions contemplated herein hereby have been duly authorized by and validly authorized.
(c) This Agreement constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except as enforceability may be limited by all necessary corporate actionapplicable 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) The None of the execution and delivery of this Agreement, the sale of the Mortgage Loans by the Seller, the transactions contemplated hereby, or the fulfillment of or compliance with the terms and conditions of this Agreement and the consummation of the transactions contemplated herein by the Seller and the fulfillment of the terms of this Agreement by the Seller shall not will conflict with, with or result in any a breach of any of the terms and provisions of or constitute (with or without notice or lapse of time) a default underterms, the certificate of incorporation or by-laws of the Sellerincorporation, bylaws or any indenture, agreement, mortgage, deed of trust legal restriction or other any agreement or instrument to which the Seller is now a party or by which it is bound, or constitute a default or result in the creation or imposition violation of any Lien upon law, rule, regulation, order, judgment or decree to which the Seller or its property is subject, or impair the ability of the Issuing Entity 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 Seller of or compliance by the Seller with this Agreement or the sale of the Mortgage Loans as evidenced by the consummation of the transactions contemplated by 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 Seller which, either individually or in the aggregate, may result in any material adverse change in the business, operations, financial condition, properties pursuant or assets of the Seller, or in any material impairment of the right or ability of the Seller 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 contemplated herein, or which would be likely to impair materially the ability of the Seller to perform under the terms of any such indenturethis Agreement.
(g) The transfer, agreement, mortgage, deed assignment and conveyance of trust or other instrument (other than the Mortgage Loans by the Seller pursuant to the Basic Documents), or violate any law or, this Agreement are not subject to the best bulk transfer or any similar statutory provisions in effect in any applicable jurisdiction.
(h) The Seller is solvent and the sale of the Mortgage Loans will not cause the Seller to become insolvent. The sale of the Mortgage Loans is not undertaken to hinder, delay or defraud any of the Seller's knowledgecreditors.
(i) The consideration received by the Seller upon the sale of the Mortgage Loans under this Agreement constitutes fair consideration and reasonably equivalent value for the Mortgage Loans.
(j) The Seller has determined that the disposition of the Mortgage Loans from Seller to Depositor pursuant to this Agreement will be afforded sale treatment for accounting purposes, any order, rule or regulation applicable all on a non-consolidated basis.
(k) The Seller has not transferred the Mortgage Loans to the Seller of Depositor with any Governmental Authority having jurisdiction over the Seller intent to hinder, delay or defraud any of its propertiescreditors.
(l) The Seller has not dealt with any broker, investment banker, agent or other Person that may be entitled to any commission or compensation in the connection with the sale of the Mortgage Loans.
(m) Immediately prior to the transfer by the Seller to the Depositor of each Mortgage Loan, the Seller had good and equitable title to each Mortgage Loan, subject to no prior lien, claim, participation interest, mortgage, security interest, pledge, charge or other encumbrance or other interest of any nature. On and after the transfer by the Seller to the Depositor of each Mortgage Loan, the Depositor will have good and equitable title to each Mortgage Loan, subject to no prior lien, claim, participation interest, mortgage, security interest, pledge, charge or other encumbrance or other interest of any nature.
(n) None of this Agreement, the information set forth in the Mortgage Loan Schedules attached hereto and the information contained in the related electronic data file delivered to the Master Servicer by the Seller, nor any statement, report or other document furnished or to be furnished by or on behalf of the Seller pursuant to this Agreement or in connection with the transactions contemplated hereby, contains any untrue statement of material fact or omits to state a material fact necessary to make the statements contained therein not misleading.
(o) The information about the Seller under the heading "The Sponsor" in the Prospectus relating to the Seller, as of the respective dates of the preliminary prospectus supplement and the prospectus supplement, and as of the Closing Date, 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.
Appears in 2 contracts
Samples: Transfer and Servicing Agreement (Lares Asset Securitization, Inc.), Pooling and Servicing Agreement (Lares Asset Securitization, Inc.)
Representations and Warranties of the Seller. The Seller hereby represents and warrants to the Owner Trustee thatBuyer as follows:
(a) The Seller has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Delaware, with power and authority to own its properties and to conduct its business as such properties are presently owned and such business is presently conducted, and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing Agreement.
(b) The Seller is duly qualified to do business and, where necessary is in good standing (or is exempt from such requirement), and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under the Basic Documents to which it is a party.
(c) The Seller has the power and authority to execute execute, deliver and perform its obligations under this Agreement and to sell, assign, transfer and deliver this Agreementto the Buyer the Securities as contemplated hereby. No permit, to carry out its terms consent, approval or authorization of, or declaration, filing or registration with any governmental or regulatory authority or consent of any third party is required in connection with the execution and to consummate the transactions contemplated herein; and the execution, delivery and performance by Seller of this Agreement and the consummation of the transactions contemplated herein have been duly authorized by the Seller by all necessary corporate actionhereby.
(db) The Neither the execution and delivery of this Agreement and Agreement, nor the consummation of the transactions contemplated herein hereby or compliance with the terms and conditions hereof by the Seller and the fulfillment of the terms of this Agreement by the Seller shall not conflict withSeller, will violate or result in any a breach of any term or provision of the terms and provisions of or constitute (with or without notice or lapse of time) a default under, the certificate of incorporation or by-laws of the Seller, or any indenture, agreement, mortgage, deed of trust or other instrument agreement to which the Seller is bound or is a party or by which it is boundparty, or result be in conflict with or constitute a default under, or cause the creation or imposition acceleration of the maturity of any Lien upon obligation of the Seller under any of its properties pursuant to the terms of any such indenture, agreement, mortgage, deed of trust or other instrument (other than pursuant to the Basic Documents), existing agreement or violate any law ororder, to the best of the Seller's knowledgewrit, any orderinjunction, decree, statute, rule or regulation applicable to the Seller or any properties or assets of the Seller.
(c) This Agreement has been duly and validly executed by the Seller, and constitutes the valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency or other laws affecting creditors’ rights generally or by limitations, on the availability of equitable remedies.
(d) The Seller owns the Securities free and clear of all liens, charges, security interests, encumbrances, claims of others, options, warrants, purchase rights, contracts, commitments, equities or other claims or demands of any Governmental Authority having jurisdiction over kind (collectively, “Liens”), and upon delivery of the Securities to the Buyer, the Buyer will acquire good, valid and marketable title thereto free and clear of all Liens. The Seller is not a party to any option, warrant, purchase right, or other contract or commitment that could require the Seller to sell, transfer, or otherwise dispose of any shares or other securities of its propertiesthe Company (other than pursuant to this Agreement). The Seller is not a party to any voting trust, proxy, or other agreement or understanding with respect to the voting of any shares of the Company.
Appears in 2 contracts
Samples: Share Purchase Agreement (Brera Holdings PLC), Share Purchase Agreement (Pinehurst Partners LLC)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Owner Trustee thatDepositor that as of the Closing Date:
(ai) The Seller has been is a corporation duly organized and is organized, validly existing as a corporation and in good standing under the laws of the State of Delaware, with governing its creation and existence and has full corporate power and authority to own its properties and property, to conduct carry on its business as such properties are presently owned and such business is presently conducted, and had at all relevant times, to enter into and now has, power, authority and legal right to acquire and own the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing Agreement.
(b) The Seller is duly qualified to do business and, where necessary is in good standing (or is exempt from such requirement), and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under this Agreement and the Basic Documents to which it is a party.Assignment and Assumption Agreement;
(cii) The execution and delivery by the Seller has of this Agreement and the power Assignment and authority to execute Assumption Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and deliver delivery of this Agreement or the Assignment and Assumption Agreement, to carry out its terms and to consummate nor the consummation of the transactions contemplated herein; and herein or therein contemplated, nor compliance with the provisions hereof or thereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and the consummation of the transactions contemplated herein have hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been duly authorized by obtained, given, effected or taken prior to the Seller by all necessary corporate action.date hereof;
(div) The execution Each of this Agreement and the Assignment and Assumption Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement.
(b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations made pursuant to Sections 1.04(b)(xi) and 1.04(b)(xvi) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xi) and 1.04(b)(xvi) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the representations and warranties made pursuant to Sections 1.04(b)(xi) and 1.04(b)(xvi) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder (or as of such other date as may be specified in particular representations and warranties), as to each, that:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be insured by a generally acceptable insurer against loss by fire, hazards of extended coverage and such other hazards as are customary in the area where the related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA or FHLMC. If upon origination of the Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related Mortgagor thereunder to maintain the hazard insurance policy at the Mortgagor's cost and expense, and on the Mortgagor's failure to do so, authorizes the holder of the Mortgage to obtain and maintain such insurance at such Mortgagor's cost and expense, and to seek reimbursement therefor from the Mortgagor. Where required by state law or regulation, each Mortgagor has been given an opportunity to choose the carrier of the required hazard insurance, provided the policy is not a "master" or "blanket" hazard insurance policy covering the common facilities of a planned unit development. The hazard insurance policy is the valid and binding obligation of the insurer, is in full force and effect, and will be in full force and effect and inure to the benefit of the Depositor upon the consummation of the transactions contemplated herein by the Seller and the fulfillment of the terms of this Agreement by the Seller shall not conflict with, result in any breach of any of the terms and provisions of or constitute (with or without notice or lapse of time) a default under, the certificate of incorporation or by-laws of the Seller, or any indenture, agreement, mortgage, deed of trust or other instrument to which the Seller is a party or by which it is bound, or result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement, mortgage, deed of trust or other instrument (other than pursuant to the Basic Documents), or violate any law or, to the best of the Seller's knowledge, any order, rule or regulation applicable to the Seller of any Governmental Authority having jurisdiction over the Seller or any of its properties.Agreement;
Appears in 2 contracts
Samples: Mortgage Loan Sale and Assignment Agreement (Sturctured Asset Securities Corp Mort Pass Thru Ser 2004-1), Mortgage Loan Sale and Assignment Agreement (Structured Asset Securities Corp)
Representations and Warranties of the Seller. The Upon the execution of the applicable Terms Agreement, the Seller hereby represents and warrants to each Underwriter as of the Owner Trustee thatdate hereof and as of the Closing Date (unless otherwise specified) as follows:
(a) The Seller has been duly organized and is validly existing as a corporation national banking association, in good standing under the laws of the State of DelawareUnited States. The Seller has, with in all material respects, full power and authority to own its properties and to conduct its business as such properties are presently owned and such business is presently conducteddescribed in the Disclosure Materials, and had at all relevant timesto execute, deliver and now has, power, authority and legal right to acquire and own perform the Receivables contemplated to be transferred to Purchase Agreement, the Trust pursuant to the Trust Sale Pooling and Servicing Agreement.
(b) The Seller , this Agreement and the applicable Terms Agreement, and to consummate the transactions contemplated by the Receivables Purchase Agreement, the Pooling and Servicing Agreement, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and, where necessary and is in good standing (or is exempt from such requirementrequirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in all jurisdictions each jurisdiction in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain such licenses or and approvals (i) would not have a material adverse effect on the Seller and its subsidiaries, taken as a whole, or (ii) would have a material adverse effect on the Seller’s ability to perform its obligations under the Basic Documents to which it is a party.
(c) The Seller has the power and authority to execute and deliver this Agreement, to carry out its terms and to consummate the transactions contemplated herein; by the Receivables Purchase Agreement, the Pooling and Servicing Agreement, this Agreement and the applicable Terms Agreement.
(b) The execution, delivery and performance by the Seller of this Agreement, the applicable Terms Agreement, the Receivables Purchase Agreement and the Pooling and Servicing Agreement, and the consummation of the transactions contemplated herein hereby and thereby have been duly authorized by the Seller by all necessary corporate action.
(d) The action on the part of the Seller. Neither the execution and delivery by the Seller of this Agreement and such instruments, nor the consummation performance by the Seller of the transactions contemplated herein or therein contemplated, nor the compliance by the Seller and with the fulfillment of the terms of this Agreement by the Seller shall not provisions hereof or thereof, will (i) conflict with, with or result in any a breach of any of the material terms and provisions of of, or constitute (with or without notice or lapse of time) a material default under, any of the certificate provisions of incorporation the Articles of Association or byBy-laws of the Seller, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, mortgage, deed of trust contract or other instrument to which the Seller is a party or by which it is bound, or (iv) result in the creation or imposition of any Lien lien, charge or encumbrance upon any of its properties the Seller’s property pursuant to the terms of any such indenture, agreement, mortgage, deed of trust contract or other instrument instrument.
(c) The Seller has duly executed and delivered this Agreement and the applicable Terms Agreement.
(d) The Seller has authorized the conveyance of the Receivables and the conveyance of an interest in the Seller’s interest in any related Funds Collateral to the Company under the Receivables Purchase Agreement.
(e) Complete and correct copies of publicly available portions of the Consolidated Reports of Condition and Income of the Bank for the year ended December 31, 2014 and the quarter ended March 31, 2015, as submitted to the Governors of the Federal Reserve System by the Bank, are publicly available through xxxxx://xxx.xxxxx.xxx/public/ManageFacsimiles.aspx. Except as set forth in or contemplated in the Prospectus, there has been no material adverse change in the condition (financial or otherwise) of the Bank since December 31, 2014.
(f) Each of the Pooling and Servicing Agreement and the Receivables Purchase Agreement constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other than similar laws now or hereafter in effect relating to creditors’ rights in general and the rights of creditors of national banking associations, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Seller or in the event of any moratorium or similar occurrence affecting the Seller and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any court, governmental agency or body or official required in connection with the transfer of the Receivables pursuant to the Basic DocumentsReceivables Purchase Agreement, have been or will be taken or obtained on or before the Closing Date.
(g) (i) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the Investment Company Act of 1940, as amended (the “1940 Act”).
(ii) The Master Trust is not now, and immediately following the issuance of the Notes pursuant to the Indenture will not be, a “covered fund” for purposes of regulations adopted under Section 13 of the Bank Holding Company Act of 1956 (hereinafter referred to as the “Xxxxxxx Rule”). In reaching this conclusion, although other statutory or regulatory exclusions or exemptions under the 1940 Act or the Xxxxxxx Rule may be available, the Seller has relied on the exclusion from registration set forth in Rule 3a-7 under the 1940 Act.
(h) The representations and warranties of the Seller in the Pooling and Servicing Agreement and the Receivables Purchase Agreement are true and correct in all material respects.
(i) The Seller has provided a written representation to each of the Hired NRSROs (as defined below), or violate any law or, to which satisfied the best requirements of paragraph (a)(3)(iii) of Rule 17g-5 of the Seller's knowledgeExchange Act (“Rule 17g-5”), as amended (the “17g-5 Representation”). The Seller has complied, and will continue to comply, with the 17g-5 Representation, other than any order, rule or regulation applicable to breach of the Seller of any Governmental Authority having jurisdiction over 17g-5 Representation that would not have a material adverse effect on the Seller or any of its propertiesNotes.
Appears in 2 contracts
Samples: Underwriting Agreement (Capital One Multi Asset Execution Trust), Underwriting Agreement (Capital One Multi Asset Execution Trust)
Representations and Warranties of the Seller. The Seller hereby represents and represents, warrants to the Owner Trustee thatPurchaser as follows:
(a) The Seller has been duly organized and is a limited liability company organized, validly existing as a corporation and in good standing under the laws of the State of DelawareDelaware and, with power and authority if required, authorized to own its properties and to conduct its transact business as such properties are presently owned and such business is presently conducted, and had at all relevant times, and now has, power, authority and legal right to acquire and own in the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing Agreement.State of Indiana;
(b) The This Agreement and all instruments required hereby to be executed and delivered to Purchaser by Seller is duly qualified to do business andare, where necessary is in good standing (or is exempt from when delivered will be, the legal, valid and binding obligations of such requirement), and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under the Basic Documents to which it is a party.Seller;
(c) The Seller has the full power and authority to execute and deliver this Agreement, Agreement and all related documents and to carry out its terms and to consummate the transactions contemplated herein; , and the execution, delivery and performance of this Agreement and all instruments and documents delivered pursuant hereto at the consummation of the transactions contemplated herein have been duly authorized by Closing shall be valid and binding documents enforceable against the Seller by all necessary corporate action.in accordance with their respective terms;
(d) The execution of this Agreement and the consummation of the transactions contemplated herein by the Seller and the fulfillment of the terms of this Agreement by the Seller shall do not conflict with, result in with or violate any breach provision of any of the terms and provisions of or constitute (with or without notice or lapse of time) a default under, the certificate of incorporation or by-laws of the Seller, or any indenture, agreement, mortgageinstrument, deed of trust law or other instrument regulation to which the Seller is a party or by which it is Seller’s properties are bound, ;
(e) No other approval or result authorization of this Agreement or any other agreements to be entered into in connection with the creation transactions contemplated hereby are required by law or imposition of otherwise in order to make this Agreement or any Lien other agreements entered into in connection with the transactions contemplated herein binding upon any of its properties pursuant to the terms of any such indenture, agreement, mortgage, deed of trust or other instrument Seller;
(other than pursuant to the Basic Documents), or violate any law or, to f) To the best of the Seller's ’s knowledge, any order, rule or regulation applicable Seller is the owner of and has insurable title to the Seller Property, subject only to the Permitted Exceptions;
(g) To the best of Seller’s knowledge, there are no judgments existing, nor suits, actions or proceedings pending or threatened in any Governmental Authority having jurisdiction over the court which have any material impact against Seller or any the Property; and
(h) Seller is not a “foreign persons” within the meaning of its propertiesSection 1445 of the Internal Revenue Code and the Regulations promulgated in connection therewith, and is, therefore, exempt from withholding requirements of said Section. All of the foregoing representations and warranties shall be deemed to be true and correct as of the date of Closing and shall survive Closing for a period of one hundred eighty (180) days.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Old National Bancorp /In/), Purchase and Sale Agreement (Old National Bancorp /In/)
Representations and Warranties of the Seller. The Seller hereby represents and warrants to the Owner Trust and the Trustee on behalf of the Certificateholders that, as of the Closing Date or as of such date specifically provided herein:
(ai) The the Seller has been is duly organized and is organized, validly existing and in good standing as a corporation in good standing under the laws of the State of Delaware, Delaware and is and will remain in compliance with power and authority to own its properties and to conduct its business as such properties are presently owned and such business the laws of each state in which any Mortgaged Property is presently conducted, and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables contemplated to be transferred located to the Trust pursuant extent necessary to the Trust Sale and Servicing Agreement.fulfill its obligations hereunder;
(bii) The Seller is duly qualified to do business and, where necessary is in good standing (or is exempt from such requirement), and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under the Basic Documents to which it is a party.
(c) The Seller has the power and authority to execute hold each Mortgage Loan, to sell each Mortgage Loan, to execute, deliver and deliver perform, and to enter into and consummate, all transactions contemplated by this Agreement, to carry out its terms and to consummate the transactions contemplated herein; and . The Seller has duly authorized the execution, delivery and performance of this Agreement Agreement, has duly executed and the consummation of the transactions contemplated herein have been duly authorized by the Seller by all necessary corporate action.
(d) The execution of delivered this Agreement and this Agreement, assuming due authorization, execution and delivery by the consummation other parties hereto, constitutes a legal, valid and binding obligation of the transactions contemplated herein Seller, enforceable against it in accordance with its terms except as the enforceability thereof may be limited by bankruptcy, insolvency or reorganization or other similar laws in relation to the Seller rights of creditors generally;
(iii) the execution and the fulfillment of the terms delivery of this Agreement by the Seller shall not conflict with, result in any breach and the performance of any of and compliance with the terms and provisions of or constitute (with or without notice or lapse of time) a default under, this Agreement will not violate the certificate Seller's articles of incorporation or by-laws of the Selleror constitute a default under or result in a material breach or acceleration of, or any indenturematerial contract, agreement, mortgage, deed of trust agreement or other instrument to which the Seller is a party or by which it is bound, or result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement, mortgage, deed of trust or other instrument (other than pursuant to the Basic Documents), or violate any law or, to the best of the Seller's knowledge, any order, rule or regulation may be applicable to the Seller or its assets;
(iv) the Seller is not in violation of, and the execution and delivery of this Agreement by the Seller and its performance and compliance with the terms of this Agreement will not constitute a violation with respect to, any order or decree of any Governmental Authority court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction over the Seller or any its assets, which violation might have consequences that would materially and adversely affect the condition (financial or otherwise) or the operation of the Seller or its assets or might have consequences that would materially and adversely affect the performance of its propertiesobligations and duties hereunder;
(v) the Seller does not believe, nor does it have any reason or cause to believe, that it cannot perform each and every covenant contained in this Agreement;
(vi) the Seller has good, marketable and indefeasible title to the Mortgage Loans, free and clear of any and all liens, pledges, charges or security interests of any nature encumbering the Mortgage Loans and upon the payment of the purchase price under the Mortgage Loan Purchase Agreement by the Depositor, the Depositor will have good and marketable title to the Mortgage Notes and Mortgage Loans, free and clear of all liens or encumbrances;
(vii) the Mortgage Loans are not being transferred by the Seller with any intent to hinder, delay or defraud any creditors of the Seller;
(viii) there are no actions or proceedings against, or investigations known to it of, the Seller before any court, administrative or other tribunal (A) that might prohibit its entering into this Agreement, (B) seeking to prevent the sale of the Mortgage Loans or the consummation of the transactions contemplated by this Agreement or (C) that might prohibit or materially and adversely affect the performance by the Seller of its obligations under, or validity or enforceability of, this Agreement;
(ix) no consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Seller of, or compliance by the Seller with, this Agreement or the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations or orders, if any, that have been obtained; and
(x) the consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to the Mortgage Loan Purchase Agreement are not subject to the bulk transfer or any similar statutory provisions.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Greenwich Capital Acc Inc Mort Loan Pas THR Certs Ser 01 2), Pooling and Servicing Agreement (Thornburg Mortgage Sec Tr 2001-1 MRT Ln Ps THR CRT Sr 2001-1)
Representations and Warranties of the Seller. The Seller hereby represents represents, warrants and warrants covenants to the Indenture Trustee, the Owner Trustee Trustee, the Issuer, the Note Insurer and to the Owners as of the Closing Date that:
(a) The Seller has been is a corporation duly organized and is organized, validly existing as a corporation and in good standing under the laws of the State of DelawareCalifornia and is in good standing as a foreign corporation in each jurisdiction in which the nature of its business, with or the properties owned or leased by it, make such qualification necessary. The Seller has all requisite corporate power and authority to own and operate its properties and properties, to conduct carry out its business as such properties are presently owned conducted and such business is presently conducted, and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables contemplated as proposed to be transferred conducted and to the Trust pursuant to the Trust Sale enter into and Servicing Agreement.
(b) The Seller is duly qualified to do business and, where necessary is in good standing (or is exempt from such requirement), and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform discharge its obligations under this Agreement and the Basic other Operative Documents to which it is a party.
(cb) The Seller has the power execution and authority to execute and deliver this Agreement, to carry out its terms and to consummate the transactions contemplated herein; and the execution, delivery and performance of this Agreement and the consummation other Operative Documents to which it is a party by the Seller and its performance and compliance with the terms of this Agreement and of the transactions contemplated herein other Operative Documents to which it is a party have been duly authorized by the Seller by all necessary corporate action.
(d) The execution action on the part of this Agreement and the consummation of the transactions contemplated herein by the Seller and will not violate the fulfillment Seller's Articles of the terms of this Agreement by the Seller shall not conflict with, result in any breach of any of the terms and provisions of Incorporation or Bylaws or constitute a default (or an event which, with or without notice or lapse of time, or both, would constitute a default) a default under, or result in the certificate of incorporation or by-laws of the Sellerbreach of, or any indenturematerial contract, agreement, mortgage, deed of trust agreement or other instrument to which the Seller is a party or by which it the Seller is bound, or result in the creation violate any statute or imposition any order, rule or regulation of any Lien upon court, governmental agency or body or other tribunal having jurisdiction over the Seller or any of its properties pursuant properties.
(c) This Agreement and the other Operative Documents to which the Seller is a party, assuming due authorization, execution and delivery by the other parties hereto and thereto, each constitutes a valid, legal and binding obligation of the Seller, enforceable against it in accordance with the terms hereof and thereof, except as the enforcement hereof and thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally and by general principles of equity (whether considered in a proceeding or action in equity or at law).
(d) The Seller is not in default with respect to any order or decree of any such indenturecourt or any order, agreementregulation or demand of any federal, mortgagestate, deed municipal or governmental agency, which might have consequences that would materially and adversely affect the condition (financial or otherwise) or operations of trust the Seller or its properties or might have consequences that would materially and adversely affect its performance hereunder or under the other instrument Operative Documents to which it is a party.
(other than pursuant to the Basic Documents)e) No action, suit, proceeding or violate any law investigation is pending or, to the best of the Seller's knowledge, threatened against the Seller which, individually or in the aggregate, might have consequences that would prohibit the Seller from entering into this Agreement or any orderother Operative Document to which it is a party or that would materially and adversely affect the condition (financial or otherwise) or operations of the Seller or its properties or might have consequences that would materially and adversely affect the validity or enforceability of Mortgage Loans or the Seller's performance hereunder or under the other Operative Documents to which it is a party.
(f) No certificate of an officer, rule statement furnished in writing or regulation applicable report delivered pursuant to the terms hereof by the Seller contains any untrue statement of a material fact or omits to state any material fact necessary to make the certificate, statement or report not misleading.
(g) The statements contained in the Registration Statement which describe the Seller or matters or activities for which the Seller is responsible in accordance with the Operative Documents or which are attributed to the Seller therein are true and correct in all material respects, and the Registration Statement does not contain any untrue statement of any Governmental Authority having jurisdiction over a material fact with respect to the Seller or omit to state a material fact required to be stated therein or necessary in order to make the statements contained therein with respect to the Seller not misleading. With respect to matters other than those referred to in the immediately preceding sentence, to the best of the Seller's knowledge and belief, the Registration Statement does not contain any untrue statement of a material fact required to be stated therein or omit to state any material fact required to be stated therein or necessary to make the statements contained therein not misleading.
(h) All actions, approvals, consents, waivers, exemptions, variances, franchises, orders, permits, authorizations, rights and licenses required to be taken, given or obtained, as the case may be, by or from any federal, state or other governmental authority or agency (other than any such actions, approvals, etc. under any state securities laws, real estate syndication or "Blue Sky" statutes, as to which the Seller makes no such representation or warranty), that are necessary or advisable in connection with the purchase and sale of the Notes and the execution and delivery by the Seller of the Operative Documents to which it is a party, have been duly taken, given or obtained, as the case may be, are in full force and effect on the Closing Date, are not subject to any pending proceedings or appeals (administrative, judicial or otherwise) and either the time within which any appeal therefrom may be taken or review thereof may be obtained has expired or no review thereof may be obtained or appeal therefrom taken, and are adequate to authorize the consummation of the transactions contemplated by this Agreement and the other Operative Documents on the part of the Seller and the performance by the Seller of its obligations under this Agreement and such of the other Operative Documents to which it is a party.
(i) The transactions contemplated by this Agreement are in the ordinary course of business of the Seller.
(j) The Seller received fair consideration and reasonably equivalent value in exchange for the sale of the interests in the Mortgage Loans.
(k) The Seller did not sell any interest in any Mortgage Loan with any intent to hinder, delay or defraud any of its propertiescreditors.
(l) The Seller is solvent and the Seller will not be rendered insolvent as a result of the sale of the Mortgage Loans.
(m) On the Closing Date, the Issuer will have good title to each Mortgage Loan and such other items comprising the corpus of the Trust Estate free and clear of any lien.
(n) There has been no material adverse change in any information submitted by the Seller in writing to the Note Insurer.
(o) To the best knowledge of the Seller, no event has occurred which would allow any purchaser of the Notes not to be required to purchase the Notes on the Closing Date.
(p) To the best knowledge of the Seller, no document submitted by or on behalf of the Seller to the Note Insurer contains any untrue or misleading statement of a material fact or fails to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading.
(q) To the best knowledge of the Seller, no material adverse change affecting any security for the Notes has occurred prior to delivery of and payment for the Notes.
(r) The Seller is not in default under any agreement involving financial obligations or on any outstanding obligation which would materially adversely impact the financial condition or operations of the Seller or legal documents associated with the transaction contemplated in this Agreement. It is understood and agreed that the representations and warranties set forth in this Section 2.1 shall survive delivery of the Mortgage Loans to the Issuer.
Appears in 2 contracts
Samples: Sale and Servicing Agreement (First Alliance Mortgage Loan Trust 1998-1a), Sale and Servicing Agreement (First Alliance Mortgage Co /De/)
Representations and Warranties of the Seller. 15.1 The Seller hereby represents and warrants to the Owner Trustee that:Purchaser that as at the Signature Date (which representations and warranties are deemed to be repeated by each Party on the Commercial Operations Date):
(a) The 15.1.1 the Seller has been is duly organized and is incorporated, validly existing as a corporation in good standing and has complied fully with all requirements existing under the laws of the State jurisdiction of Delaware, with its organisation or incorporation and all other applicable Laws of Tanzania;
15.1.2 the Seller has full power and authority to own carry on its properties business and to conduct its business as such properties are presently owned and such business is presently conductedenter into, legally bind itself by, and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing Agreement.
(b) The Seller is duly qualified to do business and, where necessary is in good standing (or is exempt from such requirement), and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under under, this Agreement and the Basic other agreements comprising the Project Documents to which it is a party.and/or the Security Package;
(c) The 15.1.3 this Agreement has been duly authorized, executed, and delivered by the Seller has the power and authority to execute constitutes its legal, valid and deliver this Agreement, to carry out its terms and to consummate the transactions contemplated herein; and binding obligation;
15.1.4 the execution, delivery delivery, and performance of this Agreement and each agreement comprising the consummation of the transactions contemplated herein have been duly authorized by the Seller by all necessary corporate action.Security Package does not, and will not, constitute a violation of:
(d) The execution of this Agreement and the consummation of the transactions contemplated herein by the Seller and the fulfillment of the terms of this Agreement by the Seller shall not conflict with15.1.4.1 any statute, result in any breach judgment, order, decree or regulation or rule of any court, governmental authority or arbitrator of the terms and provisions of competent jurisdiction applicable or constitute (with or without notice or lapse of time) a default under, the certificate of incorporation or by-laws of relating to the Seller, its assets or its businesses; or
15.1.4.2 the Seller's [NAME OF PRIMARY CONSTITUTIONAL DOCUMENTS, E.G., ARTICLES OF ASSOCIATION] or other organic documents or any indenture, agreement, mortgage, deed of trust contract or other instrument agreement to which the Seller it is a party or by which it is or its property may be bound;
15.1.5 there are no outstanding judgments against the Seller it, or result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement, mortgage, deed of trust or other instrument (other than pursuant to the Basic Documents), or violate any law orand, to the best knowledge of the Seller's knowledge, any order, rule or regulation applicable to [the Seller no action, claim, suit or proceeding is pending or threatened against the Seller before any court, governmental authority or arbitrator of any Governmental Authority having competent jurisdiction over that could reasonably be expected to affect materially and adversely the financial condition or operations of the Seller or the ability of the Seller to perform its obligations under this Agreement or any other agreement comprising the Security Package or which purports to affect the legality, validity or enforceability of this Agreement or any other agreement comprising the Security Package;
15.1.6 the Seller is not in default under any agreement to which it is a party or by which it or its propertiesproperty may be bound, nor in any default of any technical or financial obligation, which could have a material adverse effect on the ability of the Seller to perform its obligations under this Agreement or any other agreement comprising the Security Package; and
15.1.7 no information given by the Seller in relation to this Agreement or any agreement in the Security Package or in the proposal submitted by the Seller to the Purchaserin respect of the subject matter of this Agreement contains any misstatement of fact or omits to state a fact which would be materially adverse to the enforcement of the rights and remedies of the Purchaser or which would be necessary to make any statement, representation or warranty contained herein or therein true and correct in all material respects.
Appears in 2 contracts
Representations and Warranties of the Seller. The Upon the execution of the applicable Terms Agreement, the Seller hereby represents and warrants to each Underwriter as of the Owner Trustee thatdate hereof and as of the Closing Date (unless otherwise specified) as follows:
(a) The Seller has been duly organized and is validly existing as a corporation national banking association, in good standing under the laws of the State of DelawareUnited States. The Seller has, with in all material respects, full power and authority to own its properties and to conduct its business as such properties are presently owned and such business is presently conducteddescribed in the Disclosure Materials, and had at all relevant timesto execute, deliver and now has, power, authority and legal right to acquire and own perform the Receivables contemplated to be transferred to Purchase Agreement, the Trust pursuant to the Trust Sale Pooling and Servicing Agreement.
(b) The Seller , the Asset Representations Review Agreement, the Transfer Agreement, this Agreement and the applicable Terms Agreement, and to consummate the transactions contemplated by the Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and, where necessary and is in good standing (or is exempt from such requirementrequirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in all jurisdictions each jurisdiction in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain such licenses or and approvals (i) would not have a material adverse effect on the Seller and its subsidiaries, taken as a whole, or (ii) would have a material adverse effect on the Seller’s ability to perform its obligations under the Basic Documents to which it is a party.
(c) The Seller has the power and authority to execute and deliver this Agreement, to carry out its terms and to consummate the transactions contemplated herein; by the Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement, this Agreement and the applicable Terms Agreement.
(b) The execution, delivery and performance by the Seller of this Agreement, the applicable Terms Agreement, the Asset Representations Review Agreement, the Transfer Agreement, the Receivables Purchase Agreement and the Pooling and Servicing Agreement, and the consummation of the transactions contemplated herein hereby and thereby have been duly authorized by the Seller by all necessary corporate action.
(d) The action on the part of the Seller. Neither the execution and delivery by the Seller of this Agreement and such instruments, nor the consummation performance by the Seller of the transactions contemplated herein or therein contemplated, nor the compliance by the Seller and with the fulfillment of the terms of this Agreement by the Seller shall not provisions hereof or thereof, will (i) conflict with, with or result in any a breach of any of the material terms and provisions of of, or constitute (with or without notice or lapse of time) a material default under, any of the certificate provisions of incorporation the Articles of Association or byBy-laws of the Seller, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, mortgage, deed of trust contract or other instrument to which the Seller is a party or by which it is bound, or (iv) result in the creation or imposition of any Lien lien, charge or encumbrance upon any of its properties the Seller’s property pursuant to the terms of any such indenture, agreement, mortgage, deed of trust contract or other instrument instrument.
(c) The Seller has duly executed and delivered this Agreement and the applicable Terms Agreement.
(d) The Seller has authorized the conveyance of the Receivables and the conveyance of an interest in the Seller’s interest in any related Funds Collateral to the Company under the Receivables Purchase Agreement.
(e) Complete and correct copies of publicly available portions of the Consolidated Reports of Condition and Income of the Bank for the year ended December 31, 2015 and the quarters ended March 31, 2016, June 30, 2016 and September 30, 2016, as submitted to the Governors of the Federal Reserve System by the Bank, are publicly available through xxxxx://xxx.xxxxx.xxx/public/ManageFacsimiles.aspx. Except as set forth in or contemplated in the Preliminary Prospectus, there has been no material adverse change in the condition (financial or otherwise) of the Bank since December 31, 2015.
(f) Each of the Pooling and Servicing Agreement, the Receivables Purchase Agreement, the Transfer Agreement and the Asset Representations Review Agreement constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other than similar laws now or hereafter in effect relating to creditors’ rights in general and the rights of creditors of national banking associations, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Seller or in the event of any moratorium or similar occurrence affecting the Seller and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any court, governmental agency or body or official required in connection with the transfer of the Receivables pursuant to the Basic DocumentsReceivables Purchase Agreement, have been or will be taken or obtained on or before the Closing Date.
(g) (i) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the Investment Company Act of 1940, as amended (the “1940 Act”).
(ii) The Master Trust is not now, and immediately following the issuance of the Notes pursuant to the Indenture will not be, a “covered fund” for purposes of regulations adopted under Section 13 of the Bank Holding Company Act of 1956 (hereinafter referred to as the “Xxxxxxx Rule”). In reaching this conclusion, although other statutory or regulatory exclusions or exemptions under the 1940 Act or the Xxxxxxx Rule may be available, the Seller has relied on the exclusion from registration set forth in Rule 3a-7 under the 1940 Act.
(h) The representations and warranties of the Seller in the Pooling and Servicing Agreement and the Receivables Purchase Agreement are true and correct in all material respects.
(i) The Seller has provided a written representation to each of the Hired NRSROs (as defined below), which satisfied the requirements of paragraph (a)(3)(iii) of Rule 17g-5 of the Exchange Act (“Rule 17g-5”), as amended (the “17g-5 Representation”). The Seller has complied, and will continue to comply, with the 17g-5 Representation, other than any breach of the 17g-5 Representation that would not have a material adverse effect on the Notes.
(j) The Seller has not engaged any third party to provide due diligence services within the meaning of Rule 17g-10(d)(1) under the Exchange Act or violate obtained any law or, third-party due diligence report within the meaning of Rule 15Ga-2(d) under the Exchange Act with respect to the best of assets held by the Seller's knowledge, any order, rule Master Trust or regulation applicable to the Seller of any Governmental Authority having jurisdiction over transactions contemplated by this Agreement or the Seller or any of its propertiesother Program Agreements.
Appears in 2 contracts
Samples: Underwriting Agreement (Capital One Multi Asset Execution Trust), Underwriting Agreement (Capital One Multi Asset Execution Trust)
Representations and Warranties of the Seller. The Seller hereby represents and warrants to the Owner Trustee thatas follows:
(a) The Seller has been is a corporation duly organized and is organized, validly existing as a corporation and in good standing under the laws of the State of Delaware, with power and authority is duly qualified to own its properties do business and to conduct is in good standing as a foreign corporation in every jurisdiction where the nature of its business as such properties are presently owned and such business is presently conducted, and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables contemplated requires it to be transferred so qualified, except where the failure to the Trust pursuant to the Trust Sale and Servicing Agreementbe so qualified would not have a Material Adverse Effect.
(b) The execution, delivery and performance by the Seller is duly qualified to do business and, where necessary is in good standing (or is exempt from such requirement), of the Agreement and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under the Basic other Transaction Documents to which it is a party.
(c) The Seller has the power and authority to execute and deliver this Agreement, to carry out including its terms and to consummate the transactions contemplated herein; and the execution, delivery and performance of this Agreement and the consummation use of the transactions contemplated herein proceeds of purchases and reinvestments: (i) are within its organizational powers; (ii) have been duly authorized by the Seller by all necessary corporate organizational action.
; (diii) The execution of this Agreement and the consummation of the transactions contemplated herein by the Seller and the fulfillment of the terms of this Agreement by the Seller shall do not contravene or result in a default under or conflict with, result in any breach of any of the terms and provisions of or constitute : (with or without notice or lapse of timeA) a default under, the its certificate of incorporation incorporation, formation, limited liability company agreement or by-laws any other organizational document of the Seller, (B) any law, rule or regulation applicable to it, (C) any indenture, loan agreement, mortgage, deed of trust or other material agreement or instrument to which the Seller it is a party or by which it is bound, or result in the creation (D) any order, writ, judgment, award, injunction or imposition of any Lien upon decree binding on or affecting it or any of its properties pursuant property; and (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 Seller.
(c) No authorization, approval or other action by, and no notice to or filing with, any Governmental Authority or other Person is required for its due execution, delivery and performance by the Seller of its obligations under 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 terms Agreement, all of any such indenturewhich shall have been filed on or before the date of the first purchase hereunder.
(d) Each of the Agreement and the other Transaction Documents to which the Seller is a party constitutes (assuming due authorization and execution by the other parties thereto) its legal, agreementvalid and binding obligation enforceable against the Seller in accordance with its terms, mortgageexcept as enforceability may be limited by bankruptcy, deed of trust insolvency, reorganization or other instrument similar laws from time to time in effect affecting the enforcement of creditors’ rights generally and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law.
(other than pursuant to the Basic Documents), or violate any law e) There is no pending or, to the best of the Seller's ’s knowledge, any order, rule threatened action or regulation applicable to the Seller of any Governmental Authority having jurisdiction over the proceeding affecting Seller or any of its propertiesproperties before any Governmental Authority or arbitrator.
(f) No proceeds of any purchase or reinvestment will be used to acquire any equity security of a class that is registered pursuant to Section 12 of the Securities Exchange Act of 1934.
(g) The Seller is the legal and beneficial owner of, and has good and marketable title to, the Pool Receivables, the Lock-Box Accounts (and related lock-boxes) and Related Security, free and clear of any Adverse Claim. Upon each purchase or reinvestment, the Administrator or the Purchasers shall acquire pro rata valid and enforceable perfected undivided percentage ownership or security interests, to the extent of each Purchaser’s percentage interest of the Purchased Interest, in each Pool Receivable then existing or thereafter arising and in the Related Security, Collections and other proceeds with respect thereto, free and clear of any Adverse Claim. The Agreement creates a valid and continuing security interest (as defined in the applicable UCC) in favor of the Administrator in the Pool Assets and the Lock-Box Accounts (and related lock-boxes), which security interest is prior to all Adverse Claims, and is enforceable as such against creditors of and purchases from the Seller. The Pool Assets constitute “accounts”, “general intangibles” or “tangible chattel paper” within the meaning of the applicable UCC. Each Lock-Box Account constitutes a “deposit account” within the meaning of the applicable UCC. The Seller has caused or will have caused, within ten (10) days, the filing of all appropriate UCC financing statements in the proper filing offices in the appropriate jurisdictions under applicable laws in order to perfect the security interest in the Pool Assets and the Lock-Box Accounts (and related lock-boxes) granted to the Administrator hereunder. Other than the security interest granted to the Administrator pursuant to this Agreement, Seller has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Pool Assets or the Lock-Box Accounts (and related lock-boxes). Seller has not authorized the filing of and is not aware of any UCC financing statements against Seller that include a description of collateral covering the Pool Assets, other than any UCC financing statement relating to the security interest granted to the Administrator hereunder or in connection with the Original Agreement or that has been terminated. Seller is not aware of any judgment, ERISA or tax lien filings against the Seller. With respect to any Pool Receivable that constitutes “tangible chattel paper”, the Servicer is in possession of the original copies of the tangible chattel paper that constitutes or evidences such Pool Receivables, and the Seller has filed or has caused to be filed within ten (10) days after the date hereof the financing statements described in this section above, each of which will contain a statement that “A purchase of or a grant of a security interest in any property described in this financing statement will violate the rights of the Purchasers.” The Pool Receivables to the extent they are evidenced by “tangible chattel paper” do not have any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the Seller or the Purchasers.
(h) Each Information Package (if prepared by the Seller or one of its Affiliates, or to the extent that information contained therein is supplied by the Seller or an Affiliate), exhibit, financial statement, document, book, record or report furnished or to be furnished at any time by or on behalf of the Seller to the Administrator in connection with the Agreement or any other Transaction Document to which it is a party is or will be complete and accurate in all material respects as of its date or (except as otherwise disclosed to the Administrator at such time) as of the date so furnished,
(i) The Seller’s principal place of business, chief executive office and state of formation (as such terms are used in the UCC) and the office where it keeps its records concerning the Receivables are located at the address referred to in Sections l(b) and 2(b) of Exhibit IV to the Agreement.
(j) The names and addresses of all the Lock-Box Banks, together with the account numbers of the Lock-Box Accounts at such Lock-Box Banks, are specified in Schedule II to the Agreement (or at such other Lock-Box Banks and/or with such other Lock-Box Accounts as have been notified to the Administrator in accordance with the Agreement) and all Lock-Box Accounts are subject to Lock-Box Agreements. With respect to all Lock-Box Accounts (and related lock-boxes), the Seller has delivered to the Administrator a fully executed Lock-Box Agreement pursuant to which the applicable Lock-Box Bank has agreed, following the occurrence and continuation of a Termination Event, to comply with all instructions given by the Administrator with respect to all funds on deposit in such Lock-Box Account (and all funds sent to the respective lock-box), without further consent by the Seller or the Servicer. None of the Lock-Box Accounts (and the related lock-boxes) are in the name of any Person other than the Seller, the Administrator or the Purchasers. The Seller has not consented to any Lock-Box Bank’s complying with instructions of any person other than the Administrator.
(k) The Seller is not in violation of any order of any court, arbitrator or Governmental Authority.
(l) Neither the Seller nor any of its Affiliates has any direct or indirect ownership or other financial interest in any Conduit Purchaser.
(m) No proceeds of any purchase or reinvestment will be used for any purpose that violates any applicable law, rule or regulation, including Regulations T, U or X of the Federal Reserve Board.
(n) Each Pool Receivable included as an Eligible Receivable in the calculation of the Net Receivables Pool Balance is an Eligible Receivable.
(o) No event has occurred and is continuing, or would result from a purchase in respect of, or reinvestment in respect of, the Purchased Interest or from the application of the proceeds therefrom, that constitutes a Termination Event or an Unmatured Termination Event.
(p) The Seller has accounted for each sale of undivided percentage ownership interests in Receivables in its books and financial statements as sales, consistent with generally accepted accounting principles.
(q) The Seller has complied in all material respects with the Credit and Collection Policy of the Originators with regard to each Receivable originated by the Originators.
(r) The Seller has complied in all material respects with all of the terms, covenants and agreements contained in the Agreement and the other Transaction Documents that are applicable to it.
(s) The Seller’s complete organizational name is set forth in the preamble to the Agreement, and it does not use and has not during the last six years used any other organizational name, trade name, doing-business name or fictitious name, except as set forth on Schedule II to the Agreement and except for names first used after the date of the Agreement and set forth in a notice delivered to the Administrator pursuant to Section 1(1)(iv) of Exhibit IV to the Agreement.
(t) The Seller is not an “investment company,” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
Appears in 2 contracts
Samples: Receivables Purchase Agreement (Consol Energy Inc), Receivables Purchase Agreement (Consol Energy Inc)
Representations and Warranties of the Seller. The Seller hereby represents and warrants to the Owner Trustee thatBuyer as follows:
(a) The Seller has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Delaware, with power and authority to own its properties and to conduct its business as such properties are presently owned and such business is presently conducted, and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing Agreement.
(b) The Seller is duly qualified to do business and, where necessary is in good standing (or is exempt from such requirement), and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under the Basic Documents to which it is a party.
(c) The Seller has the power and authority to execute execute, deliver and perform its obligations under this Agreement and to sell, assign, transfer and deliver this Agreementto the Buyer the Securities as contemplated hereby. No permit, to carry out its terms consent, approval or authorization of, or declaration, filing or registration with any governmental or regulatory authority or consent of any third party is required in connection with the execution and to consummate the transactions contemplated herein; and the execution, delivery and performance by Seller of this Agreement and the consummation of the transactions contemplated herein have been duly authorized by the Seller by all necessary corporate actionhereby.
(db) The Neither the execution and delivery of this Agreement and Agreement, nor the consummation of the transactions contemplated herein hereby or compliance with the terms and conditions hereof by the Seller and the fulfillment of the terms of this Agreement by the Seller shall not conflict withSeller, will violate or result in any a breach of any term or provision of the terms and provisions of or constitute (with or without notice or lapse of time) a default under, the certificate of incorporation or by-laws of the Seller, or any indenture, agreement, mortgage, deed of trust or other instrument agreement to which the Seller is bound or is a party or by which it is boundparty, or result be in conflict with or constitute a default under, or cause the creation or imposition acceleration of the maturity of any Lien upon obligation of the Seller under any of its properties pursuant to the terms of any such indenture, agreement, mortgage, deed of trust or other instrument (other than pursuant to the Basic Documents), existing agreement or violate any law ororder, to the best of the Seller's knowledgewrit, any orderinjunction, decree, statute, rule or regulation applicable to the Seller or any properties or assets of the Seller.
(c) This Agreement has been duly and validly executed by the Seller, and constitutes the valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency or other laws affecting creditors’ rights generally or by limitations, on the availability of equitable remedies.
(d) The Seller owns the Securities free and clear of all liens, charges, security interests, encumbrances, claims of others, options, warrants, purchase rights, contracts, commitments, equities or other claims or demands of any Governmental Authority having jurisdiction over kind (collectively, “Liens”), and upon delivery of the Securities to the Buyer, the Buyer will acquire good, valid and marketable title thereto free and clear of all Liens. The Seller is not a party to any option, warrant, purchase right, or other contract or commitment that could require the Seller to sell, transfer, or otherwise dispose of any shares or other securities of the Company (other than pursuant to this Agreement). The Seller is not a party to any voting trust, proxy, or other agreement or understanding with respect to the voting of any shares of the Company.
(e) The Seller acknowledges and understands that the Buyer may possess material nonpublic information regarding the Company not known to the Seller that may impact the value of the Securities, including, without limitation, (x) information received by the Buyer in the Buyer’s capacity as a director, officer, and significant shareholder of the Company, (y) information otherwise received from the Company on a confidential basis, and (z) information received on a privileged basis from the attorneys and financial advisers representing the Company (collectively, the “Information”), and that the Buyer is not disclosing the Information to the Seller. The Seller understands, based on its propertiesexperience, the disadvantage to which the Seller is subject due to the disparity of information between the Seller and the Buyer. Notwithstanding such disparity, the Seller has deemed it appropriate to enter into this Agreement and to consummate the transactions contemplated hereby.
Appears in 2 contracts
Samples: Share Purchase Agreement (Brera Holdings PLC), Share Purchase Agreement (Pinehurst Partners LLC)
Representations and Warranties of the Seller. The Seller hereby represents and warrants to the Owner Trustee thatPurchaser that as of the Closing Date:
(a) The Seller has been taken all steps necessary to transfer all of the Seller's right, title and interest in and to the Purchased Assets to the Purchaser.
(b) Immediately prior to the transfers contemplated by this Agreement, the Seller was the sole owner and holder of the Purchased Assets, free and clear of any and all liens, pledges, charges or security interests of any nature.
(c) The Seller (i) is duly organized and is organized, validly existing as a corporation and in good standing under the laws of the State of Delaware, with (ii) has the full right, power and authority to own its properties enter into and to conduct its business as such properties are presently owned and such business is presently conducted, and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing Agreement.
(b) The Seller is duly qualified to do business and, where necessary is in good standing (or is exempt from such requirement), and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under this Agreement and the Basic Documents to which it is a party.
(c) The Seller has the power and authority to execute and deliver this Agreement, to carry out its terms Ancillary Agreements and to consummate the transactions contemplated herein; hereby and the execution(iii) has obtained all requisite company or similar authorizations, delivery and performance of this Agreement and the consummation of the transactions contemplated herein have been duly authorized by the Seller by all necessary corporate actionconsents or approvals applicable to do so.
(d) The execution of this This Agreement and the consummation of the transactions contemplated herein Ancillary Agreements have been duly executed and delivered by the Seller and constitute the fulfillment legal, valid and binding obligations of the terms Seller enforceable against it in accordance with their terms, except as the enforceability thereof may be limited by any applicable bankruptcy, reorganization, insolvency, moratorium or similar laws affecting creditors' rights generally and by general principles of equity.
(e) The outstanding principal balance of the Quanta Convertible Note is $12,337,500, all interest payments due thereunder have been paid when due and no principal or interest thereunder has been prepaid, forgiven or postponed, and to the knowledge of Seller there exists no material default or event of default thereunder.
(f) Since September 30, 1999, to the knowledge of the Seller there has not occurred any material adverse change or any threatened material adverse change in the business, operations, properties, assets or condition (financial or otherwise) of the Companies, other than those disclosed to the public and those disclosed to the Purchaser in writing prior to the date hereof.
(g) To the knowledge of Seller, no action, suit or proceeding has been commenced against any of the Companies before any court or arbitrator or any governmental body, agency or official except for such action, suit or proceeding that could not reasonably be expected to have a material and adverse effect on the business, operations, properties, assets or condition (financial or otherwise) of such Company.
(h) All material information given by the Seller to the Purchaser in connection with the transactions contemplated by this Agreement was true and correct in all material respects on the date such information was given and on the date hereof.
(i) Any approvals, filings and consents relating to the transfer of the Purchased Assets from the Seller to the Purchaser required to be obtained from or made with any governmental or quasi-governmental agency, entity, or body from whom approval is required under applicable law have been made or obtained.
(j) Assuming that the Purchaser's representations set forth in this Agreement are true and correct, the sale of the Purchased Assets in the manner contemplated by this Agreement by the Seller shall not conflict with, result in any breach of any will be exempt from the registration requirements of the terms and provisions Securities Act by reason of Section 4(2) thereof.
(k) No agent, broker or constitute (other Person acting pursuant to authority of the Seller is entitled to any commission or finder's fee in connection with or without notice or lapse of time) a default underthe transactions contemplated by this Agreement. Except as set forth in this Section 3.1, the certificate of incorporation Seller makes no representation or by-laws warranty whatsoever to the Purchaser concerning the Purchased Assets. Without limiting the generality of the Sellerforegoing, the Seller makes no representation or warranty concerning the Companies, their respective assets, financial performance, financial condition, and prospects, or any indenture, agreement, mortgage, deed of trust or other instrument to which the Seller is a party or by which it is bound, or result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement, mortgage, deed of trust or other instrument (other than pursuant to the Basic Documents), or violate any law or, to the best of the Seller's knowledge, any order, rule or regulation applicable to the Seller of any Governmental Authority having jurisdiction over the Seller or any of its propertiesmatter affecting them.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Enron North America Corp), Purchase and Sale Agreement (Enron North America Corp)
Representations and Warranties of the Seller. The Seller hereby warrants and represents to, and warrants to covenants with, the Owner Trustee Assignor and Assignee that:
(a) The Seller has been duly organized is not a natural person or a general partnership and is duly organized, validly existing as a corporation and in good standing under the laws of the State jurisdiction of Delawareits formation, with and has all requisite power and authority to own its properties service and to conduct its business as such properties are presently owned and such business is presently conducted, and had at all relevant times, and now has, power, authority and legal right to acquire and own purchase the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing AgreementMortgage Loans.
(b) The Seller is duly qualified to do business and, where necessary is in good standing (or is exempt from such requirement), and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under the Basic Documents to which it is a party.
(c) The Seller has the full power and authority to execute execute, deliver and deliver perform under this Assignment Agreement, to carry out its terms and to consummate the transactions contemplated set forth herein; and the execution, delivery and performance of this Agreement and the . The consummation of the transactions contemplated herein have been duly authorized by this Assignment Agreement is in the Seller by all necessary corporate action.
(d) The execution of this Agreement and the consummation ordinary course of the transactions contemplated herein by the Seller Seller’s business and the fulfillment of the terms of this Agreement by the Seller shall will not conflict with, or result in any a breach of of, any of the terms and terms, conditions or provisions of or constitute (with or without notice or lapse of time) a default under, the certificate of incorporation Seller’s charter or by-laws of the Sellerlaws, or any indenturelegal restriction, agreement, mortgage, deed of trust or other any material agreement or instrument to which the Seller is now a party or by which it is bound, or result in the creation or imposition violation of any Lien upon any law, rule, regulation, order, judgment or decree to which the Seller or its property is subject. The execution, delivery and performance by the Seller of its properties pursuant to this Assignment Agreement, and the terms consummation by it of any such indenturethe transactions contemplated hereby, agreement, mortgage, deed of trust or other instrument (other than pursuant to the Basic Documents), or violate any law or, to the best have been duly authorized by all necessary action of the Seller's knowledge. This Assignment Agreement has been duly executed and delivered by the Seller and constitutes the valid and legally binding obligation of the Seller enforceable against the Seller in accordance with its respective terms except as enforceability thereof may be limited by bankruptcy, insolvency, or reorganization or other similar laws now or hereinafter in effect relating to creditors’ rights generally and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or in law.
(c) No material consent, approval, order or authorization of, or declaration, filing or registration with, any ordergovernmental entity is required to be obtained or made by the Seller in connection with the execution, rule delivery or regulation applicable to performance by the Seller of any Governmental Authority having jurisdiction over this Assignment Agreement, or the consummation by it of the transactions contemplated hereby.
(d) As of the date hereof, the Seller is not in default under either of the Sale Agreements or any either of its propertiesthe Servicing Agreements.
(e) No event has occurred or has failed to occur, during the period commencing on the date on which the Assignor acquired the Mortgage Loans and ending on the date hereof, inclusive, which would make the representations and warranties set forth in Section 2.1 of either of the Servicing Agreements untrue if such representations and warranties were made effective as of the date hereof.
(f) Pursuant to Section 6.07 of each of the Sale Agreements, the Seller hereby represents and warrants, for the benefit of the Assignor, the Assignee and the Trust, that the representations and warranties set forth in Section 3.02 of each Sale Agreement, with respect to the Mortgage Loans, are true and correct as of the Closing Date (as such term is defined in the applicable Sale Agreement), and the representations and warranties set forth in Section 3.01 of each Sale Agreement, with respect to the Seller, are true and correct as of date hereof as if such representations and warranties were made on the date hereof.
Appears in 2 contracts
Samples: Assignment, Assumption and Recognition Agreement (GSR Mortgage Loan Trust 2006-2f), Assignment, Assumption and Recognition Agreement (GSR Mortgage Loan Trust 2006-1f)
Representations and Warranties of the Seller. The Seller hereby represents and warrants to the Owner Trustee that:Purchaser that the statements contained in this Section 4, with respect to such Seller, are correct and complete as of the date of this Agreement and will be correct and complete as of the Closing Date (as though made then and as though the Closing Date were substituted for the date of this Agreement throughout this Section 4).
(a) The Seller has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Delaware, with power and authority to own its properties and to conduct its business as such properties are presently owned and such business is presently conducted, and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing Agreement.
(b) The Seller is duly qualified to do business and, where necessary is in good standing (or is exempt from such requirement), and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under the Basic Documents to which it is a party.
(c) The Seller has the power and authority to execute execute, deliver and perform its obligations under this Agreement and to sell, assign, transfer and deliver this Agreementto the Purchaser the Seller Shares as contemplated hereby. No permit, to carry out its terms consent, approval or authorization of, or declaration, filing or registration with any governmental or regulatory authority or consent of any third party is required in connection with the execution and to consummate the transactions contemplated herein; and the execution, delivery and performance by Seller of this Agreement and the consummation of the transactions contemplated herein have been duly authorized by the Seller by all necessary corporate actionhereby.
(db) The Neither the execution and delivery of this Agreement and Agreement, nor the consummation of the transactions contemplated herein hereby or compliance with the terms and conditions hereof by the Seller and the fulfillment of the terms of this Agreement by the Seller shall not conflict with, will violate or result in any a breach of any term or provision of the terms and provisions of any agreement to which any Seller is bound or is a party, or be in conflict with or constitute (with or without notice or lapse of time) a default under, or cause the certificate of incorporation or by-laws acceleration of the Seller, or maturity of any indenture, agreement, mortgage, deed obligation of trust or other instrument to which the Seller is a party or by which it is bound, or result in the creation or imposition of under any Lien upon any of its properties pursuant to the terms of any such indenture, agreement, mortgage, deed of trust or other instrument (other than pursuant to the Basic Documents), existing agreement or violate any law ororder, to the best of the Seller's knowledgewrit, any orderinjunction, decree, statute, rule or regulation applicable to the Seller or any properties or assets of the Seller.
(c) This Agreement has been duly and validly executed by the Seller, and constitutes the valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency or other laws affecting creditors' rights generally or by limitations, on the availability of equitable remedies.
(d) The Seller shall indemnify, defend and hold harmless Purchaser from and against all liabilities incurred by Purchaser, directly or indirectly, including without limitation, all reasonable attorney’s fees and court costs, arising out of or in connection with the purchase of the Seller’s respective Seller Shares set forth in this Agreement, except where fraud, intent to defraud or default of payment evolves on the part of Purchaser.
(e) The Seller owns the Seller Shares free and clear of all liens, charges, security interests, encumbrances, claims of others, options, warrants, purchase rights, contracts, commitments, equities or other claims or demands of any Governmental Authority having jurisdiction over kind (collectively, “Liens”), and upon delivery of the Seller Shares to the Purchaser, the Purchaser will acquire good, valid and marketable title thereto free and clear of all Liens. The Seller is not a party to any option, warrant, purchase right, or other contract or commitment that could require the Seller to sell, transfer, or otherwise dispose of any capital stock of its propertiesthe Company (other than pursuant to this Agreement). The Seller is not a party to any voting trust, proxy, or other agreement or understanding with respect to the voting of any capital stock of the Company.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Green & Quality Home Life, Inc.), Stock Purchase Agreement (AAA Best Car Rental Inc)
Representations and Warranties of the Seller. 2.1 The Seller hereby warrants, covenants, and represents and warrants to the Owner Trustee Purchaser with the intention of inducing the Purchaser to enter into this Agreement that:
(a) The Immediately prior to and at the Closing, the Seller has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Delaware, with power legal right and authority to own its properties and to conduct its business as such properties are presently owned and such business is presently conducted, and had at all relevant times, and now has, power, authority and legal right to acquire and own sell the Receivables contemplated to be transferred Shares to the Trust pursuant Purchaser and on the Closing Date and Seller shall transfer the Shares to the Trust Sale Purchaser free and Servicing Agreementclear of all liens, restrictions, covenants or adverse claims of any kind or character.
(b) The Seller is duly qualified to do business and, where necessary is in good standing (or is exempt from such requirement), and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under the Basic Documents to which it is a party.
(c) The Seller has the legal power and authority to execute and deliver this Agreement, Agreement and all other documents required to carry out its terms be executed and delivered by the Seller hereunder and to consummate the transactions contemplated herein; hereby.
(c) The Seller is the Chief Executive Officer of the Company and therefore is an “affiliate” of the Company, as that term is defined in Rule 144 promulgated under the United States Securities Act of 1933, as amended (the “Securities Act”) and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein have been duly authorized by the Seller by all necessary corporate actionshares restricted from resale.
(d) The execution of this Agreement and the consummation of the transactions contemplated herein by the Seller and the fulfillment of the terms of this Agreement by the Seller shall not conflict with, result in any breach of any of the terms and provisions of or constitute (with or without notice or lapse of time) a default under, the certificate of incorporation or by-laws of the Seller, or any indenture, agreement, mortgage, deed of trust or other instrument to which the Seller is a party or by which it is bound, or result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement, mortgage, deed of trust or other instrument (other than pursuant to the Basic Documents), or violate any law or, to To the best of the Seller's knowledge, information and belief of the Seller there are no circumstances that may result in any order, rule or regulation applicable material adverse effect to the Seller Company or the value of the Shares that are now in existence or may hereafter arise.
(e) The Company has good and marketable title to all of its assets, and such assets are free and clear of any Governmental Authority having jurisdiction over the Seller financial encumbrances not disclosed in its Financial Statements.
(f) The Company is not a party to or bound by any agreement or understanding granting registration or anti-dilution rights to any person with respect to any of its propertiesequity or debt securities; no person has a right to purchase or acquire or receive any equity or debt security of the Company.
(g) The Seller agrees to execute and deliver such other documents and to perform such other acts as shall be necessary to effectuate the purposes of this Agreement.
(h) There are no claims threatened or against or affecting the Company nor are there any actions, suits, judgments, proceedings or investigations pending or, threatened against or affecting the Company, at law or in equity, before or by any court, administrative agency or other tribunal or any governmental authority or any legal basis for same.
Appears in 2 contracts
Representations and Warranties of the Seller. The Seller hereby represents represents, warrants and warrants covenants to the Owner Trustee thatDepositor, the Indenture, the Insurer and the Owners that as of the Startup Day:
(a) The Seller has been is a corporation duly organized formed and is validly existing as a corporation in good standing under the laws governing its creation and existence, is in compliance with the laws of each state in which any Property or the State of Delaware, with power and authority to own its properties and to conduct its business as such properties are presently owned and such business is presently conducted, and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing Agreement.
(b) The Seller is duly qualified to do located or doing business and, where necessary and is in good standing (or is exempt from such requirement), and has obtained all necessary licenses and approvals in all jurisdictions each jurisdiction in which the ownership or lease nature of property its business, or the conduct of properties owned or leased by it make such qualification necessary. The Seller has all requisite authority to own and operate its properties, to carry out its business requires such qualifications, except where the failure as presently conducted and as proposed to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability be conducted and to perform enter into and discharge its obligations under this Agreement and the Basic other Transaction Documents to which it is a party.
(cb) The Seller has the power execution and authority to execute and deliver this Agreement, to carry out its terms and to consummate the transactions contemplated herein; and the execution, delivery and performance of this Agreement and the consummation other Transaction Documents to which it is a party by the Seller and its performance and compliance with the terms of this Agreement and the transactions contemplated herein other Transaction Documents to which it is a party have been duly authorized by the Seller by all necessary corporate action.
(d) The execution action on the part of this Agreement and the consummation of the transactions contemplated herein by the Seller and will not violate the fulfillment Seller's Articles of the terms of this Agreement by the Seller shall not conflict with, result in any breach of any of the terms and provisions of Incorporation or By-laws or constitute a default (or an event which, with or without notice or lapse of time, or both, would constitute a default) a default under, the certificate of incorporation or by-laws of the Sellerresult in a breach of, or any indenturematerial contract, agreement, mortgage, deed of trust agreement or other instrument to which the Seller is a party or by which it the Seller is boundbound or violate any statute or any order, rule or result in the creation or imposition regulation of any Lien upon court, governmental agency or body or other tribunal having jurisdiction over the Seller or any of its properties pursuant properties.
(c) This Agreement and the other Transaction Documents to which the Seller is a party, assuming due authorization, execution and delivery by the other parties hereto and thereto, each constitutes a valid, legal and binding obligation of the Seller, enforceable against it in accordance with the terms hereof and thereof, except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally and by general principles of equity (whether considered in a proceeding or action in equity or at law).
(d) The Seller is not in default with respect to any order or decree of any such indenturecourt or any order, agreementregulation or demand of any federal, mortgagestate, deed municipal or governmental agency, which default could materially and adversely affect the condition (financial or other) or operations of trust the Seller or its properties or the consequences of which could materially and adversely affect its performance hereunder and under the other instrument Transaction Documents to which the Seller is a party.
(other than pursuant e) No litigation, proceeding or investigation is pending with respect to which the Basic Documents), or violate any law Seller has received service of process or, to the best of the Seller's knowledge, threatened against the Seller which litigation, proceeding or investigation might have consequences that would prohibit its entering into this Agreement or any order, rule other Transaction Documents to which it is a party or regulation applicable that would materially and adversely affect the condition (financial or otherwise) or operations of the Seller or its properties or might have consequences that would materially and adversely affect the validity or enforceability of the Home Equity Loans or the Seller's performance hereunder and under the other Transaction Documents to which the Seller is a party.
(f) The statements contained in the Registration Statement which describe the Seller or matters or activities for which the Seller is responsible in accordance with the Transaction Documents or which are attributed to the Seller therein are true and correct in all material respects, and the Registration Statement does not contain any untrue statement of any Governmental Authority having jurisdiction over a material fact with respect to the Seller or omit to state a material fact required to be stated therein or necessary in order to make the statements contained therein with respect to the Seller not misleading.
(g) Upon the receipt of each Home Equity Loan (including the related Note) and other items of the Trust Estate by the Indenture under this Agreement, the Trust will have good title to such Home Equity Loan (including the related Note) and such other items of the Trust Estate free and clear of any lien, charge, mortgage, encumbrance or rights of others, except as set forth in Section 2.05 (b) (ix) (other than liens which will be simultaneously released).
(h) All actions, approvals, consents, waivers, exemptions, variances, franchises, orders, permits, authorizations, rights and licenses required to be taken, given or obtained, as the case may be, by or from any federal, state or other governmental authority or agency (other than any such actions, approvals, etc. under any state securities laws, real estate syndication or "Blue Sky" statutes, as to which the Seller makes no such representation or warranty), that are necessary or advisable in connection with the purchase and sale of the Notes and the execution and delivery by the Seller of the Transaction Documents to which it is a party, have been duly taken, given or obtained, as the case may be, are in full force and effect on the date hereof, are not subject to any pending proceedings or appeals (administrative, judicial or otherwise) and either the time within which any appeal therefrom may be taken or review thereof may be obtained has expired or no review thereof may be obtained or appeal therefrom taken, and are adequate to authorize the consummation of the transactions contemplated by this Agreement and the other Transaction Documents on the part of the Seller and the performance by the Seller of its obligations under this Agreement and such of the other Transaction Documents to which it is a party.
(i) The origination practices used by the Seller with respect to the Home Equity Loans have been, in all material respects, legal, proper, prudent and customary in the mortgage lending business.
(j) The transactions contemplated by this Agreement are in the ordinary course of business of the Seller.
(k) Neither the Indenture nor the Seller has any obligation to register the Trust and the Trust has no obligation to register as an investment company under the Investment Company Act of 1940, as amended.
(l) The Seller is not insolvent, nor will it be made insolvent by the transfer of the Home Equity Loans, nor is the Seller aware of any pending insolvency.
(m) The Seller received fair consideration and reasonably equivalent value in exchange for the sale of the interests in the Home Equity Loans.
(n) The Seller did not sell any interest in any Home Equity Loan with any intent to hinder, delay or defraud any of its propertiescreditors.
(o) No material adverse change affecting any security for the Notes has occurred prior to delivery of and payment for the Notes.
(p) The Seller is not in default under any agreement involving financial obligations or on any outstanding obligation which would materially adversely impact the financial condition or operations of the Seller or legal documents associated with the transaction contemplated by this Agreement.
(q) To the best of the knowledge of the Seller, there has been no material adverse change in any information submitted by the Seller in writing to the Insurer with respect to the transactions contemplated by this Agreement (unless such information was subsequently supplemented in writing to the Insurer).
(r) The sale, transfer, assignment and conveyance of Home Equity Loans by the Seller pursuant to this Agreement is not subject to and will not result in any tax, fee or governmental charge payable by the Seller, the Depositor or the Indenture to any federal, state or local government ("Transfer Taxes") other than Transfer Taxes which have or will be paid by the Seller as due. The Seller shall pay, and otherwise indemnify and hold the Insurer harmless, on an after-tax basis, from and against any and all such Transfer Taxes (it being understood that the Insurer shall have no obligation to pay such Transfer Taxes).
(s) No certificate of an officer, statement furnished in writing or report delivered pursuant to the terms hereof by the Seller contains any untrue statement of a material fact or omits to state any material fact necessary to make the certificate, statement or report not misleading. It is understood and agreed that the representations and warranties set forth in this Section 2.04 shall survive delivery of the respective Home Equity Loans to the Indenture. Upon discovery by any of the Depositor, the Servicer, the Custodian, any Subservicer, any Owner, the Seller, the Insurer or the Indenture Trustee (each, for purposes of this paragraph, a "party") of a breach of any of the representations and warranties set forth in this Section 2.04 which materially and adversely affects the interests of the Owners or the interests of the Insurer, the party discovering such breach shall give prompt written notice to the other parties. The Seller hereby covenants and agrees that within 60 days of its discovery or its receipt of notice of breach, it shall cure such breach in all material respects or, with respect to a breach of clause (g) above, the Seller may (or may cause an affiliate of the Seller to) on or prior to the second Monthly Remittance Date next succeeding such discovery or receipt of notice (i) substitute in lieu of any Home Equity Loan not in compliance with clause (g) above a Qualified Replacement Mortgage and, if the outstanding principal amount of such Qualified Replacement Mortgage as of the applicable Replacement Cut-Off Date is less than the outstanding principal balance of such Home Equity Loan as of such Replacement Cut-Off Date, deliver an amount (a "Substitution Amount") equal to such difference together with the aggregate amount of (A) all Delinquency Advances and Servicing Advances theretofore made with respect to such Home Equity Loan and (B) all accrued and unpaid interest with respect to such Home Equity Loan to the Servicer for deposit in the Principal and Interest Account or (ii) purchase such Home Equity Loan from the Trust at the Loan Purchase Price, which purchase price shall be delivered to the Servicer for deposit in the Principal and Interest Account. The Seller shall deliver an Officer's Certificate to the Indenture Trustee and the Insurer concurrently with the delivery of a Qualified Replacement Mortgage pursuant to Sections 2.04, 2.05 and 2.07(b) stating that such Home Equity Loan meets the requirements of the definition of a Qualified Replacement Mortgage and that all other conditions to the substitution thereof have been satisfied. Any Home Equity Loan as to which repurchase or substitution was delayed pursuant to this Section shall be repurchased or substituted for (subject to compliance with Section 2.04, 2.05 or 2.07(b), as the case may be) upon the earlier of (a) the occurrence of a default or imminent default with respect to such Home Equity Loan and (b) receipt by the Indenture Trustee and the Insurer.
Appears in 2 contracts
Samples: Sale and Servicing Agreement (Chec Funding LLC), Sale and Servicing Agreement (Chec Funding LLC)
Representations and Warranties of the Seller. The Seller hereby represents and warrants to the Owner Trustee Purchasers that:
(ai) The Seller has been is duly organized and is organized, validly existing as a corporation and in good standing under the laws of the State of Delaware, with . The Seller has all requisite power and authority to own its properties enter into this Agreement and to conduct its business as such properties are presently owned and such business is presently conducted, and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing Agreement.
(b) The Seller is duly qualified to do business and, where necessary is in good standing (or is exempt from such requirement), and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under the Basic Documents to which it is a party.
(c) The Seller has the power and authority to execute and deliver this Agreement, to carry out its terms and to consummate the transactions contemplated herein; and hereby, including, without limitation, the Sale. The execution, delivery and performance by the Seller of this Agreement and the consummation of the transactions contemplated herein hereby, including, without limitation, the Sale, have been duly authorized by the Seller and approved by all necessary corporate action.
(d) The execution of this Agreement . This Agreement, when executed, will constitute the legal, valid and the consummation binding obligations of the transactions contemplated herein by the Seller Seller. The execution, delivery and the fulfillment of the terms performance of this Agreement by the Seller shall Seller, and the Sale, will not conflict with, or result in any a breach of any of the terms and provisions of of, or constitute (with or without notice or lapse of time) a default under, the certificate of incorporation or by-laws organizational documents of the Seller.
(ii) The Seller is the sole legal and beneficial owner of the Assigned Loan Documents and the Warrants, free and clear of any pledges, liens, encumbrances, claims or other charges of any kind.
(iii) The Seller has not consented to any modification, release, or waiver of any indentureterm or provision of the Assigned Loan Documents or the Warrants or released any collateral subject to the Assigned Loan Documents.
(iv) The Seller has made such independent investigation of the Company, agreementits management, mortgage, deed of trust and related matters as it deems to be necessary or other instrument advisable in connection with its decision to which enter into this Agreement and the Seller is a party or by Sale; and it has received all information and data which it is boundbelieves to be necessary in order to reach an informed decision as to the advisability of entering into this Agreement and the Sale.
(v) The Seller (A) acknowledges that, other than the representations and warranties set forth in Section 2(b), the Purchasers make no representation or result in warranty, expressed or implied, as to the creation accuracy or imposition completeness of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement, mortgage, deed of trust or other instrument (other than pursuant to the Basic Documents), or violate any law or, to the best of the Seller's knowledge, any order, rule or regulation applicable information provided to the Seller of any Governmental Authority having jurisdiction over in connection with this Agreement or the transactions contemplated by this Agreement, including the Sale, (B) represents that the Seller has not relied upon any written or oral information furnished to the Seller by the Purchasers, and (C) acknowledges that neither Purchaser shall have any of its propertiesliability to the Seller resulting from any information not contained in this Agreement.
Appears in 2 contracts
Samples: Note and Warrant Purchase Agreement (Lightning Gaming, Inc.), Note and Warrant Purchase Agreement (Lightning Gaming, Inc.)
Representations and Warranties of the Seller. The As an inducement to the Purchaser to enter into this Agreement and consummate the transactions contemplated hereby, the Seller hereby represents and warrants to the Owner Trustee Purchaser that:
(a) The the Seller owns and has been duly organized good and is validly existing as a corporation in good standing under the laws marketable title to and possession of the State Royalty Interests, free and clear of Delaware, with power and authority to own its properties and to conduct its business as such properties are presently owned and such business is presently conducted, and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing Agreement.any Encumbrances;
(b) The no person other than the Purchaser has any agreement, option, right or privilege capable of becoming an agreement for the purchase from the Seller is duly qualified to do business and, where necessary is in good standing (or is exempt from such requirement), and has obtained all necessary licenses and approvals in all jurisdictions in which of the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under the Basic Documents to which it is a party.Royalty Interests;
(c) The Seller has the power and authority to execute and deliver this Agreement, to carry out its terms and to consummate the transactions contemplated herein; and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein have been duly authorized by the Seller by all necessary corporate action.
(d) The execution of this Agreement and the consummation of the transactions contemplated herein by the Seller and the fulfillment of the terms of this Agreement by the Seller shall does not conflict withand the consummation of the transfer of Royalty Interests will not require any consents or approvals of any third party;
(d) the Seller is not in a any way subject or party to any unsatisfied judgments, consent decrees, injunctions, litigation, proceedings, actions or claims which could result in any breach of any of a judgment against the terms and provisions of Seller leading to the impairment or constitute (with or without notice or lapse of time) a default under, the certificate of incorporation or by-laws loss of the Seller, or any indenture, agreement, mortgage, deed of trust or other instrument ’s title to which the Royalty Interests;
(e) the Seller is a party or by which it is boundnot violating, contravening, breaching, or result in the creation or imposition of creating a default under any Lien upon any of its properties pursuant to the terms of any such indenturelaw, agreementstatute, mortgageregulation, deed of trust or other instrument (other than pursuant to the Basic Documents)order, judgment, or violate any law or, to the best of the Seller's knowledge, any order, rule or regulation decree applicable to the Seller of any Governmental Authority having jurisdiction over by becoming party to this Agreement or performing the provisions hereof;
(f) the Seller is not in a relationship in respect of which a “triggering event” (as defined in Part 5 of the Family Relations Act (British Columbia), or any applicable similar legislation in any other jurisdictions) has occurred;
(g) the Seller has obtained independent legal advice for himself and for his spouse in connection with the purchase and sale of its propertiesthe Royalty Interests; and
(h) the Seller is not a non-resident of Canada within the meaning of section 116 of the Income Tax Act (Canada).
Appears in 2 contracts
Samples: Royalty Interest Repurchase Agreement (Dynamic Oil & Gas Inc), Royalty Interest Repurchase Agreement (Dynamic Oil & Gas Inc)
Representations and Warranties of the Seller. The Seller hereby represents and warrants to and agrees with the Owner Trustee Underwriters that:
(a) The Seller has been is a duly organized and is validly existing as a corporation in good standing organized under the laws of the State of Delaware, Delaware with the power and authority to own its properties and to conduct its business as such properties are presently currently owned and such business is presently conducted, except for such power and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing Agreement.
(b) The Seller is duly qualified to do business and, where necessary is in good standing (or is exempt from such requirement), and has obtained all necessary licenses and approvals in all jurisdictions in absence of which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on the Seller or its ability to perform consummate the transactions contemplated by its obligations under the Basic Documents.
(b) The Seller has full legal right, power, and authority to enter into its Basic Documents and to which it is a partycarry out, give effect to, and consummate the transactions contemplated thereby in accordance with the terms thereof.
(c) On or before the Closing Date, its Basic Documents will have been duly authorized, executed and delivered by the Seller. The Seller has the power and authority to execute and deliver this Agreement, to carry out its terms and to consummate the transactions contemplated herein; and the execution, delivery and performance of this Agreement its Basic Documents and the consummation issuance and sale of the transactions contemplated herein have been duly authorized by the Seller by all necessary corporate action.
(d) The execution of this Agreement Notes and the consummation of the transactions contemplated herein by the Seller and the fulfillment of compliance with the terms of this Agreement by the Seller shall and provisions thereof will not conflict with, result in any a breach or violation of any of the terms and provisions of of, or constitute (with or without notice or lapse of time) a default under, the certificate of incorporation or by-laws bylaws of the Seller, Seller or any indenture, agreement, mortgage, deed of trust agreement or other instrument to which the Seller is a party or by which it the Seller is bound, bound or result in the creation or imposition of any Lien upon to which any of its the properties pursuant of the Seller is subject that could reasonably be expected to have a material adverse effect on the terms of any such indenture, agreement, mortgage, deed of trust or other instrument (other than pursuant to transactions contemplated by the Basic Documents), .
(d) There are no legal or violate any law governmental proceedings pending or, to the best knowledge of the Seller's knowledge, any orderthreatened, rule against the Seller, or regulation applicable to the Seller of any Governmental Authority having jurisdiction over which the Seller or any of its propertiesproperties is subject, of a character required to be disclosed in the Prospectus that are not disclosed in the Prospectus.
(e) The Seller is not and, after giving effect to the offering and sale of the Notes and the application of the proceeds thereof as described in the Prospectus, will not be an “investment company” as defined in the 1940 Act.
(f) The representations and warranties made by the Seller in its Basic Documents will be true and correct in all material respects on and as of the Closing Date.
Appears in 2 contracts
Samples: Underwriting Agreement (Education Capital I LLC), Underwriting Agreement (Education Capital I LLC)
Representations and Warranties of the Seller. 7.1. The Seller hereby represents is a company duly organised and warrants validly existing under the laws of India, with full corporate power to carry on the Business as presently conducted by it, and to own the properties relating to the Owner Trustee thatBusiness and to enter into and perform its obligations under this Agreement.
7.2. This Agreement is authorised by, and is being executed by officers of the Seller duly authorised by its Board of Directors.
7.3. This Agreement is valid and legally binding upon the Seller and enforceable in accordance with its terms.
7.4. The Seller has not entered into any agreement with any other party with respect to the transaction contemplated in this Agreement and has made no other contract to sell, or otherwise dispose the Business and/or the Transferred Assets so as to affect the rights of the Seller to dispose the Transferred Assets as contemplated herein.
7.5. The execution and delivery of this Agreement, the consummation of the transaction contemplated hereby and the performance and fulfilment of the Seller’s obligations and undertakings hereunder, will not violate any provision of, or result in the breach of or accelerate or permit the acceleration of any performance required by the terms of:
(a) The Seller has been duly organized and is validly existing as a corporation in good standing under the laws Memorandum of Association or Articles of Association of the State of Delaware, with power and authority to own its properties and to conduct its business as such properties are presently owned and such business is presently conducted, and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing Agreement.
(b) The Seller is duly qualified to do business and, where necessary is in good standing (or is exempt from such requirement), and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under the Basic Documents to which it is a party.
(c) The Seller has the power and authority to execute and deliver this Agreement, to carry out its terms and to consummate the transactions contemplated herein; and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein have been duly authorized by the Seller by all necessary corporate action.
(d) The execution of this Agreement and the consummation of the transactions contemplated herein by the Seller and the fulfillment of the terms of this Agreement by the Seller shall not conflict with, result in any breach of any of the terms and provisions of or constitute (with or without notice or lapse of time) a default under, the certificate of incorporation or by-laws of the Seller, or any indenturecontract, agreement, mortgage, deed of trust arrangement or other instrument undertaking to which either the Seller is a party or by which it is so bound; or
(b) any judgement, decree, writ, injunction, order or award of any arbitration panel, court, tribunal or any statutory authority or executive of the Government in which the Business is currently being carried on or any Applicable Law, ordinance, rule or regulation of the Government.
7.6. All approvals, including Governmental Approvals, consents and authorisations, if required for the performance and consummation of the transaction contemplated by this Agreement, have been obtained, or will be obtained by the Effective Date, and the performance and consummation of the transaction contemplated in this Agreement shall, by the Effective Date, be duly authorised by all requisite consents and approvals.
7.7. With respect to the Transferred Assets, the Seller provides the further warranties set out in
7.8. The Seller agrees to retain all the assets and liabilities (whether past, disclosed, contingent or otherwise) in relation to the Business or other operations of the Seller that are not included in the Transferred Assets and further agrees to indemnify the Purchaser from all losses as set out in Section 10.2 below.
7.9. The Seller hereby undertakes to the Purchaser that, if after the signing of this Agreement and before the Effective Date, any event shall occur or matter shall arise of which the Seller becomes aware and which results or may result in the creation or imposition of any Lien upon any of its properties pursuant the Warranties being unfulfilled, untrue, misleading or incorrect in any material respect at the Effective Date, the Seller shall notify the Purchaser in writing thereof prior to the Effective Date.
7.10. Each of the Warranties shall be construed as a separate representation, warranty, covenant or undertaking, as the case may be, and shall not be limited by the terms of any such indenture, agreement, mortgage, deed of trust the other Warranties or by any other instrument (other than pursuant term of this Agreement.
7.11. The aforesaid Representations and Warranties of the Seller are save and except to the Basic Documents), or violate any law or, disclosure already made by the Seller to the best Purchaser as part of the Seller's knowledge, any order, rule or regulation applicable to due diligence conducted by the Seller of any Governmental Authority having jurisdiction over the Seller or any of its propertiesPurchaser.
Appears in 2 contracts
Representations and Warranties of the Seller. The To induce the Company to purchase the Seller Shares, Seller hereby represents and warrants to the Owner Trustee that:
Company as follows: That all of the Seller Shares are owned by Seller of record free and clear of all pledges, liens, trusts (aconstructive and otherwise), options and other encumbrances and adverse claims of every name, nature and description (hereinafter "Liens"); That all consents, approvals, authorizations and orders necessary for (i) The the execution and delivery by Seller of this Agreement, (ii) the performance of Seller's obligations hereunder, and (iii) the sale and delivery of the Seller Shares to the Company, have been duly obtained; That Seller has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Delaware, with power and authority to own its properties and to conduct its business as such properties are presently owned and such business is presently conducted, and had at all relevant times, and now hasfull right, power, authority and legal right capacity (i) to acquire and own the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing Agreement.
(b) The Seller is duly qualified to do business and, where necessary is in good standing (or is exempt from such requirement), and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under the Basic Documents to which it is a party.
(c) The Seller has the power and authority to execute and deliver enter into this Agreement, (ii) to carry out perform all of Seller's obligations hereunder, and (iii) to sell, assign, transfer and deliver the Seller Shares pursuant to, and in accordance with, this Agreement; That upon delivery of the Seller Shares by Seller to the Company hereunder, the Company will have good and valid title to the Seller Shares, free and clear of all Liens; That this Agreement has been duly executed by Seller and constitutes the Seller's legal, valid and binding obligation, enforceable against Seller in accordance with its terms and to consummate the transactions contemplated hereinterms; and the execution, The execution and delivery and performance by Seller of this Agreement and the consummation performance by Seller of his obligations hereunder will not, or with the transactions contemplated herein have been duly authorized by the Seller by all necessary corporate action.
(d) The execution giving of this Agreement and the consummation of the transactions contemplated herein by the Seller and the fulfillment of the terms of this Agreement by the Seller shall not conflict with, result in any breach of any of the terms and provisions of or constitute (with or without notice or the lapse of time) a default undertime or both, the certificate of incorporation or by-laws of the Seller, or any indenture, agreement, mortgage, deed of trust or other instrument to which the Seller is a party or by which it is bound, or would not result in the creation or imposition of any Lien lien, claim, restriction, charge or encumbrance upon any of its properties pursuant to the terms of any such indenture, agreement, mortgage, deed of trust or other instrument (other than pursuant to the Basic Documents), or violate any law or, to the best of the Seller's knowledge, any order, rule or regulation applicable to the Seller of any Governmental Authority having jurisdiction over the Seller or any of its propertiesShares.
Appears in 2 contracts
Samples: Stock Redemption Agreement (Cross a T Co), Stock Redemption Agreement (Cross a T Co)
Representations and Warranties of the Seller. The Upon the execution of the applicable Terms Agreement, the Seller hereby represents and warrants to each Underwriter as of the Owner Trustee thatdate hereof and as of the Closing Date (unless otherwise specified) as follows:
(a) The Seller has been duly organized and is validly existing as a corporation national banking association, in good standing under the laws of the State of DelawareUnited States. The Seller has, with in all material respects, full power and authority to own its properties and to conduct its business as such properties are presently owned and such business is presently conducteddescribed in the Disclosure Materials, and had at all relevant timesto execute, deliver and now has, power, authority and legal right to acquire and own perform the Receivables contemplated to be transferred to Purchase Agreement, the Trust pursuant to the Trust Sale Pooling and Servicing Agreement.
(b) The Seller , the Asset Representations Review Agreement, the Transfer Agreement, this Agreement and the applicable Terms Agreement, and to consummate the transactions contemplated by the Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement, this Agreement and the applicable Terms Agreement, and is duly qualified to do business and, where necessary and is in good standing (or is exempt from such requirementrequirements), and has obtained all necessary material licenses and approvals (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), in all jurisdictions each jurisdiction in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain such licenses or and approvals (i) would not have a material adverse effect on the Seller and its subsidiaries, taken as a whole, or (ii) would have a material adverse effect on the Seller’s ability to perform its obligations under the Basic Documents to which it is a party.
(c) The Seller has the power and authority to execute and deliver this Agreement, to carry out its terms and to consummate the transactions contemplated herein; by the Receivables Purchase Agreement, the Pooling and Servicing Agreement, the Asset Representations Review Agreement, the Transfer Agreement, this Agreement and the applicable Terms Agreement.
(b) The execution, delivery and performance by the Seller of this Agreement, the applicable Terms Agreement, the Asset Representations Review Agreement, the Transfer Agreement, the Receivables Purchase Agreement and the Pooling and Servicing Agreement, and the consummation of the transactions contemplated herein hereby and thereby have been duly authorized by the Seller by all necessary corporate action.
(d) The action on the part of the Seller. Neither the execution and delivery by the Seller of this Agreement and such instruments, nor the consummation performance by the Seller of the transactions contemplated herein or therein contemplated, nor the compliance by the Seller and with the fulfillment of the terms of this Agreement by the Seller shall not provisions hereof or thereof, will (i) conflict with, with or result in any a breach of any of the material terms and provisions of of, or constitute (with or without notice or lapse of time) a material default under, any of the certificate provisions of incorporation the Articles of Association or byBy-laws of the Seller, or (ii) conflict with any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties, or (iii) conflict with any of the provisions of any material indenture, mortgage, agreement, mortgage, deed of trust contract or other instrument to which the Seller is a party or by which it is bound, or (iv) result in the creation or imposition of any Lien lien, charge or encumbrance upon any of its properties the Seller’s property pursuant to the terms of any such indenture, agreement, mortgage, deed of trust contract or other instrument instrument.
(c) The Seller has duly executed and delivered this Agreement and the applicable Terms Agreement.
(d) The Seller has authorized the conveyance of the Receivables and the conveyance of an interest in the Seller’s interest in any related Funds Collateral to the Company under the Receivables Purchase Agreement.
(e) Complete and correct copies of publicly available portions of the Consolidated Reports of Condition and Income of the Bank for the year ended December 31, 2015 and the quarters ended March 31, 2016 and June 30, 2016, as submitted to the Governors of the Federal Reserve System by the Bank, are publicly available through xxxxx://xxx.xxxxx.xxx/public/ManageFacsimiles.aspx. Except as set forth in or contemplated in the Preliminary Prospectus, there has been no material adverse change in the condition (financial or otherwise) of the Bank since December 31, 2015.
(f) Each of the Pooling and Servicing Agreement, the Receivables Purchase Agreement, the Transfer Agreement and the Asset Representations Review Agreement constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other than similar laws now or hereafter in effect relating to creditors’ rights in general and the rights of creditors of national banking associations, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Seller or in the event of any moratorium or similar occurrence affecting the Seller and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any court, governmental agency or body or official required in connection with the transfer of the Receivables pursuant to the Basic DocumentsReceivables Purchase Agreement, have been or will be taken or obtained on or before the Closing Date.
(g) (i) The Master Trust is not now, and following the issuance of the Collateral Certificate, will not be, required to be registered under the Investment Company Act of 1940, as amended (the “1940 Act”).
(ii) The Master Trust is not now, and immediately following the issuance of the Notes pursuant to the Indenture will not be, a “covered fund” for purposes of regulations adopted under Section 13 of the Bank Holding Company Act of 1956 (hereinafter referred to as the “Xxxxxxx Rule”). In reaching this conclusion, although other statutory or regulatory exclusions or exemptions under the 1940 Act or the Xxxxxxx Rule may be available, the Seller has relied on the exclusion from registration set forth in Rule 3a-7 under the 1940 Act.
(h) The representations and warranties of the Seller in the Pooling and Servicing Agreement and the Receivables Purchase Agreement are true and correct in all material respects.
(i) The Seller has provided a written representation to each of the Hired NRSROs (as defined below), which satisfied the requirements of paragraph (a)(3)(iii) of Rule 17g-5 of the Exchange Act (“Rule 17g-5”), as amended (the “17g-5 Representation”). The Seller has complied, and will continue to comply, with the 17g-5 Representation, other than any breach of the 17g-5 Representation that would not have a material adverse effect on the Notes.
(j) The Seller has not engaged any third party to provide due diligence services within the meaning of Rule 17g-10(d)(1) under the Exchange Act or violate obtained any law or, third-party due diligence report within the meaning of Rule 15Ga-2(d) under the Exchange Act with respect to the best of assets held by the Seller's knowledge, any order, rule Master Trust or regulation applicable to the Seller of any Governmental Authority having jurisdiction over transactions contemplated by this Agreement or the Seller or any of its propertiesother Program Agreements.
Appears in 2 contracts
Samples: Underwriting Agreement (Capital One Multi Asset Execution Trust), Underwriting Agreement (Capital One Multi Asset Execution Trust)
Representations and Warranties of the Seller. The Seller hereby represents and warrants to the Owner Trustee thatas follows:
(a) The Seller has been is a corporation duly organized and is incorporated, validly existing as a corporation and in good standing under the laws of the State jurisdiction indicated at the beginning of Delawarethis Agreement, with power and authority is duly qualified to own its properties do business, and to conduct is in good standing, in every jurisdiction where the nature of its business as such properties are presently owned and such business is presently conducted, and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables contemplated requires it to be transferred to so qualified. The Seller has no Subsidiaries. All the Trust pursuant to outstanding shares of stock of the Trust Sale and Servicing AgreementSeller are owned by PolyOne.
(b) The execution, delivery and performance by the Seller is duly qualified to do business and, where necessary is in good standing (or is exempt from such requirement), and has obtained all necessary licenses and approvals in all jurisdictions in which of the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under the Basic Transaction Documents to which it is or will be a partyparty and the other documents to be delivered by it hereunder are within the Seller's corporate powers, have been duly authorized by all necessary corporate action, do not (i) contravene the Seller's charter or by-laws, (ii) violate any applicable law, rule, regulation, order, writ, judgment, injunction, decree, determination or award, or (iii) breach or result in a default under, or result in the acceleration of (or entitle any party to accelerate) the maturity of any obligation of the Seller under, or result in or require the creation of any lien upon or security interest in any property of the Seller pursuant to the terms of, any Contract or any other agreement or instrument (other than any Transaction Document) binding on or affecting the Seller or any of its properties; and no transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(c) The Seller has 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 power and authority to execute and deliver this Agreement, to carry out its terms and to consummate the transactions contemplated herein; and the due execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein have been duly authorized by the Seller of any Transaction Document to which it is or will be a party or any other document to be delivered hereunder or for the perfection of or the exercise by all necessary corporate actionany Indemnified Party of its rights and remedies under the Transaction Documents and such other documents, except for the filings of the financing statements referred to in Article III.
(d) The execution of this This Agreement has been, and the consummation of the transactions contemplated herein by the Seller and the fulfillment of the terms of this Agreement by the Seller shall not conflict with, result in any breach of any of the terms and provisions of or constitute (with or without notice or lapse of time) a default under, the certificate of incorporation or by-laws of the Seller, or any indenture, agreement, mortgage, deed of trust or each other instrument Transaction Document to which the Seller is a party when delivered will have been, duly executed and delivered by the Seller. This Agreement is, and the other Transaction Documents to which the Seller is or will be a party when executed by the Seller and delivered hereunder will be, the legal, valid and binding obligations of the Seller enforceable against the Seller in accordance with their respective terms, subject to bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and to general equitable principles.
(e) The pro forma balance sheet of the Seller as at February 28, 2002, a copy of which it has been furnished to the Agent is bound, or result based on good faith estimates and assumptions made in the creation or imposition best judgment of any Lien upon any of its properties the Seller (assuming that the Receivables purchased pursuant to the terms PolyOne Assignment were the Receivables in effect on February 28, 2002).
(f) There is no pending or, to its best knowledge, threatened action or proceeding affecting the Seller before any court, governmental agency or arbitrator which would materially adversely affect (i) the financial condition or operations of the Seller or (ii) the ability of the Seller to perform its obligations under this Agreement or any other Transaction Document to which the Seller is or will be a party, or which purports to affect the legality, validity or enforceability of any Transaction Document.
(g) No proceeds of any Purchase or reinvestment will be used to acquire any security in any transaction which is subject to Sections 13 and 14 of the Securities Exchange Act of 1934.
(h) On the date of each Purchase and reinvestment, the Receivables with respect to which such indenturePurchase or reinvestment is being made constitute Eligible Receivables. Immediately prior to the time of the initial creation of an interest hereunder in any Pool Receivable and each Purchase, agreementthe Seller is the legal and beneficial owner of the Pool Receivables and Related Security with respect thereto and is the legal and beneficial owner of the Additional Assigned Rights, mortgagein each case free and clear of any Adverse Claim. Upon each Purchase or reinvestment, deed the Seller shall transfer to the Owner making such Purchase or reinvestment (and such Owner shall acquire) a valid undivided percentage ownership interest to the extent of trust the pertinent Eligible Asset in each Pool Receivable then existing or thereafter arising and in the Related Security and Collections with respect thereto, free and clear of any Adverse Claim, which ownership interest shall be a perfected first priority ownership interest upon the filing of the financing statements referred to in Section 3.01(h). No effective financing statement or other instrument (other than pursuant similarly in effect covering any Contract or any Pool Receivable or Related Security or Collections with respect thereto or any Additional Assigned Rights is on file in any recording office, except those filed in favor of the Agent relating to this Agreement and the Parallel Purchase Commitment or in favor of the Seller and the Agent relating to the Basic Documents)Receivables Contribution and Sale Agreement.
(i) Each Seller Report (if prepared by the Seller or one of its Affiliates, or violate any law or, to the best of the Seller's knowledge, any order, rule or regulation applicable to the Seller of any Governmental Authority having jurisdiction over extent that information contained therein is supplied by the Seller or any Affiliate thereof), information, exhibit, financial statement, or other report or document furnished or to be furnished at any time by or on behalf of the Seller to the Agent or any Owner in connection with this Agreement is and will be accurate in all material respects as of its propertiesdate or as of the date so furnished, and no such report or document contains, or will contain, as of its date of delivery or the date so furnished, any untrue statement of a material fact or omits to state, or will omit to state, as of its date of delivery or the date so furnished, a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not misleading.
(j) The chief executive office of the Seller, and the office where the Seller keeps its Records concerning the Pool Receivables, are located at the address specified therefor in Schedule IV hereto or at such other locations in jurisdictions within the United States that shall have been notified to the Agent in accordance with Section 5.01(a). The Seller's organization identification number is set forth opposite the Seller's name in Schedule IV hereto.
Appears in 2 contracts
Samples: Trade Receivables Purchase and Sale Agreement (Polyone Corp), Trade Receivables Purchase and Sale Agreement (Polyone Corp)
Representations and Warranties of the Seller. The Seller hereby represents and warrants to the Owner Trustee thatas follows:
(ai) The Seller has been is a limited liability company duly organized and is organized, validly existing as a corporation and in good standing under the laws of the State jurisdiction indicated at the beginning of Delawarethis Agreement, with has the requisite power and authority under its Constituent Documents and applicable law to own its properties property and assets and to conduct carry on its business as such properties are presently owned now conducted and such business is presently conducted, and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables contemplated proposed to be transferred to conducted after the Trust pursuant to the Trust Sale Closing Date and Servicing Agreement.
(b) The Seller is duly qualified to do business andbusiness, where necessary and is in good standing (standing, in every jurisdiction where such qualification or authorization is exempt from such requirement), and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualificationsrequired, except where to the extent that any failure to be so qualify qualified or obtain licenses or approvals would in good standing as a foreign entity could not reasonably be expected to have a material adverse effect on its ability to perform its obligations under the Basic Documents to which it is a partyMaterial Adverse Effect.
(cii) The Seller has no Subsidiaries. All of the outstanding membership interests of the Seller are owned by Equistar.
(b) The Seller has the power and authority under its Constituent Documents and applicable law to execute execute, deliver and deliver this Agreement, to carry out the provisions of the Transaction Documents to which it is a party, and all such actions have been duly and validly authorized by all necessary proceedings on its terms part under its Constituent Documents and to consummate the transactions contemplated herein; and the applicable law.
(c) The execution, delivery and performance by the Seller of this Agreement the Transaction Documents to which it is a party, and the consummation of the transactions contemplated herein hereby and thereby, including the Seller’s use of the proceeds of Purchases and reinvestments, are within the Seller’s powers, have been duly authorized by the Seller and delivered by all necessary corporate action.
action on its part, do not (di) The execution of this Agreement and the consummation violate (x) any provision of the transactions contemplated herein by the Seller Seller’s Constituent Documents or any other agreement governing its organization and/or scope of power and the fulfillment authority or any applicable law, rule, regulation (including Regulation U or X) or order, writ, judgment, injunction, decree, determination or award of the terms of this Agreement by the Seller shall not conflict withany Governmental Authority binding upon it or any other Transaction Party, (ii) result in any a breach of any of the terms and provisions of or constitute (alone or with or without notice or lapse of timetime or both) a default under, the certificate of incorporation or by-laws of the Seller, under any indenture or any indenture, agreement, mortgage, deed of trust agreement or other instrument to which the Seller it is a party party, or by which it is or any of its properties or assets are bound, or (iii) except for the Liens created by the Transaction Documents, result in or require the creation or imposition of any Lien upon any of its properties property or assets.
(d) This Agreement is, and the other Transaction Documents to which the Seller is or will be a party when delivered will be, the legal, valid and binding obligations of the Seller enforceable against the Seller in accordance with their respective terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and by general principles of equity, including implied obligations of good faith and fair dealing.
(e) No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority is or will be required for the due execution, delivery and performance by the Seller of any Transaction Document to which it is a party or any transaction contemplated hereby or thereby, except for the filings of the financing statements referred to in Article III.
(f) Since the date of the Seller’s formation, there has not occurred any development or event affecting, or any change in the business, assets, results of operations, financial condition or prospects of, the Seller which has resulted or could reasonably be expected to result in a Material Adverse Effect.
(g) There is no action, suit, investigation, litigation or proceeding at law or in equity or by or before any Governmental Authority now pending or, to the knowledge of the Seller, threatened against or affecting the Seller or its business, assets or rights (i) as to which there is a reasonable possibility of an adverse decision and which, if adversely determined, could, individually or, in the aggregate, reasonably be expected to have a Material Adverse Effect or (ii) that in any manner draws into question the validity or enforceability of any Transaction Document.
(h) No proceeds of any Purchase or reinvestment will be used to acquire any security in any transaction which is subject to Sections 13 and 14 of the Securities Exchange Act of 1934 (unless such transaction shall have been approved by the board of directors (or comparable governing body) of the issuer of such Security) or used, whether directly or indirectly, and whether immediately, incidentally or ultimately, for any purpose which entails a violation of the provisions of the Regulations of the Board, including Regulation U or X thereof.
(i) Immediately prior to the time of the initial creation of an interest hereunder in any Pool Receivable, the Seller is the legal and beneficial owner of such Pool Receivable and Related Security and Collections with respect thereto, in each case free and clear of any Lien (other than Permitted Liens).
(ii) Upon each Purchase or reinvestment, the Seller shall transfer to the Purchaser making such Purchase or reinvestment (and such Purchaser shall acquire) a valid interest to the extent of the pertinent Receivable Interest in each Pool Receivable then existing or thereafter arising and in the Related Security and Collections with respect thereto, free and clear of any Lien (other than Permitted Liens), which ownership interest or security interest shall be a perfected first priority ownership interest or security interest upon the filing of the financing statements referred to in Section 3.1(b)(xii).
(iii) With respect to each transfer to it of any Pool Receivables, the Seller has either (i) purchased such Pool Receivables from an Originator in exchange for payment (made by the Seller to an Originator in accordance with the provisions of the Receivables Sale Agreement) in an amount which constitutes fair consideration and approximates fair market value for such Pool Receivables and in a sale the terms and conditions of which (including, without limitation, the purchase price thereof) reasonably approximate an arm’s-length transaction between unaffiliated parties or (ii) acquired such Pool Receivables from an Originator as a capital contribution in accordance with the provisions of the Receivables Sale Agreement. No such sale, and no such contribution, has been made for or on account of an antecedent debt owed by any Originator to the Seller and no such sale or contribution is or may be voidable or subject to avoidance under any section of the U.S. Bankruptcy Code.
(j) No report or document or other information furnished or to be furnished at any time by or on behalf of the Seller to the Agent or any Purchaser in connection with any Transaction Document, when taken together with all other reports, documents and information then or theretofore so furnished by or on behalf of the Seller, contained or will contain, as of the date so furnished, any untrue statement of a material fact or omitted to state, or will omit to state, as of the date so furnished, a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not misleading.
(k) The jurisdiction of incorporation, organizational identification number (if any), and the address(es) of the principal place of business and chief executive office of the Seller and the office where the Seller keeps its Records concerning the Receivable Assets, are as set forth in Schedule III hereto (or, by notice to the Agent in accordance with Section 5.1(e), at such other locations in jurisdictions, within the United States, where all requested actions under Section 6.5(a) have been taken and completed).
(l) The names and addresses of all the Lock-Box Banks, together with the lock-box numbers related to, and the account numbers and owners of, the Lock-Box Accounts at such Lock-Box Banks, are specified in Schedule I hereto (or such other Lock-Box Banks and/or such other Lock-Box Accounts as have been notified to the Agent in accordance with Section 5.3(m). Except pursuant to the Lock-Box Agreements, the Seller has not granted any Person dominion or control of any Lock-Box Account, or the right to take dominion or control over any Lock-Box Account at a future time or upon the occurrence of a future event.
(m) Since the date of its formation, the Seller has not engaged in any activity other than as contemplated by the Transaction Documents or entered into any commitment or incurred any Indebtedness other than pursuant to, or as permitted under, the Transaction Documents.
(n) The Seller has not maintained, contributed to or incurred or assumed any obligation with respect to any Plan, Multiemployer Plan or Welfare Plan, except such obligation or contingent obligation that arises as a matter of law solely as a result of an ERISA Affiliate’s sponsorship of a Plan, Multiemployer Plan or Welfare Plan.
(o) The Seller has complied with the Credit and Collection Policy in all material respects and since the date of this Agreement there has been no change in the Credit and Collection Policy except as permitted hereunder. The Seller has not extended or modified the terms of any Pool Receivable or the Contract under which any such indenturePool Receivable arose, agreementexcept in accordance with the Credit and Collection Policy.
(p) The Seller has filed, mortgageor caused to be filed or be included in, deed all tax reports and returns (federal, state, local and foreign), if any, required to be filed by it and paid, or caused to be paid, all amounts of trust or other instrument taxes, including interest and penalties, required to be paid by it, except for such taxes (other than pursuant i) as are being contested in good faith by proper proceedings and (ii) against which adequate reserves shall have been established in accordance with and to the Basic Documents)extent required by GAAP, but only so long as the proceedings referred to in clause (i) above would not subject the Agent or violate any law or, other Indemnified Party to the best any civil or criminal penalty or liability or involve any material risk of the Seller's knowledgeloss, sale or forfeiture of any orderproperty, rule rights or interests included in the Pool Receivables, Related Security, Collections, Restricted Accounts or proceeds thereof.
(q) The Seller is not an “investment company” as defined in the Investment Company Act of 1940, as amended. The Seller is not subject to regulation applicable as a “holding company” under the Public Utility Holding Company Act of 1935, as amended.
(r) Both before and after giving effect to (i) each Purchase to be made on the Closing Date or such other date as Purchases requested hereunder are made, (ii) the disbursement of the proceeds of any Capital Investment, (iii) the consummation of each other transaction contemplated by the other Transaction Documents and (iv) the payment and accrual of all transaction costs in connection with the foregoing, the Seller of any Governmental Authority having jurisdiction over the Seller or any of its propertiesis Solvent.
Appears in 2 contracts
Samples: Receivables Purchase Agreement (Lyondell Chemical Co), Receivables Purchase Agreement (Equistar Chemicals Lp)
Representations and Warranties of the Seller. The Seller hereby represents represents, warrants and warrants covenants to the Owner Trustee thatDepositor, the Indenture, the Insurer and the Owners that as of the Startup Day:
(a) The Seller has been is a corporation duly organized formed and is validly existing as a corporation in good standing under the laws governing its creation and existence, is in compliance with the laws of each state in which any Property or the State of Delaware, with power and authority to own its properties and to conduct its business as such properties are presently owned and such business is presently conducted, and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing Agreement.
(b) The Seller is duly qualified to do located or doing business and, where necessary and is in good standing (or is exempt from such requirement), and has obtained all necessary licenses and approvals in all jurisdictions each jurisdiction in which the ownership or lease nature of property its business, or the conduct of properties owned or leased by it make such qualification necessary. The Seller has all requisite authority to own and operate its properties, to carry out its business requires such qualifications, except where the failure as presently conducted and as proposed to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability be conducted and to perform enter into and discharge its obligations under this Agreement and the Basic other Transaction Documents to which it is a party.
(cb) The Seller has the power execution and authority to execute and deliver this Agreement, to carry out its terms and to consummate the transactions contemplated herein; and the execution, delivery and performance of this Agreement and the consummation other Transaction Documents to which it is a party by the Seller and its performance and compliance with the terms of this Agreement and the transactions contemplated herein other Transaction Documents to which it is a party have been duly authorized by the Seller by all necessary corporate action.
(d) The execution action on the part of this Agreement and the consummation of the transactions contemplated herein by the Seller and will not violate the fulfillment Seller's Articles of the terms of this Agreement by the Seller shall not conflict with, result in any breach of any of the terms and provisions of Incorporation or By-laws or constitute a default (or an event which, with or without notice or lapse of time, or both, would constitute a default) a default under, the certificate of incorporation or by-laws of the Sellerresult in a breach of, or any indenturematerial contract, agreement, mortgage, deed of trust agreement or other instrument to which the Seller is a party or by which it the Seller is boundbound or violate any statute or any order, rule or result in the creation or imposition regulation of any Lien upon court, governmental agency or body or other tribunal having jurisdiction over the Seller or any of its properties pursuant properties.
(c) This Agreement and the other Transaction Documents to which the Seller is a party, assuming due authorization, execution and delivery by the other parties hereto and thereto, each constitutes a valid, legal and binding obligation of the Seller, enforceable against it in accordance with the terms hereof and thereof, except as the enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally and by general principles of equity (whether considered in a proceeding or action in equity or at law).
(d) The Seller is not in default with respect to any order or decree of any such indenturecourt or any order, agreementregulation or demand of any federal, mortgagestate, deed municipal or governmental agency, which default could materially and adversely affect the condition (financial or other) or operations of trust the Seller or its properties or the consequences of which could materially and adversely affect its performance hereunder and under the other instrument Transaction Documents to which the Seller is a party.
(other than pursuant e) No litigation, proceeding or investigation is pending with respect to which the Basic Documents), or violate any law Seller has received service of process or, to the best of the Seller's knowledge, threatened against the Seller which litigation, proceeding or investigation might have consequences that would prohibit its entering into this Agreement or any order, rule other Transaction Documents to which it is a party or regulation applicable that would materially and adversely affect the condition (financial or otherwise) or operations of the Seller or its properties or might have consequences that would materially and adversely affect the validity or enforceability of the Home Equity Loans or the Seller's performance hereunder and under the other Transaction Documents to which the Seller is a party.
(f) The statements contained in the Registration Statement which describe the Seller or matters or activities for which the Seller is responsible in accordance with the Transaction Documents or which are attributed to the Seller therein are true and correct in all material respects, and the Registration Statement does not contain any untrue statement of any Governmental Authority having jurisdiction over a material fact with respect to the Seller or omit to state a material fact required to be stated therein or necessary in order to make the statements contained therein with respect to the Seller not misleading.
(g) Upon the receipt of each Home Equity Loan (including the related Note) and other items of the Trust Estate by the Indenture under this Agreement, the Trust will have good title to such Home Equity Loan (including the related Note) and such other items of the Trust Estate free and clear of any lien, charge, mortgage, encumbrance or rights of others, except as set forth in Section 2.05 (b) (ix) (other than liens which will be simultaneously released).
(h) All actions, approvals, consents, waivers, exemptions, variances, franchises, orders, permits, authorizations, rights and licenses required to be taken, given or obtained, as the case may be, by or from any federal, state or other governmental authority or agency (other than any such actions, approvals, etc. under any state securities laws, real estate syndication or "Blue Sky" statutes, as to which the Seller makes no such representation or warranty), that are necessary or advisable in connection with the purchase and sale of the Notes and the execution and delivery by the Seller of the Transaction Documents to which it is a party, have been duly taken, given or obtained, as the case may be, are in full force and effect on the date hereof, are not subject to any pending proceedings or appeals (administrative, judicial or otherwise) and either the time within which any appeal therefrom may be taken or review thereof may be obtained has expired or no review thereof may be obtained or appeal therefrom taken, and are adequate to authorize the consummation of the transactions contemplated by this Agreement and the other Transaction Documents on the part of the Seller and the performance by the Seller of its obligations under this Agreement and such of the other Transaction Documents to which it is a party.
(i) The origination practices used by the Seller with respect to the Home Equity Loans have been, in all material respects, legal, proper, prudent and customary in the mortgage lending business.
(j) The transactions contemplated by this Agreement are in the ordinary course of business of the Seller.
(k) Neither the Indenture nor the Seller has any obligation to register the Trust and the Trust has no obligation to register as an investment company under the Investment Company Act of 1940, as amended.
(l) The Seller is not insolvent, nor will it be made insolvent by the transfer of the Home Equity Loans, nor is the Seller aware of any pending insolvency.
(m) The Seller received fair consideration and reasonably equivalent value in exchange for the sale of the interests in the Home Equity Loans.
(n) The Seller did not sell any interest in any Home Equity Loan with any intent to hinder, delay or defraud any of its propertiescreditors.
(o) No material adverse change affecting any security for the Notes has occurred prior to delivery of and payment for the Notes.
(p) The Seller is not in default under any agreement involving financial obligations or on any outstanding obligation that would materially adversely impact the financial condition or operations of the Seller or legal documents associated with the transaction contemplated by this Agreement.
(q) To the best of the knowledge of the Seller, there has been no material adverse change in any information submitted by the Seller in writing to the Insurer with respect to the transactions contemplated by this Agreement (unless such information was subsequently supplemented in writing to the Insurer).
(r) The sale, transfer, assignment and conveyance of Home Equity Loans by the Seller pursuant to this Agreement is not subject to and will not result in any tax, fee or governmental charge payable by the Seller, the Depositor or the Indenture to any federal, state or local government ("Transfer Taxes") other than Transfer Taxes which have or will be paid by the Seller as due. The Seller shall pay, and otherwise indemnify and hold the Insurer harmless, on an after-tax basis, from and against any and all such Transfer Taxes (it being understood that the Insurer shall have no obligation to pay such Transfer Taxes).
(s) No certificate of an officer, statement furnished in writing or report delivered pursuant to the terms hereof by the Seller contains any untrue statement of a material fact or omits to state any material fact necessary to make the certificate, statement or report not misleading. It is understood and agreed that the representations and warranties set forth in this Section 2.04 shall survive delivery of the respective Home Equity Loans to the Indenture.
Appears in 2 contracts
Samples: Sale and Servicing Agreement (Renaissance Mortgage Acceptance Corp), Sale and Servicing Agreement (Renaissance Mortgage Acceptance Corp)
Representations and Warranties of the Seller. The Seller hereby represents and warrants to the Owner Trustee Purchaser that:
(a) The Seller has been is a [public/private] limited company, duly organized organized, validly existing, and is validly existing as a corporation in good standing under the laws Laws of Afghanistan, and has complied fully with all requirements of the State applicable Laws of Delaware, with power and authority to own its properties and to conduct its business as such properties are presently owned and such business is presently conducted, and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing AgreementAfghanistan.
(b) The Seller is duly qualified has full corporate power and authority to do business andexecute and deliver this Agreement, where necessary is in good standing (or is exempt from such requirement)to own its properties, and to execute, to deliver, and to perform its obligations under this Agreement. Execution, delivery, and performance of this Agreement by the Seller:
(i) has obtained been duly authorized by all requisite corporate action on the part of the Seller, and no other proceedings on the part of the Seller or any other Person are necessary licenses for such authorization; and
(ii) will not:
(A) violate either the Laws of Afghanistan or any applicable order of any Public Sector Entity; or any provision of the Memorandum and approvals Articles of Association of the Seller; or
(B) violate, be in all jurisdictions conflict with, result in a breach of, or constitute a default under, any indenture, agreement for borrowed money, bond, note, instrument, or other agreement to which the ownership Seller is a Party or lease by which the Seller or its property is bound, excluding defaults or violations that would not, individually or in the aggregate, have a material adverse effect on the business, properties, financial condition, or results of property operation of the Seller or on its ability to perform its obligations hereunder.
(c) Assuming it constitutes a legal, valid, and binding obligation of the conduct Purchaser, this Agreement constitutes a legal, valid, and binding obligation of the Seller, enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium, or other similar laws now or hereafter in effect relating to creditors’ rights.
(d) To the best of its business requires such qualificationsknowledge after reasonable inquiry, except where for the failure Seller Consents, no filing or registration with, no notice to, and no permit, authorization, Consent, or approval of, any Person is required for the execution, delivery, or performance of this Agreement by the Seller.
(e) The Seller is not in default under any agreement or instrument of any nature whatsoever to so qualify which it is a Party or obtain licenses or approvals by which it is bound, in any manner that would not have a material adverse effect on its ability to perform its obligations under hereunder, or on the Basic Documents to which it is a partyvalidity or enforceability of this Agreement.
(cf) The Seller has the power and authority to execute and deliver this AgreementThere is no action, to carry out its terms and to consummate the transactions contemplated herein; and the executionsuit, delivery and performance of this Agreement and the consummation of the transactions contemplated herein have been duly authorized by the Seller by all necessary corporate action.
(d) The execution of this Agreement and the consummation of the transactions contemplated herein by the Seller and the fulfillment of the terms of this Agreement by the Seller shall not conflict with, result in any breach of any of the terms and provisions of or constitute (with or without notice or lapse of time) a default under, the certificate of incorporation or by-laws of the Sellerproceeding, or any indenture, agreement, mortgage, deed of trust or other instrument to which the Seller is a party or by which it is bound, or result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement, mortgage, deed of trust or other instrument (other than pursuant to the Basic Documents), or violate any law investigation pending or, to the best Seller’s knowledge, threatened (i) for dissolution of the Seller's knowledge; or (ii) against the Seller, any orderwhich, rule if adversely determined, would have a material adverse effect on its ability to perform its obligations hereunder, or regulation applicable to on the Seller validity or enforceability of any Governmental Authority having jurisdiction over the Seller or any of its propertiesthis Agreement.
Appears in 2 contracts
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Owner Trustee thatDepositor that as of the Closing Date:
(ai) The the Seller has been is a corporation duly organized and is organized, validly existing as a corporation and in good standing under the laws of the State of Delaware, with governing its creation and existence and has full corporate power and authority to own its properties and to conduct property, carry on its business as such properties are presently owned conducted and such business is presently conducted, enter into and had at all relevant times, and now has, power, authority and legal right to acquire and own the Receivables contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing Agreement.
(b) The Seller is duly qualified to do business and, where necessary is in good standing (or is exempt from such requirement), and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications, except where the failure to so qualify or obtain licenses or approvals would not have a material adverse effect on its ability to perform its obligations under the Basic Documents to which it is a party.Assignment and Assumption Agreement and this Agreement;
(cii) The the execution and delivery by the Seller has of the power Assignment and authority to execute Assumption Agreement and deliver this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of the Assignment and Assumption Agreement or this Agreement, to carry out its terms and to consummate nor the consummation of the transactions contemplated herein; and therein or herein contemplated, nor compliance with the provisions thereof or hereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) the execution, delivery and performance by the Seller of the Assignment and Assumption Agreement and this Agreement and the consummation of the transactions contemplated herein have thereby and hereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) each of the Assignment and Assumption Agreement and this Agreement has been duly authorized executed and delivered by the Seller and, assuming due authorization, execution and delivery by all necessary corporate actionthe Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by the Assignment and Assumption Agreement or this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under the Assignment and Assumption Agreement or this Agreement.
(db) The execution representations and warranties of this each Transferor with respect to the Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations made by it pursuant to Sections 1.04(b)(xii), (xiii), (xiv), (xv) and (xvi), shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), (xiii), (xiv), (xv) and (xvi) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than any representations and warranties made pursuant to Sections 1.04(b)(xii), (xiii), (xiv), (xv) and (xvi) by it) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans (other than any representations and warranties made by it pursuant to Sections 1.04(b)(xii), (xiii), (xiv), (xv) and (xvi)) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder, as to each that, as of the Closing Date:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be insured by a generally acceptable insurer against loss by fire, hazards of extended coverage and such other hazards as are customary in the area where the related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of Xxxxxx Mae or Xxxxxxx Mac. If upon origination of the Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available), a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect, which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related Mortgagor thereunder to maintain the hazard insurance policy at the Mortgagor’s cost and expense, and on the Mortgagor’s failure to do so, authorizes the holder of the Mortgage to obtain and maintain such insurance at such Mortgagor’s cost and expense, and to seek reimbursement therefor from the Mortgagor. Where required by state law or regulation, each Mortgagor has been given an opportunity to choose the carrier of the required hazard insurance, provided the policy is not a “master” or “blanket” hazard insurance policy covering the common facilities of a planned unit development. The hazard insurance policy is the valid and binding obligation of the insurer, is in full force and effect, and will be in full force and effect and inure to the benefit of the Depositor upon the consummation of the transactions contemplated herein by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) The related Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of such Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Seller Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the fulfillment Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the terms of this Agreement by Transferred Mortgage Loans to the Depositor, the Seller shall not conflict was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, of any encumbrance, equity, participation interest, lien, pledge, charge, claim or security interest, and has full right and authority, subject to no interest or participation of, or agreement with, result any other party, to sell and assign each Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in any breach the locality where the related Mortgaged Property is located or (ii) an ALTA Mortgagee Title Insurance Policy or other generally acceptable form of any policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the terms Transferred Mortgage Loan, and provisions its successors and assigns, as to the first priority lien of or constitute the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with or without notice or lapse of time) a default underrespect to the project in which such unit is located. With respect to any Title Insurance Policy, the certificate originator is the sole insured of incorporation or by-laws such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or any indentureomission, agreement, mortgage, deed anything that would impair the coverage of trust or other instrument to which the Seller is a party or by which it is bound, or result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement, mortgage, deed of trust or other instrument mortgagee Title Insurance Policy;
(other than pursuant to the Basic Documents), or violate any law or, to viii) To the best of the Seller's ’s knowledge, no foreclosure action is being threatened or commenced with respect to any order, rule Transferred Mortgage Loan. There is no proceeding pending for the total or regulation applicable to the Seller partial condemnation of any Governmental Authority having jurisdiction over Mortgaged Property (or, in the Seller case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or any earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of its propertiesthe related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(ix) There are no mechanics’ or similar liens or claims which have been filed for work, labor or material (and no rights are outstanding that under the law could give rise to such liens) affecting the related Mortgaged Property which are or may be liens prior to, or equal or coordinate with, the lien of the related Mortgage;
(x) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, insurance company or similar institution that is supervised and examined by a Federal or State authority, or by a mortgagee approved by the Secretary of Housing and Urban Development pursuant to sections 203 and 211 of the National Housing Act;
(xi) Each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2;
(xii) Each Transferred Mortgage Loan at the time it was made complied in all material respects with applicable local, state and federal laws, including, but not limited to, all applicable predatory, abusive and fair lending laws; and, specifically, (a) no Transferred Mortgage Loan secured by a Mortgaged Property located in New Jersey is a “High-Cost Home Loan” as defined in the New Jersey Home Ownership Act effective November 27, 2003 (N.J.S.A. 46:10B-22 et seq.); (b) no Transferred Mortgage Loan secured by a Mortgaged Property located in New Mexico is a “High-Cost Home Loan” as defined in the New Mexico Home Loan Protection Act effective January 1, 2004 (N.M.
Appears in 2 contracts
Samples: Mortgage Loan Sale and Assignment Agreement (Lehman XS Trust 2006-11), Mortgage Loan Sale and Assignment Agreement (Lehman XS Trust, Series 2006-8)
Representations and Warranties of the Seller. The Seller hereby represents and warrants to the Owner Trustee thatPurchaser, as of the date hereof, as follows:
(a) The Seller has been is a limited partnership duly organized and is organized, validly existing as a corporation and in good standing under the laws of the State state of Delaware, with power Delaware and authority to own its properties and to conduct its business as such properties are presently owned and such business is presently conducted, and had at all relevant times, and now has, has the power, authority and legal right capacity to acquire execute and own deliver this Agreement, to perform its obligations hereunder and to consummate the Receivables transactions contemplated to be transferred to the Trust pursuant to the Trust Sale and Servicing Agreementhereby.
(b) The execution and delivery of this Agreement by the Seller is duly qualified and the consummation by the Seller of the transactions contemplated hereby (i) do not require Seller to do business andobtain any consent, where necessary is in good standing approval, authorization, order, registration or qualification of or (except for filings pursuant to Regulation 13D or is exempt from such requirementSection 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), ) make any filing with any Governmental Authority (as defined below); and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications, (ii) except where the failure to so qualify or obtain licenses or approvals as would not have a material adverse effect on its the ability of the Seller to consummate the transactions contemplated by this Agreement on the terms set forth herein or on the ability of the Seller to perform its obligations under this Agreement, do not and will not constitute or result in a breach, violation or default under (A) any statute, law, ordinance, decree, order, injunction, rule, directive, judgment or regulation of any court, administrative or regulatory body, including any stock exchange or self-regulatory organization, governmental authority, arbitrator, mediator or similar body (each, a “Governmental Authority) applicable to the Basic Documents to which it is a partySeller or (B) the terms of any agreements binding upon the Seller.
(c) This Agreement has been duly executed and delivered by the Seller and constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws of general application affecting enforcement of creditors’ rights generally and by general principles of equity. The Seller has the power and authority duly taken all necessary action to execute and deliver this Agreement, to carry out its terms and to consummate the transactions contemplated herein; and authorize the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein have been duly authorized by the Seller by all necessary corporate actionhereby.
(d) The execution of this Agreement and Seller is the consummation sole owner of the transactions contemplated herein Purchased Shares. No person or entity has any beneficial ownership of the Purchased Shares other than BCC by virtue of being the general partner of the Seller and Xx. Xxxxxxx by virtue of being the fulfillment chairman and chief executive officer of BCC. The Seller has good and valid title to the Purchased Shares, free and clear of any lien, encumbrance, pledge, charge, security interest, mortgage, title retention agreement, assessment, option, proxy, agreement to vote, equitable or other adverse claim (collectively, “Liens”) other than Liens existing under applicable securities laws (collectively, “Permitted Liens”), and the Seller has not, in whole or in part, (a) assigned, transferred, hypothecated, pledged or otherwise disposed of the terms Purchased Shares or its ownership rights in such Purchased Shares or (b) given any person or entity any transfer order, power of this Agreement by the Seller shall not conflict attorney or other authority of any nature whatsoever with respect to such Purchased Shares. There are no contracts, commitments, agreements, understandings or arrangements of any kind (contingent or otherwise) relating to, or granting rights in connection with, result in any breach the issuance, sale, transfer or ownership of any of the terms Purchased Shares, other than as contemplated by this Agreement. The delivery of the Purchased Shares to the Purchaser pursuant to this Agreement will transfer and provisions convey good, valid and marketable title thereto to the Purchaser, free and clear of or constitute all Liens other than Permitted Liens.
(with or without notice or lapse e) Without limiting the representations and warranties of time) a default underthe Purchaser in Article III, the certificate Seller has such knowledge and experience in financial and business matters and in making investment decisions of incorporation or bythis type that it is capable of evaluating the merits and risks of making its investment decision regarding the transactions contemplated by this Agreement and of making an informed investment decision. In entering into this Agreement, the Seller has consulted with its own advisors and has relied solely upon its own investigation and analysis, without relying upon the Purchaser except to the extent specified in this Agreement.
(f) The Seller, BCC, Xx. Xxxxxxx and their representatives have been provided with access to substantial information, including non-laws of public information, relevant to the Purchaser and the Purchased Shares, and the Seller has reviewed such information as it considers necessary to evaluate the decision to sell the Purchased Shares pursuant to this Agreement (collectively, the “Provided Information”). Notwithstanding the access provided to the Seller, BCC, Xx. Xxxxxxx and their representatives, the Seller acknowledges that the Purchaser may be in possession of material non-public information about the Purchaser not known to the Seller, BCC or Xx. Xxxxxxx (“Excluded Information”). The Seller hereby waives any and all claims and causes of action now or hereafter arising against the Purchaser, its Affiliates or any indentureof their directors, agreementofficers, mortgageemployees, deed agents or representatives based upon or relating to any alleged non-disclosure of trust Excluded Information or other instrument the disclosure of the Provided Information and further covenants not to which assert any claims against or to xxx the Purchaser, its Affiliates or any of their directors, officers, employees, agents or representatives for any loss, damage or liability arising from or relating to the transactions contemplated by this Agreement based upon or relating to any alleged non-disclosure of Excluded Information or the disclosure of the Provided Information.
(g) The Seller acknowledges and confirms that it is aware that the Purchaser is not making any representation or warranty to the Seller, BCC or Xx. Xxxxxxx whatsoever with respect to the business, condition (financial or otherwise), properties, prospects, creditworthiness, status or affairs of the Purchaser, or with respect to the value of the Purchased Shares. The Seller acknowledges and confirms that it is aware that the closing sale price of the Purchased Shares (the “Stock Price”) has fluctuated since the Seller acquired the Shares and is a party or by which it is boundlikely to continue to fluctuate after the date hereof, or result in including possible material increases to the creation or imposition of any Lien upon Stock Price.
(h) Other than the Purchased Shares, neither the Seller nor any of its properties pursuant Affiliates beneficially owns any shares of capital stock of the Purchaser.
(i) Except for the representations and warranties contained in this Agreement, neither the Seller nor any other person on behalf of the Seller makes any other express or implied representation or warranty with respect to the terms of any such indenture, agreement, mortgage, deed of trust or other instrument (other than pursuant to the Basic Documents), or violate any law or, to the best of the Seller's knowledge, any order, rule or regulation applicable to the Seller of any Governmental Authority having jurisdiction over the Seller or any of its properties.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Air T Inc), Securities Purchase Agreement (Biglari Capital Corp.)
