Representations and Warranties of the Transferor. The Transferor represents and warrants as follows: (a) It is a corporation, duly incorporated, validly existing and in good standing under the laws of the State of Delaware and is duly qualified to do business, and is in good standing, in every jurisdiction in which the nature of its business requires it to be so qualified and the failure to do so could reasonably be expected to have a Material Adverse Effect. (b) The execution, delivery and performance by the Transferor of this Agreement and all other Transferor Documents to be entered into by it, including the Transferor’s sale or contribution of Receivables, and, in the case of a Purchase, its use of the proceeds of Purchases, are within the Transferor’s corporate powers, have been duly authorized by all necessary corporate action, do not contravene (i) its charter or by-laws, (ii) any Applicable Law except where such contravention could not reasonably be expected to result in a Material Adverse Effect, (iii) any material contractual restriction binding on or affecting it or its property other than such restrictions that could not reasonably be expected to adversely affect the Transferor’s ability to perform its material obligations hereunder or, with respect to the transfer of the Receivables and Collections thereon, in any Immaterial Respect, or (iv) any material order, writ, judgment, award, injunction or decree binding on or affecting it or its property, and do not result in or require the creation of any Lien upon or with respect to any of its properties (other than in favor of the Company with respect to the Transferred Property), and no transaction contemplated hereby requires compliance with any bulk sales act or similar law. This Agreement and each other Transferor Document to be entered into by the Transferor have been duly executed and delivered by it. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for its due execution, delivery and performance of this Agreement or any other Transferor Document to be entered into by it, except (i) for the filing of UCC financing statements, all of which financing statements have been duly filed and, to its knowledge, are in full force and effect, (ii) such as have been made or obtained and are in full force and effect and (iii) where the failure to make or obtain could not reasonably be expected to adversely affect the Company’s ability to perform its material obligations hereunder or the ability to assign or collect the Receivables hereunder. (d) This Agreement and each other Transferor Document to be entered into by the Transferor constitute its legal, valid and binding obligation enforceable against the Transferor in accordance with their respective terms subject to bankruptcy and similar laws affecting creditors generally and general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law). (e) (i) The Transferor has furnished to the Company and the Administrative Agent copies of the Parent’s audited consolidated balance sheet as at December 31, 2011, and the related audited consolidated statements of income and cash flow for the fiscal year of the Parent then ended reported on by Deloitte & Touche LLP which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at December 31, 2011, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year of the Parent then ended, which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at such date, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year then ended; and
Appears in 4 contracts
Samples: Receivables Purchase and Contribution Agreement, Receivables Purchase and Contribution Agreement, Omnibus Amendment (Community Health Systems Inc)
Representations and Warranties of the Transferor. The Transferor hereby represents and warrants to the Trust as followsof the date hereof:
(a) It The Transferor is a corporation, limited liability company duly incorporated, formed and validly existing and in good standing under the laws of the State of Delaware Delaware. The Transferor has full power and authority, in all material respects, to own its properties as currently owned, to conduct its business as currently conducted, and to execute, deliver, and perform its obligations under this Agreement.
(b) In all material respects, in each jurisdiction in which the conduct of its business requires, the Transferor is duly qualified to do business, and is in good standing, in every jurisdiction in which the nature of its business requires it to be so qualified and the failure to do so could reasonably be expected to have a Material Adverse Effecthas all necessary licenses and approvals.
(bc) The executionTransferor has duly authorized, by all necessary limited liability company action, its execution and delivery and performance by the Transferor of this Agreement and all its consummation of the transactions contemplated by this Agreement.
(d) The Transferor’s execution and delivery of this Agreement, its performance of the transactions contemplated by this Agreement, and its fulfillment of the terms of this Agreement do not conflict with, breach any material term of, or cause a material default under (with or without notice or lapse of time or both) any indenture, contract, agreement, mortgage, deed of trust, or other instrument to which the Transferor Documents is a party or by which the Transferor or any of its properties are bound.
(e) The Transferor’s execution and delivery of this Agreement, its performance of the transactions contemplated by this Agreement, and its fulfillment of the terms of this Agreement do not conflict with or violate any Requirements of Law applicable to be entered into by itthe Transferor.
(f) No proceeding or investigation against the Transferor is pending or, including to the best of the Transferor’s sale knowledge, threatened before any Governmental Authority that (A) asserts that this Agreement is invalid, (B) seeks to prevent the consummation of any transaction contemplated by this Agreement, (C) seeks any determination or contribution of Receivables, andruling that, in the case of a Purchase, its use of the proceeds of Purchases, are within the Transferor’s corporate powersreasonable judgment, have been duly authorized by all necessary corporate action, do not contravene (i) its charter or by-laws, (ii) any Applicable Law except where such contravention could not reasonably be expected to result in a Material Adverse Effect, (iii) any material contractual restriction binding on or affecting it or its property other than such restrictions that could not reasonably be expected to would materially and adversely affect the Transferor’s ability performance under this Agreement, or (D) seeks any determination or ruling that would materially and adversely affect the validity or enforceability of this Agreement.
(g) As of the Amendment Date, no selection procedures adverse to perform the Investor Certificateholders have been employed by the Transferor in selecting the Accounts.
(h) The Transferor has obtained all approvals, authorizations, licenses, consents, and orders required of any Person in connection with the Transferor’s execution and delivery of this Agreement, its material obligations hereunder orperformance of the transactions contemplated by this Agreement, and its fulfillment of the terms of this Agreement. The representations and warranties set forth in this Section 2.03 shall survive the transfer and assignment of the Receivables to the Trustee. The Transferor hereby represents and warrants to the Trustee, with respect to any Series of Certificates, as of its Closing Date, unless otherwise stated in such Supplement, that the transfer representations and warranties of the Receivables Transferor set forth in Section 2.03 are true and Collections thereoncorrect as of such date. Upon discovery by the Transferor, in any Immaterial Respect, the Servicer or (iv) any material order, writ, judgment, award, injunction or decree binding on or affecting it or its property, and do not result in or require the creation Trustee of a breach of any Lien upon or with respect to any of its properties (other than in favor of the Company with respect foregoing representations and warranties, the party discovering such breach shall give prompt written notice to the Transferred Property), and no transaction contemplated hereby requires compliance with any bulk sales act or similar law. This Agreement and each other Transferor Document to be entered into by the Transferor have been duly executed and delivered by itothers.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for its due execution, delivery and performance of this Agreement or any other Transferor Document to be entered into by it, except (i) for the filing of UCC financing statements, all of which financing statements have been duly filed and, to its knowledge, are in full force and effect, (ii) such as have been made or obtained and are in full force and effect and (iii) where the failure to make or obtain could not reasonably be expected to adversely affect the Company’s ability to perform its material obligations hereunder or the ability to assign or collect the Receivables hereunder.
(d) This Agreement and each other Transferor Document to be entered into by the Transferor constitute its legal, valid and binding obligation enforceable against the Transferor in accordance with their respective terms subject to bankruptcy and similar laws affecting creditors generally and general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
(e) (i) The Transferor has furnished to the Company and the Administrative Agent copies of the Parent’s audited consolidated balance sheet as at December 31, 2011, and the related audited consolidated statements of income and cash flow for the fiscal year of the Parent then ended reported on by Deloitte & Touche LLP which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at December 31, 2011, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year of the Parent then ended, which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at such date, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year then ended; and
Appears in 4 contracts
Samples: Pooling and Servicing Agreement (BA Credit Card Trust), Pooling and Servicing Agreement (BA Master Credit Card Trust II), Pooling and Servicing Agreement
Representations and Warranties of the Transferor. The Transferor hereby represents and warrants as followsto the Owner Trustee that:
(a) It The Transferor is a corporation, duly incorporated, formed and validly existing and as a limited liability company in good standing under the laws of the State of Delaware Delaware, with power and is duly qualified authority to do business, own its properties and is in good standing, in every jurisdiction in which the nature of to conduct its business requires it to be so qualified as such properties are currently owned and the failure to do so could reasonably be expected to have a Material Adverse Effectsuch business is presently conducted.
(b) The execution, delivery and performance by the Transferor of this Agreement and all other Transferor Documents to be entered into by it, including the Transferor’s sale or contribution of Receivables, and, in the case of is not a Purchase, its use of the proceeds of Purchases, are within the Transferor’s corporate powers, have been duly authorized by all necessary corporate action, do not contravene (i) its charter or by-laws, (ii) any Applicable Law except where such contravention could not reasonably be expected to result in a Material Adverse Effect, (iii) any material contractual restriction binding on or affecting it or its property other than such restrictions that could not reasonably be expected to adversely affect the Transferor’s ability to perform its material obligations hereunder or, with respect to the transfer of the Receivables and Collections thereon, in any Immaterial Respect, or (iv) any material order, writ, judgment, award, injunction or decree binding on or affecting it or its property, and do not result in or require the creation of any Lien upon or with respect to any of its properties (other than in favor of the Company with respect to the Transferred Property), and no transaction contemplated hereby requires compliance with any bulk sales act or similar law. This Agreement and each other Transferor Document to be entered into by the Transferor have been duly executed and delivered by itBenefit Plan.
(c) No authorization The Transferor is duly qualified to do business as a foreign limited liability company in good standing 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 shall require such qualifications except when the failure to have any such license, approval or other action byqualification would not have a material adverse effect on the condition, financial or otherwise, of the Transferor or would not have a material adverse effect on the ability of the Transferor to perform its obligations under this Agreement.
(d) The Transferor has the power and no notice authority to or filing with, any governmental authority or regulatory body is required for execute and deliver this Agreement and to carry out its due terms and to transfer and assign the property to be transferred and assigned to and deposited with the Issuer; and the execution, delivery and performance of this Agreement or any other Transferor Document to be entered into by itand such transfer, except (i) for the filing of UCC financing statements, all of which financing statements assignment and deposit have been duly filed and, to its knowledge, are in full force and effect, (ii) such as have been made or obtained and are in full force and effect and (iii) where authorized by the failure to make or obtain could not reasonably be expected to adversely affect the Company’s ability to perform its material obligations hereunder or the ability to assign or collect the Receivables hereunderTransferor by all necessary limited liability company action.
(de) This Agreement and each other Transferor Document to be entered into by the Transferor constitute its constitutes a legal, valid and binding obligation of the Transferor, enforceable against the Transferor in accordance with their respective terms its terms, except as such enforceability may be subject to bankruptcy and or limited by bankruptcy, liquidation, insolvency, reorganization, moratorium, liquidation, fraudulent conveyance or other similar laws affecting creditors generally the enforcement of creditors’ rights in general and by general principles of equity (equity, regardless of whether enforcement is sought such enforceability shall be considered in a proceeding in equity or at law).
(ef) The consummation of the transactions contemplated by this Agreement and the fulfillment of the terms hereof 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 formation or limited liability company agreement of the Transferor, or any indenture, agreement or other instrument to which the Transferor is a party or by which it is bound; nor result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement or other instrument (other than pursuant to the 2016-B Basic Documents); nor violate any law or, to the best of the Transferor’s knowledge, any order, rule or regulation applicable to the Transferor of any Governmental Authority having jurisdiction over the Transferor or its properties.
(g) To the knowledge of the Transferor, there are no proceedings or investigations pending or threatened before any Governmental Authority having jurisdiction over the Transferor or its properties (i) The Transferor has furnished asserting the invalidity of this Agreement, (ii) seeking to prevent the Company and the Administrative Agent copies consummation of any of the Parent’s audited consolidated balance sheet as at December 31transactions contemplated by this Agreement or (iii) seeking any determination or ruling that might materially and adversely affect the performance by the Transferor of its obligations under, 2011or the validity or enforceability of, and the related audited consolidated statements of income and cash flow for the fiscal year of the Parent then ended reported on by Deloitte & Touche LLP which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at December 31, 2011, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year of the Parent then ended, which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at such date, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year then ended; andthis Agreement.
Appears in 3 contracts
Samples: Trust Agreement, Trust Agreement (Mercedes-Benz Auto Lease Trust 2016-B), Trust Agreement (Mercedes-Benz Auto Lease Trust 2016-B)
Representations and Warranties of the Transferor. The Transferor hereby represents and warrants as followsto the Owner Trustee that:
(a) It The Transferor is a corporation, duly incorporated, formed and validly existing and as a limited liability company in good standing under the laws of the State of Delaware Delaware, with power and is duly qualified authority to do business, own its properties and is in good standing, in every jurisdiction in which the nature of to conduct its business requires it to be so qualified as such properties are currently owned and the failure to do so could reasonably be expected to have a Material Adverse Effectsuch business is presently conducted.
(b) The execution, delivery and performance by the Transferor of this Agreement and all other Transferor Documents to be entered into by it, including the Transferor’s sale or contribution of Receivables, and, in the case of is not a Purchase, its use of the proceeds of Purchases, are within the Transferor’s corporate powers, have been duly authorized by all necessary corporate action, do not contravene (i) its charter or by-laws, (ii) any Applicable Law except where such contravention could not reasonably be expected to result in a Material Adverse Effect, (iii) any material contractual restriction binding on or affecting it or its property other than such restrictions that could not reasonably be expected to adversely affect the Transferor’s ability to perform its material obligations hereunder or, with respect to the transfer of the Receivables and Collections thereon, in any Immaterial Respect, or (iv) any material order, writ, judgment, award, injunction or decree binding on or affecting it or its property, and do not result in or require the creation of any Lien upon or with respect to any of its properties (other than in favor of the Company with respect to the Transferred Property), and no transaction contemplated hereby requires compliance with any bulk sales act or similar law. This Agreement and each other Transferor Document to be entered into by the Transferor have been duly executed and delivered by itBenefit Plan.
(c) No authorization The Transferor is duly qualified to do business as a foreign limited liability company in good standing 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 shall require such qualifications except when the failure to have any such license, approval or other action byqualification would not have a material adverse effect on the condition, financial or otherwise, of the Transferor or would not have a material adverse effect on the ability of the Transferor to perform its obligations under this Agreement.
(d) The Transferor has the power and no notice authority to or filing with, any governmental authority or regulatory body is required for execute and deliver this Agreement and to carry out its due terms and to transfer and assign the property to be transferred and assigned to and deposited with the Issuer; and the execution, delivery and performance of this Agreement or any other Transferor Document to be entered into by itand such transfer, except (i) for the filing of UCC financing statements, all of which financing statements assignment and deposit have been duly filed and, to its knowledge, are in full force and effect, (ii) such as have been made or obtained and are in full force and effect and (iii) where authorized by the failure to make or obtain could not reasonably be expected to adversely affect the Company’s ability to perform its material obligations hereunder or the ability to assign or collect the Receivables hereunderTransferor by all necessary limited liability company action.
(de) This Agreement and each other Transferor Document to be entered into by the Transferor constitute its constitutes a legal, valid and binding obligation of the Transferor, enforceable against the Transferor in accordance with their respective terms its terms, except as such enforceability may be subject to bankruptcy and or limited by bankruptcy, liquidation, insolvency, reorganization, moratorium, liquidation, fraudulent conveyance or other similar laws affecting creditors generally the enforcement of creditors’ rights in general and by general principles of equity (equity, regardless of whether enforcement is sought such enforceability shall be considered in a proceeding in equity or at law).
(ef) The consummation of the transactions contemplated by this Agreement and the fulfillment of the terms hereof 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 formation or limited liability company agreement of the Transferor, or any indenture, agreement or other instrument to which the Transferor is a party or by which it is bound; nor result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement or other instrument (other than pursuant to the 2021-B Basic Documents); nor violate any law or, to the best of the Transferor’s knowledge, any order, rule or regulation applicable to the Transferor of any Governmental Authority having jurisdiction over the Transferor or its properties.
(g) To the knowledge of the Transferor, there are no proceedings or investigations pending or threatened before any Governmental Authority having jurisdiction over the Transferor or its properties (i) The Transferor has furnished asserting the invalidity of this Agreement, (ii) seeking to prevent the Company and the Administrative Agent copies consummation of any of the Parent’s audited consolidated balance sheet as at December 31transactions contemplated by this Agreement or (iii) seeking any determination or ruling that might materially and adversely affect the performance by the Transferor of its obligations under, 2011or the validity or enforceability of, and the related audited consolidated statements of income and cash flow for the fiscal year of the Parent then ended reported on by Deloitte & Touche LLP which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at December 31, 2011, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year of the Parent then ended, which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at such date, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year then ended; andthis Agreement.
Appears in 2 contracts
Samples: Trust Agreement (Mercedes-Benz Auto Lease Trust 2021-B), Trust Agreement (Mercedes-Benz Auto Lease Trust 2021-B)
Representations and Warranties of the Transferor. The Transferor hereby represents and warrants as followsto the Owner Trustee that:
(a) It The Transferor is a corporation, duly incorporated, formed and validly existing and as a limited liability company in good standing under the laws of the State of Delaware Delaware, with power and is duly qualified authority to do business, own its properties and is in good standing, in every jurisdiction in which the nature of to conduct its business requires it to be so qualified as such properties are currently owned and the failure to do so could reasonably be expected to have a Material Adverse Effectsuch business is presently conducted.
(b) The execution, delivery and performance by the Transferor of this Agreement and all other Transferor Documents to be entered into by it, including the Transferor’s sale or contribution of Receivables, and, in the case of is not a Purchase, its use of the proceeds of Purchases, are within the Transferor’s corporate powers, have been duly authorized by all necessary corporate action, do not contravene (i) its charter or by-laws, (ii) any Applicable Law except where such contravention could not reasonably be expected to result in a Material Adverse Effect, (iii) any material contractual restriction binding on or affecting it or its property other than such restrictions that could not reasonably be expected to adversely affect the Transferor’s ability to perform its material obligations hereunder or, with respect to the transfer of the Receivables and Collections thereon, in any Immaterial Respect, or (iv) any material order, writ, judgment, award, injunction or decree binding on or affecting it or its property, and do not result in or require the creation of any Lien upon or with respect to any of its properties (other than in favor of the Company with respect to the Transferred Property), and no transaction contemplated hereby requires compliance with any bulk sales act or similar law. This Agreement and each other Transferor Document to be entered into by the Transferor have been duly executed and delivered by itBenefit Plan.
(c) No authorization The Transferor is duly qualified to do business as a foreign limited liability company in good standing 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 shall require such qualifications except when the failure to have any such license, approval or other action byqualification would not have a material adverse effect on the condition, financial or otherwise, of the Transferor or would not have a material adverse effect on the ability of the Transferor to perform its obligations under this Agreement.
(d) The Transferor has the power and no notice authority to or filing with, any governmental authority or regulatory body is required for execute and deliver this Agreement and to carry out its due terms and to transfer and assign the property to be transferred and assigned to and deposited with the Issuer; and the execution, delivery and performance of this Agreement or any other Transferor Document to be entered into by itand such transfer, except (i) for the filing of UCC financing statements, all of which financing statements assignment and deposit have been duly filed and, to its knowledge, are in full force and effect, (ii) such as have been made or obtained and are in full force and effect and (iii) where authorized by the failure to make or obtain could not reasonably be expected to adversely affect the Company’s ability to perform its material obligations hereunder or the ability to assign or collect the Receivables hereunderTransferor by all necessary limited liability company action.
(de) This Agreement and each other Transferor Document to be entered into by the Transferor constitute its constitutes a legal, valid and binding obligation of the Transferor, enforceable against the Transferor in accordance with their respective terms its terms, except as such enforceability may be subject to bankruptcy and or limited by bankruptcy, liquidation, insolvency, reorganization, moratorium, liquidation, fraudulent conveyance or other similar laws affecting creditors generally the enforcement of creditors’ rights in general and by general principles of equity (equity, regardless of whether enforcement is sought such enforceability shall be considered in a proceeding in equity or at law).
(ef) The consummation of the transactions contemplated by this Agreement and the fulfillment of the terms hereof 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 formation or limited liability company agreement of the Transferor, or any indenture, agreement or other instrument to which the Transferor is a party or by which it is bound; nor result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement or other instrument (other than pursuant to the 2018-B Basic Documents); nor violate any law or, to the best of the Transferor’s knowledge, any order, rule or regulation applicable to the Transferor of any Governmental Authority having jurisdiction over the Transferor or its properties.
(g) To the knowledge of the Transferor, there are no proceedings or investigations pending or threatened before any Governmental Authority having jurisdiction over the Transferor or its properties (i) The Transferor has furnished asserting the invalidity of this Agreement, (ii) seeking to prevent the Company and the Administrative Agent copies consummation of any of the Parent’s audited consolidated balance sheet as at December 31transactions contemplated by this Agreement or (iii) seeking any determination or ruling that might materially and adversely affect the performance by the Transferor of its obligations under, 2011or the validity or enforceability of, and the related audited consolidated statements of income and cash flow for the fiscal year of the Parent then ended reported on by Deloitte & Touche LLP which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at December 31, 2011, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year of the Parent then ended, which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at such date, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year then ended; andthis Agreement.
Appears in 2 contracts
Samples: Trust Agreement (Mercedes-Benz Auto Lease Trust 2018-B), Trust Agreement (Mercedes-Benz Auto Lease Trust 2018-B)
Representations and Warranties of the Transferor. The Transferor hereby represents and warrants as followsto the Owner Trustee that:
(a) It The Transferor is a corporation, duly incorporated, formed and validly existing and as a limited liability company in good standing under the laws of the State of Delaware Delaware, with power and is duly qualified authority to do business, own its properties and is in good standing, in every jurisdiction in which the nature of to conduct its business requires it to be so qualified as such properties are currently owned and the failure to do so could reasonably be expected to have a Material Adverse Effectsuch business is presently conducted.
(b) The execution, delivery and performance by the Transferor of this Agreement and all other Transferor Documents to be entered into by it, including the Transferor’s sale or contribution of Receivables, and, in the case of is not a Purchase, its use of the proceeds of Purchases, are within the Transferor’s corporate powers, have been duly authorized by all necessary corporate action, do not contravene (i) its charter or by-laws, (ii) any Applicable Law except where such contravention could not reasonably be expected to result in a Material Adverse Effect, (iii) any material contractual restriction binding on or affecting it or its property other than such restrictions that could not reasonably be expected to adversely affect the Transferor’s ability to perform its material obligations hereunder or, with respect to the transfer of the Receivables and Collections thereon, in any Immaterial Respect, or (iv) any material order, writ, judgment, award, injunction or decree binding on or affecting it or its property, and do not result in or require the creation of any Lien upon or with respect to any of its properties (other than in favor of the Company with respect to the Transferred Property), and no transaction contemplated hereby requires compliance with any bulk sales act or similar law. This Agreement and each other Transferor Document to be entered into by the Transferor have been duly executed and delivered by itBenefit Plan.
(c) No authorization The Transferor is duly qualified to do business as a foreign limited liability company in good standing 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 shall require such qualifications except when the failure to have any such license, approval or other action byqualification would not have a material adverse effect on the condition, financial or otherwise, of the Transferor or would not have a material adverse effect on the ability of the Transferor to perform its obligations under this Agreement.
(d) The Transferor has the power and no notice authority to or filing with, any governmental authority or regulatory body is required for execute and deliver this Agreement and to carry out its due terms and to transfer and assign the property to be transferred and assigned to and deposited with the Issuer; and the execution, delivery and performance of this Agreement or any other Transferor Document to be entered into by itand such transfer, except (i) for the filing of UCC financing statements, all of which financing statements assignment and deposit have been duly filed and, to its knowledge, are in full force and effect, (ii) such as have been made or obtained and are in full force and effect and (iii) where authorized by the failure to make or obtain could not reasonably be expected to adversely affect the Company’s ability to perform its material obligations hereunder or the ability to assign or collect the Receivables hereunderTransferor by all necessary limited liability company action.
(de) This Agreement and each other Transferor Document to be entered into by the Transferor constitute its constitutes a legal, valid and binding obligation of the Transferor, enforceable against the Transferor in accordance with their respective terms its terms, except as such enforceability may be subject to bankruptcy and or limited by bankruptcy, liquidation, insolvency, reorganization, moratorium, liquidation, fraudulent conveyance or other similar laws affecting creditors generally the enforcement of creditors’ rights in general and by general principles of equity (equity, regardless of whether enforcement is sought such enforceability shall be considered in a proceeding in equity or at law).
(ef) The consummation of the transactions contemplated by this Agreement and the fulfillment of the terms hereof 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 formation or limited liability company agreement of the Transferor, or any indenture, agreement or other instrument to which the Transferor is a party or by which it is bound; nor result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement or other instrument (other than pursuant to the 2021-A Basic Documents); nor violate any law or, to the best of the Transferor’s knowledge, any order, rule or regulation applicable to the Transferor of any Governmental Authority having jurisdiction over the Transferor or its properties.
(g) To the knowledge of the Transferor, there are no proceedings or investigations pending or threatened before any Governmental Authority having jurisdiction over the Transferor or its properties (i) The Transferor has furnished asserting the invalidity of this Agreement, (ii) seeking to prevent the Company and the Administrative Agent copies consummation of any of the Parent’s audited consolidated balance sheet as at December 31transactions contemplated by this Agreement or (iii) seeking any determination or ruling that might materially and adversely affect the performance by the Transferor of its obligations under, 2011or the validity or enforceability of, and the related audited consolidated statements of income and cash flow for the fiscal year of the Parent then ended reported on by Deloitte & Touche LLP which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at December 31, 2011, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year of the Parent then ended, which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at such date, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year then ended; andthis Agreement.
Appears in 2 contracts
Samples: Trust Agreement (Mercedes-Benz Auto Lease Trust 2021-A), Trust Agreement (Mercedes-Benz Auto Lease Trust 2021-A)
Representations and Warranties of the Transferor. The Transferor hereby represents and warrants to the Transferee as followsof the Closing Date:
(a) It The Transferor is a corporation, duly incorporatedorganized, validly existing existing, and in good standing under the laws of the State jurisdiction of Delaware its incorporation and has all licenses necessary to carry on its business as now being conducted and is duly licensed, qualified to do business, and is in good standing, standing in every jurisdiction each Mortgaged Property State if the laws of such state require licensing or qualification in which order to conduct business of the nature of its business requires it to be so qualified and the failure to do so could reasonably be expected to have a Material Adverse Effect.
(b) The execution, delivery and performance type conducted by the Transferor of and perform its obligations as a Transferor hereunder; the Transferor has the power and authority to execute and deliver this Agreement and all other Transferor Documents to be entered into by it, including the Transferor’s sale or contribution of Receivables, and, in the case of a Purchase, its use of the proceeds of Purchases, are within the Transferor’s corporate powers, have been duly authorized by all necessary corporate action, do not contravene (i) its charter or by-laws, (ii) any Applicable Law except where such contravention could not reasonably be expected to result in a Material Adverse Effect, (iii) any material contractual restriction binding on or affecting it or its property other than such restrictions that could not reasonably be expected to adversely affect the Transferor’s ability to perform its material obligations hereunder or, with respect to in accordance herewith; the transfer of the Receivables and Collections thereon, in any Immaterial Respect, or (iv) any material order, writ, judgment, award, injunction or decree binding on or affecting it or its property, and do not result in or require the creation of any Lien upon or with respect to any of its properties (other than in favor of the Company with respect to the Transferred Property), and no transaction contemplated hereby requires compliance with any bulk sales act or similar law. This Agreement and each other Transferor Document to be entered into by the Transferor have been duly executed and delivered by it.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for its due execution, delivery and performance of this Agreement or any other Transferor Document (including all instruments of transfer to be entered into delivered pursuant to this Agreement) by it, except (i) for the filing Transferor and the consummation of UCC financing statements, all of which financing statements the transactions contemplated hereby have been duly filed andand validly authorized by all necessary action; this Agreement is the valid, binding and enforceable obligation of the Transferor; and all requisite action has been taken by the Transferor to make this Agreement valid, binding and enforceable upon the Transferor in accordance with its knowledgeterms, subject to the effect of bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors rights generally or the application of equitable principles in any proceeding, whether at law or in equity;
(b) 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 Transferor makes no such representation or warranty), that are necessary in connection with the execution and delivery by the Transferor of the Basic 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, are not subject to any pending proceedings or appeals (iiadministrative, judicial or otherwise) such as have been made 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 documents on the part of the Transferor and the performance by the Transferor of its obligations as the Transferor under this Agreement and such of the other Basic Documents to which it is a party;
(c) The consummation of the transactions contemplated by this Agreement will not result in full force and effect and (iii) where the failure breach of any terms or provisions of the bylaws of the Transferor or result in the breach of any term or provision of, or conflict with or constitute a default under or result in the acceleration of any obligation under, any material agreement, indenture or loan or credit agreement or other material instrument to make which the Transferor or obtain could not reasonably be expected its property is subject, or result in the violation of any law, rule, regulation, order, judgment or decree to adversely affect which the Company’s ability to perform Transferor or its material obligations hereunder or the ability to assign or collect the Receivables hereunder.property is subject;
(d) This Neither this Agreement and each nor the Prospectus nor any statement, report or other Transferor Document to be entered into document prepared by the Transferor constitute its legaland furnished or to be furnished pursuant to this Agreement or in connection with the transactions contemplated hereby, valid by the Pooling and binding obligation enforceable against Servicing Agreement or by any Basic Document, contains any untrue statement of material fact or omits to state a material fact necessary to make the Transferor in accordance with their respective terms subject to bankruptcy and similar laws affecting creditors generally and general principles of equity (regardless of whether enforcement is sought in a proceeding in equity statements contained herein or at law).therein not misleading;
(e) There is no action, suit, proceeding or investigation pending or, to the best of the Transferor's knowledge, threatened against the Transferor which, either in any one instance or in the aggregate, may result in any material adverse change in the business, operations, financial condition, properties or assets of the Transferor or in any material impairment of the right or ability of the Transferor to carry on its business substantially as now conducted, or in any material liability on the part of the Transferor or which would draw into question the validity of this Agreement or the Mortgage Loans or of any action taken or to be taken in connection with the obligations of the Transferor contemplated herein, or which would be likely to impair materially the ability of the Transferor to perform under the terms of this Agreement;
(f) The Transferor 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 governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or other) or operations of the Transferor or its properties or might have consequences that would materially and adversely affect its performance hereunder or under any Subservicing Agreement;
(g) Upon the receipt of each Mortgage File by the Transferee under this Agreement, the Transferee will have good and indefeasible title to each Mortgage Loan (other than any amounts received after the Cut-off Date in respect of interest accrued on or prior to the Cut-off Date) and such other assets transferred hereunder free and clear of any Lien (other than Liens which will be simultaneously released);
(h) The transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Transferor pursuant to this Agreement are not subject to the bulk transfer laws or any similar statutory provisions in effect in any applicable jurisdiction;
(i) The Transferor has furnished did not transfer any interest in any Mortgage Loan with any intent to hinder, delay or defraud any of its creditors;
(j) The Transferor is solvent and the Transferor will not be rendered insolvent as a result of the transfer of the Mortgage Loans to the Company Transferee; and
(k) The origination and collection practices used by the Administrative Agent copies of the Parent’s audited consolidated balance sheet Transferor with respect to each Mortgage Note and Mortgage (other than each Mortgage Note and Mortgage evidencing or securing (as at December 31applicable) a Mortgage Loan acquired from an originator (each, 2011, and the related audited consolidated statements of income and cash flow for the fiscal year of the Parent then ended reported on by Deloitte & Touche LLP which financial statements present fairly an "Acquired Mortgage Loan") have been in all material respects legal, proper, prudent and customary in accordance with GAAP the financial position second mortgage origination and servicing business; and, to the best knowledge of the Parent Transferor, the origination and its consolidated subsidiaries collection practices used by the originator with respect to each Mortgage Note and Mortgage evidencing or securing (as at December 31, 2011, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year of the Parent then ended, which financial statements present fairly applicable) an Acquired Mortgage Loan have been in all material respects legal, proper, prudent and customary in accordance with GAAP the financial position of the Parent second mortgage origination and its consolidated subsidiaries as at such date, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year then ended; andservicing business.
Appears in 2 contracts
Samples: Transfer Agreement (Eqcc Receivables Corp), Transfer Agreement (Eqcc Receivables Corp)
Representations and Warranties of the Transferor. The Transferor hereby represents and warrants as followsto the Owner Trustee that:
(a) It The Transferor is a corporation, duly incorporated, formed and validly existing and as a limited liability company in good standing under the laws of the State of Delaware Delaware, with power and is duly qualified authority to do business, own its properties and is in good standing, in every jurisdiction in which the nature of to conduct its business requires it to be so qualified as such properties are currently owned and the failure to do so could reasonably be expected to have a Material Adverse Effectsuch business is presently conducted.
(b) The execution, delivery and performance by the Transferor of this Agreement and all other Transferor Documents to be entered into by it, including the Transferor’s sale or contribution of Receivables, and, in the case of is not a Purchase, its use of the proceeds of Purchases, are within the Transferor’s corporate powers, have been duly authorized by all necessary corporate action, do not contravene (i) its charter or by-laws, (ii) any Applicable Law except where such contravention could not reasonably be expected to result in a Material Adverse Effect, (iii) any material contractual restriction binding on or affecting it or its property other than such restrictions that could not reasonably be expected to adversely affect the Transferor’s ability to perform its material obligations hereunder or, with respect to the transfer of the Receivables and Collections thereon, in any Immaterial Respect, or (iv) any material order, writ, judgment, award, injunction or decree binding on or affecting it or its property, and do not result in or require the creation of any Lien upon or with respect to any of its properties (other than in favor of the Company with respect to the Transferred Property), and no transaction contemplated hereby requires compliance with any bulk sales act or similar law. This Agreement and each other Transferor Document to be entered into by the Transferor have been duly executed and delivered by itBenefit Plan.
(c) No authorization The Transferor is duly qualified to do business as a foreign limited liability company in good standing 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 shall require such qualifications except when the failure to have any such license, approval or other action byqualification would not have a material adverse effect on the condition, financial or otherwise, of the Transferor or would not have a material adverse effect on the ability of the Transferor to perform its obligations under this Agreement.
(d) The Transferor has the power and no notice authority to or filing with, any governmental authority or regulatory body is required for execute and deliver this Agreement and to carry out its due terms and to transfer and assign the property to be transferred and assigned to and deposited with the Issuer; and the execution, delivery and performance of this Agreement or any other Transferor Document to be entered into by itand such transfer, except (i) for the filing of UCC financing statements, all of which financing statements assignment and deposit have been duly filed and, to its knowledge, are in full force and effect, (ii) such as have been made or obtained and are in full force and effect and (iii) where authorized by the failure to make or obtain could not reasonably be expected to adversely affect the Company’s ability to perform its material obligations hereunder or the ability to assign or collect the Receivables hereunderTransferor by all necessary limited liability company action.
(de) This Agreement and each other Transferor Document to be entered into by the Transferor constitute its constitutes a legal, valid and binding obligation of the Transferor, enforceable against the Transferor in accordance with their respective terms its terms, except as such enforceability may be subject to bankruptcy and or limited by bankruptcy, liquidation, insolvency, reorganization, moratorium, liquidation, fraudulent conveyance or other similar laws affecting creditors generally the enforcement of creditors’ rights in general and by general principles of equity (equity, regardless of whether enforcement is sought such enforceability shall be considered in a proceeding in equity or at law).
(ef) The consummation of the transactions contemplated by this Agreement and the fulfillment of the terms hereof 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 formation or limited liability company agreement of the Transferor, or any indenture, agreement or other instrument to which the Transferor is a party or by which it is bound; nor result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement or other instrument (other than pursuant to the 2018-A Basic Documents); nor violate any law or, to the best of the Transferor’s knowledge, any order, rule or regulation applicable to the Transferor of any Governmental Authority having jurisdiction over the Transferor or its properties.
(g) To the knowledge of the Transferor, there are no proceedings or investigations pending or threatened before any Governmental Authority having jurisdiction over the Transferor or its properties (i) The Transferor has furnished asserting the invalidity of this Agreement, (ii) seeking to prevent the Company and the Administrative Agent copies consummation of any of the Parent’s audited consolidated balance sheet as at December 31transactions contemplated by this Agreement or (iii) seeking any determination or ruling that might materially and adversely affect the performance by the Transferor of its obligations under, 2011or the validity or enforceability of, and the related audited consolidated statements of income and cash flow for the fiscal year of the Parent then ended reported on by Deloitte & Touche LLP which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at December 31, 2011, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year of the Parent then ended, which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at such date, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year then ended; andthis Agreement.
Appears in 2 contracts
Samples: Trust Agreement (Mercedes-Benz Auto Lease Trust 2018-A), Trust Agreement (Mercedes-Benz Auto Lease Trust 2018-A)
Representations and Warranties of the Transferor. The Transferor hereby represents and warrants as followsto the Owner Trustee that:
(a) It The Transferor is a corporation, duly incorporated, formed and validly existing and as a limited liability company in good standing under the laws of the State of Delaware Delaware, with power and is duly qualified authority to do business, own its properties and is in good standing, in every jurisdiction in which the nature of to conduct its business requires it to be so qualified as such properties are currently owned and the failure to do so could reasonably be expected to have a Material Adverse Effectsuch business is presently conducted.
(b) The execution, delivery and performance by the Transferor of this Agreement and all other Transferor Documents to be entered into by it, including the Transferor’s sale or contribution of Receivables, and, in the case of is not a Purchase, its use of the proceeds of Purchases, are within the Transferor’s corporate powers, have been duly authorized by all necessary corporate action, do not contravene (i) its charter or by-laws, (ii) any Applicable Law except where such contravention could not reasonably be expected to result in a Material Adverse Effect, (iii) any material contractual restriction binding on or affecting it or its property other than such restrictions that could not reasonably be expected to adversely affect the Transferor’s ability to perform its material obligations hereunder or, with respect to the transfer of the Receivables and Collections thereon, in any Immaterial Respect, or (iv) any material order, writ, judgment, award, injunction or decree binding on or affecting it or its property, and do not result in or require the creation of any Lien upon or with respect to any of its properties (other than in favor of the Company with respect to the Transferred Property), and no transaction contemplated hereby requires compliance with any bulk sales act or similar law. This Agreement and each other Transferor Document to be entered into by the Transferor have been duly executed and delivered by itBenefit Plan.
(c) No authorization The Transferor is duly qualified to do business as a foreign limited liability company in good standing 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 shall require such qualifications except when the failure to have any such license, approval or other action byqualification would not have a material adverse effect on the condition, financial or otherwise, of the Transferor or would not have a material adverse effect on the ability of the Transferor to perform its obligations under this Agreement.
(d) The Transferor has the power and no notice authority to or filing with, any governmental authority or regulatory body is required for execute and deliver this Agreement and to carry out its due terms and to transfer and assign the property to be transferred and assigned to and deposited with the Issuer; and the execution, delivery and performance of this Agreement or any other Transferor Document to be entered into by itand such transfer, except (i) for the filing of UCC financing statements, all of which financing statements assignment and deposit have been duly filed and, to its knowledge, are in full force and effect, (ii) such as have been made or obtained and are in full force and effect and (iii) where authorized by the failure to make or obtain could not reasonably be expected to adversely affect the Company’s ability to perform its material obligations hereunder or the ability to assign or collect the Receivables hereunderTransferor by all necessary limited liability company action.
(de) This Agreement and each other Transferor Document to be entered into by the Transferor constitute its constitutes a legal, valid and binding obligation of the Transferor, enforceable against the Transferor in accordance with their respective terms its terms, except as such enforceability may be subject to bankruptcy and or limited by bankruptcy, liquidation, insolvency, reorganization, moratorium, liquidation, fraudulent conveyance or other similar laws affecting creditors generally the enforcement of creditors’ rights in general and by general principles of equity (equity, regardless of whether enforcement is sought such enforceability shall be considered in a proceeding in equity or at law).
(ef) The consummation of the transactions contemplated by this Agreement and the fulfillment of the terms hereof 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 formation or limited liability company agreement of the Transferor, or any indenture, agreement or other instrument to which the Transferor is a party or by which it is bound; nor result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement or other instrument (other than pursuant to the 2019-B Basic Documents); nor violate any law or, to the best of the Transferor’s knowledge, any order, rule or regulation applicable to the Transferor of any Governmental Authority having jurisdiction over the Transferor or its properties.
(g) To the knowledge of the Transferor, there are no proceedings or investigations pending or threatened before any Governmental Authority having jurisdiction over the Transferor or its properties (i) The Transferor has furnished asserting the invalidity of this Agreement, (ii) seeking to prevent the Company and the Administrative Agent copies consummation of any of the Parent’s audited consolidated balance sheet as at December 31transactions contemplated by this Agreement or (iii) seeking any determination or ruling that might materially and adversely affect the performance by the Transferor of its obligations under, 2011or the validity or enforceability of, and the related audited consolidated statements of income and cash flow for the fiscal year of the Parent then ended reported on by Deloitte & Touche LLP which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at December 31, 2011, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year of the Parent then ended, which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at such date, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year then ended; andthis Agreement.
Appears in 2 contracts
Samples: Trust Agreement (Mercedes-Benz Auto Lease Trust 2019-B), Trust Agreement (Mercedes-Benz Auto Lease Trust 2019-B)
Representations and Warranties of the Transferor. The Transferor hereby represents and warrants as followsto the Owner Trustee that:
(a) It The Transferor is a corporation, duly incorporated, formed and validly existing and as a limited liability company in good standing under the laws of the State of Delaware Delaware, with power and is duly qualified authority to do business, own its properties and is in good standing, in every jurisdiction in which the nature of to conduct its business requires it to be so qualified as such properties are currently owned and the failure to do so could reasonably be expected to have a Material Adverse Effectsuch business is presently conducted.
(b) The execution, delivery and performance by the Transferor of this Agreement and all other Transferor Documents to be entered into by it, including the Transferor’s sale or contribution of Receivables, and, in the case of is not a Purchase, its use of the proceeds of Purchases, are within the Transferor’s corporate powers, have been duly authorized by all necessary corporate action, do not contravene (i) its charter or by-laws, (ii) any Applicable Law except where such contravention could not reasonably be expected to result in a Material Adverse Effect, (iii) any material contractual restriction binding on or affecting it or its property other than such restrictions that could not reasonably be expected to adversely affect the Transferor’s ability to perform its material obligations hereunder or, with respect to the transfer of the Receivables and Collections thereon, in any Immaterial Respect, or (iv) any material order, writ, judgment, award, injunction or decree binding on or affecting it or its property, and do not result in or require the creation of any Lien upon or with respect to any of its properties (other than in favor of the Company with respect to the Transferred Property), and no transaction contemplated hereby requires compliance with any bulk sales act or similar law. This Agreement and each other Transferor Document to be entered into by the Transferor have been duly executed and delivered by itBenefit Plan.
(c) No authorization The Transferor is duly qualified to do business as a foreign limited liability company in good standing 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 shall require such qualifications except when the failure to have any such license, approval or other action byqualification would not have a material adverse effect on the condition, financial or otherwise, of the Transferor or would not have a material adverse effect on the ability of the Transferor to perform its obligations under this Agreement.
(d) The Transferor has the power and no notice authority to or filing with, any governmental authority or regulatory body is required for execute and deliver this Agreement and to carry out its due terms and to transfer and assign the property to be transferred and assigned to and deposited with the Issuer; and the execution, delivery and performance of this Agreement or any other Transferor Document to be entered into by itand such transfer, except (i) for the filing of UCC financing statements, all of which financing statements assignment and deposit have been duly filed and, to its knowledge, are in full force and effect, (ii) such as have been made or obtained and are in full force and effect and (iii) where authorized by the failure to make or obtain could not reasonably be expected to adversely affect the Company’s ability to perform its material obligations hereunder or the ability to assign or collect the Receivables hereunderTransferor by all necessary limited liability company action.
(de) This Agreement and each other Transferor Document to be entered into by the Transferor constitute its constitutes a legal, valid and binding obligation of the Transferor, enforceable against the Transferor in accordance with their respective terms its terms, except as such enforceability may be subject to bankruptcy and or limited by bankruptcy, liquidation, insolvency, reorganization, moratorium, liquidation, fraudulent conveyance or other similar laws affecting creditors generally the enforcement of creditors’ rights in general and by general principles of equity (equity, regardless of whether enforcement is sought such enforceability shall be considered in a proceeding in equity or at law).
(ef) The consummation of the transactions contemplated by this Agreement and the fulfillment of the terms hereof 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 formation or limited liability company agreement of the Transferor, or any indenture, agreement or other instrument to which the Transferor is a party or by which it is bound; nor result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement or other instrument (other than pursuant to the 2017-A Basic Documents); nor violate any law or, to the best of the Transferor’s knowledge, any order, rule or regulation applicable to the Transferor of any Governmental Authority having jurisdiction over the Transferor or its properties.
(g) To the knowledge of the Transferor, there are no proceedings or investigations pending or threatened before any Governmental Authority having jurisdiction over the Transferor or its properties (i) The Transferor has furnished asserting the invalidity of this Agreement, (ii) seeking to prevent the Company and the Administrative Agent copies consummation of any of the Parent’s audited consolidated balance sheet as at December 31transactions contemplated by this Agreement or (iii) seeking any determination or ruling that might materially and adversely affect the performance by the Transferor of its obligations under, 2011or the validity or enforceability of, and the related audited consolidated statements of income and cash flow for the fiscal year of the Parent then ended reported on by Deloitte & Touche LLP which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at December 31, 2011, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year of the Parent then ended, which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at such date, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year then ended; andthis Agreement.
Appears in 2 contracts
Samples: Trust Agreement (Mercedes-Benz Auto Lease Trust 2017-A), Trust Agreement (Mercedes-Benz Auto Lease Trust 2017-A)
Representations and Warranties of the Transferor. The Transferor hereby represents and warrants as followsto the Owner Trustee that:
(a) It The Transferor is a corporation, duly incorporated, formed and validly existing and as a limited liability company in good standing under the laws of the State of Delaware Delaware, with power and is duly qualified authority to do business, own its properties and is in good standing, in every jurisdiction in which the nature of to conduct its business requires it to be so qualified as such properties are currently owned and the failure to do so could reasonably be expected to have a Material Adverse Effectsuch business is presently conducted.
(b) The execution, delivery and performance by the Transferor of this Agreement and all other Transferor Documents to be entered into by it, including the Transferor’s sale or contribution of Receivables, and, in the case of is not a Purchase, its use of the proceeds of Purchases, are within the Transferor’s corporate powers, have been duly authorized by all necessary corporate action, do not contravene (i) its charter or by-laws, (ii) any Applicable Law except where such contravention could not reasonably be expected to result in a Material Adverse Effect, (iii) any material contractual restriction binding on or affecting it or its property other than such restrictions that could not reasonably be expected to adversely affect the Transferor’s ability to perform its material obligations hereunder or, with respect to the transfer of the Receivables and Collections thereon, in any Immaterial Respect, or (iv) any material order, writ, judgment, award, injunction or decree binding on or affecting it or its property, and do not result in or require the creation of any Lien upon or with respect to any of its properties (other than in favor of the Company with respect to the Transferred Property), and no transaction contemplated hereby requires compliance with any bulk sales act or similar law. This Agreement and each other Transferor Document to be entered into by the Transferor have been duly executed and delivered by itBenefit Plan.
(c) No authorization The Transferor is duly qualified to do business as a foreign limited liability company in good standing 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 shall require such qualifications except when the failure to have any such license, approval or other action byqualification would not have a material adverse effect on the condition, financial or otherwise, of the Transferor or would not have a material adverse effect on the ability of the Transferor to perform its obligations under this Agreement.
(d) The Transferor has the power and no notice authority to or filing with, any governmental authority or regulatory body is required for execute and deliver this Agreement and to carry out its due terms and to transfer and assign the property to be transferred and assigned to and deposited with the Issuer; and the execution, delivery and performance of this Agreement or any other Transferor Document to be entered into by itand such transfer, except (i) for the filing of UCC financing statements, all of which financing statements assignment and deposit have been duly filed and, to its knowledge, are in full force and effect, (ii) such as have been made or obtained and are in full force and effect and (iii) where authorized by the failure to make or obtain could not reasonably be expected to adversely affect the Company’s ability to perform its material obligations hereunder or the ability to assign or collect the Receivables hereunderTransferor by all necessary limited liability company action.
(de) This Agreement and each other Transferor Document to be entered into by the Transferor constitute its constitutes a legal, valid and binding obligation of the Transferor, enforceable against the Transferor in accordance with their respective terms its terms, except as such enforceability may be subject to bankruptcy and or limited by bankruptcy, liquidation, insolvency, reorganization, moratorium, liquidation, fraudulent conveyance or other similar laws affecting creditors generally the enforcement of creditors’ rights in general and by general principles of equity (equity, regardless of whether enforcement is sought such enforceability shall be considered in a proceeding in equity or at law).
(ef) The consummation of the transactions contemplated by this Agreement and the fulfillment of the terms hereof 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 formation or limited liability company agreement of the Transferor, or any indenture, agreement or other instrument to which the Transferor is a party or by which it is bound; nor result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement or other instrument (other than pursuant to the 2020-A Basic Documents); nor violate any law or, to the best of the Transferor’s knowledge, any order, rule or regulation applicable to the Transferor of any Governmental Authority having jurisdiction over the Transferor or its properties.
(g) To the knowledge of the Transferor, there are no proceedings or investigations pending or threatened before any Governmental Authority having jurisdiction over the Transferor or its properties (i) The Transferor has furnished asserting the invalidity of this Agreement, (ii) seeking to prevent the Company and the Administrative Agent copies consummation of any of the Parent’s audited consolidated balance sheet as at December 31transactions contemplated by this Agreement or (iii) seeking any determination or ruling that might materially and adversely affect the performance by the Transferor of its obligations under, 2011or the validity or enforceability of, and the related audited consolidated statements of income and cash flow for the fiscal year of the Parent then ended reported on by Deloitte & Touche LLP which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at December 31, 2011, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year of the Parent then ended, which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at such date, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year then ended; andthis Agreement.
Appears in 2 contracts
Samples: Trust Agreement (Mercedes-Benz Auto Lease Trust 2020-A), Trust Agreement (Mercedes-Benz Auto Lease Trust 2020-A)
Representations and Warranties of the Transferor. The Transferor hereby represents and warrants as followsto the Owner Trustee that:
(a) It The Transferor is a corporation, duly incorporated, formed and validly existing and as a limited liability company in good standing under the laws of the State of Delaware Delaware, with power and is duly qualified authority to do business, own its properties and is in good standing, in every jurisdiction in which the nature of to conduct its business requires it to be so qualified as such properties are currently owned and the failure to do so could reasonably be expected to have a Material Adverse Effectsuch business is presently conducted.
(b) The execution, delivery and performance by the Transferor of this Agreement and all other Transferor Documents to be entered into by it, including the Transferor’s sale or contribution of Receivables, and, in the case of is not a Purchase, its use of the proceeds of Purchases, are within the Transferor’s corporate powers, have been duly authorized by all necessary corporate action, do not contravene (i) its charter or by-laws, (ii) any Applicable Law except where such contravention could not reasonably be expected to result in a Material Adverse Effect, (iii) any material contractual restriction binding on or affecting it or its property other than such restrictions that could not reasonably be expected to adversely affect the Transferor’s ability to perform its material obligations hereunder or, with respect to the transfer of the Receivables and Collections thereon, in any Immaterial Respect, or (iv) any material order, writ, judgment, award, injunction or decree binding on or affecting it or its property, and do not result in or require the creation of any Lien upon or with respect to any of its properties (other than in favor of the Company with respect to the Transferred Property), and no transaction contemplated hereby requires compliance with any bulk sales act or similar law. This Agreement and each other Transferor Document to be entered into by the Transferor have been duly executed and delivered by itBenefit Plan.
(c) No authorization The Transferor is duly qualified to do business as a foreign limited liability company in good standing 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 shall require such qualifications except when the failure to have any such license, approval or other action byqualification would not have a material adverse effect on the condition, financial or otherwise, of the Transferor or would not have a material adverse effect on the ability of the Transferor to perform its obligations under this Agreement.
(d) The Transferor has the power and no notice authority to or filing with, any governmental authority or regulatory body is required for execute and deliver this Agreement and to carry out its due terms and to transfer and assign the property to be transferred and assigned to and deposited with the Issuer; and the execution, delivery and performance of this Agreement or any other Transferor Document to be entered into by itand such transfer, except (i) for the filing of UCC financing statements, all of which financing statements assignment and deposit have been duly filed and, to its knowledge, are in full force and effect, (ii) such as have been made or obtained and are in full force and effect and (iii) where authorized by the failure to make or obtain could not reasonably be expected to adversely affect the Company’s ability to perform its material obligations hereunder or the ability to assign or collect the Receivables hereunderTransferor by all necessary limited liability company action.
(de) This Agreement and each other Transferor Document to be entered into by the Transferor constitute its constitutes a legal, valid and binding obligation of the Transferor, enforceable against the Transferor in accordance with their respective terms its terms, except as such enforceability may be subject to bankruptcy and or limited by bankruptcy, liquidation, insolvency, reorganization, moratorium, liquidation, fraudulent conveyance or other similar laws affecting creditors generally the enforcement of creditors’ rights in general and by general principles of equity (equity, regardless of whether enforcement is sought such enforceability shall be considered in a proceeding in equity or at law).
(ef) The consummation of the transactions contemplated by this Agreement and the fulfillment of the terms hereof 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 formation or limited liability company agreement of the Transferor, or any indenture, agreement or other instrument to which the Transferor is a party or by which it is bound; nor result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement or other instrument (other than pursuant to the 2012-A Basic Documents); nor violate any law or, to the best of the Transferor’s knowledge, any order, rule or regulation applicable to the Transferor of any Governmental Authority having jurisdiction over the Transferor or its properties.
(g) To the knowledge of the Transferor, there are no proceedings or investigations pending or threatened before any Governmental Authority having jurisdiction over the Transferor or its properties (i) The Transferor has furnished asserting the invalidity of this Agreement, (ii) seeking to prevent the Company and the Administrative Agent copies consummation of any of the Parent’s audited consolidated balance sheet as at December 31transactions contemplated by this Agreement or (iii) seeking any determination or ruling that might materially and adversely affect the performance by the Transferor of its obligations under, 2011or the validity or enforceability of, and the related audited consolidated statements of income and cash flow for the fiscal year of the Parent then ended reported on by Deloitte & Touche LLP which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at December 31, 2011, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year of the Parent then ended, which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at such date, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year then ended; andthis Agreement.
Appears in 2 contracts
Samples: Trust Agreement (Mercedes-Benz Auto Lease Trust 2012-A), Trust Agreement (Mercedes-Benz Auto Lease Trust 2012-A)
Representations and Warranties of the Transferor. The Transferor hereby represents and warrants as followsto the Owner Trustee that:
(a) It The Transferor is a corporation, duly incorporated, formed and validly existing and as a limited liability company in good standing under the laws of the State of Delaware Delaware, with power and is duly qualified authority to do business, own its properties and is in good standing, in every jurisdiction in which the nature of to conduct its business requires it to be so qualified as such properties are currently owned and the failure to do so could reasonably be expected to have a Material Adverse Effectsuch business is presently conducted.
(b) The execution, delivery and performance by the Transferor of this Agreement and all other Transferor Documents to be entered into by it, including the Transferor’s sale or contribution of Receivables, and, in the case of is not a Purchase, its use of the proceeds of Purchases, are within the Transferor’s corporate powers, have been duly authorized by all necessary corporate action, do not contravene (i) its charter or by-laws, (ii) any Applicable Law except where such contravention could not reasonably be expected to result in a Material Adverse Effect, (iii) any material contractual restriction binding on or affecting it or its property other than such restrictions that could not reasonably be expected to adversely affect the Transferor’s ability to perform its material obligations hereunder or, with respect to the transfer of the Receivables and Collections thereon, in any Immaterial Respect, or (iv) any material order, writ, judgment, award, injunction or decree binding on or affecting it or its property, and do not result in or require the creation of any Lien upon or with respect to any of its properties (other than in favor of the Company with respect to the Transferred Property), and no transaction contemplated hereby requires compliance with any bulk sales act or similar law. This Agreement and each other Transferor Document to be entered into by the Transferor have been duly executed and delivered by itBenefit Plan.
(c) No authorization The Transferor is duly qualified to do business as a foreign limited liability company in good standing 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 shall require such qualifications except when the failure to have any such license, approval or other action byqualification would not have a material adverse effect on the condition, financial or otherwise, of the Transferor or would not have a material adverse effect on the ability of the Transferor to perform its obligations under this Agreement.
(d) The Transferor has the power and no notice authority to or filing with, any governmental authority or regulatory body is required for execute and deliver this Agreement and to carry out its due terms and to transfer and assign the property to be transferred and assigned to and deposited with the Issuer; and the execution, delivery and performance of this Agreement or any other Transferor Document to be entered into by itand such transfer, except (i) for the filing of UCC financing statements, all of which financing statements assignment and deposit have been duly filed and, to its knowledge, are in full force and effect, (ii) such as have been made or obtained and are in full force and effect and (iii) where authorized by the failure to make or obtain could not reasonably be expected to adversely affect the Company’s ability to perform its material obligations hereunder or the ability to assign or collect the Receivables hereunderTransferor by all necessary limited liability company action.
(de) This Agreement and each other Transferor Document to be entered into by the Transferor constitute its constitutes a legal, valid and binding obligation of the Transferor, enforceable against the Transferor in accordance with their respective terms its terms, except as such enforceability may be subject to bankruptcy and or limited by bankruptcy, liquidation, insolvency, reorganization, moratorium, liquidation, fraudulent conveyance or other similar laws affecting creditors generally the enforcement of creditors’ rights in general and by general principles of equity (equity, regardless of whether enforcement is sought such enforceability shall be considered in a proceeding in equity or at law).
(ef) The consummation of the transactions contemplated by this Agreement and the fulfillment of the terms hereof 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 formation or limited liability company agreement of the Transferor, or any indenture, agreement or other instrument to which the Transferor is a party or by which it is bound; nor result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement or other instrument (other than pursuant to the 2019-A Basic Documents); nor violate any law or, to the best of the Transferor’s knowledge, any order, rule or regulation applicable to the Transferor of any Governmental Authority having jurisdiction over the Transferor or its properties.
(g) To the knowledge of the Transferor, there are no proceedings or investigations pending or threatened before any Governmental Authority having jurisdiction over the Transferor or its properties (i) The Transferor has furnished asserting the invalidity of this Agreement, (ii) seeking to prevent the Company and the Administrative Agent copies consummation of any of the Parent’s audited consolidated balance sheet as at December 31transactions contemplated by this Agreement or (iii) seeking any determination or ruling that might materially and adversely affect the performance by the Transferor of its obligations under, 2011or the validity or enforceability of, and the related audited consolidated statements of income and cash flow for the fiscal year of the Parent then ended reported on by Deloitte & Touche LLP which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at December 31, 2011, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year of the Parent then ended, which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at such date, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year then ended; andthis Agreement.
Appears in 2 contracts
Samples: Trust Agreement (Mercedes-Benz Auto Lease Trust 2019-A), Trust Agreement (Mercedes-Benz Auto Lease Trust 2019-A)
Representations and Warranties of the Transferor. The Transferor represents and warrants as follows:follows as of the date hereof, as of each Transfer Date hereunder (both before and after giving effect to any Transfers on such date) and as of each Reporting Date (except that the representations and warranties set forth in paragraphs (e) and (f) below shall be made only as of the date hereof and each Reporting Date):
(a) It The Transferor is a corporation, limited liability company duly incorporatedformed, validly existing and in good standing under the laws of the State of Delaware Delaware, and is duly qualified to do business, and is in good standingstanding as a foreign limited liability company, in every jurisdiction in which where the nature of its business requires it to be so qualified and qualified, unless the failure to do so could qualify would not reasonably be expected to have a Material Adverse Effect.
(b) The execution, delivery and performance by the Transferor of this Agreement and all other Transferor Documents to be entered into by itthe Transaction Documents, including the Transferor’s sale or contribution of Receivables, and, in the case of a Purchase, its 's use of the proceeds of PurchasesTransfers, (i) are within the Transferor’s corporate 's limited liability company powers, (ii) have been duly authorized by all necessary corporate limited liability company action, (iii) do not contravene (iA) its charter the Transferor's certificate of formation or by-lawslimited liability company agreement, (iiB) any Applicable Law except where such contravention could not reasonably be expected law, rule or regulation applicable to result in a Material Adverse Effectthe Transferor, (iiiC) any material contractual restriction binding on or affecting it the Transferor or its property other than such restrictions that could not reasonably be expected to adversely affect the Transferor’s ability to perform its material obligations hereunder or, with respect to the transfer of the Receivables and Collections thereon, in any Immaterial Respect, or (ivD) any material order, writ, judgment, award, injunction or decree binding on or affecting it the Transferor or its property, where any such contravention described in this clause (iii) could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and (iv) do not result in or require the creation of any Lien Adverse Claim upon or with respect to any of its properties (other than in favor except Permitted Adverse Claims). Each of the Company with respect to the Transferred Property), and no transaction contemplated hereby requires compliance with any bulk sales act or similar law. This Agreement and each other Transferor Document to be entered into by the Transferor have Transaction Documents has been duly executed and delivered by itthe Transferor.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body Official Body is required for its the due execution, delivery and performance by the Transferor of this Agreement the Transaction Documents to which it is a party or any other Transferor Document document to be entered into delivered by itit thereunder, except for (i) for the filing of UCC financing statements, all of which the financing statements have been duly filed and, referred to its knowledge, are in full force Schedule IV of the Receivables Loan Agreement and effect, (ii) such as have been obtained or made or obtained and are in full force and effect and (iii) where the failure to make or obtain could not reasonably be expected to adversely affect the Company’s ability to perform its material obligations hereunder or the ability to assign or collect the Receivables hereundereffect.
(d) This Agreement and each other Transferor Document Each of the Transaction Documents to be entered into by which the Transferor constitute its is a party constitutes the legal, valid and binding obligation of the Transferor enforceable against the Transferor in accordance with their respective terms its terms, subject to bankruptcy and (i) the effects of bankruptcy, insolvency, moratorium, reorganization or other similar laws affecting creditors generally and creditors' rights generally, (ii) general principles of equity (regardless of whether enforcement such enforceability is sought considered in a proceeding in equity or at law)) and (iii) implied covenants of good faith and fair dealing.
(e) Since the Closing Date there has been no Material Adverse Effect.
(f) As of the initial Transfer Date, there are no actions, suits or proceedings at law or in equity or by or before any Official Body or in arbitration now pending or, to the actual knowledge of a Responsible Officer of the Transferor, threatened in writing against or affecting the Transferor or any of its business, property or rights. 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 Transferor, threatened in writing against or affecting the Transferor or any of its business, property or rights as to which in either case, an adverse determination is reasonably probable and which could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. The Transferor is not in default in any material respect of any order of any Official Body.
(g) No proceeds of any Transfer 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) Immediately prior to each Transfer hereunder, the Transferor will be the owner of the Transferred Assets which are the subject of such Transfer, free and clear of any Adverse Claim (other than Permitted Adverse Claims). Upon each Transfer, the Transferee shall have acquired a valid and perfected first priority ownership interest in the Transferred Assets which are the subject of such Transfer perfected under Delaware or Irish law, as applicable, in each case free and clear of any Adverse Claim (other than Permitted Adverse Claims). At the time of any Transfer hereunder the Transferee will have a valid and perfected security interest in the Credit Default Swap Collateral and the Administrative Agent will have a valid and perfected security interest in the Account Collateral, in each case free and clear of any Adverse Claim (other than Permitted Adverse Claims). No effective financing statement or other instrument similar in effect, is filed in any recording office listing the Transferor as debtor, covering any Transferred Assets, or any interest therein, except (i) such as may be filed in accordance with the North American Originator Purchase Agreement, the European Loan Agreement or the European Purchaser Security Agreement and (ii) such as may be filed in favor of the Transferee in accordance with this Agreement.
(i) All information, exhibits, documents, books, records and reports furnished in writing at any time by or on behalf of the Transferor to the Transferee, the Administrative Agent, any Funding Agent or any Lender in connection with the Transaction Documents is accurate in all material respects as of its date or (except as otherwise disclosed to the Transferee, the Administrative Agent, such Funding Agent or such Lender, as the case may be, at such time) as of the date so furnished.
(j) The Transferor is located in the State of Delaware for the purposes of Section 9-307 of the UCC as in effect in the State of New York.
(k) Since its formation, the Transferor has not used any corporate name, tradename or doing-business-as name other than the name in which it has executed this Agreement.
(l) The Transferor was formed on February 20, 2003 and the Transferor did not engage in any business activities prior to the date of this Agreement. The Transferor has no Subsidiaries other than the Borrower. TRW Automotive Acquisition Corp., a Delaware corporation, directly owns 100% of the membership interest of the Transferor, free and clear of any Adverse Claims.
(m) The Transferor is not an "investment company" as defined by, or subject to regulation under the Investment Company Act of 1940, as amended.
(i) The fair value of the assets of the Transferor, at a fair valuation, exceed the debts and liabilities, direct, subordinated, contingent or otherwise, of the Transferor; (ii) the present fair saleable value of the property of the Transferor has furnished is greater than the amount that will be required to pay the Company probable liability of the Transferor on its debts and other liabilities, direct, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured; (iii) the Transferor 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 Transferor will not have unreasonably small capital with which to conduct the businesses in which it is engaged as such business is now conducted and is proposed to be conducted following the Closing Date. The Transferor does not intend to, and does not believe that it will, incur debts beyond its ability to pay such debts as they mature, taking into account the timing and amounts of cash to be received by it and the Administrative Agent copies timing and amounts of cash to be payable on or in respect of its Indebtedness.
(o) All Transferred Assets acquired by the Parent’s audited consolidated balance sheet as at December 31, 2011, Transferor from the North American Originators have been purchased by the Transferor pursuant to and the related audited consolidated statements of income and cash flow for the fiscal year of the Parent then ended reported on by Deloitte & Touche LLP which financial statements present fairly in all material respects in accordance with GAAP the financial position North American Purchase Agreement in an amount which constitutes fair consideration and reasonably equivalent value. Each Purchase under the North American Originator Purchase Agreement shall not have been made for or on account of an antecedent debt owed by the Transferor to any Originator and no such purchase is or may be voidable or subject to avoidance under any section of the Parent and its consolidated subsidiaries as at December 31United States Bankruptcy Code or any other Law, 2011, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year of the Parent then ended, which financial statements present fairly in all material respects whether foreign or domestic. All Loans (if any) have been made in accordance with GAAP the financial position terms of the Parent and its consolidated subsidiaries as at such date, and the results of operations European Loan Agreement.
(p) No Adverse Claim exists in favor of the Parent Pension Benefit Guaranty Corporation on any of the Transferred Assets.
(q) No event has occurred and its consolidated subsidiaries for the fiscal year then ended; andis continuing and no condition exists which constitutes a Termination Event or Incipient Termination Event.
Appears in 2 contracts
Samples: Transfer Agreement (TRW Automotive Inc), Transfer Agreement (TRW Automotive Inc)
Representations and Warranties of the Transferor. The Transferor hereby represents and warrants to the Issuer as followsof the date hereof:
(a) It The Transferor is a corporation, limited liability company duly incorporatedformed, validly existing and in good standing under the laws of the State of Delaware Delaware. The Transferor has full power and is duly qualified authority, in all material respects, to do businessown its properties as currently owned, to conduct its business as currently conducted, and is in good standingto execute, in every jurisdiction in which the nature of deliver, and perform its business requires it to be so qualified and the failure to do so could reasonably be expected to have a Material Adverse Effectobligations under this Agreement.
(b) The executionTransferor is duly qualified to do business (or is exempt from such requirements) as a foreign corporation or foreign limited liability company and has obtained all necessary licenses and approvals, delivery in each jurisdiction in which failure to so qualify or to obtain such licenses and performance by approvals would have a material adverse effect on the Transferor or the transactions contemplated by, or its ability to perform its obligations under, this Agreement.
(c) The Transferor has duly authorized, by all necessary limited liability company action, its execution and delivery of this Agreement and all its consummation of the transactions contemplated by this Agreement.
(d) The Transferor’s execution and delivery of this Agreement, its performance of the transactions contemplated by this Agreement, and its fulfillment of the terms of this Agreement do not conflict with, breach any term of, or cause a default under (with or without notice or lapse of time or both) any indenture, contract, agreement, mortgage, deed of trust, or other instrument to which the Transferor Documents is a party or by which the Transferor or any of its properties are bound, except where such breach or default could not be reasonably expected to materially and adversely affect Funding’s ability to perform its obligations under this Agreement.
(e) The Transferor’s execution and delivery of this Agreement, its performance of the transactions contemplated by this Agreement, and its fulfillment of the terms of this Agreement do not conflict with or violate any Requirements of Law applicable to the Transferor, except where such conflict or violation could not be entered into by itreasonably expected to materially and adversely affect Funding’s performance of its obligations under this Agreement.
(f) No proceeding or investigation against the Transferor is pending or, including to the best of the Transferor’s sale knowledge, threatened before any Governmental Authority that (A) asserts that this Agreement is invalid, (B) seeks to prevent the consummation of any transaction contemplated by this Agreement, (C) seeks any determination or contribution of Receivables, andruling that, in the case of a Purchase, its use of the proceeds of Purchases, are within the Transferor’s corporate powersreasonable judgment, have been duly authorized by all necessary corporate action, do not contravene (i) its charter or by-laws, (ii) any Applicable Law except where such contravention could not reasonably be expected to result in a Material Adverse Effect, (iii) any material contractual restriction binding on or affecting it or its property other than such restrictions that could not reasonably be expected to would materially and adversely affect the Transferor’s ability performance under this Agreement, or (D) seeks any determination or ruling that would materially and adversely affect the validity or enforceability of this Agreement.
(g) As of the Initial Representation Date, no selection procedures adverse to perform the Noteholders have been employed by the Transferor in selecting the Accounts.
(h) The Transferor has obtained all approvals, authorizations, licenses, consents, and orders required of any Governmental Authority in connection with the Transferor’s execution and delivery of this Agreement, its material obligations hereunder orperformance of the transactions contemplated by this Agreement, and its fulfillment of the terms of this Agreement. The representations and warranties set forth in this Section 2.03 shall survive the transfer and assignment of the Receivables to the Issuer. The Transferor hereby represents and warrants to the Issuer, with respect to the transfer any Series of Notes, as of the Receivables issuance date of such Series of Notes, unless otherwise stated in such Indenture Supplement, that the representations and Collections thereon, in any Immaterial Respect, or (iv) any material order, writ, judgment, award, injunction or decree binding on or affecting it or its property, and do not result in or require the creation of any Lien upon or with respect to any of its properties (other than in favor warranties of the Company with respect to the Transferred Property), Transferor set forth in Section 2.03 are true and no transaction contemplated hereby requires compliance with any bulk sales act or similar lawcorrect as of such date. This Agreement and each other Transferor Document to be entered into Upon discovery by the Transferor have been duly executed or the Issuer of a breach of any of the foregoing representations and delivered by it.
(c) No authorization or approval or other action bywarranties, and no the party discovering such breach shall give prompt written notice to or filing withthe other, any governmental authority or regulatory body is required for its due execution, delivery and performance of this Agreement or any other Transferor Document to be entered into by it, except (i) for the filing of UCC financing statements, all of which financing statements have been duly filed and, to its knowledge, are in full force and effect, (ii) such as have been made or obtained and are in full force and effect and (iii) where the failure to make or obtain could not reasonably be expected to adversely affect the Company’s ability to perform its material obligations hereunder or the ability to assign or collect the Receivables hereunder.
(d) This Agreement and each other Transferor Document to be entered into by the Transferor constitute its legal, valid and binding obligation enforceable against the Transferor in accordance with their respective terms subject to bankruptcy and similar laws affecting creditors generally and general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
(e) (i) The Transferor has furnished to the Company Servicer and the Administrative Agent copies of the Parent’s audited consolidated balance sheet as at December 31, 2011, and the related audited consolidated statements of income and cash flow for the fiscal year of the Parent then ended reported on by Deloitte & Touche LLP which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at December 31, 2011, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year of the Parent then ended, which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at such date, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year then ended; andIndenture Trustee.
Appears in 2 contracts
Samples: Transfer Agreement (WF Card Funding LLC), Transfer Agreement (WF Card Issuance Trust)
Representations and Warranties of the Transferor. The Transferor hereby represents and warrants as followsto the Owner Trustee that:
(a) It The Transferor is a corporation, duly incorporated, formed and validly existing and as a limited liability company in good standing under the laws of the State of Delaware Delaware, with power and is duly qualified authority to do business, own its properties and is in good standing, in every jurisdiction in which the nature of to conduct its business requires it to be so qualified as such properties are currently owned and the failure to do so could reasonably be expected to have a Material Adverse Effectsuch business is presently conducted.
(b) The execution, delivery and performance by the Transferor of this Agreement and all other Transferor Documents to be entered into by it, including the Transferor’s sale or contribution of Receivables, and, in the case of is not a Purchase, its use of the proceeds of Purchases, are within the Transferor’s corporate powers, have been duly authorized by all necessary corporate action, do not contravene (i) its charter or by-laws, (ii) any Applicable Law except where such contravention could not reasonably be expected to result in a Material Adverse Effect, (iii) any material contractual restriction binding on or affecting it or its property other than such restrictions that could not reasonably be expected to adversely affect the Transferor’s ability to perform its material obligations hereunder or, with respect to the transfer of the Receivables and Collections thereon, in any Immaterial Respect, or (iv) any material order, writ, judgment, award, injunction or decree binding on or affecting it or its property, and do not result in or require the creation of any Lien upon or with respect to any of its properties (other than in favor of the Company with respect to the Transferred Property), and no transaction contemplated hereby requires compliance with any bulk sales act or similar law. This Agreement and each other Transferor Document to be entered into by the Transferor have been duly executed and delivered by itBenefit Plan.
(c) No authorization The Transferor is duly qualified to do business as a foreign limited liability company in good standing 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 shall require such qualifications except when the failure to have any such license, approval or other action byqualification would not have a material adverse effect on the condition, financial or otherwise, of the Transferor or would not have a material adverse effect on the ability of the Transferor to perform its obligations under this Agreement.
(d) The Transferor has the power and no notice authority to or filing with, any governmental authority or regulatory body is required for execute and deliver this Agreement and to carry out its due terms and to transfer and assign the property to be transferred and assigned to and deposited with the Issuer; and the execution, delivery and performance of this Agreement or any other Transferor Document to be entered into by itand such transfer, except (i) for the filing of UCC financing statements, all of which financing statements assignment and deposit have been duly filed and, to its knowledge, are in full force and effect, (ii) such as have been made or obtained and are in full force and effect and (iii) where authorized by the failure to make or obtain could not reasonably be expected to adversely affect the Company’s ability to perform its material obligations hereunder or the ability to assign or collect the Receivables hereunderTransferor by all necessary limited liability company action.
(de) This Agreement and each other Transferor Document to be entered into by the Transferor constitute its constitutes a legal, valid and binding obligation of the Transferor, enforceable against the Transferor in accordance with their respective terms its terms, except as such enforceability may be subject to bankruptcy and or limited by bankruptcy, liquidation, insolvency, reorganization, moratorium, liquidation, fraudulent conveyance or other similar laws affecting creditors generally the enforcement of creditors’ rights in general and by general principles of equity (equity, regardless of whether enforcement is sought such enforceability shall be considered in a proceeding in equity or at law).
(ef) The consummation of the transactions contemplated by this Agreement and the fulfillment of the terms hereof 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 formation or limited liability company agreement of the Transferor, or any indenture, agreement or other instrument to which the Transferor is a party or by which it is bound; nor result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement or other instrument (other than pursuant to the 2016-A Basic Documents); nor violate any law or, to the best of the Transferor’s knowledge, any order, rule or regulation applicable to the Transferor of any Governmental Authority having jurisdiction over the Transferor or its properties.
(g) To the knowledge of the Transferor, there are no proceedings or investigations pending or threatened before any Governmental Authority having jurisdiction over the Transferor or its properties (i) The Transferor has furnished asserting the invalidity of this Agreement, (ii) seeking to prevent the Company and the Administrative Agent copies consummation of any of the Parent’s audited consolidated balance sheet as at December 31transactions contemplated by this Agreement or (iii) seeking any determination or ruling that might materially and adversely affect the performance by the Transferor of its obligations under, 2011or the validity or enforceability of, and the related audited consolidated statements of income and cash flow for the fiscal year of the Parent then ended reported on by Deloitte & Touche LLP which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at December 31, 2011, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year of the Parent then ended, which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at such date, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year then ended; andthis Agreement.
Appears in 2 contracts
Samples: Trust Agreement (Mercedes-Benz Auto Lease Trust 2016-A), Trust Agreement (Mercedes-Benz Auto Lease Trust 2016-A)
Representations and Warranties of the Transferor. The Transferor represents and warrants as follows:on Subject Matters
(a) It is a corporation, duly incorporated, validly existing and Subject Matters as listed in good standing under the laws Annex I are all Intellectual Properties in possession of the State of Delaware and is duly qualified to do business, and is in good standing, in every jurisdiction in which the nature of its business requires it to be so qualified and the failure to do so could reasonably be expected to have a Material Adverse EffectTransferor.
(b) The execution, delivery Transferor represents and performance by warrants that as of the Transferor date of this Agreement and all other Transferor Documents to be entered into by itAgreement, including the Transferor’s sale or contribution of Receivables, and, in the case of a Purchase, its use of the proceeds of Purchases, are within the Transferor’s corporate powers, have been duly authorized by all necessary corporate action, do not contravene (i) it has the full and exclusive title to and right to dispose of, the Subject Matters to be transferred as listed in Annex and in its charter or by-laws, possession; (ii) Subject Matters are not subject to any Applicable Law except where such contravention could not reasonably be expected to result in a Material Adverse Effectmortgage, pledge, lien or other securities; (iii) any material contractual restriction binding on or affecting it or its property other than such restrictions that could not reasonably be expected to adversely affect the Transferor’s ability to perform its material obligations hereunder or, with respect to the transfer of the Receivables and Collections thereon, in any Immaterial Respect, or (iv) any material order, writ, judgment, award, injunction or decree binding on or affecting it or its property, and do not result in or require the creation Subject Matters are free of any Lien upon fact that should be disclosed or with respect to any of its properties (other than in favor of the Company with respect to the Transferred Property), and no transaction contemplated hereby requires compliance with any bulk sales act or similar law. This Agreement and each other Transferor Document to be entered into by the Transferor have been duly executed and delivered by itmajor legal defect.
(c) No authorization Transferor has obtained all internal authorizations of the company or all approvals and completed other procedures subject to the government approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required as necessary for its due execution, delivery the execution and performance of this Agreement or any other Transferor Document to be entered into by it, except (i) for the filing of UCC financing statements, all of which financing statements have been duly filed and, to its knowledge, are in full force and effect, (ii) such as have been made or obtained and are in full force and effect and (iii) where the failure to make or obtain could not reasonably be expected to adversely affect the Company’s ability to perform its material obligations hereunder or the ability to assign or collect the Receivables hereunderAgreement.
(d) This Agreement and each other Transferor Document to be entered into The performance of obligations by the Transferor under this Agreement does not and will not: The Fourth Amended and Restated Intellectual Property Transfer Agreement 6
(i) Breach any provision of laws, regulations, rules and regulatory documents of the People’s Republic of China in force;
(ii) Breach any provision of its Articles of Association;
(iii) Breach any agreement to which the Transferor is a party or which binds on any property or assets of the Transferor. This Agreement shall, once upon being effective, constitute its a legal, valid and binding obligation enforceable against obligations upon Transferor which will be enforced under the Transferor in accordance with their respective terms subject to bankruptcy and similar laws affecting creditors generally and general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law)hereof.
(e) There is no litigation, claim, action, arbitration, administrative proceedings or other legal proceedings pending, threatened to have or likely to encounter which are imposing or may impose any adverse impact on, delay in, restriction or obstruction from the performance of its obligations hereunder by the Transferor.
(f) All records, documents and materials delivered to the Transferee by the Transferor under this Agreement shall be true and complete, and faithfully reflect the Subject Matters as they are as at the Closing Date.
(g) Transferor warrants that the Subject Matters as listed in Annex I shall not procure the Transferee to assume any debt and contingent liabilities which are not provided herein.
(h) As of the date of this Agreement, the Transferor is not insolvent or incapable of repaying any debt due, has no administrative order or court order pending against it, nor has a receiver appointed for all or part of its assets.
(i) All and any accounting materials and financial information (if any) provided by the Transferor to the Transferee are true and reliable without any false or misleading statements of any kind.
(j) Transferor is not involved in any litigation, arbitration or other circumstances directly related to the Subject Matters under which it may be held liable by law.
(k) The title to Subject Matters as listed in Annex I shall be vested in the Transferee in full as of the Closing Date, sand the Transferee shall be entitled to apply for the registration of trademark, software copyright and other intellectual property rights, unless approval from, filing and registration with competent government authorities are required by laws of China.
(l) For the purpose of matters set forth in this Agreement, the Transferor has furnished obtained the written consents and approvals from all third parties, including but not limited to creditors and competent Chinese government departments.
(m) All representations and warranties made by the Company Transferor herein are true, complete and the Administrative Agent copies of the Parent’s audited consolidated balance sheet as at December 31, 2011, accurate. The Fourth Amended and the related audited consolidated statements of income and cash flow for the fiscal year of the Parent then ended reported on by Deloitte & Touche LLP which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at December 31, 2011, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year of the Parent then ended, which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at such date, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year then ended; andRestated Intellectual Property Transfer Agreement 7
Appears in 2 contracts
Samples: Intellectual Property Transfer Agreement (Manycore Tech Inc.), Intellectual Property Transfer Agreement (Manycore Tech Inc.)
Representations and Warranties of the Transferor. The Transferor hereby represents and warrants as followsto the Owner Trustee that:
(a) It The Transferor is a corporation, duly incorporated, formed and validly existing and as a limited liability company in good standing under the laws of the State of Delaware Delaware, with power and is duly qualified authority to do business, own its properties and is in good standing, in every jurisdiction in which the nature of to conduct its business requires it to be so qualified as such properties are currently owned and the failure to do so could reasonably be expected to have a Material Adverse Effectsuch business is presently conducted.
(b) The execution, delivery and performance by the Transferor of this Agreement and all other Transferor Documents to be entered into by it, including the Transferor’s sale or contribution of Receivables, and, in the case of is not a Purchase, its use of the proceeds of Purchases, are within the Transferor’s corporate powers, have been duly authorized by all necessary corporate action, do not contravene (i) its charter or by-laws, (ii) any Applicable Law except where such contravention could not reasonably be expected to result in a Material Adverse Effect, (iii) any material contractual restriction binding on or affecting it or its property other than such restrictions that could not reasonably be expected to adversely affect the Transferor’s ability to perform its material obligations hereunder or, with respect to the transfer of the Receivables and Collections thereon, in any Immaterial Respect, or (iv) any material order, writ, judgment, award, injunction or decree binding on or affecting it or its property, and do not result in or require the creation of any Lien upon or with respect to any of its properties (other than in favor of the Company with respect to the Transferred Property), and no transaction contemplated hereby requires compliance with any bulk sales act or similar law. This Agreement and each other Transferor Document to be entered into by the Transferor have been duly executed and delivered by itBenefit Plan.
(c) No authorization The Transferor is duly qualified to do business as a foreign limited liability company in good standing 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 shall require such qualifications except when the failure to have any such license, approval or other action byqualification would not have a material adverse effect on the condition, financial or otherwise, of the Transferor or would not have a material adverse effect on the ability of the Transferor to perform its obligations under this Agreement.
(d) The Transferor has the power and no notice authority to or filing with, any governmental authority or regulatory body is required for execute and deliver this Agreement and to carry out its due terms and to transfer and assign the property to be transferred and assigned to and deposited with the Issuer; and the execution, delivery and performance of this Agreement or any other Transferor Document to be entered into by itand such transfer, except (i) for the filing of UCC financing statements, all of which financing statements assignment and deposit have been duly filed and, to its knowledge, are in full force and effect, (ii) such as have been made or obtained and are in full force and effect and (iii) where authorized by the failure to make or obtain could not reasonably be expected to adversely affect the Company’s ability to perform its material obligations hereunder or the ability to assign or collect the Receivables hereunderTransferor by all necessary limited liability company action.
(de) This Agreement and each other Transferor Document to be entered into by the Transferor constitute its constitutes a legal, valid and binding obligation of the Transferor, enforceable against the Transferor in accordance with their respective terms its terms, except as such enforceability may be subject to bankruptcy and or limited by bankruptcy, liquidation, insolvency, reorganization, moratorium, liquidation, fraudulent conveyance or other similar laws affecting creditors generally the enforcement of creditors’ rights in general and by general principles of equity (equity, regardless of whether enforcement is sought such enforceability shall be considered in a proceeding in equity or at law).
(ef) The consummation of the transactions contemplated by this Agreement and the fulfillment of the terms hereof 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 formation or limited liability company agreement of the Transferor, or any indenture, agreement or other instrument to which the Transferor is a party or by which it is bound; nor result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement or other instrument (other than pursuant to the 20[__]-[_] Basic Documents); nor violate any law or, to the best of the Transferor’s knowledge, any order, rule or regulation applicable to the Transferor of any Governmental Authority having jurisdiction over the Transferor or its properties.
(g) To the knowledge of the Transferor, there are no proceedings or investigations pending or threatened before any Governmental Authority having jurisdiction over the Transferor or its properties (i) The Transferor has furnished asserting the invalidity of this Agreement, (ii) seeking to prevent the Company and the Administrative Agent copies consummation of any of the Parent’s audited consolidated balance sheet as at December 31transactions contemplated by this Agreement or (iii) seeking any determination or ruling that might materially and adversely affect the performance by the Transferor of its obligations under, 2011or the validity or enforceability of, and the related audited consolidated statements of income and cash flow for the fiscal year of the Parent then ended reported on by Deloitte & Touche LLP which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at December 31, 2011, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year of the Parent then ended, which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at such date, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year then ended; andthis Agreement.
Appears in 2 contracts
Samples: Trust Agreement (Daimler Trust), Trust Agreement (Daimler Trust)
Representations and Warranties of the Transferor. The Transferor hereby represents and warrants as followsto the Owner Trustee that:
(a) It The Transferor is a corporation, duly incorporated, formed and validly existing and as a limited liability company in good standing under the laws of the State of Delaware Delaware, with power and is duly qualified authority to do business, own its properties and is in good standing, in every jurisdiction in which the nature of to conduct its business requires it to be so qualified as such properties are currently owned and the failure to do so could reasonably be expected to have a Material Adverse Effectsuch business is presently conducted.
(b) The execution, delivery and performance by the Transferor of this Agreement and all other Transferor Documents to be entered into by it, including the Transferor’s sale or contribution of Receivables, and, in the case of is not a Purchase, its use of the proceeds of Purchases, are within the Transferor’s corporate powers, have been duly authorized by all necessary corporate action, do not contravene (i) its charter or by-laws, (ii) any Applicable Law except where such contravention could not reasonably be expected to result in a Material Adverse Effect, (iii) any material contractual restriction binding on or affecting it or its property other than such restrictions that could not reasonably be expected to adversely affect the Transferor’s ability to perform its material obligations hereunder or, with respect to the transfer of the Receivables and Collections thereon, in any Immaterial Respect, or (iv) any material order, writ, judgment, award, injunction or decree binding on or affecting it or its property, and do not result in or require the creation of any Lien upon or with respect to any of its properties (other than in favor of the Company with respect to the Transferred Property), and no transaction contemplated hereby requires compliance with any bulk sales act or similar law. This Agreement and each other Transferor Document to be entered into by the Transferor have been duly executed and delivered by itBenefit Plan.
(c) No authorization The Transferor is duly qualified to do business as a foreign limited liability company in good standing 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 shall require such qualifications except when the failure to have any such license, approval or other action byqualification would not have a material adverse effect on the condition, financial or otherwise, of the Transferor or would not have a material adverse effect on the ability of the Transferor to perform its obligations under this Agreement.
(d) The Transferor has the power and no notice authority to or filing with, any governmental authority or regulatory body is required for execute and deliver this Agreement and to carry out its due terms and to transfer and assign the property to be transferred and assigned to and deposited with the Issuer; and the execution, delivery and performance of this Agreement or any other Transferor Document to be entered into by itand such transfer, except (i) for the filing of UCC financing statements, all of which financing statements assignment and deposit have been duly filed and, to its knowledge, are in full force and effect, (ii) such as have been made or obtained and are in full force and effect and (iii) where authorized by the failure to make or obtain could not reasonably be expected to adversely affect the Company’s ability to perform its material obligations hereunder or the ability to assign or collect the Receivables hereunderTransferor by all necessary limited liability company action.
(de) This Agreement and each other Transferor Document to be entered into by the Transferor constitute its constitutes a legal, valid and binding obligation of the Transferor, enforceable against the Transferor in accordance with their respective terms its terms, except as such enforceability may be subject to bankruptcy and or limited by bankruptcy, liquidation, insolvency, reorganization, moratorium, liquidation, fraudulent conveyance or other similar laws affecting creditors generally the enforcement of creditors’ rights in general and by general principles of equity (equity, regardless of whether enforcement is sought such enforceability shall be considered in a proceeding in equity or at law).
(ef) The consummation of the transactions contemplated by this Agreement and the fulfillment of the terms hereof 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 formation or limited liability company agreement of the Transferor, or any indenture, agreement or other instrument to which the Transferor is a party or by which it is bound; nor result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement or other instrument (other than pursuant to the 2024-B Basic Documents); nor violate any law or, to the best of the Transferor’s knowledge, any order, rule or regulation applicable to the Transferor of any Governmental Authority having jurisdiction over the Transferor or its properties.
(g) To the knowledge of the Transferor, there are no proceedings or investigations pending or threatened before any Governmental Authority having jurisdiction over the Transferor or its properties (i) The Transferor has furnished asserting the invalidity of this Agreement, (ii) seeking to prevent the Company and the Administrative Agent copies consummation of any of the Parent’s audited consolidated balance sheet as at December 31transactions contemplated by this Agreement or (iii) seeking any determination or ruling that might materially and adversely affect the performance by the Transferor of its obligations under, 2011or the validity or enforceability of, and the related audited consolidated statements of income and cash flow for the fiscal year of the Parent then ended reported on by Deloitte & Touche LLP which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at December 31, 2011, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year of the Parent then ended, which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at such date, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year then ended; andthis Agreement.
Appears in 2 contracts
Samples: Trust Agreement (Mercedes-Benz Auto Lease Trust 2024-B), Trust Agreement (Mercedes-Benz Auto Lease Trust 2024-B)
Representations and Warranties of the Transferor. The Transferor hereby represents and warrants as followsto the Owner Trustee that:
(a) It The Transferor is a corporation, duly incorporated, formed and validly existing and as a limited liability company in good standing under the laws of the State of Delaware Delaware, with power and is duly qualified authority to do business, own its properties and is in good standing, in every jurisdiction in which the nature of to conduct its business requires it to be so qualified as such properties are currently owned and the failure to do so could reasonably be expected to have a Material Adverse Effectsuch business is presently conducted.
(b) The execution, delivery and performance by the Transferor of this Agreement and all other Transferor Documents to be entered into by it, including the Transferor’s sale or contribution of Receivables, and, in the case of is not a Purchase, its use of the proceeds of Purchases, are within the Transferor’s corporate powers, have been duly authorized by all necessary corporate action, do not contravene (i) its charter or by-laws, (ii) any Applicable Law except where such contravention could not reasonably be expected to result in a Material Adverse Effect, (iii) any material contractual restriction binding on or affecting it or its property other than such restrictions that could not reasonably be expected to adversely affect the Transferor’s ability to perform its material obligations hereunder or, with respect to the transfer of the Receivables and Collections thereon, in any Immaterial Respect, or (iv) any material order, writ, judgment, award, injunction or decree binding on or affecting it or its property, and do not result in or require the creation of any Lien upon or with respect to any of its properties (other than in favor of the Company with respect to the Transferred Property), and no transaction contemplated hereby requires compliance with any bulk sales act or similar law. This Agreement and each other Transferor Document to be entered into by the Transferor have been duly executed and delivered by itBenefit Plan.
(c) No authorization The Transferor is duly qualified to do business as a foreign limited liability company in good standing 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 shall require such qualifications except when the failure to have any such license, approval or other action byqualification would not have a material adverse effect on the condition, financial or otherwise, of the Transferor or would not have a material adverse effect on the ability of the Transferor to perform its obligations under this Agreement.
(d) The Transferor has the power and no notice authority to or filing with, any governmental authority or regulatory body is required for execute and deliver this Agreement and to carry out its due terms and to transfer and assign the property to be transferred and assigned to and deposited with the Issuer; and the execution, delivery and performance of this Agreement or any other Transferor Document to be entered into by itand such transfer, except (i) for the filing of UCC financing statements, all of which financing statements assignment and deposit have been duly filed and, to its knowledge, are in full force and effect, (ii) such as have been made or obtained and are in full force and effect and (iii) where authorized by the failure to make or obtain could not reasonably be expected to adversely affect the Company’s ability to perform its material obligations hereunder or the ability to assign or collect the Receivables hereunderTransferor by all necessary limited liability company action.
(de) This Agreement and each other Transferor Document to be entered into by the Transferor constitute its constitutes a legal, valid and binding obligation of the Transferor, enforceable against the Transferor in accordance with their respective terms its terms, except as such enforceability may be subject to bankruptcy and or limited by bankruptcy, liquidation, insolvency, reorganization, moratorium, liquidation, fraudulent conveyance or other similar laws affecting creditors generally the enforcement of creditors’ rights in general and by general principles of equity (equity, regardless of whether enforcement is sought such enforceability shall be considered in a proceeding in equity or at law).
(ef) The consummation of the transactions contemplated by this Agreement and the fulfillment of the terms hereof 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 formation or limited liability company agreement of the Transferor, or any indenture, agreement or other instrument to which the Transferor is a party or by which it is bound; nor result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement or other instrument (other than pursuant to the 2024-A Basic Documents); nor violate any law or, to the best of the Transferor’s knowledge, any order, rule or regulation applicable to the Transferor of any Governmental Authority having jurisdiction over the Transferor or its properties.
(g) To the knowledge of the Transferor, there are no proceedings or investigations pending or threatened before any Governmental Authority having jurisdiction over the Transferor or its properties (i) The Transferor has furnished asserting the invalidity of this Agreement, (ii) seeking to prevent the Company and the Administrative Agent copies consummation of any of the Parent’s audited consolidated balance sheet as at December 31transactions contemplated by this Agreement or (iii) seeking any determination or ruling that might materially and adversely affect the performance by the Transferor of its obligations under, 2011or the validity or enforceability of, and the related audited consolidated statements of income and cash flow for the fiscal year of the Parent then ended reported on by Deloitte & Touche LLP which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at December 31, 2011, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year of the Parent then ended, which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at such date, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year then ended; andthis Agreement.
Appears in 2 contracts
Samples: Trust Agreement (Mercedes-Benz Auto Lease Trust 2024-A), Trust Agreement (Mercedes-Benz Auto Lease Trust 2024-A)
Representations and Warranties of the Transferor. The Transferor hereby represents and warrants as followsto the Owner Trustee that:
(a) It The Transferor is a corporation, duly incorporated, formed and validly existing and as a limited liability company in good standing under the laws of the State of Delaware Delaware, with power and is duly qualified authority to do business, own its properties and is in good standing, in every jurisdiction in which the nature of to conduct its business requires it to be so qualified as such properties are currently owned and the failure to do so could reasonably be expected to have a Material Adverse Effectsuch business is presently conducted.
(b) The execution, delivery and performance by the Transferor of this Agreement and all other Transferor Documents to be entered into by it, including the Transferor’s sale or contribution of Receivables, and, in the case of is not a Purchase, its use of the proceeds of Purchases, are within the Transferor’s corporate powers, have been duly authorized by all necessary corporate action, do not contravene (i) its charter or by-laws, (ii) any Applicable Law except where such contravention could not reasonably be expected to result in a Material Adverse Effect, (iii) any material contractual restriction binding on or affecting it or its property other than such restrictions that could not reasonably be expected to adversely affect the Transferor’s ability to perform its material obligations hereunder or, with respect to the transfer of the Receivables and Collections thereon, in any Immaterial Respect, or (iv) any material order, writ, judgment, award, injunction or decree binding on or affecting it or its property, and do not result in or require the creation of any Lien upon or with respect to any of its properties (other than in favor of the Company with respect to the Transferred Property), and no transaction contemplated hereby requires compliance with any bulk sales act or similar law. This Agreement and each other Transferor Document to be entered into by the Transferor have been duly executed and delivered by itBenefit Plan.
(c) No authorization The Transferor is duly qualified to do business as a foreign limited liability company in good standing 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 shall require such qualifications except when the failure to have any such license, approval or other action byqualification would not have a material adverse effect on the condition, financial or otherwise, of the Transferor or would not have a material adverse effect on the ability of the Transferor to perform its obligations under this Agreement.
(d) The Transferor has the power and no notice authority to or filing with, any governmental authority or regulatory body is required for execute and deliver this Agreement and to carry out its due terms and to transfer and assign the property to be transferred and assigned to and deposited with the Issuer; and the execution, delivery and performance of this Agreement or any other Transferor Document to be entered into by itand such transfer, except (i) for the filing of UCC financing statements, all of which financing statements assignment and deposit have been duly filed and, to its knowledge, are in full force and effect, (ii) such as have been made or obtained and are in full force and effect and (iii) where authorized by the failure to make or obtain could not reasonably be expected to adversely affect the Company’s ability to perform its material obligations hereunder or the ability to assign or collect the Receivables hereunderTransferor by all necessary limited liability company action.
(de) This Agreement and each other Transferor Document to be entered into by the Transferor constitute its constitutes a legal, valid and binding obligation of the Transferor, enforceable against the Transferor in accordance with their respective terms its terms, except as such enforceability may be subject to bankruptcy and or limited by bankruptcy, liquidation, insolvency, reorganization, moratorium, liquidation, fraudulent conveyance or other similar laws affecting creditors generally the enforcement of creditors’ rights in general and by general principles of equity (equity, regardless of whether enforcement is sought such enforceability shall be considered in a proceeding in equity or at law).
(ef) The consummation of the transactions contemplated by this Agreement and the fulfillment of the terms hereof 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 formation or limited liability company agreement of the Transferor, or any indenture, agreement or other instrument to which the Transferor is a party or by which it is bound; nor result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement or other instrument (other than pursuant to the 2020-B Basic Documents); nor violate any law or, to the best of the Transferor’s knowledge, any order, rule or regulation applicable to the Transferor of any Governmental Authority having jurisdiction over the Transferor or its properties.
(g) To the knowledge of the Transferor, there are no proceedings or investigations pending or threatened before any Governmental Authority having jurisdiction over the Transferor or its properties (i) The Transferor has furnished asserting the invalidity of this Agreement, (ii) seeking to prevent the Company and the Administrative Agent copies consummation of any of the Parent’s audited consolidated balance sheet as at December 31transactions contemplated by this Agreement or (iii) seeking any determination or ruling that might materially and adversely affect the performance by the Transferor of its obligations under, 2011or the validity or enforceability of, and the related audited consolidated statements of income and cash flow for the fiscal year of the Parent then ended reported on by Deloitte & Touche LLP which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at December 31, 2011, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year of the Parent then ended, which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at such date, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year then ended; andthis Agreement.
Appears in 2 contracts
Samples: Trust Agreement (Mercedes-Benz Auto Lease Trust 2020-B), Trust Agreement (Mercedes-Benz Auto Lease Trust 2020-B)
Representations and Warranties of the Transferor. The Transferor hereby represents and warrants to the Servicer, the Indenture Trustee, the Owner Trustee, the Grantor Trustee, the Noteholders and the Depositor that as follows:of the Closing Date or the Subsequent Transfer Date, as the case may be (except as otherwise specifically provided herein):
(a) It The Transferor is a corporation, corporation licensed as a mortgage lender duly incorporatedorganized, validly existing and in good standing under the laws of the State of Delaware Oklahoma and is duly qualified has and had at all relevant times, full corporate power to do businessoriginate or purchase the Home Loans, and is in good standingto own its property, in every jurisdiction in which the nature of to carry on its business requires it as presently conducted and to be so qualified enter into and the failure to do so could reasonably be expected to have a Material Adverse Effect.perform its obligations under this Agreement;
(b) The execution, execution and delivery and performance of this Agreement by the Transferor and its performance of and compliance with the terms of this Agreement and all other Transferor Documents to be entered into by it, including will not violate the Transferor’s sale or contribution 's articles of Receivables, and, in the case of a Purchase, its use of the proceeds of Purchases, are within the Transferor’s corporate powers, have been duly authorized by all necessary corporate action, do not contravene (i) its charter incorporation or by-lawslaws or constitute a default (or an event which, (iiwith notice or lapse of time, or both, would constitute a default) any Applicable Law except where such contravention could not reasonably be expected to under, or result in a Material Adverse Effectthe breach or acceleration of, (iii) any material contractual restriction binding on contract, agreement or affecting it other instrument to which the Transferor is a party or its property other than such restrictions that could not reasonably which may be expected to adversely affect the Transferor’s ability to perform its material obligations hereunder or, with respect applicable to the transfer of the Receivables and Collections thereon, in any Immaterial Respect, Transferor or (iv) any material order, writ, judgment, award, injunction or decree binding on or affecting it or its property, and do not result in or require the creation of any Lien upon or with respect to any of its properties (other than in favor of the Company with respect to the Transferred Property), and no transaction contemplated hereby requires compliance with any bulk sales act or similar law. This Agreement and each other Transferor Document to be entered into by the Transferor have been duly executed and delivered by it.assets;
(c) No authorization or approval or other action byThe Transferor has the full power and authority to enter into and consummate all transactions contemplated by this Agreement to be consummated by it, and no notice to or filing with, any governmental authority or regulatory body is required for its due has duly authorized the execution, delivery and performance of this Agreement or any other Transferor Document to be entered into by itand has duly executed and delivered this Agreement. This Agreement, except (i) for the filing of UCC financing statementsassuming due authorization, all of which financing statements have been duly filed and, to its knowledge, are in full force execution and effect, (ii) such as have been made or obtained and are in full force and effect and (iii) where the failure to make or obtain could not reasonably be expected to adversely affect the Company’s ability to perform its material obligations hereunder or the ability to assign or collect the Receivables hereunder.
(d) This Agreement and each other Transferor Document to be entered into delivery by the Transferor constitute its legalOwner Trustee, valid the Indenture Trustee, the Grantor Trustee and the Depositor, constitutes a valid, legal and binding obligation of the Transferor, enforceable against the Transferor it in accordance with their respective the terms subject to bankruptcy and hereof, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting the rights of creditors generally generally, and by general equity principles of equity (regardless of whether such enforcement is sought considered in a proceeding in equity or at law).;
(d) The Transferor is not in violation of, and the execution and delivery of this Agreement by the Transferor 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 court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction, which violation would materially and adversely affect the condition (financial or otherwise) or operations of the Transferor or its properties or materially and adversely affect the performance of its duties hereunder;
(e) There are no actions or proceedings against, or investigations of, the Transferor currently pending with regard to which the Transferor has received service of process and no action or proceeding against, or investigation of, the Transferor is, to the knowledge of the Transferor, threatened or otherwise pending, before any court, administrative agency or other tribunal that (A) if determined adversely, would prohibit its entering into this Agreement or render the Notes invalid, (B) seek to prevent the issuance of the Notes or the consummation of any of the transactions contemplated by this Agreement or (C) if determined adversely, would prohibit or materially and adversely affect the sale of the Home Loans to the Depositor, the performance by the Transferor of its obligations under, or the validity or enforceability of, this Agreement or the Notes;
(f) No consent, approval, authorization or order of any court or governmental agency or body is required for: (1) the execution, delivery and performance by the Transferor of, or compliance by the Transferor with, this Agreement or the Grantor Trust Agreement, (2) the issuance of the Notes, (3) the sale of the Home Loans under the Home Loan Purchase Agreement or (4) the consummation of the transactions required of it by this Agreement, except such as shall have been obtained before the Closing Date;
(g) The Transferor acquired title to the Home Loans in good faith, without notice of any adverse claim;
(h) The collection practices used by the Transferor with respect to the Home Loans have been, in all material respects, legal, proper, prudent and customary in the non-conforming mortgage servicing business;
(i) No Officer's Certificate, statement, report or other document prepared by the Transferor and furnished or to be furnished by it 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 herein or therein not misleading;
(j) The Transferor is solvent, is able to pay its debts as they become due and has furnished capital sufficient to carry on its business and its obligations hereunder; it will not be rendered insolvent by the execution and delivery of this Agreement or by the performance of its obligations hereunder; no petition of bankruptcy (or similar insolvency proceeding) has been filed by or against the Transferor prior to the Company date hereof;
(k) The Prospectus Supplement (other than (i) the statements set forth in the paragraph immediately preceding the final paragraph of the cover of the Prospectus Supplement and the Administrative Agent copies first sentence of the Parent’s audited consolidated balance sheet as at December 31, 2011, and the related audited consolidated statements of income and cash flow for the fiscal year final paragraph of the Parent then ended reported on by Deloitte & Touche LLP which financial statements present fairly in all material respects in accordance with GAAP the financial position cover of the Parent Prospectus Supplement and its consolidated subsidiaries (ii) the statements under the following captions: "SUMMARY -- Securities Issued", "-- Priority of Payments", "--Maturity Date", "-- Credit Enhancement", "-- Tax Status", "-- ERISA", "-- Legal Investment", "DESCRIPTION OF THE OFFERED NOTES", "DESCRIPTION OF CREDIT ENHANCEMENT", "FEDERAL INCOME TAX CONSEQUENCES", "ERISA CONSIDERATIONS", "LEGAL INVESTMENT MATTERS" and "UNDERWRITING", as at December 31to which the Transferor makes no statement) does not contain an untrue statement of a material fact and does not omit to state a material fact necessary to make the statements therein, 2011, and the results of operations in light of the Parent and its consolidated subsidiaries for the fiscal year of the Parent then endedcircumstances under which they were made, which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at such date, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year then ended; andnot misleading;
Appears in 2 contracts
Samples: Sale and Servicing Agreement (Empire Funding Home Loan Owner Trust 1998-1), Sale and Servicing Agreement (Master Financial Asset Securitization Trust 1998-2)
Representations and Warranties of the Transferor. The Transferor hereby represents and warrants as followsto the Owner Trustee that:
(a) It The Transferor is a corporation, duly incorporated, formed and validly existing and as a limited liability company in good standing under the laws of the State of Delaware Delaware, with power and is duly qualified authority to do business, own its properties and is in good standing, in every jurisdiction in which the nature of to conduct its business requires it to be so qualified as such properties are currently owned and the failure to do so could reasonably be expected to have a Material Adverse Effectsuch business is presently conducted.
(b) The execution, delivery and performance by the Transferor of this Agreement and all other Transferor Documents to be entered into by it, including the Transferor’s sale or contribution of Receivables, and, in the case of is not a Purchase, its use of the proceeds of Purchases, are within the Transferor’s corporate powers, have been duly authorized by all necessary corporate action, do not contravene (i) its charter or by-laws, (ii) any Applicable Law except where such contravention could not reasonably be expected to result in a Material Adverse Effect, (iii) any material contractual restriction binding on or affecting it or its property other than such restrictions that could not reasonably be expected to adversely affect the Transferor’s ability to perform its material obligations hereunder or, with respect to the transfer of the Receivables and Collections thereon, in any Immaterial Respect, or (iv) any material order, writ, judgment, award, injunction or decree binding on or affecting it or its property, and do not result in or require the creation of any Lien upon or with respect to any of its properties (other than in favor of the Company with respect to the Transferred Property), and no transaction contemplated hereby requires compliance with any bulk sales act or similar law. This Agreement and each other Transferor Document to be entered into by the Transferor have been duly executed and delivered by itBenefit Plan.
(c) No authorization The Transferor is duly qualified to do business as a foreign limited liability company in good standing 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 shall require such qualifications except when the failure to have any such license, approval or other action byqualification would not have a material adverse effect on the condition, financial or otherwise, of the Transferor or would not have a material adverse effect on the ability of the Transferor to perform its obligations under this Agreement.
(d) The Transferor has the power and no notice authority to or filing with, any governmental authority or regulatory body is required for execute and deliver this Agreement and to carry out its due terms and to transfer and assign the property to be transferred and assigned to and deposited with the Issuer; and the execution, delivery and performance of this Agreement or any other Transferor Document to be entered into by itand such transfer, except (i) for the filing of UCC financing statements, all of which financing statements assignment and deposit have been duly filed and, to its knowledge, are in full force and effect, (ii) such as have been made or obtained and are in full force and effect and (iii) where authorized by the failure to make or obtain could not reasonably be expected to adversely affect the Company’s ability to perform its material obligations hereunder or the ability to assign or collect the Receivables hereunderTransferor by all necessary limited liability company action.
(de) This Agreement and each other Transferor Document to be entered into by the Transferor constitute its constitutes a legal, valid and binding obligation of the Transferor, enforceable against the Transferor in accordance with their respective terms its terms, except as such enforceability may be subject to bankruptcy and or limited by bankruptcy, liquidation, insolvency, reorganization, moratorium, liquidation, fraudulent conveyance or other similar laws affecting creditors generally the enforcement of creditors’ rights in general and by general principles of equity (equity, regardless of whether enforcement is sought such enforceability shall be considered in a proceeding in equity or at law).
(ef) The consummation of the transactions contemplated by this Agreement and the fulfillment of the terms hereof 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 formation or limited liability company agreement of the Transferor, or any indenture, agreement or other instrument to which the Transferor is a party or by which it is bound; nor result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement or other instrument (other than pursuant to the 2023-A Basic Documents); nor violate any law or, to the best of the Transferor’s knowledge, any order, rule or regulation applicable to the Transferor of any Governmental Authority having jurisdiction over the Transferor or its properties.
(g) To the knowledge of the Transferor, there are no proceedings or investigations pending or threatened before any Governmental Authority having jurisdiction over the Transferor or its properties (i) The Transferor has furnished asserting the invalidity of this Agreement, (ii) seeking to prevent the Company and the Administrative Agent copies consummation of any of the Parent’s audited consolidated balance sheet as at December 31transactions contemplated by this Agreement or (iii) seeking any determination or ruling that might materially and adversely affect the performance by the Transferor of its obligations under, 2011or the validity or enforceability of, and the related audited consolidated statements of income and cash flow for the fiscal year of the Parent then ended reported on by Deloitte & Touche LLP which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at December 31, 2011, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year of the Parent then ended, which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at such date, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year then ended; andthis Agreement.
Appears in 2 contracts
Samples: Trust Agreement (Mercedes-Benz Auto Lease Trust 2023-A), Trust Agreement (Mercedes-Benz Auto Lease Trust 2023-A)
Representations and Warranties of the Transferor. The Transferor represents and warrants as follows:follows as of the date hereof, as of each Transfer Date hereunder (both before and after giving effect to any Transfers on such date) and as of each Reporting Date (except that the representations and warranties set forth in paragraphs (e) and (f) below shall be made only as of the date hereof and each Reporting Date):
(a) It The Transferor is a corporation, limited liability company duly incorporatedformed, validly existing and in good standing under the laws of the State of Delaware Delaware, and is duly qualified to do business, and is in good standingstanding as a foreign limited liability company, in every jurisdiction in which where the nature of its business requires it to be so qualified and qualified, unless the failure to do so could qualify would not reasonably be expected to have a Material Adverse Effect.
(b) The execution, delivery and performance by the Transferor of this Agreement and all other Transferor Documents to be entered into by itthe Transaction Documents, including the Transferor’s sale or contribution of Receivables, and, in the case of a Purchase, its 's use of the proceeds of PurchasesTransfers, (i) are within the Transferor’s corporate 's limited liability company powers, (ii) have been duly authorized by all necessary corporate limited liability company action, (iii) do not contravene (iA) its charter the Transferor's certificate of formation or by-lawslimited liability company agreement, (iiB) any Applicable Law except where such contravention could not reasonably be expected law, rule or regulation applicable to result in a Material Adverse Effectthe Transferor, (iiiC) any material contractual restriction binding on or affecting it the Transferor or its property other than such restrictions that could not reasonably be expected to adversely affect the Transferor’s ability to perform its material obligations hereunder or, with respect to the transfer of the Receivables and Collections thereon, in any Immaterial Respect, or (ivD) any material order, writ, judgment, award, injunction or decree binding on or affecting it the Transferor or its property, where any such contravention described in this clause (iii) could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and (iv) do not result in or require the creation of any Lien Adverse Claim upon or with respect to any of its properties (other than in favor except Permitted Adverse Claims). Each of the Company with respect to the Transferred Property), and no transaction contemplated hereby requires compliance with any bulk sales act or similar law. This Agreement and each other Transferor Document to be entered into by the Transferor have Transaction Documents has been duly executed and delivered by itthe Transferor.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body Official Body is required for its the due execution, delivery and performance by the Transferor of this Agreement the Transaction Documents to which it is a party or any other Transferor Document document to be entered into delivered by itit thereunder, except for (i) for the filing of UCC financing statements, all of which the financing statements have been duly filed and, referred to its knowledge, are in full force Schedule IV of the Receivables Loan Agreement and effect, (ii) such as have been obtained or made or obtained and are in full force and effect and (iii) where the failure to make or obtain could not reasonably be expected to adversely affect the Company’s ability to perform its material obligations hereunder or the ability to assign or collect the Receivables hereundereffect.
(d) This Agreement and each other Transferor Document Each of the Transaction Documents to be entered into by which the Transferor constitute its is a party constitutes the legal, valid and binding obligation of the Transferor enforceable against the Transferor in accordance with their respective terms its terms, subject to bankruptcy and (i) the effects of bankruptcy, insolvency, moratorium, reorganization or other similar laws affecting creditors generally and creditors' rights generally, (ii) general principles of equity (regardless of whether enforcement such enforceability is sought considered in a proceeding in equity or at law)) and (iii) implied covenants of good faith and fair dealing.
(e) Since December 31, 2003 there has been no Material Adverse Effect.
(f) 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 Transferor, threatened in writing against or affecting the Transferor or any of its business, property or rights as to which in either case, an adverse determination is reasonably probable and which could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. The Transferor is not in default in any material respect of any order of any Official Body.
(g) No proceeds of any Transfer 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) Immediately prior to each Transfer hereunder, the Transferor will be the owner of the Transferred Assets which are the subject of such Transfer, free and clear of any Adverse Claim (other than Permitted Adverse Claims). Upon each Transfer, the Transferee shall have acquired a valid and perfected first priority ownership interest in the Transferred Assets which are the subject of such Transfer perfected under Delaware law, as applicable, in each case free and clear of any Adverse Claim (other than Permitted Adverse Claims). At the time of any Transfer hereunder the Transferee will have a valid and perfected security interest in the Credit Default Swap Collateral and the Administrative Agent will have a valid and perfected security interest in the Account Collateral, in each case free and clear of any Adverse Claim (other than Permitted Adverse Claims). No effective financing statement or other instrument similar in effect, is filed in any recording office listing the Transferor as debtor, covering any Transferred Assets, or any interest therein, except (i) such as may be filed in accordance with the Originator Purchase Agreement and (ii) such as may be filed in favor of the Transferee in accordance with this Agreement.
(i) All information, exhibits, documents, books, records and reports furnished in writing at any time by or on behalf of the Transferor to the Transferee, the Administrative Agent, any Funding Agent or any Lender in connection with the Transaction Documents is accurate in all material respects as of its date or (except as otherwise disclosed to the Transferee, the Administrative Agent, such Funding Agent or such Lender, as the case may be, at such time) as of the date so furnished.
(j) The Transferor is located in the State of Delaware for the purposes of Section 9-307 of the UCC as in effect in the State of New York.
(k) Since its formation, the Transferor has not used any corporate name, tradename or doing-business-as name other than the name in which it has executed this Agreement.
(l) The Transferor was formed on February 20, 2003 and the Transferor did not engage in any business activities prior to the date of the Existing Transfer Agreement. The Transferor has no Subsidiaries other than the Borrower. TRW Automotive Acquisition Corp., a Delaware corporation, directly owns 100% of the membership interest of the Transferor, free and clear of any Adverse Claims.
(m) The Transferor is not an "investment company" as defined by, or subject to regulation under the Investment Company Act of 1940, as amended.
(i) The fair value of the assets of the Transferor, at a fair valuation, exceed the debts and liabilities, direct, subordinated, contingent or otherwise, of the Transferor; (ii) the present fair saleable value of the property of the Transferor has furnished is greater than the amount that will be required to pay the Company probable liability of the Transferor on its debts and other liabilities, direct, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured; (iii) the Transferor 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 Transferor will not have unreasonably small capital with which to conduct the businesses in which it is engaged as such business is now conducted and is proposed to be conducted following the Closing Date. The Transferor does not intend to, and does not believe that it will, incur debts beyond its ability to pay such debts as they mature, taking into account the timing and amounts of cash to be received by it and the Administrative Agent copies timing and amounts of cash to be payable on or in respect of its Indebtedness.
(o) All Transferred Assets acquired by the Parent’s audited consolidated balance sheet as at December 31, 2011, Transferor from the Originators have been purchased by the Transferor pursuant to and the related audited consolidated statements of income and cash flow for the fiscal year of the Parent then ended reported on by Deloitte & Touche LLP which financial statements present fairly in all material respects in accordance with GAAP the financial position Originator Purchase Agreement in an amount which constitutes fair consideration and reasonably equivalent value. Each Purchase under the Originator Purchase Agreement shall not have been made for or on account of an antecedent debt owed by the Transferor to any Originator and no such purchase is or may be voidable or subject to avoidance under any section of the Parent and its consolidated subsidiaries as at December 31United States Bankruptcy Code or any other Law, 2011, and the results of operations whether foreign or domestic.
(p) No Adverse Claim exists in favor of the Parent and its consolidated subsidiaries for the fiscal year Pension Benefit Guaranty Corporation on any of the Parent then ended, Transferred Assets.
(q) No event has occurred and is continuing and no condition exists which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at such date, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year then ended; andconstitutes a Termination Event or Incipient Termination Event.
Appears in 1 contract
Representations and Warranties of the Transferor. The Transferor hereby represents and warrants as followsto the Owner Trustee that:
(a) It The Transferor has been duly organized and is a corporation, duly incorporated, validly existing and as a limited liability company in good standing under the laws of the State of Delaware Delaware, with power and authority to own its properties and to conduct its business as such properties are presently owned and such business is duly qualified to do businesspresently conducted and had at all relevant times, and is in good standingnow has, in every jurisdiction in which power, authority and legal right to acquire and own the nature of its business requires it to be so qualified Loans and the failure to do so could reasonably be expected to have a Material Adverse EffectReceivables.
(b) The execution, delivery Transferor has the power and performance by the Transferor of authority to execute and deliver this Agreement and all other to carry out its terms, the Transferor Documents has full power and authority to sell and assign the property to be entered into by it, including sold and assigned to and deposited with the Transferor’s sale or contribution of Receivables, and, in the case of a Purchase, its use Issuer as part of the proceeds of Purchases, are within Owner Trust Estate and the Transferor’s corporate powers, have been Transferor has duly authorized such sale and assignment to the Issuer by all necessary corporate action, do not contravene (i) its charter or by-laws, (ii) any Applicable Law except where such contravention could not reasonably be expected to result in a Material Adverse Effect, (iii) any material contractual restriction binding on or affecting it or its property other than such restrictions that could not reasonably be expected to adversely affect ; and the Transferor’s ability to perform its material obligations hereunder or, with respect to the transfer of the Receivables and Collections thereon, in any Immaterial Respect, or (iv) any material order, writ, judgment, award, injunction or decree binding on or affecting it or its property, and do not result in or require the creation of any Lien upon or with respect to any of its properties (other than in favor of the Company with respect to the Transferred Property), and no transaction contemplated hereby requires compliance with any bulk sales act or similar law. This Agreement and each other Transferor Document to be entered into by the Transferor have been duly executed and delivered by it.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for its due execution, delivery and performance of this Agreement or any other Transferor Document to be entered into by it, except (i) for the filing of UCC financing statements, all of which financing statements have been duly filed andauthorized by the Transferor by all necessary limited liability company action.
(c) The consummation of the transactions contemplated by this Agreement and the fulfillment of the terms of this Agreement 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 formation or limited liability company agreement of the Transferor, or any indenture, agreement or other instrument to which the Transferor 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 or other instrument (other than pursuant to the Basic Documents), or violate any law or, to its the Transferor’s knowledge, are in full force and effectany order, (ii) such as have been made rule or obtained and are in full force and effect and (iii) where regulation applicable to the failure to make Transferor of any court or obtain could not reasonably be expected to adversely affect of any federal or state regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Company’s ability to perform Transferor or any of its material obligations hereunder or the ability to assign or collect the Receivables hereunderproperties.
(d) This Agreement Agreement, when duly executed and each other Transferor Document to be entered into by the Transferor delivered, shall constitute its a legal, valid and binding obligation enforceable against of the Transferor enforceable in accordance with their respective terms subject to bankruptcy and its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting creditors generally the enforcement of creditors’ rights in general and by general principles of equity (equity, regardless of whether enforcement such enforceability is sought considered in a proceeding in equity or at law).
(e) There are no proceedings or, to the Transferor’s knowledge, investigations pending or, to the Transferor’s knowledge, threatened before any court, regulatory body, administrative agency or other tribunal or governmental instrumentality having jurisdiction over the Transferor or its properties (i) The Transferor has furnished asserting the invalidity of this Agreement, (ii) seeking to prevent the Company and the Administrative Agent copies consummation of any of the Parent’s audited consolidated balance sheet as at December 31transactions contemplated by this Agreement or (iii) seeking any determination or ruling that might materially and adversely affect the performance by the Transferor of its obligations under, 2011or the validity or enforceability of, and the related audited consolidated statements of income and cash flow for the fiscal year of the Parent then ended reported on by Deloitte & Touche LLP which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at December 31, 2011, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year of the Parent then ended, which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at such date, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year then ended; andthis Agreement.
Appears in 1 contract
Representations and Warranties of the Transferor. The Transferor hereby represents and warrants as followsto the Owner Trustee that:
(a) It The Transferor has been duly organized and is a corporation, duly incorporated, validly existing and as a limited liability company in good standing under the laws of the State of Delaware Delaware, with power and authority to own its properties and to conduct its business as such properties are presently owned and such business is duly qualified to do businesspresently conducted and had at all relevant times, and is in good standingnow has, in every jurisdiction in which power, authority and legal right to acquire and own the nature of its business requires it to be so qualified Loans and the failure to do so could reasonably be expected to have a Material Adverse EffectReceivables.
(b) The execution, delivery Transferor has the power and performance by the Transferor of authority to execute and deliver this Agreement and all other to carry out its terms, the Transferor Documents has full power and authority to sell and assign the property to be entered into by it, including sold and assigned to and deposited with the Transferor’s sale or contribution of Receivables, and, in the case of a Purchase, its use Issuer as part of the proceeds of Purchases, are within Trust and the Transferor’s corporate powers, have been Transferor has duly authorized such sale and assignment to the Issuer by all necessary corporate action, do not contravene (i) its charter or by-laws, (ii) any Applicable Law except where such contravention could not reasonably be expected to result in a Material Adverse Effect, (iii) any material contractual restriction binding on or affecting it or its property other than such restrictions that could not reasonably be expected to adversely affect ; and the Transferor’s ability to perform its material obligations hereunder or, with respect to the transfer of the Receivables and Collections thereon, in any Immaterial Respect, or (iv) any material order, writ, judgment, award, injunction or decree binding on or affecting it or its property, and do not result in or require the creation of any Lien upon or with respect to any of its properties (other than in favor of the Company with respect to the Transferred Property), and no transaction contemplated hereby requires compliance with any bulk sales act or similar law. This Agreement and each other Transferor Document to be entered into by the Transferor have been duly executed and delivered by it.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for its due execution, delivery and performance of this Agreement or any other Transferor Document to be entered into by it, except (i) for the filing of UCC financing statements, all of which financing statements have been duly filed andauthorized by the Transferor by all necessary limited liability company action.
(c) The consummation of the transactions contemplated by this Agreement and the fulfillment of the terms of this Agreement 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 formation or limited liability company agreement of the Transferor, or any indenture, agreement or other instrument to which the Transferor 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 or other instrument (other than pursuant to the Basic Documents), or violate any law or, to its the Transferor's knowledge, are in full force and effectany order, (ii) such as have been made rule or obtained and are in full force and effect and (iii) where regulation applicable to the failure to make Transferor of any court or obtain could not reasonably be expected to adversely affect of any federal or state regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Company’s ability to perform Transferor or any of its material obligations hereunder or the ability to assign or collect the Receivables hereunderproperties.
(d) This Agreement Agreement, when duly executed and each other Transferor Document to be entered into by the Transferor delivered, shall constitute its a legal, valid and binding obligation enforceable against of the Transferor enforceable in accordance with their respective terms subject to bankruptcy and its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting creditors generally the enforcement of creditors' rights in general and by general principles of equity (equity, regardless of whether enforcement such enforceability is sought considered in a proceeding in equity or at law).
(e) 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) The Transferor has furnished asserting the invalidity of this Agreement, (ii) seeking to prevent the Company and the Administrative Agent copies consummation of any of the Parent’s audited consolidated balance sheet as at December 31transactions 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, 2011or the validity or enforceability of, and the related audited consolidated statements of income and cash flow for the fiscal year of the Parent then ended reported on by Deloitte & Touche LLP which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at December 31, 2011, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year of the Parent then ended, which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at such date, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year then ended; andthis Agreement.
Appears in 1 contract
Representations and Warranties of the Transferor. The Transferor hereby represents and warrants to the Owner Trustee as followsof the date of this Agreement and as of each Addition Date that:
(ai) It The Transferor is a corporation, limited liability company duly incorporatedorganized, validly existing and in good standing under the laws of its jurisdiction of organization, with the State of Delaware power and authority to own its assets and to transact the business in which it is currently engaged.
(ii) The Transferor is duly qualified to do business, business and is in good standing, in every standing under the laws of any jurisdiction in which the nature character of its the business transacted by it or properties owned or leased by it requires it to be so qualified such qualification and in which the failure so to do so qualify could reasonably be expected to have a Material Adverse Effect.
material adverse effect on the business, properties, assets, or condition (bfinancial or otherwise) The execution, delivery and performance by of the Transferor of this Agreement and all other Transferor Documents to be entered into by it, including the Transferor’s sale or contribution of Receivables, and, in the case of a Purchase, its use of the proceeds of Purchases, are within the Transferor’s corporate powers, have been duly authorized by all necessary corporate action, do not contravene (i) its charter or by-laws, (ii) any Applicable Law except where such contravention could not reasonably be expected to result in a Material Adverse Effect, (iii) any material contractual restriction binding on or affecting it or its property other than such restrictions that could not reasonably be expected to adversely affect the Transferor’s ability to perform its material obligations hereunder or, with respect to the transfer of the Receivables and Collections thereon, in any Immaterial Respect, or (iv) any material order, writ, judgment, award, injunction or decree binding on or affecting it or its property, and do not result in or require the creation of any Lien upon or with respect to any of its properties (other than in favor of the Company with respect to the Transferred Property), and no transaction contemplated hereby requires compliance with any bulk sales act or similar law. This Agreement and each other Transferor Document to be entered into by the Transferor have been duly executed and delivered by itduties hereunder.
(ciii) No authorization or approval or The Transferor has the power and authority to make, execute, deliver and perform this Agreement and the other action byTransaction Documents to which the Transferor is a party and all of the transactions contemplated under this Agreement and the other Transaction Documents to which the Transferor is a party, and no notice has taken all necessary limited liability company action to or filing with, any governmental authority or regulatory body is required for its due authorize the execution, delivery and performance of this Agreement or any and the other Transaction Documents to which the Transferor Document is a party.
(iv) This Agreement and the other Transaction Documents to be entered into by it, except (i) for which the filing of UCC financing statements, all of which financing statements Transferor is a party have been duly filed andexecuted and delivered by the Transferor and constitute the legal, valid and binding obligation of the Transferor, enforceable in accordance with their terms, except as enforcement of such terms may be limited by bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally, any applicable law imposing limitations upon, or otherwise affecting, the availability or enforcement of rights to indemnification hereunder, and by the availability of equitable remedies.
(v) The Transferor’s execution, delivery and performance of this Agreement and any other Transaction Documents to which it is a party will not violate any provision of any existing law or regulation or any order or decree of any court or the certificate of formation or limited liability company agreement of the Transferor, or constitute a material breach of any mortgage, indenture, contract or other agreement to which the Transferor is a party or by which it or any of its knowledgeproperties may be bound.
(vi) All authorizations, consents, orders, licenses or approvals of or registrations with any Governmental Authority required to be obtained, effected or given by the Transferor in connection with the execution, and delivery, by the Transferor of this Agreement and the performance of the transactions contemplated by this Agreement and any other Transaction Documents to which the Transferor is a party have been duly obtained, effected or given and are in full force and effect.
(vii) There are no proceedings or investigations pending, or to the Transferor’s knowledge threatened, before any Governmental Authority having jurisdiction over the Transferor or its properties: (A) asserting the invalidity of this Agreement or any of the other Transaction Documents, (iiB) such as have been made seeking to prevent the issuance of the Equity Certificate or obtained the consummation of any of the transactions contemplated by this Agreement or any other Transaction Documents, (C) seeking any determination or ruling that might materially and are in full force and effect and (iii) where the failure to make or obtain could not reasonably be expected to adversely affect the Company’s ability to perform its material obligations hereunder or the ability to assign or collect the Receivables hereunder.
(d) This Agreement and each other Transferor Document to be entered into performance by the Transferor constitute of its legalobligations under, valid and binding obligation enforceable against or the validity or enforceability of, this Agreement, the Equity Certificate or any other Transaction Document, or (D) involving the Transferor in accordance with their respective terms subject to bankruptcy and similar laws affecting creditors generally and general principles of equity (regardless of whether enforcement is sought in a proceeding in equity which might adversely affect the federal income tax or at law).
(e) (i) The Transferor has furnished to the Company and the Administrative Agent copies other federal, state or local tax attributes of the Parent’s audited consolidated balance sheet as at December 31, 2011, and the related audited consolidated statements of income and cash flow for the fiscal year of the Parent then ended reported on by Deloitte & Touche LLP which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at December 31, 2011, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year of the Parent then ended, which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at such date, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year then ended; andEquity Certificate.
Appears in 1 contract
Representations and Warranties of the Transferor. The Transferor hereby represents and warrants to the Transferee and the General Partner, as of the date of this Agreement, as follows:
(a) It The Transferor has full legal capacity, power and authority to execute and deliver this Agreement and to perform the Transferor’s obligations hereunder, and this Agreement has been duly executed and delivered by the Transferor. The Transferor is a corporationduly organized, duly formed or incorporated, validly existing and in good standing under the laws of the State of Delaware Transferor is authorized, empowered and is duly qualified to do businessexecute this Agreement, to transfer and is in good standing, in every jurisdiction in which assign the nature of its business requires it to be so qualified Transferred Interest as contemplated hereby. The individual signing this Agreement and all agreements contemplated hereby and thereby on the failure Transferor’s behalf has been duly authorized to do so could reasonably be expected to have a Material Adverse Effectso.
(b) The executionexecution and delivery of this Agreement, delivery the consummation of the transactions contemplated hereby and the performance by of the Transferor’s obligations hereunder will not conflict with, or result in any violation of or default under, any provision of any governing instrument applicable to the Transferor, any agreement or other instrument to which the Transferor is a party or by which the Transferor or any of its properties is bound, or any judgment, decree, order, statute, rule or regulation applicable to the Transferor or the Transferor’s business or properties.
(c) Upon the consummation of the transactions contemplated hereby, the Transferee will receive good and valid title to the Transferred Interest, free and clear of any lien, liability or encumbrance (other than the obligations of the Transferee assumed under the Partnership Agreement), and, subject to the terms of the Partnership Agreement, the Transferee will be entitled to exercise all rights and receive all benefits to which the Transferor has heretofore been entitled as a limited partner of the Fund with respect to the Transferred Interest.
(d) The Transferor has had an opportunity to ask the General Partner questions and receive answers regarding the Fund and the Fund’s investments and has had full access to such other information concerning the Fund and the Fund’s investments as the Transferor has requested.
(e) The Transferor has conducted its own independent evaluation and made its own analysis as it has deemed necessary, prudent or advisable in order for it to make its own determination and decision to transfer the Transferred Interest hereunder, enter into this Agreement and all consummate the transactions contemplated hereby. The Transferor is entering into this Agreement and the transactions contemplated hereby relying entirely upon such independent evaluation and analysis and without reliance upon any oral or written representations and warranties of any kind or nature by the General Partner, the Manager or any of their respective shareholders, directors, officers, agents, managers, partners, members or employees or by the Transferee (other than as provided in Section 2 below).
(f) The Transferor Documents understands and acknowledges that the value of the Transferred Interest may be worth more or less than the consideration being delivered by the Transferee in connection herewith.
(g) The Transfer of the Transferred Interest is not being effected through any security exchange or secondary market or through or on behalf of a person or entity, such as a broker or a dealer, making a market in interests in the Fund or a person or entity who makes available to be entered into by itthe public bid or offer quotes with respect to interests in the Fund.
(h) The Transferor acknowledges that, including in order to comply with measures aimed at the prevention of money laundering and terrorism, the Transferee and/or any of its delegates or agents, may require verification of Transferor’s sale identity before or contribution of Receivables, and, in after the case of a Purchase, its use consummation of the proceeds transactions contemplated by this Agreement. The Transferor undertakes: (A) to provide such information and documentation as the Transferee and/or any of Purchases, are within its delegates or agents may reasonably request to verify its identity in compliance with applicable anti-money laundering laws and regulations; and (B) to provide any further information and documentation as the Transferor’s corporate powers, have been duly authorized by all necessary corporate action, do not contravene Transferee and/or any of its delegates or agents may reasonably request from time to time to ensure ongoing compliance with applicable laws and regulations.
(i) The Transferor understands and agrees that the Transferee and/or any of its charter delegates or byagents prohibit receiving funds from any persons or entities that are acting, directly or indirectly, (i) in contravention of any applicable laws and regulations, including anti-lawsmoney laundering regulations or conventions, (ii) any Applicable Law except where on behalf of terrorists or terrorist organizations, including those persons or entities that are included on the List of Specially Designated Nationals and Blocked Persons maintained by the U.S. Treasury Department’s Office of Foreign Assets Control, as such contravention could not reasonably list may be expected amended from time to result in a Material Adverse Effecttime, (iii) for a senior foreign political figure, any material contractual restriction binding on member of a senior foreign political figure’s immediate family or affecting any close associate of a senior foreign political figure, unless the Transferee, after being specifically notified by the Transferor in writing that it or its property other than is such restrictions a person, conducts further due diligence, and determines that could not reasonably such investment shall be expected to adversely affect the Transferor’s ability to perform its material obligations hereunder or, with respect to the transfer of the Receivables and Collections thereon, in any Immaterial Respectpermitted, or (iv) any material order, writ, judgment, award, injunction for a foreign shell bank (such persons or decree binding on or affecting it or its property, and do not result entities in or require the creation of any Lien upon or with respect to any of its properties (other than in favor of the Company with respect to the Transferred Property), and no transaction contemplated hereby requires compliance with any bulk sales act or similar law. This Agreement and each other Transferor Document to be entered into by the Transferor have been duly executed and delivered by it.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for its due execution, delivery and performance of this Agreement or any other Transferor Document to be entered into by it, except (i) for – (iv) are collectively referred to as “Prohibited Persons”). The Transferor represents, warrants and covenants that: (i) the filing of UCC financing statementsTransferor is not, all of which financing statements have been duly filed andnor is any person or entity controlling, to its knowledgecontrolled by or under ordinary control with the Transferor, are in full force a Prohibited Person, and effect, (ii) such as have been made or obtained and are in full force and effect and to the extent Transferor has any beneficial owners, (iiiA) where the failure to make or obtain could not reasonably be expected to adversely affect the Company’s ability to perform its material obligations hereunder or the ability to assign or collect the Receivables hereunder.
(d) This Agreement and each other Transferor Document to be entered into by the Transferor constitute its legalhas carried out thorough due diligence to establish the identities of such beneficial owners, valid and binding obligation enforceable against (B) based on such due diligence, the Transferor in accordance with their respective terms subject to bankruptcy and similar laws affecting creditors generally and general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
(e) (i) The Transferor has furnished to the Company and the Administrative Agent copies of the Parent’s audited consolidated balance sheet as at December 31, 2011, and the related audited consolidated statements of income and cash flow for the fiscal year of the Parent then ended reported on by Deloitte & Touche LLP which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at December 31, 2011, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year of the Parent then ended, which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at reasonably believes that no such date, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year then ended; andbeneficial owners are Prohibited Persons,
Appears in 1 contract
Samples: Transfer Agreement
Representations and Warranties of the Transferor. The Transferor hereby represents and warrants as followsto the Owner Trustee that:
(a) It The Transferor is a corporation, duly incorporated, formed and validly existing and as a limited liability company in good standing under the laws of the State of Delaware Delaware, with power and is duly qualified authority to do business, own its properties and is in good standing, in every jurisdiction in which the nature of to conduct its business requires it to be so qualified as such properties are currently owned and the failure to do so could reasonably be expected to have a Material Adverse Effectsuch business is presently conducted.
(b) The execution, delivery and performance by the Transferor of this Agreement and all other Transferor Documents to be entered into by it, including the Transferor’s sale or contribution of Receivables, and, in the case of is not a Purchase, its use of the proceeds of Purchases, are within the Transferor’s corporate powers, have been duly authorized by all necessary corporate action, do not contravene (i) its charter or by-laws, (ii) any Applicable Law except where such contravention could not reasonably be expected to result in a Material Adverse Effect, (iii) any material contractual restriction binding on or affecting it or its property other than such restrictions that could not reasonably be expected to adversely affect the Transferor’s ability to perform its material obligations hereunder or, with respect to the transfer of the Receivables and Collections thereon, in any Immaterial Respect, or (iv) any material order, writ, judgment, award, injunction or decree binding on or affecting it or its property, and do not result in or require the creation of any Lien upon or with respect to any of its properties (other than in favor of the Company with respect to the Transferred Property), and no transaction contemplated hereby requires compliance with any bulk sales act or similar law. This Agreement and each other Transferor Document to be entered into by the Transferor have been duly executed and delivered by itBenefit Plan.
(c) No authorization The Transferor is duly qualified to do business as a foreign limited liability company in good standing 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 shall require such qualifications except when the failure to have any such license, approval or other action byqualification would not have a material adverse effect on the condition, financial or otherwise, of the Transferor or would not have a material adverse effect on the ability of the Transferor to perform its obligations under this Agreement.
(d) The Transferor has the power and no notice authority to or filing with, any governmental authority or regulatory body is required for execute and deliver this Agreement and to carry out its due terms and to transfer and assign the property to be transferred and assigned to and deposited with the Issuer; and the execution, delivery and performance of this Agreement or any other Transferor Document to be entered into by itand such transfer, except (i) for the filing of UCC financing statements, all of which financing statements assignment and deposit have been duly filed and, to its knowledge, are in full force and effect, (ii) such as have been made or obtained and are in full force and effect and (iii) where authorized by the failure to make or obtain could not reasonably be expected to adversely affect the Company’s ability to perform its material obligations hereunder or the ability to assign or collect the Receivables hereunderTransferor by all necessary limited liability company action.
(de) This Agreement and each other Transferor Document to be entered into by the Transferor constitute its constitutes a legal, valid and binding obligation of the Transferor, enforceable against the Transferor in accordance with their respective terms its terms, except as such enforceability may be subject to bankruptcy and or limited by bankruptcy, liquidation, insolvency, reorganization, moratorium, liquidation, fraudulent conveyance or other similar laws affecting creditors generally the enforcement of creditors’ rights in general and by general principles of equity (equity, regardless of whether enforcement is sought such enforceability shall be considered in a proceeding in equity or at law).
(ef) The consummation of the transactions contemplated by this Agreement and the fulfillment of the terms hereof 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 formation or limited liability company agreement of the Transferor, or any indenture, agreement or other instrument to which the Transferor is a party or by which it is bound; nor result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement or other instrument (other than pursuant to the 2013-A Basic Documents); nor violate any law or, to the best of the Transferor’s knowledge, any order, rule or regulation applicable to the Transferor of any Governmental Authority having jurisdiction over the Transferor or its properties.
(g) To the knowledge of the Transferor, there are no proceedings or investigations pending or threatened before any Governmental Authority having jurisdiction over the Transferor or its properties (i) The Transferor has furnished asserting the invalidity of this Agreement, (ii) seeking to prevent the Company and the Administrative Agent copies consummation of any of the Parent’s audited consolidated balance sheet as at December 31transactions contemplated by this Agreement or (iii) seeking any determination or ruling that might materially and adversely affect the performance by the Transferor of its obligations under, 2011or the validity or enforceability of, and the related audited consolidated statements of income and cash flow for the fiscal year of the Parent then ended reported on by Deloitte & Touche LLP which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at December 31, 2011, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year of the Parent then ended, which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at such date, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year then ended; andthis Agreement.
Appears in 1 contract
Samples: Trust Agreement (Mercedes-Benz Auto Lease Trust 2013-A)
Representations and Warranties of the Transferor. The ------------------------------------------------ Transferor hereby represents and warrants as followsto the Owner Trustee and the Indenture Trustee that:
(a) It The Transferor has been duly organized and is a corporation, duly incorporated, validly existing and as a limited liability company in good standing under the laws of the State of Delaware Delaware, with power and authority to own its properties and to conduct its business as such properties are presently owned and such business is duly qualified to do businesspresently conducted, and is in good standinghad at all relevant times, in every jurisdiction in which and now has, power, authority and legal right to acquire and own the nature of its business requires it Receivables and all Collateral Security contemplated to be so qualified transferred to the Trust pursuant to the Trust Sale and the failure to do so could reasonably be expected to have a Material Adverse EffectServicing Agreement.
(b) The execution, delivery and performance by the Transferor of this Agreement and all other Transferor Documents is duly qualified to be entered into by it, including the Transferor’s sale or contribution of Receivables, do business and, where necessary is in the case of a Purchasegood standing (or is exempt from such requirement), its use of the proceeds of Purchases, are within the Transferor’s corporate powers, have been duly authorized by and has obtained all necessary corporate actionlicenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications, do not contravene (i) its charter or by-laws, (ii) any Applicable Law except where such contravention could the failure to so qualify or obtain licenses or approvals would not reasonably be expected to result in have a Material Adverse Effect, (iii) any material contractual restriction binding adverse effect on or affecting it or its property other than such restrictions that could not reasonably be expected to adversely affect the Transferor’s ability to perform its material obligations hereunder or, with respect under the Basic Documents to the transfer of the Receivables and Collections thereon, in any Immaterial Respect, or (iv) any material order, writ, judgment, award, injunction or decree binding on or affecting which it or its property, and do not result in or require the creation of any Lien upon or with respect to any of its properties (other than in favor of the Company with respect to the Transferred Property), and no transaction contemplated hereby requires compliance with any bulk sales act or similar law. This Agreement and each other Transferor Document to be entered into by the Transferor have been duly executed and delivered by itis a party.
(c) No authorization or approval or other action byThe Transferor has the power and authority to execute and deliver this Agreement, to carry out its terms and no notice to or filing with, any governmental authority or regulatory body is required for its due consummate the transactions contemplated herein; and the execution, delivery and performance of this Agreement or any other Transferor Document to be entered into by it, except (i) for and the filing consummation of UCC financing statements, all of which financing statements the transactions contemplated herein have been duly filed and, to its knowledge, are in full force and effect, (ii) such as have been made or obtained and are in full force and effect and (iii) where authorized by the failure to make or obtain could not reasonably be expected to adversely affect the Company’s ability to perform its material obligations hereunder or the ability to assign or collect the Receivables hereunderTransferor by all necessary limited liability company action.
(d) This The execution of this Agreement and each other Transferor Document to be entered into the consummation of the transactions contemplated herein by the Transferor constitute its legal, valid and binding obligation enforceable against the fulfillment of the terms of this Agreement by the Transferor shall not conflict with, result in accordance any breach of any of the terms and provisions of or constitute (with their respective terms subject or without notice or lapse of time) a default under, the limited liability company agreement of the Transferor, or any indenture, agreement, mortgage, deed of trust or other instrument to bankruptcy and similar laws affecting creditors generally and general principles which the Transferor is a party or by which it is bound, or result in the creation or imposition of equity (regardless any Lien upon any of whether enforcement is sought in a proceeding in equity or at law).
(e) (i) The Transferor has furnished its properties pursuant to the Company and terms of any such indenture, agreement, mortgage, deed of trust or other instrument (other than pursuant to the Administrative Agent copies Basic Documents), or violate any law or, to the best of the Parent’s audited consolidated balance sheet as at December 31Transferor's knowledge, 2011any order, and rule or regulation applicable to the related audited consolidated statements Transferor of income and cash flow for any Governmental Authority having jurisdiction over the fiscal year Transferor or any of the Parent then ended reported on by Deloitte & Touche LLP which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at December 31, 2011, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year of the Parent then ended, which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at such date, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year then ended; andproperties.
Appears in 1 contract
Representations and Warranties of the Transferor. The Transferor hereby represents and warrants as followsto the Owner Trustee that:
(a) It The Transferor is a corporation, duly incorporated, formed and validly existing and as a limited liability company in good standing under the laws of the State of Delaware Delaware, with power and is duly qualified authority to do business, own its properties and is in good standing, in every jurisdiction in which the nature of to conduct its business requires it to be so qualified as such properties are currently owned and the failure to do so could reasonably be expected to have a Material Adverse Effectsuch business is presently conducted.
(b) The execution, delivery and performance by the Transferor of this Agreement and all other Transferor Documents to be entered into by it, including the Transferor’s sale or contribution of Receivables, and, in the case of is not a Purchase, its use of the proceeds of Purchases, are within the Transferor’s corporate powers, have been duly authorized by all necessary corporate action, do not contravene (i) its charter or by-laws, (ii) any Applicable Law except where such contravention could not reasonably be expected to result in a Material Adverse Effect, (iii) any material contractual restriction binding on or affecting it or its property other than such restrictions that could not reasonably be expected to adversely affect the Transferor’s ability to perform its material obligations hereunder or, with respect to the transfer of the Receivables and Collections thereon, in any Immaterial Respect, or (iv) any material order, writ, judgment, award, injunction or decree binding on or affecting it or its property, and do not result in or require the creation of any Lien upon or with respect to any of its properties (other than in favor of the Company with respect to the Transferred Property), and no transaction contemplated hereby requires compliance with any bulk sales act or similar law. This Agreement and each other Transferor Document to be entered into by the Transferor have been duly executed and delivered by itBenefit Plan.
(c) No authorization The Transferor is duly qualified to do business as a foreign limited liability company in good standing 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 shall require such qualifications except when the failure to have any such license, approval or other action byqualification would not have a material adverse effect on the condition, financial or otherwise, of the Transferor or would not have a material adverse effect on the ability of the Transferor to perform its obligations under this Agreement.
(d) The Transferor has the power and no notice authority to or filing with, any governmental authority or regulatory body is required for execute and deliver this Agreement and to carry out its due terms and to transfer and assign the property to be transferred and assigned to and deposited with the Issuer; and the execution, delivery and performance of this Agreement or any other Transferor Document to be entered into by itand such transfer, except (i) for the filing of UCC financing statements, all of which financing statements assignment and deposit have been duly filed and, to its knowledge, are in full force and effect, (ii) such as have been made or obtained and are in full force and effect and (iii) where authorized by the failure to make or obtain could not reasonably be expected to adversely affect the Company’s ability to perform its material obligations hereunder or the ability to assign or collect the Receivables hereunderTransferor by all necessary limited liability company action.
(de) This Agreement and each other Transferor Document to be entered into by the Transferor constitute its constitutes a legal, valid and binding obligation of the Transferor, enforceable against the Transferor in accordance with their respective terms its terms, except as such enforceability may be subject to bankruptcy and or limited by bankruptcy, liquidation, insolvency, reorganization, moratorium, liquidation, fraudulent conveyance or other similar laws affecting creditors generally the enforcement of creditors’ rights in general and by general principles of equity (equity, regardless of whether enforcement is sought such enforceability shall be considered in a proceeding in equity or at law).
(ef) The consummation of the transactions contemplated by this Agreement and the fulfillment of the terms hereof 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 formation or limited liability company agreement of the Transferor, or any indenture, agreement or other instrument to which the Transferor is a party or by which it is bound; nor result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement or other instrument (other than pursuant to the 2014-A Basic Documents); nor violate any law or, to the best of the Transferor’s knowledge, any order, rule or regulation applicable to the Transferor of any Governmental Authority having jurisdiction over the Transferor or its properties.
(g) To the knowledge of the Transferor, there are no proceedings or investigations pending or threatened before any Governmental Authority having jurisdiction over the Transferor or its properties (i) The Transferor has furnished asserting the invalidity of this Agreement, (ii) seeking to prevent the Company and the Administrative Agent copies consummation of any of the Parent’s audited consolidated balance sheet as at December 31transactions contemplated by this Agreement or (iii) seeking any determination or ruling that might materially and adversely affect the performance by the Transferor of its obligations under, 2011or the validity or enforceability of, and the related audited consolidated statements of income and cash flow for the fiscal year of the Parent then ended reported on by Deloitte & Touche LLP which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at December 31, 2011, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year of the Parent then ended, which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at such date, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year then ended; andthis Agreement.
Appears in 1 contract
Samples: Trust Agreement (Mercedes-Benz Auto Lease Trust 2014-A)
Representations and Warranties of the Transferor. The Transferor hereby represents and warrants as followsto the Owner Trustee that:
(a) It The Transferor has been duly organized and is a corporation, duly incorporated, validly existing and as a limited liability company in good standing under the laws of the State of Delaware Delaware, with power and authority to own its properties and to conduct its business as such properties are presently owned and such business is duly qualified to do businesspresently conducted and had at all relevant times, and is in good standingnow has, in every jurisdiction in which power, authority and legal right to acquire and own the nature of its business requires it to be so qualified Loans and the failure to do so could reasonably be expected to have a Material Adverse EffectReceivables.
(b) The execution, delivery Transferor has the power and performance by the Transferor of authority to execute and deliver this Agreement and all other to carry out its terms, the Transferor Documents has full power and authority to sell and assign the property to be entered into by it, including sold and assigned to and deposited with the Transferor’s sale or contribution of Receivables, and, in the case of a Purchase, its use Issuer as part of the proceeds of Purchases, are within Trust and the Transferor’s corporate powers, have been Transferor has duly authorized such sale and assignment to the Issuer by all necessary corporate action, do not contravene (i) its charter or by-laws, (ii) any Applicable Law except where such contravention could not reasonably be expected to result in a Material Adverse Effect, (iii) any material contractual restriction binding on or affecting it or its property other than such restrictions that could not reasonably be expected to adversely affect ; and the Transferor’s ability to perform its material obligations hereunder or, with respect to the transfer of the Receivables and Collections thereon, in any Immaterial Respect, or (iv) any material order, writ, judgment, award, injunction or decree binding on or affecting it or its property, and do not result in or require the creation of any Lien upon or with respect to any of its properties (other than in favor of the Company with respect to the Transferred Property), and no transaction contemplated hereby requires compliance with any bulk sales act or similar law. This Agreement and each other Transferor Document to be entered into by the Transferor have been duly executed and delivered by it.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for its due execution, delivery and performance of this Agreement or any other Transferor Document to be entered into by it, except (i) for the filing of UCC financing statements, all of which financing statements have been duly filed andauthorized by the Transferor by all necessary limited liability company action.
(c) The consummation of the transactions contemplated by this Agreement and the fulfillment of the terms of this Agreement 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 formation or limited liability company agreement of the Transferor, or any indenture, agreement or other instrument to which the Transferor 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 or other instrument (other than pursuant to the Basic Documents), or violate any law or, to its the Transferor’s knowledge, are in full force and effectany order, (ii) such as have been made rule or obtained and are in full force and effect and (iii) where regulation applicable to the failure to make Transferor of any court or obtain could not reasonably be expected to adversely affect of any federal or state regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Company’s ability to perform Transferor or any of its material obligations hereunder or the ability to assign or collect the Receivables hereunderproperties.
(d) This Agreement Agreement, when duly executed and each other Transferor Document to be entered into by the Transferor delivered, shall constitute its a legal, valid and binding obligation enforceable against of the Transferor enforceable in accordance with their respective terms subject to bankruptcy and its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting creditors generally the enforcement of creditors’ rights in general and by general principles of equity (equity, regardless of whether enforcement such enforceability is sought considered in a proceeding in equity or at law).
(e) There are no proceedings or, to the Transferor’s knowledge, investigations pending or, to the Transferor’s knowledge, threatened before any court, regulatory body, administrative agency or other tribunal or governmental instrumentality having jurisdiction over the Transferor or its properties (i) The Transferor has furnished asserting the invalidity of this Agreement, (ii) seeking to prevent the Company and the Administrative Agent copies consummation of any of the Parent’s audited consolidated balance sheet as at December 31transactions contemplated by this Agreement or (iii) seeking any determination or ruling that might materially and adversely affect the performance by the Transferor of its obligations under, 2011or the validity or enforceability of, and the related audited consolidated statements of income and cash flow for the fiscal year of the Parent then ended reported on by Deloitte & Touche LLP which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at December 31, 2011, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year of the Parent then ended, which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at such date, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year then ended; andthis Agreement.
Appears in 1 contract
Representations and Warranties of the Transferor. The Transferor hereby represents and warrants to the Owner Trustee as followsof the date of this Agreement that:
(a) It The Transferor is a corporation, corporation duly incorporatedorganized, validly existing and in good standing under the laws of the State of Delaware and has corporate power, authority and legal right conduct its business and such business is duly qualified to do businesspresently conducted, and is in good standingto execute, in every jurisdiction in which the nature of deliver and perform its business requires it to be so qualified and the failure to do so could reasonably be expected to have a Material Adverse Effectobligations under this Agreement.
(b) The executionTransferor is duly qualified to do business and is in good standing (or is exempt from such requirement) in any state required in order to conduct its business, and has obtained all necessary licenses and approvals with respect to the Transferor, in each jurisdiction in which failure to so qualify or to obtain such licenses and approvals would have a material adverse effect on the interests of the Noteholders hereunder or under the Indenture; provided, however, that no representation or warranty is made with respect to any qualifications, licenses or approvals which the Owner Trustee or the Indenture Trustee has or may be required at any time to obtain, if any, in connection with the transactions contemplated hereby or by any other Transaction Document to which the Owner Trustee or the Indenture Trustee, as the case may be, is a party.
(c) The execution and delivery and performance by the Transferor of this Agreement and all the consummation of the transactions provided for in this Agreement and in the other Transferor Transaction Documents to be entered into by it, including which 8 TRUST AGREEMENT the Transferor’s sale or contribution of Receivables, and, in the case of Transferor is a Purchase, its use of the proceeds of Purchases, are within the Transferor’s corporate powers, party have been duly authorized by the Transferor by all necessary corporate action, do not contravene (i) action on its charter or by-laws, (ii) any Applicable Law except where such contravention could not reasonably be expected to result in a Material Adverse Effect, (iii) any material contractual restriction binding on or affecting it or its property other than such restrictions that could not reasonably be expected to adversely affect the Transferor’s ability to perform its material obligations hereunder or, with respect to the transfer of the Receivables and Collections thereon, in any Immaterial Respect, or (iv) any material order, writ, judgment, award, injunction or decree binding on or affecting it or its property, and do not result in or require the creation of any Lien upon or with respect to any of its properties (other than in favor of the Company with respect to the Transferred Property), and no transaction contemplated hereby requires compliance with any bulk sales act or similar law. This Agreement part and each other Transferor Document to be entered into by the Transferor have been duly executed and delivered by it.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for its due execution, delivery and performance of this Agreement or any and the other Transaction Documents to which the Transferor Document is a party shall remain, from the time of its execution, an official record of the Transferor; the Transferor has the power and authority to assign the property to be entered into by it, except (i) for assigned to and deposited with the filing of UCC financing statements, all of which financing statements have been duly filed and, to its knowledge, are in full force and effect, (ii) such as have been made or obtained and are in full force and effect and (iii) where the failure to make or obtain could not reasonably be expected to adversely affect the Company’s ability to perform its material obligations hereunder or the ability to assign or collect the Receivables hereunderTrust.
(d) This The execution and delivery of this Agreement, the performance of the transactions contemplated by this Agreement and each the fulfillment of the terms hereof shall not conflict with, result in any breach of any of the material terms and provisions of, or constitute (with or without notice or lapse of time or both) a material default under, any indenture, contract, agreement, mortgage, deed of trust, or other Transferor Document instrument to be entered into by which the Transferor constitute is a party or by which it or any of its legalproperties are bound (other than violations of such indentures, valid and binding contracts, agreements, mortgages, deeds of trust or other instruments which, individually or in the aggregate, would not have a material adverse effect on the Transferor's ability to perform its obligation enforceable against the Transferor in accordance with their respective terms subject to bankruptcy and similar laws affecting creditors generally and general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at lawunder this Agreement).
(e) The execution and delivery of this Agreement, the performance of the transactions contemplated by this Agreement and the fulfillment of the terms hereof shall not conflict with or violate any material Requirements of Law applicable to the Transferor.
(f) There are no proceedings or investigations pending or threatened against the Transferor before any court, regulatory body, administrative agency, or other tribunal or governmental instrumentality having jurisdiction over the Transferor (i) The Transferor has furnished to asserting the Company and the Administrative Agent copies invalidity of this Agreement or any of the Parent’s audited consolidated balance sheet as at December 31Transaction Documents, 2011, and (ii) seeking to prevent the related audited consolidated statements consummation of income and cash flow for the fiscal year any of the Parent then ended reported on transactions contemplated by Deloitte & Touche LLP which financial statements present fairly in all material respects in accordance with GAAP the financial position this Agreement or any of the Parent and its consolidated subsidiaries as at December 31Transaction Documents, 2011(iii) seeking any determination or ruling that, and in the results of operations reasonable judgment of the Parent Transferor, would materially and adversely affect the performance by the Transferor of its consolidated subsidiaries for obligations under this Agreement or the fiscal year Transaction Documents, or (iv) seeking any determination or ruling that would materially and adversely affect the validity or enforceability of this Agreement or the Parent then ended, which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at such date, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year then ended; andTransaction Documents.
Appears in 1 contract
Representations and Warranties of the Transferor. The Transferor hereby represents and warrants to the Owner Trustee as followsof the date of this Agreement that:
(a) It The Transferor is a corporation, corporation duly incorporatedorganized, validly existing and in good standing under the laws of the State of Delaware and has corporate power, authority and legal right conduct its business and such business is duly qualified to do businesspresently conducted, and is in good standingto execute, in every jurisdiction in which the nature of deliver and perform its business requires it to be so qualified and the failure to do so could reasonably be expected to have a Material Adverse Effectobligations under this Agreement.
(b) The executionTransferor is duly qualified to do business and is in good standing (or is exempt from such requirement) in any state required in order to conduct its business, and has obtained all necessary licenses and approvals with respect to the Transferor, in each jurisdiction in which failure to so qualify or to obtain such licenses and approvals would have a material adverse effect on the interests of the Noteholders hereunder or under the Indenture; provided, however, that no representation or warranty is made with respect to any qualifications, licenses or approvals which the Owner Trustee or the Indenture Trustee has or may be required at any time to obtain, if any, in connection with the transactions contemplated hereby or by any other Transaction Document to which the Owner Trustee or the Indenture Trustee, as the case may be, is a party.
(c) The execution and delivery and performance by the Transferor of this Agreement and all the consummation of the transactions provided for in this Agreement and in the other Transferor Transaction Documents to be entered into by it, including which the Transferor’s sale or contribution of Receivables, and, in the case of Transferor is a Purchase, its use of the proceeds of Purchases, are within the Transferor’s corporate powers, party have been duly authorized by the Transferor by all necessary corporate action, do not contravene (i) action on its charter or by-laws, (ii) any Applicable Law except where such contravention could not reasonably be expected to result in a Material Adverse Effect, (iii) any material contractual restriction binding on or affecting it or its property other than such restrictions that could not reasonably be expected to adversely affect the Transferor’s ability to perform its material obligations hereunder or, with respect to the transfer of the Receivables and Collections thereon, in any Immaterial Respect, or (iv) any material order, writ, judgment, award, injunction or decree binding on or affecting it or its property, and do not result in or require the creation of any Lien upon or with respect to any of its properties (other than in favor of the Company with respect to the Transferred Property), and no transaction contemplated hereby requires compliance with any bulk sales act or similar law. This Agreement part and each other Transferor Document to be entered into by the Transferor have been duly executed and delivered by it.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for its due execution, delivery and performance of this Agreement or any and the other Transaction Documents to which the Transferor Document is a party shall remain, from the time of its execution, an official record of the Transferor; the Transferor has the power and authority to assign the property to be entered into by it, except (i) for assigned to and deposited with the filing of UCC financing statements, all of which financing statements have been duly filed and, to its knowledge, are in full force and effect, (ii) such as have been made or obtained and are in full force and effect and (iii) where the failure to make or obtain could not reasonably be expected to adversely affect the Company’s ability to perform its material obligations hereunder or the ability to assign or collect the Receivables hereunderTrust.
(d) This The execution and delivery of this Agreement, the performance of the transactions contemplated by this Agreement and each the fulfillment of the terms hereof shall not conflict with, result in any breach of any of the material terms and provisions of, or constitute (with or without notice or lapse of time or both) a material default under, any indenture, contract, agreement, mortgage, deed of trust, or other Transferor Document instrument to be entered into by which the Transferor constitute is a party or by which it or any of its legalproperties are bound (other than violations of such indentures, valid and binding contracts, agreements, mortgages, deeds of trust or other instruments which, individually or in the aggregate, would not have a material adverse effect on the Transferor's ability to perform its obligation enforceable against the Transferor in accordance with their respective terms subject to bankruptcy and similar laws affecting creditors generally and general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at lawunder this Agreement).
(e) The execution and delivery of this Agreement, the performance of the transactions contemplated by this Agreement and the fulfillment of the terms hereof shall not conflict with or violate any material Requirements of Law applicable to the Transferor.
(f) There are no proceedings or investigations pending or threatened against the Transferor before any court, regulatory body, administrative agency, or other tribunal or governmental instrumentality having jurisdiction over the Transferor (i) The Transferor has furnished to asserting the Company and the Administrative Agent copies invalidity of this Agreement or any of the Parent’s audited consolidated balance sheet as at December 31Transaction Documents, 2011, and (ii) seeking to prevent the related audited consolidated statements consummation of income and cash flow for the fiscal year any of the Parent then ended reported on transactions contemplated by Deloitte & Touche LLP which financial statements present fairly in all material respects in accordance with GAAP the financial position this Agreement or any of the Parent and its consolidated subsidiaries as at December 31Transaction Documents, 2011(iii) seeking any determination or ruling that, and in the results of operations reasonable judgment of the Parent Transferor, would materially and adversely affect the performance by the Transferor of its consolidated subsidiaries for obligations under this Agreement or the fiscal year Transaction Documents, or (iv) seeking any determination or ruling that would materially and adversely affect the validity or enforceability of this Agreement or the Parent then ended, which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at such date, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year then ended; andTransaction Documents.
Appears in 1 contract
Representations and Warranties of the Transferor. The Transferor hereby represents and warrants as followsto the Trustee that:
(a) It the Transferor is a corporation, duly incorporated, organized and validly existing and as a corporation in good standing under the laws of the State of Delaware Delaware, with power and authority to own its properties and to conduct its business as such properties are currently owned and such business is presently conducted.
(b) the Transferor is duly qualified to do business, and is business as a foreign corporation in good standing, and has obtained all necessary licenses and approvals, in every jurisdiction all jurisdictions in which the nature ownership or lease of property or the conduct of its business requires it to be so qualified and the failure to do so could reasonably be expected to have a Material Adverse Effect.
(b) The execution, delivery and performance by the Transferor of this Agreement and all other Transferor Documents to be entered into by it, including the Transferor’s sale or contribution of Receivables, and, in the case of a Purchase, its use of the proceeds of Purchases, are within the Transferor’s corporate powers, have been duly authorized by all necessary corporate action, do not contravene (i) its charter or by-laws, (ii) any Applicable Law except where shall require such contravention could not reasonably be expected to result in a Material Adverse Effect, (iii) any material contractual restriction binding on or affecting it or its property other than such restrictions that could not reasonably be expected to adversely affect the Transferor’s ability to perform its material obligations hereunder or, with respect to the transfer of the Receivables and Collections thereon, in any Immaterial Respect, or (iv) any material order, writ, judgment, award, injunction or decree binding on or affecting it or its property, and do not result in or require the creation of any Lien upon or with respect to any of its properties (other than in favor of the Company with respect to the Transferred Property), and no transaction contemplated hereby requires compliance with any bulk sales act or similar law. This Agreement and each other Transferor Document to be entered into by the Transferor have been duly executed and delivered by itqualifications.
(c) No authorization or approval the Transferor has the power and authority to execute and deliver this Agreement and to carry out its terms; the Transferor has full power and authority to sell and assign the property to be sold and assigned to the Trust and the Transferor has duly authorized such sale and assignment to the Trust by all necessary corporate or other action by, action; and no notice to or filing with, any governmental authority or regulatory body is required for its due the execution, delivery and performance of this Agreement or any other Transferor Document to be entered into by it, except (i) for the filing of UCC financing statements, all of which financing statements have been duly filed and, to its knowledge, are in full force and effect, (ii) such as have been made authorized by the Transferor by all necessary company or obtained and are in full force and effect and (iii) where the failure to make or obtain could not reasonably be expected to adversely affect the Company’s ability to perform its material obligations hereunder or the ability to assign or collect the Receivables hereunderother action.
(d) This The consummation of the transactions contemplated by this Agreement and each the fulfillment of the terms hereof 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 Transferor, or any indenture, agreement or other Transferor Document instrument to be entered into by which the Transferor constitute 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 or other instrument (other than pursuant to the Related Documents); or violate any law or, to the best of the Transferor’s knowledge, any order, rule or regulation applicable to the Transferor of any court or of any federal or state regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Transferor or its properties.
(e) the Transferor has duly executed and delivered this Agreement, and this Agreement constitutes a legal, valid and binding obligation of the Transferor, enforceable against the Transferor in accordance with their respective terms its terms, except as enforceability may be subject to bankruptcy and or limited by bankruptcy, insolvency, reorganization or other similar laws affecting creditors the enforcement of creditors’ rights generally and by general principles of equity (regardless of whether such enforcement is sought considered in a proceeding in equity or at law).
(e) (i) The Transferor has furnished to the Company and the Administrative Agent copies of the Parent’s audited consolidated balance sheet as at December 31, 2011, and the related audited consolidated statements of income and cash flow for the fiscal year of the Parent then ended reported on by Deloitte & Touche LLP which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at December 31, 2011, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year of the Parent then ended, which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at such date, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year then ended; and
Appears in 1 contract
Samples: Trust Agreement (CDF Funding, Inc.)
Representations and Warranties of the Transferor. The Transferor hereby represents and warrants as followsto the Owner Trustee that:
(a) It The Transferor is a corporation, duly incorporated, formed and validly existing and as a limited liability company in good standing under the laws of the State of Delaware Delaware, with power and is duly qualified authority to do business, own its properties and is in good standing, in every jurisdiction in which the nature of to conduct its business requires it to be so qualified as such properties are currently owned and the failure to do so could reasonably be expected to have a Material Adverse Effectsuch business is presently conducted.
(b) The execution, delivery and performance by the Transferor of this Agreement and all other Transferor Documents to be entered into by it, including the Transferor’s sale or contribution of Receivables, and, in the case of is not a Purchase, its use of the proceeds of Purchases, are within the Transferor’s corporate powers, have been duly authorized by all necessary corporate action, do not contravene (i) its charter or by-laws, (ii) any Applicable Law except where such contravention could not reasonably be expected to result in a Material Adverse Effect, (iii) any material contractual restriction binding on or affecting it or its property other than such restrictions that could not reasonably be expected to adversely affect the Transferor’s ability to perform its material obligations hereunder or, with respect to the transfer of the Receivables and Collections thereon, in any Immaterial Respect, or (iv) any material order, writ, judgment, award, injunction or decree binding on or affecting it or its property, and do not result in or require the creation of any Lien upon or with respect to any of its properties (other than in favor of the Company with respect to the Transferred Property), and no transaction contemplated hereby requires compliance with any bulk sales act or similar law. This Agreement and each other Transferor Document to be entered into by the Transferor have been duly executed and delivered by itBenefit Plan.
(c) No authorization The Transferor is duly qualified to do business as a foreign limited liability company in good standing 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 shall require such qualifications except when the failure to have any such license, approval or other action byqualification would not have a material adverse effect on the condition, financial or otherwise, of the Transferor or would not have a material adverse effect on the ability of the Transferor to perform its obligations under this Agreement.
(d) The Transferor has the power and no notice authority to or filing with, any governmental authority or regulatory body is required for execute and deliver this Agreement and to carry out its due terms and to transfer and assign the property to be transferred and assigned to and deposited with the Issuer; and the execution, delivery and performance of this Agreement or any other Transferor Document to be entered into by itand such transfer, except (i) for the filing of UCC financing statements, all of which financing statements assignment and deposit have been duly filed and, to its knowledge, are in full force and effect, (ii) such as have been made or obtained and are in full force and effect and (iii) where authorized by the failure to make or obtain could not reasonably be expected to adversely affect the Company’s ability to perform its material obligations hereunder or the ability to assign or collect the Receivables hereunderTransferor by all necessary limited liability company action.
(de) This Agreement and each other Transferor Document to be entered into by the Transferor constitute its constitutes a legal, valid and binding obligation of the Transferor, enforceable against the Transferor in accordance with their respective terms its terms, except as such enforceability may be subject to bankruptcy and or limited by bankruptcy, liquidation, insolvency, reorganization, moratorium, liquidation, fraudulent conveyance or other similar laws affecting creditors generally the enforcement of creditors’ rights in general and by general principles of equity (equity, regardless of whether enforcement is sought such enforceability shall be considered in a proceeding in equity or at law).
(ef) The consummation of the transactions contemplated by this Agreement and the fulfillment of the terms hereof 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 formation or limited liability company agreement of the Transferor, or any indenture, agreement or other instrument to which the Transferor is a party or by which it is bound; nor result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement or other instrument (other than pursuant to the 2015-B Basic Documents); nor violate any law or, to the best of the Transferor’s knowledge, any order, rule or regulation applicable to the Transferor of any Governmental Authority having jurisdiction over the Transferor or its properties.
(g) To the knowledge of the Transferor, there are no proceedings or investigations pending or threatened before any Governmental Authority having jurisdiction over the Transferor or its properties (i) The Transferor has furnished asserting the invalidity of this Agreement, (ii) seeking to prevent the Company and the Administrative Agent copies consummation of any of the Parent’s audited consolidated balance sheet as at December 31transactions contemplated by this Agreement or (iii) seeking any determination or ruling that might materially and adversely affect the performance by the Transferor of its obligations under, 2011or the validity or enforceability of, and the related audited consolidated statements of income and cash flow for the fiscal year of the Parent then ended reported on by Deloitte & Touche LLP which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at December 31, 2011, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year of the Parent then ended, which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at such date, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year then ended; andthis Agreement.
Appears in 1 contract
Samples: Trust Agreement (Mercedes-Benz Auto Lease Trust 2015-B)
Representations and Warranties of the Transferor. The Transferor hereby represents and warrants to the Owner Trustee (as followssuch or in its individual capacity) and the O/C Holder that:
(a) It The Transferor is a corporation, duly incorporated, limited liability company organized and validly existing and in good standing under the laws of the State of Delaware and has, in all material respects, full power and authority to own its properties and conduct its business as such properties are presently owned and such business is duly qualified to do businesspresently conducted, and to execute, deliver and perform its obligations under this Agreement and any other documents related hereto to which it is in good standing, in every jurisdiction in which the nature of a party and to perform its business requires it to be so qualified obligations as contemplated hereby and the failure to do so could reasonably be expected to have a Material Adverse Effectthereby.
(b) The executionTransferor is duly qualified to do business and is in good standing (or is exempt from such requirement) in any state required in order to conduct its business, and has obtained all necessary licenses and approvals with respect to the Transferor, in each jurisdiction in which failure to so qualify or to obtain such licenses and approvals would have a material adverse effect on its ability to perform its obligations under this Agreement or any other documents related hereto to which the Transferor is a party.
(c) The execution and delivery of this Agreement by the Transferor and the consummation of the transactions provided for in this Agreement and in the other Transaction Documents to which the Transferor is a party have been duly authorized by the Transferor by all necessary corporate action on its part; the Transferor has the power and authority to assign the property to be assigned to and deposited with the Trust pursuant to Section 2.05 of this Agreement and Section 2.01 of the Transfer and Servicing Agreement.
(d) The execution and delivery of this Agreement by the Transferor, the performance of the transactions contemplated by this Agreement and the fulfillment by the Transferor of the terms hereof will not conflict with or violate any organizational documents of the Transferor or conflict with, result in any breach of any of the material terms and provisions of, or constitute (with or without notice or lapse of time or both) a material default under, any indenture, contract, agreement, mortgage, deed of trust or other instrument to which the Transferor is a party or by which it or any of its properties are bound, nor result in the creation or imposition of any lien upon any of the Transferor’s properties pursuant to the terms of any such indenture, contract, agreement, mortgage, deed of trust or other instrument (other than pursuant to the Transaction Documents and other than violations of such indentures, contracts, agreements, mortgages, deeds of trust or other instruments which individually or in the aggregate would not have a material adverse effect on the Transferor or the transactions contemplated by, or its ability to perform its obligations under, this Agreement).
(e) The execution and delivery of this Agreement by the Transferor, the performance by the Transferor of the transactions contemplated by this Agreement and the fulfillment by the Transferor of the terms hereof will not conflict with or violate any Requirements of Law applicable to the Transferor.
(f) There are no Proceedings or investigations pending or, to the best knowledge of the Transferor, threatened against the Transferor before any court, regulatory body, administrative agency, or other tribunal or governmental instrumentality having jurisdiction over the Transferor (i) asserting the invalidity of any of the Transaction Documents to which the Transferor is a party, (ii) seeking to prevent the consummation of any of the transactions contemplated by any of the Transaction Documents to which the Transferor is a party, (iii) seeking any determination or ruling that, in the reasonable judgment of the Transferor, would materially and adversely affect the performance by the Transferor of its obligations under the Transaction Documents to which the Transferor is a party, or (iv) seeking any determination or ruling that would materially and adversely affect the validity or enforceability of the Transaction Documents to which the Transferor is a party.
(g) This Agreement constitutes a legal, valid and binding obligation of the Transferor, enforceable against the Transferor in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws affecting creditors’ rights generally or general principles of equity.
(h) All authorizations, consents, orders or approvals of or registrations or declarations with any court, regulatory body, administrative agency or other tribunal or governmental instrumentality having jurisdiction over the Transferor required to be obtained, effected, or given by the Transferor in connection with the execution and delivery by the Transferor of this Agreement and all other Transferor Documents to be entered into by it, including the Transferor’s sale or contribution of Receivables, and, in the case of a Purchase, its use performance of the proceeds of Purchases, are within the Transferor’s corporate powers, have been duly authorized transactions contemplated by all necessary corporate action, do not contravene (i) its charter or by-laws, (ii) any Applicable Law except where such contravention could not reasonably be expected to result in a Material Adverse Effect, (iii) any material contractual restriction binding on or affecting it or its property other than such restrictions that could not reasonably be expected to adversely affect the Transferor’s ability to perform its material obligations hereunder or, with respect to the transfer of the Receivables and Collections thereon, in any Immaterial Respect, or (iv) any material order, writ, judgment, award, injunction or decree binding on or affecting it or its property, and do not result in or require the creation of any Lien upon or with respect to any of its properties (other than in favor of the Company with respect to the Transferred Property), and no transaction contemplated hereby requires compliance with any bulk sales act or similar law. This this Agreement and each other Transferor Document to be entered into by the Transferor have been duly executed obtained, effected or given and delivered by it.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for its due execution, delivery and performance of this Agreement or any other Transferor Document to be entered into by it, except (i) for the filing of UCC financing statements, all of which financing statements have been duly filed and, to its knowledge, are in full force and effect, (ii) such as have been made or obtained and are in full force and effect and (iii) where except for those which the failure to make obtain would not have a material adverse effect on this Agreement and the transactions contemplated hereby or obtain could not reasonably be expected to adversely affect on the Company’s ability of the Transferor to perform its material obligations hereunder or the ability to assign or collect the Receivables hereunderunder this Agreement.
(d) This Agreement and each other Transferor Document to be entered into by the Transferor constitute its legal, valid and binding obligation enforceable against the Transferor in accordance with their respective terms subject to bankruptcy and similar laws affecting creditors generally and general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
(e) (i) The Transferor has furnished to the Company and the Administrative Agent copies of the Parent’s audited consolidated balance sheet as at December 31, 2011, and the related audited consolidated statements of income and cash flow for the fiscal year of the Parent then ended reported on by Deloitte & Touche LLP which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at December 31, 2011, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year of the Parent then ended, which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at such date, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year then ended; and
Appears in 1 contract
Samples: Trust Agreement (Compucredit Corp)
Representations and Warranties of the Transferor. The Transferor Each of the Transferors hereby represents and warrants to the Transferees that the statements contained in the following paragraphs of this Section 2 are true and correct as followsof the date hereof:
(a) It is a corporationThe Transferor has all requisite legal power to enter into, duly incorporated, validly existing execute and in good standing under the laws of the State of Delaware and is duly qualified to do business, and is in good standing, in every jurisdiction in which the nature of its business requires it to be so qualified and the failure to do so could reasonably be expected to have a Material Adverse Effect.
(b) The execution, delivery and performance by the Transferor of deliver this Agreement and all other Transferor Documents to be entered into by it, including the Transferor’s sale or contribution of Receivables, and, in the case of a Purchase, its use of the proceeds of Purchases, are within the Transferor’s corporate powers, have been duly authorized by all necessary corporate action, do not contravene (i) its charter or by-laws, (ii) any Applicable Law except where such contravention could not reasonably be expected to result in a Material Adverse Effect, (iii) any material contractual restriction binding on or affecting it or its property other than such restrictions that could not reasonably be expected to adversely affect the Transferor’s ability to perform its material obligations hereunder or, with respect to the transfer of the Receivables and Collections thereon, in any Immaterial Respect, or (iv) any material order, writ, judgment, award, injunction or decree binding on or affecting it or its property, and do not result in or require the creation of any Lien upon or with respect to any of its properties (other than in favor of the Company with respect to the Transferred Property), and no transaction contemplated hereby requires compliance with any bulk sales act or similar lawAgreement. This Agreement and each other Transferor Document to be entered into by the Transferor have been duly executed and delivered by it.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for its due execution, delivery and performance of this Agreement or any other Transferor Document to be entered into by it, except (i) for the filing of UCC financing statements, all of which financing statements have been duly filed and, to its knowledge, are in full force and effect, (ii) such as have been made or obtained and are in full force and effect and (iii) where the failure to make or obtain could not reasonably be expected to adversely affect the Company’s ability to perform its material obligations hereunder or the ability to assign or collect the Receivables hereunder.
(d) This Agreement and each other Transferor Document to be entered into by the Transferor constitute its legal, a valid and binding obligation of the Transferor, enforceable against the Transferor in accordance with their respective terms subject its terms.
(b) All legal action required on the part of the Transferor, if any, necessary for the execution and delivery of this Agreement and the transfer of the Transferred Warrants and the performance of the Transferor’s obligations hereunder have been taken.
(c) The execution and delivery of this Agreement by the Transferor and the performance by Transferor of its obligations hereunder will not: (i) if the Transferor is an entity, violate or conflict with any provision of Transferor’s organizational documents; (ii) violate, conflict with, or give rise to bankruptcy and similar laws any right of termination, cancellation, or acceleration under any material agreement or instrument to which Transferor is a party; (iii) result in the imposition of any Lien on the Warrants, or the proceeds thereof; (iv) violate or conflict with any applicable laws; or (v) require any consent, approval, or other action of, notice to, or filing with, any person or entity, except as has been obtained prior to the date hereof.
(d) There is no pending or, to the knowledge of the Transferor, threatened action or proceeding affecting creditors generally and general principles of equity (regardless of whether enforcement is sought in a proceeding in equity the Transferor before or at law)by any court, governmental authority, administrative agency or arbitrator which, if adversely determined, would prevent the Transferor from consummating the transactions contemplated hereby.
(e) (i) The Transferor has furnished is the sole legal and beneficial owner of the Transferred Warrants, free and clear of any and all Liens. The delivery of the Warrant Certificate evidencing the Transferred Warrants will convey to the Company Transferees good and valid title to the Transferred Warrants, free and clear of any and all Liens.
(f) Except for this Agreement and the Administrative Agent copies Escrow Agreement, Transferor has made no other assignment, sale, pledge, mortgage, hypothecation or transfer of all or any portion of the Parent’s audited consolidated balance sheet as at December 31, 2011, Transferred Warrants and the related audited consolidated statements of income and cash flow for Transferor is not a party to any agreement, written or oral, with respect to the fiscal year sale, transfer or other disposition of the Parent then ended reported on by Deloitte & Touche LLP which financial statements present fairly Transferred Warrants or otherwise creating rights in all material respects respect of Transferred Warrants in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at December 31, 2011, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year of the Parent then ended, which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at such date, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year then ended; andany other person or entity.
Appears in 1 contract
Representations and Warranties of the Transferor. The Transferor hereby represents and warrants as followsto the Trustee that:
(a) It the Transferor is a corporation, duly incorporated, organized and validly existing and as a corporation in good standing under the laws of the State of Delaware Delaware, with power and authority to own its properties and to conduct its business as such properties are currently owned and such business is presently conducted.
(b) the Transferor is duly qualified to do business, and is business as a foreign corporation in good standing, and has obtained all necessary licenses and approvals, in every jurisdiction all jurisdictions in which the nature ownership or lease of property or the conduct of its business requires it to be so qualified and the failure to do so could reasonably be expected to have a Material Adverse Effect.
(b) The execution, delivery and performance by the Transferor of this Agreement and all other Transferor Documents to be entered into by it, including the Transferor’s sale or contribution of Receivables, and, in the case of a Purchase, its use of the proceeds of Purchases, are within the Transferor’s corporate powers, have been duly authorized by all necessary corporate action, do not contravene (i) its charter or by-laws, (ii) any Applicable Law except where shall require such contravention could not reasonably be expected to result in a Material Adverse Effect, (iii) any material contractual restriction binding on or affecting it or its property other than such restrictions that could not reasonably be expected to adversely affect the Transferor’s ability to perform its material obligations hereunder or, with respect to the transfer of the Receivables and Collections thereon, in any Immaterial Respect, or (iv) any material order, writ, judgment, award, injunction or decree binding on or affecting it or its property, and do not result in or require the creation of any Lien upon or with respect to any of its properties (other than in favor of the Company with respect to the Transferred Property), and no transaction contemplated hereby requires compliance with any bulk sales act or similar law. This Agreement and each other Transferor Document to be entered into by the Transferor have been duly executed and delivered by itqualifications.
(c) No authorization or approval the Transferor has the power and authority to execute and deliver this Agreement and to carry out its terms; the Transferor has full power and authority to sell and assign the property to be sold and assigned to the Trust and the Transferor has duly authorized such sale and assignment to the Trust by all necessary corporate or other action by, Amended and no notice to or filing with, any governmental authority or regulatory body is required for its due Restated Trust Agreement action; and the execution, delivery and performance of this Agreement or any other Transferor Document to be entered into by it, except (i) for the filing of UCC financing statements, all of which financing statements have been duly filed and, to its knowledge, are in full force and effect, (ii) such as have been made authorized by the Transferor by all necessary company or obtained and are in full force and effect and (iii) where the failure to make or obtain could not reasonably be expected to adversely affect the Company’s ability to perform its material obligations hereunder or the ability to assign or collect the Receivables hereunderother action.
(d) This The consummation of the transactions contemplated by this Agreement and each the fulfillment of the terms hereof 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 Transferor, or any indenture, agreement or other Transferor Document instrument to be entered into by which the Transferor constitute 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 or other instrument (other than pursuant to the Related Documents); or violate any law or, to the best of the Transferor's knowledge, any order, rule or regulation applicable to the Transferor of any court or of any federal or state regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Transferor or its properties.
(e) the Transferor has duly executed and delivered this Agreement, and this Agreement constitutes a legal, valid and binding obligation of the Transferor, enforceable against the Transferor in accordance with their respective terms its terms, except as enforceability may be subject to bankruptcy and or limited by bankruptcy, insolvency, reorganization or other similar laws affecting creditors the enforcement of creditors' rights generally and by general principles of equity (regardless of whether such enforcement is sought considered in a proceeding in equity or at law).
(e) (i) The Transferor has furnished to the Company and the Administrative Agent copies of the Parent’s audited consolidated balance sheet as at December 31, 2011, and the related audited consolidated statements of income and cash flow for the fiscal year of the Parent then ended reported on by Deloitte & Touche LLP which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at December 31, 2011, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year of the Parent then ended, which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at such date, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year then ended; and
Appears in 1 contract
Samples: Trust Agreement (CDF Funding, Inc.)
Representations and Warranties of the Transferor. The Transferor hereby represents and warrants as follows:
(a) It The Transferor is a corporation, limited liability company duly incorporatedformed, validly existing and in good standing under the laws of the State of Delaware jurisdiction set forth in Schedule IV hereto (as such Schedule IV may be amended from time to time pursuant to Section 5.01(b)), and is duly qualified to do business, and is in good standing, in every jurisdiction in which where the nature of its business requires it to be so qualified and qualified, except where the failure to do be so could reasonably be expected to qualified or in good standing would not have a Material Adverse Effect.
(b) The execution, delivery and performance by the Transferor of this Agreement the Transaction Documents and all the other Transferor Documents documents to be entered into delivered by itit hereunder, including the Transferor’s sale or contribution of Receivables, and, in the case of a Purchase, its use of the proceeds of Purchasestransfers and assignments and Capital Payments, (i) are within the Transferor’s corporate limited liability company powers, (ii) have been duly authorized by all necessary corporate limited liability company action, (iii) do not contravene (ia) its charter the Transferor’s certificate of formation or by-laws, limited liability company agreement or (iib) any Applicable Law except where such the contravention could would not reasonably be expected to result in have a Material Adverse Effect, (iii) any material law, rule or regulation applicable to the Transferor, any contractual restriction binding on or affecting it the Transferor or its property other than such restrictions that could not reasonably be expected to adversely affect the Transferor’s ability to perform its material obligations hereunder or, with respect to the transfer of the Receivables and Collections thereon, in or any Immaterial Respect, or (iv) any material order, writ, judgment, award, injunction or decree binding on or affecting it the Transferor or its property, and (iv) do not result in or require the creation of any Lien lien, security interest or other charge or encumbrance upon or with respect to any of its properties (other than in favor except for the interest created pursuant to this Agreement). Each of the Company with respect Transaction Documents to the Transferred Property), and no transaction contemplated hereby requires compliance with any bulk sales act or similar law. This Agreement and each other Transferor Document to be entered into by which the Transferor have is a party has been duly executed and delivered by itthe Transferor.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for its the due execution, delivery and performance by the Transferor of this Agreement the Transaction Documents to which the Transferor is a party or any other Transferor Document document to be entered into by itdelivered thereunder, except (i) for the filing of UCC financing statements, all of statements which financing statements have been duly filed and, are referred to its knowledge, are in full force and effect, (ii) such as have been made or obtained and are in full force and effect and (iii) where the failure to make or obtain could not reasonably be expected to adversely affect the Company’s ability to perform its material obligations hereunder or the ability to assign or collect the Receivables hereundertherein.
(d) This Agreement and each other Transferor Document Each of the Transaction Documents to be entered into by which the Transferor constitute its is a party constitutes the legal, valid and binding obligation of the Transferor enforceable against the Transferor in accordance with their respective terms its terms, subject to bankruptcy Debtor Relief Laws and similar laws affecting creditors generally and to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law)equity.
(e) [Intentionally omitted.]
(f) There is no pending or, to the knowledge of the Transferor, threatened action, investigation or proceeding affecting the Transferor or the Parent before any court, governmental agency or arbitrator which is reasonably likely to be adversely determined and, if so determined, would have a Material Adverse Effect.
(g) No proceeds of any transfer and assignment or Capital Payment will be used (i) to acquire any equity security of a class which is registered pursuant to Section 12 of the Securities Exchange Act of 1934 or (ii) for the purpose, whether immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System of the United States.
(h) Immediately prior to the acquisition by the Program Agent for the benefit of the relevant Conduits and/or Banks, as the case may be, the Transferor has purchased, for fair consideration and reasonably equivalent value, all of the right, title and interest of the Parent in the Pool Receivables, and is the legal and beneficial owner of the Pool Receivables and Related Security which are the subject of such purchase free and clear of any Lien; upon each acquisition, the Program Agent for the benefit of the relevant Conduits or the Banks, as the case may be, shall acquire a valid and perfected first priority security interest in each Pool Receivable then existing or thereafter arising and in the Related Security and Collections with respect thereto. On and from the Initial Acquisition Date, no effective financing statement or other instrument similar in effect covering any Pool Receivable or the Related Security or Collections with respect thereto is on file in any recording office, except those filed in favor of the Program Agent relating to this Agreement, those filed by NBCUniversal pursuant to the Subsidiary Sale and Purchase Agreement, and those filed by the Transferor pursuant to the SCA. Each Receivable characterized in any Servicer Report or other written statement made by or on behalf of the Transferor as an Eligible Receivable or as included in the Net Pool Balance is, as of the date of such Servicer Report or other statement, an Eligible Receivable or properly included in the Net Pool Balance.
(i) Each Servicer Report (if prepared by the Transferor or one of its Affiliates, or to the extent that information contained therein is supplied by the Transferor or an Affiliate), information, exhibit, financial statement, document, book, record or report furnished or to be furnished at any time by or on behalf of the Transferor to the Program Agent, the Investor Agents, the Conduits or the Banks in connection with this Agreement is or will be accurate, complete and correct in all material respects as of its date or (except as otherwise disclosed to the Program Agent, the Investor Agents, the Conduits or the Banks, as the case may be, at such time) as of the date so furnished.
(j) The principal place of business and chief executive office of the Transferor and the office where the Transferor keeps its records concerning the Pool Receivables are located at the address or addresses referred to in Section 5.01(b). The Transferor is located in the jurisdiction of organization set forth in Schedule IV hereto for purposes of Section 9-307 of the UCC as in effect in the State of New York; and the office in the jurisdiction of organization of the Transferor in which a UCC financing statement is required to be filed in order to perfect the security interest granted by the Transferor hereunder is set forth in Schedule IV hereto (in each case as such Schedule IV may be amended from time to time pursuant to Section 5.01(b)).
(k) The account numbers of the Collection Accounts, together with the post office boxes of any related lock-boxes and the names and addresses of the banks with which such Collection Accounts are maintained, are as specified in Schedule I hereto, as such Schedule I may be amended from time to time pursuant to Section 5.01(g). The Collection Accounts and the related lock-boxes are the only accounts and post office boxes into which Collections of Receivables are deposited or remitted.
(l) The Transferor is not an “investment company” as defined in the Investment Company Act of 1940, as amended.
(m) [Intentionally omitted.]
(n) The Transferor is not known by and does not use any tradename or doing-business-as name.
(o) The Transferor was formed on October 12, 2011, and since such date there has been no adverse change in the financial condition of the Transferor that would cause a Material Adverse Effect. The Transferor has conducted no business except as contemplated under this Agreement and the other Transaction Documents, and has no other obligations or outstanding security of any kind outside of this Agreement and the other Transaction Documents. The Transferor has no Subsidiaries.
(p) (i) The fair value of the property of the Transferor is greater than the total amount of liabilities, including contingent liabilities, of the Transferor, (ii) the present fair salable value of the assets of the Transferor is not less than the amount that will be required to pay all probable liabilities of the Transferor on its debts as they become absolute and matured, (iii) the Transferor does not intend to, and does not believe that it will, incur debts or liabilities beyond the Transferor’s abilities to pay such debts and liabilities as they mature and (iv) the Transferor is not engaged in a business or a transaction, and is not about to engage in a business or a transaction, for which the Transferor’s property would constitute unreasonably small capital.
(q) With respect to each Pool Receivable, the Transferor (i) shall have received such Pool Receivable as a contribution to the capital of the Transferor by the Parent and/or (ii) shall have purchased such Pool Receivable from the Parent in exchange for payment (made by the Transferor to the Parent in accordance with the provisions of the SCA) of cash 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 the Parent to the Transferor and no such sale is or may be voidable or subject to avoidance under any section of the Federal Bankruptcy Code.
(r) The Transferor has furnished (i) timely filed all federal tax returns required to be filed, (ii) timely filed all other material state and local tax returns required to be filed and (iii) paid or made adequate provision for the Company payment of all taxes, assessments and the Administrative Agent copies of the Parent’s audited consolidated balance sheet as at December 31other governmental charges (other than any tax, 2011assessment or governmental charge which is being contested in good faith and by proper proceedings, and with respect to which the related audited consolidated statements of income obligation to pay such amount is adequately reserved against in accordance with generally accepted accounting principles).
(s) On and cash flow for from the fiscal year of Initial Acquisition Date, (i) the Parent then ended reported on by Deloitte & Touche LLP which financial statements present fairly additional representations and warranties set forth in Schedule IX are true and correct in all material respects and (ii) other than the filing of financing continuation statements required after the date this representation and warranty is made or is deemed made, all authorizations, consents, orders or approvals of or registrations or declarations with any Governmental Authority required to be obtained, effected or given by Transferor in accordance connection with GAAP the financial position conveyance by Transferor of the Parent Receivables to the Program Agent have been duly obtained, effected or given and its consolidated subsidiaries as at December 31, 2011, are in full force and the results effect.
(t) No event has occurred and is continuing that constitutes an Event of operations Termination or an Incipient Event of the Parent and its consolidated subsidiaries for the fiscal year of the Parent then ended, which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at such date, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year then ended; andTermination.
Appears in 1 contract
Samples: Receivables Acquisition Agreement (NBCUniversal Media, LLC)
Representations and Warranties of the Transferor. The Transferor hereby represents and warrants as followsto the Owner Trustee that:
(a) It The Transferor is a corporation, duly incorporated, formed and validly existing and as a limited liability company in good standing under the laws of the State of Delaware Delaware, with power and is duly qualified authority to do business, own its properties and is in good standing, in every jurisdiction in which the nature of to conduct its business requires it to be so qualified as such properties are currently owned and the failure to do so could reasonably be expected to have a Material Adverse Effectsuch business is presently conducted.
(b) The execution, delivery and performance by the Transferor of this Agreement and all other Transferor Documents to be entered into by it, including the Transferor’s sale or contribution of Receivables, and, in the case of is not a Purchase, its use of the proceeds of Purchases, are within the Transferor’s corporate powers, have been duly authorized by all necessary corporate action, do not contravene (i) its charter or by-laws, (ii) any Applicable Law except where such contravention could not reasonably be expected to result in a Material Adverse Effect, (iii) any material contractual restriction binding on or affecting it or its property other than such restrictions that could not reasonably be expected to adversely affect the Transferor’s ability to perform its material obligations hereunder or, with respect to the transfer of the Receivables and Collections thereon, in any Immaterial Respect, or (iv) any material order, writ, judgment, award, injunction or decree binding on or affecting it or its property, and do not result in or require the creation of any Lien upon or with respect to any of its properties (other than in favor of the Company with respect to the Transferred Property), and no transaction contemplated hereby requires compliance with any bulk sales act or similar law. This Agreement and each other Transferor Document to be entered into by the Transferor have been duly executed and delivered by itBenefit Plan.
(c) No authorization The Transferor is duly qualified to do business as a foreign limited liability company in good standing 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 shall require such qualifications except when the failure to have any such license, approval or other action byqualification would not have a material adverse effect on the condition, financial or otherwise, of the Transferor or would not have a material adverse effect on the ability of the Transferor to perform its obligations under this Agreement.
(d) The Transferor has the power and no notice authority to or filing with, any governmental authority or regulatory body is required for execute and deliver this Agreement and to carry out its due terms and to transfer and assign the property to be transferred and assigned to and deposited with the Issuer; and the execution, delivery and performance of this Agreement or any other Transferor Document to be entered into by itand such transfer, except (i) for the filing of UCC financing statements, all of which financing statements assignment and deposit have been duly filed and, to its knowledge, are in full force and effect, (ii) such as have been made or obtained and are in full force and effect and (iii) where authorized by the failure to make or obtain could not reasonably be expected to adversely affect the Company’s ability to perform its material obligations hereunder or the ability to assign or collect the Receivables hereunderTransferor by all necessary limited liability company action.
(de) This Agreement and each other Transferor Document to be entered into by the Transferor constitute its constitutes a legal, valid and binding obligation of the Transferor, enforceable against the Transferor in accordance with their respective terms its terms, except as such enforceability may be subject to bankruptcy and or limited by bankruptcy, liquidation, insolvency, reorganization, moratorium, liquidation, fraudulent conveyance or other similar laws affecting creditors generally the enforcement of creditors’ rights in general and by general principles of equity (equity, regardless of whether enforcement is sought such enforceability shall be considered in a proceeding in equity or at law).
(ef) The consummation of the transactions contemplated by this Agreement and the fulfillment of the terms hereof 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 formation or limited liability company agreement of the Transferor, or any indenture, agreement or other instrument to which the Transferor is a party or by which it is bound; nor result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement or other instrument (other than pursuant to the 201[__]-[__] Basic Documents); nor violate any law or, to the best of the Transferor’s knowledge, any order, rule or regulation applicable to the Transferor of any Governmental Authority having jurisdiction over the Transferor or its properties.
(g) To the knowledge of the Transferor, there are no proceedings or investigations pending or threatened before any Governmental Authority having jurisdiction over the Transferor or its properties (i) The Transferor has furnished asserting the invalidity of this Agreement, (ii) seeking to prevent the Company and the Administrative Agent copies consummation of any of the Parent’s audited consolidated balance sheet as at December 31transactions contemplated by this Agreement or (iii) seeking any determination or ruling that might materially and adversely affect the performance by the Transferor of its obligations under, 2011or the validity or enforceability of, and the related audited consolidated statements of income and cash flow for the fiscal year of the Parent then ended reported on by Deloitte & Touche LLP which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at December 31, 2011, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year of the Parent then ended, which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at such date, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year then ended; andthis Agreement.
Appears in 1 contract
Samples: Trust Agreement (Daimler Trust)
Representations and Warranties of the Transferor. The Transferor hereby represents and warrants to the Trust as followsof the Merger Date:
(a) It The Transferor is a corporation, limited liability company duly incorporated, formed and validly existing and in good standing under the laws of the State of Delaware Delaware. The Transferor has full power and authority, in all material respects, to own its properties as currently owned, to conduct its business as currently conducted, and to execute, deliver, and perform its obligations under this Agreement.
(b) In all material respects, in each jurisdiction in which the conduct of its business requires, the Transferor is duly qualified to do business, and is in good standing, in every jurisdiction in which the nature of its business requires it to be so qualified and the failure to do so could reasonably be expected to have a Material Adverse Effect.
(b) The execution, delivery and performance by the Transferor of this Agreement and all other Transferor Documents to be entered into by it, including the Transferor’s sale or contribution of Receivables, and, in the case of a Purchase, its use of the proceeds of Purchases, are within the Transferor’s corporate powers, have been duly authorized by has all necessary corporate action, do not contravene (i) its charter or by-laws, (ii) any Applicable Law except where such contravention could not reasonably be expected to result in a Material Adverse Effect, (iii) any material contractual restriction binding on or affecting it or its property other than such restrictions that could not reasonably be expected to adversely affect the Transferor’s ability to perform its material obligations hereunder or, with respect to the transfer of the Receivables licenses and Collections thereon, in any Immaterial Respect, or (iv) any material order, writ, judgment, award, injunction or decree binding on or affecting it or its property, and do not result in or require the creation of any Lien upon or with respect to any of its properties (other than in favor of the Company with respect to the Transferred Property), and no transaction contemplated hereby requires compliance with any bulk sales act or similar law. This Agreement and each other Transferor Document to be entered into by the Transferor have been duly executed and delivered by itapprovals.
(c) No authorization or approval or other action byThe Transferor has duly authorized, by all necessary limited liability company action, its execution and no notice to or filing with, any governmental authority or regulatory body is required for its due execution, delivery and performance of this Agreement or any other Transferor Document to be entered into and its consummation of the transactions contemplated by it, except (i) for the filing of UCC financing statements, all of which financing statements have been duly filed and, to its knowledge, are in full force and effect, (ii) such as have been made or obtained and are in full force and effect and (iii) where the failure to make or obtain could not reasonably be expected to adversely affect the Company’s ability to perform its material obligations hereunder or the ability to assign or collect the Receivables hereunderthis Agreement.
(d) This The Transferor's execution and delivery of this Agreement, its performance of the transactions contemplated by this Agreement, and its fulfillment of the terms of this Agreement and each do not conflict with, breach any material term of, or cause a material default under (with or without notice or lapse of time or both) any indenture, contract, agreement, mortgage, deed of trust, or other Transferor Document instrument to be entered into by which the Transferor constitute its legal, valid and binding obligation enforceable against is a party or by which the Transferor in accordance with their respective terms subject to bankruptcy and similar laws affecting creditors generally and general principles or any of equity (regardless of whether enforcement is sought in a proceeding in equity or at law)its properties are bound.
(e) The Transferor's execution and delivery of this Agreement, its performance of the transactions contemplated by this Agreement, and its fulfillment of the terms of this Agreement do not conflict with or violate any Requirements of Law applicable to the Transferor.
(if) No proceeding or investigation against the Transferor is pending or, to the best of the Transferor's knowledge, threatened before any Governmental Authority that (A) asserts that this Agreement is invalid, (B) seeks to prevent the consummation of any transaction contemplated by this Agreement, (C) seeks any determination or ruling that, in the Transferor's reasonable judgment, would materially and adversely affect the Transferor's performance under this Agreement, or (D) seeks any determination or ruling that would materially and adversely affect the validity or enforceability of this Agreement.
(g) As of the Amendment Date, no selection procedures adverse to the Investor Certificateholders have been employed by the Transferor in selecting the Accounts.
(h) The Transferor has furnished obtained all approvals, authorizations, licenses, consents, and orders required of any Person in connection with the Transferor's execution and delivery of this Agreement, its performance of the transactions contemplated by this Agreement, and its fulfillment of the terms of this Agreement. The representations and warranties set forth in this Section 2.03 shall survive the transfer and assignment of the Receivables to the Company Trustee. The Transferor hereby represents and warrants to the Administrative Agent copies Trustee, with respect to any Series of Certificates, as of its Closing Date, unless otherwise stated in such Supplement, that the representations and warranties of the Parent’s audited consolidated balance sheet Transferor set forth in Section 2.03 are true and correct as at December 31of such date. Upon discovery by the Transferor, 2011, and the related audited consolidated statements Servicer or the Trustee of income and cash flow for the fiscal year a breach of any of the Parent then ended reported on by Deloitte & Touche LLP which financial statements present fairly in all material respects in accordance with GAAP foregoing representations and warranties, the financial position of party discovering such breach shall give prompt written notice to the Parent and its consolidated subsidiaries as at December 31, 2011, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year of the Parent then ended, which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at such date, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year then ended; andothers.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (BA Master Credit Card Trust II)
Representations and Warranties of the Transferor. The Transferor represents Parties, jointly and warrants as followsseverally, hereby represent and warrant the following:
(ai) It is a corporation, Each of the Transferor Parties are duly incorporatedformed, validly existing existing, and in good standing under the laws of the State of Delaware and is duly qualified to do business, and is in good standing, in every jurisdiction in which the nature of its business requires it to be so qualified and the failure to do so could reasonably be expected to have a Material Adverse Effectincorporation or formation.
(bii) The executionTransferor, delivery and performance by as to the LIMS Assignment Agreement and, as to the CannaSys License Agreement, the Transferor Parties, own and have good and valid title to the Rights each is transferring, free and clear of all Liens. Except as contemplated by this Agreement and all other Agreement, the Transferor Documents to be entered into by it, including the Transferor’s sale Parties have not assigned or contribution of Receivables, and, in the case of a Purchase, its use otherwise conveyed or encumbered any interest of the proceeds of Purchases, are within Transferor Parties in and to the Transferor’s corporate powers, have been duly authorized by all necessary corporate action, do not contravene (i) its charter or by-laws, (ii) any Applicable Law except where such contravention could not reasonably be expected to result in a Material Adverse Effect, Rights .
(iii) any material contractual restriction binding on or affecting it or its property other than such restrictions that could not reasonably be expected The Transferor Parties , have all requisite legal power and authority to adversely affect the Transferor’s ability to execute, deliver and perform its material their obligations hereunder or, with respect to the transfer of the Receivables and Collections thereon, in any Immaterial Respect, or (iv) any material order, writ, judgment, award, injunction or decree binding on or affecting it or its property, and do not result in or require the creation of any Lien upon or with respect to any of its properties (other than in favor of the Company with respect to the Transferred Property), and no transaction contemplated hereby requires compliance with any bulk sales act or similar lawunder this Agreement. This Agreement and each other Transferor Document to be entered into by the Transferor have been duly executed and delivered by it.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for its due The execution, delivery and performance of this Agreement and the transactions contemplated hereby or any other Transferor Document to be entered into by it, except (i) for the filing of UCC financing statements, all of which financing statements thereby have been duly filed and, to its knowledge, are in full force and effect, (ii) such as have been made or obtained and are in full force and effect and (iii) where validly authorized by all requisite action on the failure to make or obtain could not reasonably be expected to adversely affect part of the Company’s ability to perform its material obligations hereunder or the ability to assign or collect the Receivables hereunderTransferor Parties.
(div) This Agreement constitutes, and each other Transferor Document to be entered into upon execution and delivery by the Transferor constitute its legalParties will constitute, a valid and binding obligation enforceable against agreement of the Transferor Parties, enforceable in accordance with their respective terms its terms, subject to bankruptcy (A) applicable bankruptcy, insolvency, reorganization, moratorium, and other similar laws affecting Laws of general application with respect to creditors generally and (B) general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law)equity.
(ev) Neither the execution and delivery of this Agreement by the Transferor Parties nor the consummation of the transactions and performance of the terms and conditions contemplated hereby or thereby by the Transferor Parties will (iA) conflict with or result in any breach of any provision of the articles of incorporation, bylaws, certificate of formation, limited liability company agreement, partnership agreement (or other similar governing documents) of the Transferor Parties; (B) create a Lien against the Rights, or be rendered void or ineffective by or under the terms, conditions or provisions of any agreement, instrument, or obligation to which the Transferor Parties are a party; or (C) violate or be rendered void or ineffective under any law or order applicable to the Transferor Parties.
(vi) The Transferor has furnished to Parties, have obtained the Company consent or approval of any Person or Governmental Authority, including the Colorado MED and, if required, its shareholders or members, that is required in connection with the Transferee’s acquisition of the Rights and the Administrative Agent copies execution and delivery by the Transferor Parties of this Agreement. Except as set forth on Schedule 7(vi), no consent, approval, authorization, or permit of, or filing with or notification to, any Person is required for or in connection with the execution and delivery of this Agreement by the Transferor Parties or for or in connection with the consummation of the Parent’s audited consolidated balance sheet as at December 31, 2011, transactions and the related audited consolidated statements of income and cash flow for the fiscal year performance of the Parent then ended reported on terms and conditions contemplated hereby or thereby by Deloitte & Touche LLP which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at December 31, 2011, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year of the Parent then ended, which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at such date, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year then ended; andTransferor Parties.
Appears in 1 contract
Representations and Warranties of the Transferor. The Transferor hereby represents and warrants as follows:to, and agrees with the Company and the Contributors for the
(a) It The Transferor has been duly organized and is a corporation, duly incorporated, validly existing and in good standing as a special purpose limited liability company under the laws of the State of Delaware Delaware, with power and authority to own its properties, perform its obligations under the Transaction Documents and to transact the business in which it is now engaged or in which it proposes to engage; the Transferor is duly qualified to do business, business and is in good standing, standing in every jurisdiction each State in which the nature of its business requires it to be so qualified and the qualified, except where failure to do so could reasonably be expected to qualify would not have a Material Adverse Effectmaterial adverse effect on the ability of the Transferor to perform its obligations under the Transaction Documents.
(b) The execution, delivery transfer to and performance receipt by the Transferor of the Lease Contracts and the related Lease Receivables and the Equipment or Leased Vehicles pursuant to this Agreement and all other Transferor Documents to be entered into by it, including the Transferor’s sale or contribution consummation of Receivables, and, the transactions contemplated herein and in the case Transaction Documents will not conflict with or result in breach of a Purchase, its use any of the proceeds terms or provisions of, or constitute (with or without notice, lapse of Purchasestime or both) a default under the Certificate of Formation or Limited Liability Company Agreement of the Transferor or any material indenture, are within agreement, mortgage, deed of trust or other instrument to which the Transferor’s corporate powersTransferor is a party or by which it is bound, have been duly authorized by all necessary corporate action, do not contravene (i) its charter or by-laws, (ii) any Applicable Law except where such contravention could not reasonably be expected to result in a Material Adverse Effectthe creation or imposition of any lien, charge or encumbrance (iiiexcept for the lien created by the Trust and Security Agreement) upon any material contractual restriction binding on of the property or affecting it or its property other than such restrictions that could not reasonably be expected to adversely affect assets of the Transferor’s ability to perform its material obligations hereunder or, with respect Transferor pursuant to the transfer terms of, such indenture, mortgage, deed of trust, or other agreement or instrument to which the Transferor is a party or by which it is bound or to which any of the Receivables and Collections thereonproperty or assets of the Transferor is subject, nor will such action result in any Immaterial Respect, violation of the provisions of the Certificate of Formation or (iv) Limited Liability Company Agreement of the Transferor or any material statute or any order, writ, judgment, award, injunction rule or decree binding on or affecting it or its property, and do not result in or require the creation regulation of any Lien upon court or with respect to regulatory authority or other governmental agency or body having jurisdiction over the Transferor or any of its properties (properties; and no consent, approval, authorization, order, registration or qualification of or with or other than in favor action of any court or any such regulatory authority or other governmental agency or body is required for the acquisition of the Company with respect to Lease Contracts and the Transferred Property), related Lease Receivables and no transaction contemplated hereby requires compliance with any bulk sales act the Equipment or similar law. This Agreement and each other Transferor Document to be entered into by the Transferor have been duly executed and delivered by itLeased Vehicles hereunder.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for its due execution, delivery and performance of this Agreement or any other Transferor Document to be entered into by it, except (i) for the filing of UCC financing statements, all of which financing statements The Transaction Documents have been duly filed andauthorized, to its knowledge, are in full force executed and effect, (ii) such as have been made or obtained and are in full force and effect and (iii) where the failure to make or obtain could not reasonably be expected to adversely affect the Company’s ability to perform its material obligations hereunder or the ability to assign or collect the Receivables hereunder.
(d) This Agreement and each other Transferor Document to be entered into delivered by the Transferor by all necessary action and constitute its legal, valid and legally binding obligation obligations of the Transferor enforceable against the Transferor in accordance with their respective terms terms, subject as to bankruptcy enforcement to bankruptcy, insolvency, reorganization and other similar laws affecting creditors generally of general
(d) There are no proceedings or investigations to which the Transferor is a party pending or, to the knowledge of the Transferor, threatened, before any court, regulatory body, administrative agency or other tribunal or governmental instrumentality (i) asserting the invalidity of this Agreement, (ii) seeking to prevent the issuance of the Certificates or the consummation of any of the transactions contemplated by the Transaction Documents, or (iii) seeking any determination or ruling that would materially and general principles adversely affect the performance by the Transferor of equity (regardless of whether enforcement its obligations under, or the validity or enforceability of, the Transaction Documents to which it is sought in a proceeding in equity or at law)party.
(e) All approvals, authorizations, consents, orders or other actions of any Person or of any court, governmental agency or body or official, required in connection with the execution and delivery of this Agreement, have been or will be taken or obtained on or prior to the Closing Date or the related Funding Date.
(f) The Transferor Address is the principal place of business and chief executive office of the Transferor.
(g) Since the formation of the Transferor (i) The the Transferor has furnished engaged solely in the acquisition, ownership, leasing, selling and pledging of equipment and vehicles pursuant to lease contracts substantially in the form attached hereto as Exhibit B originated by the Company on behalf of the Transferor and the exercise of any powers permitted to limited liability companies under the limited liability company law of the State of Delaware which are incidental to the Company foregoing or necessary to accomplish the foregoing; (ii) the Transferor has incurred no debt other than trade payables and expense accruals in connection with its operations in the Administrative Agent copies normal course of business; (iii) the Transferor has maintained its books and records separate from the books and records of any other entity, has maintained separate bank accounts and no funds of the Parent’s audited consolidated balance sheet Transferor have been commingled with funds of any other entity; (iv) the Transferor has kept in full effect its existence, rights and franchises as at December 31, 2011a limited liability company under the laws of the State of Delaware, and has obtained and preserved its qualification to do business as a foreign limited liability company in each jurisdiction in which such qualification is or shall be necessary to protect the related audited consolidated statements validity and enforceability of income the Lease Contracts; (v) the Transferor does not own any subsidiary and cash flow has not loaned or advanced any moneys to, or made an investment in, any Person; (vi) the Transferor has not made any capital expenditures; (vii) the Transferor has not guaranteed (directly or indirectly), endorsed or is otherwise contingently liable (directly or indirectly) for the fiscal year obligations of, or own or purchased any stock, obligations or securities of or any other interest in, or made any capital contribution to, any Person; and (viii) the Parent then ended reported Transferor has not engaged in any other action that bears on by Deloitte & Touche LLP which financial statements present fairly in all material respects in accordance with GAAP whether the financial position separate legal identity of the Parent and its consolidated subsidiaries as at December 31, 2011, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year of the Parent then ended, which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at such date, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year then ended; andthe
Appears in 1 contract
Representations and Warranties of the Transferor. The Transferor hereby represents and warrants to the Agent and the Purchasers that as followsof the date hereof and the Closing Date and each Borrowing Date:
(a) It is a corporation, duly incorporated, corporation validly existing and in good standing under the laws of the State of Delaware Delaware, with full power and is duly qualified authority under such laws to do business, own its properties and is in good standing, in every jurisdiction in which the nature of conduct its business requires it as such properties are currently owned and such business is currently conducted and to be so qualified execute, deliver and perform its obligations under this Agreement and the failure other Related Documents to do so could reasonably be expected to have which it is a Material Adverse Effectparty.
(b) The executionIt has the power, delivery authority and performance by the Transferor of right to make, execute, deliver and perform this Agreement and all the other Transferor Related Documents to be entered into by it, including which it is a party and all the Transferor’s sale or contribution of Receivables, and, in the case of a Purchase, its use of the proceeds of Purchases, are within the Transferor’s corporate powers, have been duly authorized by transactions contemplated hereby and thereby and has taken all necessary corporate action, do not contravene (i) its charter or by-laws, (ii) any Applicable Law except where such contravention could not reasonably be expected action to result in a Material Adverse Effect, (iii) any material contractual restriction binding on or affecting it or its property other than such restrictions that could not reasonably be expected to adversely affect authorize the Transferor’s ability to perform its material obligations hereunder or, with respect to the transfer of the Receivables and Collections thereon, in any Immaterial Respect, or (iv) any material order, writ, judgment, award, injunction or decree binding on or affecting it or its property, and do not result in or require the creation of any Lien upon or with respect to any of its properties (other than in favor of the Company with respect to the Transferred Property), and no transaction contemplated hereby requires compliance with any bulk sales act or similar law. This Agreement and each other Transferor Document to be entered into by the Transferor have been duly executed and delivered by it.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for its due execution, delivery and performance of this Agreement or any and the other Transferor Document Related Documents to be entered into by itwhich it is a party. When executed and delivered, except (i) for the filing each of UCC financing statements, all of which financing statements have been duly filed and, to its knowledge, are in full force and effect, (ii) such as have been made or obtained and are in full force and effect and (iii) where the failure to make or obtain could not reasonably be expected to adversely affect the Company’s ability to perform its material obligations hereunder or the ability to assign or collect the Receivables hereunder.
(d) This this Agreement and each the other Transferor Document Related Documents to be entered into by the Transferor which it is a party will constitute its legal, valid and binding obligation obligations, enforceable against the Transferor it in accordance with their respective terms subject its terms, subject, as to bankruptcy such enforceability, to applicable bankruptcy, reorganization, insolvency, moratorium and similar other laws relating to or affecting creditors creditors' rights generally and from time to time in effect. The enforceability of its obligations under such agreements may also be limited by general principles of equity (equity, regardless of whether enforcement such enforceability is sought considered in a proceeding in equity or at law, and no representation or warranty is made with respect to the enforceability of its obligations under any indemnification provisions in such agreements to the extent that indemnification is sought in connection with securities laws violations.
(c) No consent, license, approval or authorization of, or registration with, any Governmental Authority is required to be obtained by it in connection with the execution, delivery or performance of each of this Agreement and the other Related Documents to which it is a party that has not been duly obtained and that is not and will not be in full force and effect on the Closing Date, except such that may be required by the blue sky laws of any state and except for any UCC filings necessary to perfect the Liens granted pursuant to the Indenture or mortgage recordings required following an Assignment Event.
(d) The execution, delivery and performance of each of this Agreement and the other Related Documents to which it is a party do not violate any provision of any existing law or regulation applicable to it, any order or decree of any court to which it is subject, its charter or By-laws, or any mortgage, indenture, contract or other agreement to which it is a party or by which it or any significant portion of its properties is bound (other than violations of such laws, regulations, orders, decrees, mortgages, indentures, contracts and other agreements that, individually or in the aggregate, would not have a material adverse effect on its ability to perform its obligations under this Agreement or the other Related Documents to which it is a party).
(e) Except as disclosed in writing to the Agent prior to the Closing Date, there is no litigation or administrative proceeding before any court, tribunal or governmental body pending or, to its knowledge, threatened against it, with respect to this Agreement, the other Related Documents to which it is a party, the transactions contemplated hereby or thereby or the issuance of the Notes, and there is no such litigation or proceeding against it or any significant portion of its properties that it expects to have a material adverse effect on the transactions contemplated by, or its ability to perform its obligations under, this Agreement or the other Related Documents to which it is a party.
(f) No report, statement, exhibit or other written information required to be furnished by it or any of its Affiliates to the Agent or any Purchaser pursuant to this Agreement or the other Related Documents is or shall be inaccurate in any material respect, or contains or shall contain any material misstatement of fact, or omits or shall omit to state a material fact necessary to make the statements contained therein, in light of the circumstances under which such statements were made, not misleading, in each case, as of the date it is or shall be dated or (except as otherwise disclosed to the Agent at such time) as of the date so furnished.
(g) Each of the Related Documents to which it is a party is in full force and effect and Default or Event of Default with respect to it has occurred and is continuing.
(h) The Transferor repeats and reaffirms to the Agent and the Owners each of the representations and warranties made by it in Section 2.1 of the Sale and Servicing Agreement and each other document delivered in connection therewith or herewith, and represents that such representations and warranties are true and correct in all material respects.
(i) The Transferor has furnished Any taxes, fees and other charges of Governmental Authorities applicable to it, except for franchise or income taxes, in connection with the execution, delivery and performance by it of this Agreement and the other Related Documents to which it is a party or otherwise applicable to it in connection with the transactions contemplated hereby or thereby have been paid or will be paid at or prior to the Company and Closing Date to the Administrative Agent copies extent then due.
(j) As of the Parent’s audited consolidated balance sheet as at December 31Closing Date, 2011, and the related audited consolidated statements of income and cash flow for the fiscal year chief executive office of the Parent then ended reported on by Deloitte & Touche LLP which financial statements present fairly Transferor is at the address indicated in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at December 31, 2011, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year of the Parent then ended, which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at such date, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year then ended; andSection 9.2 hereof.
Appears in 1 contract
Samples: Class a Note Purchase Agreement (Oakwood Homes Corp)
Representations and Warranties of the Transferor. The Transferor hereby represents and warrants to the Transferee that each of the following statements is true, correct, complete and not misleading on and as followsof the date of this Agreement and the date of the Transfer Closing:
(a) It the Transferor is a corporation, duly incorporated, organized and validly existing and in good standing under the laws of the State of Delaware and is duly qualified to do business, and is in good standing, in every jurisdiction in which the nature place of its business requires it incorporation or formation. The Transferor has all requisite corporate power and authority to be so qualified and the failure to do so could reasonably be expected to have a Material Adverse Effect.perform each of its obligations under this Agreement;
(b) The the Transferor has good and marketable title to the Sale Shares and that the Transferor is the sole registered owner thereof; the Transferor will, at the Transfer Closing, sell, transfer, and deliver the Sale Shares free and clear from any Encumbrance (other than restrictions imposed by applicable securities laws, the Investor Rights Agreement, the M&AA or the Transferor Lock-up Agreement) and that the Transferor is entitled to transfer the Sale Shares to the Transferee;
(c) this Agreement has been duly and validly executed and delivered by the Transferor, and will constitute valid and binding obligations of the Transferor enforceable against the Transferor in accordance with its respective terms, except as such enforceability may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws of general applicability relating to or affecting creditors’ rights and by general equity principles (regardless of whether considered in a proceeding in equity or at law), including, without limitation, (A) the possible unavailability of specific performance, injunctive relief or any other equitable remedy and (B) concepts of materiality, reasonableness, good faith and fair dealing;
(d) none of the offer and sale of the Sale Shares, the execution, delivery and performance of this Agreement by the Transferor, or the consummation by the Transferor of the transactions contemplated by this Agreement, as applicable, violates or will violate, conflicts with or constitutes a breach of any of the terms or provisions of or a default under (or an event that, with notice or lapse of time or both, would constitute a default), or require consent under, on any property or assets of the Transferor pursuant to, (A) any law, statute, circular, rule or regulation applicable to the Transferor, or the assets or properties of the Transferor, (B) any judgment, order or decree of any governmental authority with jurisdiction over any of the assets or properties of the Transferor, or (C) any obligation, agreement, covenant or condition contained in any lease, license, franchise agreement, authorization, permit, certificate or other agreement or instrument to which, or by which, the Transferor is bound or to which any of the assets or properties of the Transferor is subject, other than such consents and waivers as have been obtained or will be obtained prior to the Transfer Closing and will be in full force and effect. As of the Transfer Closing, no consent, approval, authorization or order of, or filing, registration, qualification, license or permit of or with, any governmental authority, will be required to be obtained or made by the Transferor for the execution, delivery and performance by the Transferor of this Agreement and all other Transferor Documents to be entered into by itAgreement, including the Transferor’s sale or contribution of Receivables, and, in the case of a Purchase, its use consummation of the proceeds of Purchasestransactions contemplated hereby, are within the Transferor’s corporate powers, have been duly authorized by all necessary corporate action, do not contravene (i) its charter or by-laws, (ii) any Applicable Law except where such contravention could not reasonably be expected to result in a Material Adverse Effect, (iii) any material contractual restriction binding on or affecting it or its property other than such restrictions that could not reasonably consent, approval, authorization or order, filing, registration, qualification, license or permit as have been obtained or will be expected to adversely affect the Transferor’s ability to perform its material obligations hereunder or, with respect obtained prior to the transfer of the Receivables Transfer Closing and Collections thereon, will be in full force and effect. No consents or waivers from any Immaterial Respect, other person or (iv) any material order, writ, judgment, award, injunction or decree binding on or affecting it or its property, and do not result in or require the creation of any Lien upon or with respect to any of its properties (other than in favor of the Company with respect to the Transferred Property), and no transaction contemplated hereby requires compliance with any bulk sales act or similar law. This Agreement and each other Transferor Document to be entered into by the Transferor have been duly executed and delivered by it.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is entity are required for its due the execution, delivery and performance of this Agreement or any the consummation of the transaction contemplated hereby, other Transferor Document to be entered into by it, except (i) for the filing of UCC financing statements, all of which financing statements than such consents and waivers as have been duly filed and, obtained or will be obtained prior to its knowledge, are the Transfer Closing and will be in full force and effect, (ii) such as have been made or obtained and are in full force and effect and (iii) where the failure to make or obtain could not reasonably be expected to adversely affect the Company’s ability to perform its material obligations hereunder or the ability to assign or collect the Receivables hereunder.
(d) This Agreement and each other Transferor Document to be entered into by the Transferor constitute its legal, valid and binding obligation enforceable against the Transferor in accordance with their respective terms subject to bankruptcy and similar laws affecting creditors generally and general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).; and
(e) (i) The there are no contracts, agreements or understandings between the Transferor has furnished and any other person other than the Transferee that would give rise to a valid claim against the Company and Transferor or the Administrative Agent copies of Transferee for a brokerage commission, finder’s fee or like payment in connection with the Parent’s audited consolidated balance sheet as at December 31, 2011, and the related audited consolidated statements of income and cash flow for the fiscal year of the Parent then ended reported on by Deloitte & Touche LLP which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at December 31, 2011, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year of the Parent then ended, which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at such date, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year then ended; andTransfer.
Appears in 1 contract
Representations and Warranties of the Transferor. The Transferor represents and warrants to Corporation that as followsof the date hereof and as of the Closing Date the following information is true and correct:
(a) It A. Transferor is a corporation, limited liability company duly incorporatedorganized, validly existing and in good standing under the laws of the State state of Delaware and is duly qualified to do business, and is in good standing, in every jurisdiction in which the nature of its business requires it to be so qualified and the failure to do so could reasonably be expected to have a Material Adverse Effect.
(b) Iowa. The execution, delivery and performance by the Transferor of this Agreement and all other Transferor Documents to be entered into by it, including the Transferor’s sale or contribution of Receivables, and, in the case of a Purchase, its use of the proceeds of Purchases, are within the Transferor’s corporate powers, have been duly authorized by all necessary corporate action, do not contravene (i) its charter or by-laws, (ii) any Applicable Law except where such contravention could not reasonably be expected to result in a Material Adverse Effect, (iii) any material contractual restriction binding on or affecting it or its property other than such restrictions that could not reasonably be expected to adversely affect the Transferor’s ability to perform its material obligations hereunder or, with respect to the transfer of the Receivables and Collections thereon, in any Immaterial Respect, or (iv) any material order, writ, judgment, award, injunction or decree binding on or affecting it or its property, and do not result in or require the creation of any Lien upon or with respect to any of its properties (other than in favor of the Company with respect to the Transferred Property), and no transaction contemplated hereby requires compliance with any bulk sales act or similar law. This Agreement and each other Transferor Document to be entered into by the Transferor have been duly executed and delivered by it.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for its due execution, delivery and performance of this Agreement by Transferor has been duly authorized by all necessary action on the part of Transferor, its governing body and equity holders, and will not result in any violation or breach of any other law, rule, regulation, contract, agreement, instrument, order, decree or judgment to which the Transferor Document to be entered into is a party or by it, except (i) which it is bound. Except for the filing of UCC financing statementstitle transfer documents as may be required and except for such consents, all approvals, and authorizations as already set out on Schedules 2.3 and 2.14(b) to the Stock Purchase Agreement dated the 1st day of which financing statements have been duly filed andAugust, to its knowledge2006, are between Corporation, Transferor, REG, LLC (f/k/a Renewable Energy Group, LLC), West Central Cooperative and others (the “Stock Purchase Agreement”), no consent, approval or authorization of or declaration or filing with any person or entity (including any governmental authority) is required on the part of the Transferor for or in full force connection with the execution, delivery and effect, (ii) such as have been made or obtained and are in full force and effect and (iii) where the failure to make or obtain could not reasonably be expected to adversely affect the Company’s ability to perform its material obligations hereunder or the ability to assign or collect the Receivables hereunder.
(d) performance of this Agreement. This Agreement and each other Transferor Document to be entered into by the Transferor constitute its legal, constitutes a valid and binding obligation of Transferor enforceable against the Transferor in accordance with their respective terms subject to bankruptcy and similar laws affecting creditors generally and general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law)its terms.
(e) (i) The Transferor has furnished to B. All tangible property included within the Company Fixed Assets and the Administrative Agent copies of the Parent’s audited consolidated balance sheet as at December 31, 2011, and the related audited consolidated statements of income and cash flow for the fiscal year of the Parent then ended reported on by Deloitte & Touche LLP which financial statements present fairly Equipment is in all material respects in accordance good working order and condition at the execution of this Agreement subject, however, to the effect of ordinary wear and tear and depreciation arising from lapse of time or use with GAAP appropriate maintenance, and will be maintained in such condition through Closing.
C. The Accounts Receivable included within the financial position Assets are valid, genuine, and subsisting, arose out of bona fide sales and deliveries of goods or the performance of services, and to the knowledge of Transferor are not subject to any defenses, set offs, or counterclaims.
D. The Inventory included within the Assets consists of items of quality, condition and quantity saleable in the ordinary course of the Parent and its consolidated subsidiaries as at December 31, 2011, and the results business of operations of the Parent and its consolidated subsidiaries for the fiscal year of the Parent then ended, which financial statements present fairly Transferor.
E. Transferor has in all material respects in accordance with GAAP the financial position performed all obligations required to be performed by Transferor to date under each of the Parent Contract Rights referred to herein and its consolidated subsidiaries is not in default thereunder, or in breach thereof, nor in receipt of any claim of default or breach thereunder, nor, to Transferor’s knowledge, has any event occurred which, with the passage of time or the giving of notice, or both, would cause a breach of, or a default under, any such agreement.
F. Intellectual Property included within the Assets constitutes all intellectual property being used in Transferor’s Biodiesel Business as at such datecurrently conducted. No claims of third parties for infringement with respect to Intellectual Property being transferred are currently pending or, to the knowledge of Transferor, are threatened. Except as set out on Schedule 1(A)(vi), Transferor does not have knowledge of any valid grounds for any bona fide claims (a) to the effect that the manufacture, sale, licensing or use of any products as now used, sold or licensed or proposed for use, sale or license by Transferor infringes on any copyright, patent, trademark, trade name, service xxxx or trade secret; (b) against the use by Transferor of any Intellectual Property; (c) challenging the ownership, validity or effectiveness of any of the Intellectual Property; or (d) challenging the license or legally enforceable right to use the Intellectual Property. To the knowledge of Transferor, there is no unauthorized use infringement or misappropriation of any of the Intellectual Property by any third party, including any employee or former employee of Transferor.
G. Except as expressly provided in this Agreement, the Assets are being assigned, transferred and conveyed to Corporation in “as is, where is” condition and Transferor makes no express or implied representation or warranty as to the condition, operability, or merchantability or any other aspect of the Assets. Transferor hereby disclaims any and all other express or implied representations or warranties regarding the Assets, including, but not limited to, any implied warranty of merchantability or fitness for a particular purpose, and the results of operations no such representation or warranty has been or will become a basis of the Parent bargain between the parties, nor has been or will be relied upon by Corporation.
H. Other than with respect to Intellectual Property and its consolidated subsidiaries except as set out on Schedule 6(H) (“Exceptions to Title”), Transferor owns good and marketable title to the Assets to be conveyed hereunder free and clear of any and all liens, security interests, restrictions and encumbrances. With respect to title to the Intellectual Property, Transferor at Closing will transfer all of Transferor’s rights in the Intellectual Property, free of any mortgage or security interest granted by Transferor.
I. The Assets, together with the assets, properties and rights provided or to be provided to the Corporation by West Central Cooperative pursuant to the Ground Lease, Asset Use Agreement and the Contract for Services (as such terms are defined in the fiscal year then ended; andStock Purchase Agreement) constitute all of the assets, properties and rights which are required for or currently used in connection with the conduct of the Biodiesel Business of Transferor conducted as of the date hereof.
Appears in 1 contract
Samples: Contribution Agreement (Renewable Energy Group, Inc.)
Representations and Warranties of the Transferor. The Transferor hereby represents and warrants as followsto the Owner Trustee that:
(a) It The Transferor is a corporation, duly incorporated, formed and validly existing and as a limited liability company in good standing under the laws of the State of Delaware Delaware, with power and is duly qualified authority to do business, own its properties and is in good standing, in every jurisdiction in which the nature of to conduct its business requires it to be so qualified as such properties are currently owned and the failure to do so could reasonably be expected to have a Material Adverse Effectsuch business is presently conducted.
(b) The execution, delivery and performance by the Transferor of this Agreement and all other Transferor Documents to be entered into by it, including the Transferor’s sale or contribution of Receivables, and, in the case of is not a Purchase, its use of the proceeds of Purchases, are within the Transferor’s corporate powers, have been duly authorized by all necessary corporate action, do not contravene (i) its charter or by-laws, (ii) any Applicable Law except where such contravention could not reasonably be expected to result in a Material Adverse Effect, (iii) any material contractual restriction binding on or affecting it or its property other than such restrictions that could not reasonably be expected to adversely affect the Transferor’s ability to perform its material obligations hereunder or, with respect to the transfer of the Receivables and Collections thereon, in any Immaterial Respect, or (iv) any material order, writ, judgment, award, injunction or decree binding on or affecting it or its property, and do not result in or require the creation of any Lien upon or with respect to any of its properties (other than in favor of the Company with respect to the Transferred Property), and no transaction contemplated hereby requires compliance with any bulk sales act or similar law. This Agreement and each other Transferor Document to be entered into by the Transferor have been duly executed and delivered by itBenefit Plan.
(c) No authorization The Transferor is duly qualified to do business as a foreign limited liability company in good standing 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 shall require such qualifications except when the failure to have any such license, approval or other action byqualification would not have a material adverse effect on the condition, financial or otherwise, of the Transferor or would not have a material adverse effect on the ability of the Transferor to perform its obligations under this Agreement.
(d) The Transferor has the power and no notice authority to or filing with, any governmental authority or regulatory body is required for execute and deliver this Agreement and to carry out its due terms and to transfer and assign the property to be transferred and assigned to and deposited with the Issuer; and the execution, delivery and performance of this Agreement or any other Transferor Document to be entered into by itand such transfer, except (i) for the filing of UCC financing statements, all of which financing statements assignment and deposit have been duly filed and, to its knowledge, are in full force and effect, (ii) such as have been made or obtained and are in full force and effect and (iii) where authorized by the failure to make or obtain could not reasonably be expected to adversely affect the Company’s ability to perform its material obligations hereunder or the ability to assign or collect the Receivables hereunderTransferor by all necessary limited liability company action.
(de) This Agreement and each other Transferor Document to be entered into by the Transferor constitute its constitutes a legal, valid and binding obligation of the Transferor, enforceable against the Transferor in accordance with their respective terms its terms, except as such enforceability may be subject to bankruptcy and or limited by bankruptcy, liquidation, insolvency, reorganization, moratorium, liquidation, fraudulent conveyance or other similar laws affecting creditors generally the enforcement of creditors’ rights in general and by general principles of equity (equity, regardless of whether enforcement is sought such enforceability shall be considered in a proceeding in equity or at law).
(ef) The consummation of the transactions contemplated by this Agreement and the fulfillment of the terms hereof 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 formation or limited liability company agreement of the Transferor, or any indenture, agreement or other instrument to which the Transferor is a party or by which it is bound; nor result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement or other instrument (other than pursuant to the 2013-B Basic Documents); nor violate any law or, to the best of the Transferor’s knowledge, any order, rule or regulation applicable to the Transferor of any Governmental Authority having jurisdiction over the Transferor or its properties.
(g) To the knowledge of the Transferor, there are no proceedings or investigations pending or threatened before any Governmental Authority having jurisdiction over the Transferor or its properties (i) The Transferor has furnished asserting the invalidity of this Agreement, (ii) seeking to prevent the Company and the Administrative Agent copies consummation of any of the Parent’s audited consolidated balance sheet as at December 31transactions contemplated by this Agreement or (iii) seeking any determination or ruling that might materially and adversely affect the performance by the Transferor of its obligations under, 2011or the validity or enforceability of, and the related audited consolidated statements of income and cash flow for the fiscal year of the Parent then ended reported on by Deloitte & Touche LLP which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at December 31, 2011, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year of the Parent then ended, which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at such date, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year then ended; andthis Agreement.
Appears in 1 contract
Samples: Trust Agreement (Mercedes-Benz Auto Lease Trust 2013-B)
Representations and Warranties of the Transferor. The Transferor hereby represents and warrants to the Transferee and the General Partner, on the date of this Agreement and on the Closing Date, as follows:
(a) It is a corporationSubject to any approval required from the Bankruptcy Court, duly incorporated, validly existing and in good standing under the laws of the State of Delaware and is duly qualified to do business, and is in good standing, in every jurisdiction in which the nature of its business requires it to be so qualified and the failure to do so could reasonably be expected to have a Material Adverse Effect.
(b) The execution, delivery and performance by the Transferor of has full legal capacity, power and authority to execute and deliver this Agreement and all other Transferor Documents to be entered into by it, including perform the Transferor’s sale or contribution of Receivables, and, in the case of a Purchase, its use of the proceeds of Purchases, are within the Transferor’s corporate powers, have been duly authorized by all necessary corporate action, do not contravene (i) its charter or by-laws, (ii) any Applicable Law except where such contravention could not reasonably be expected to result in a Material Adverse Effect, (iii) any material contractual restriction binding on or affecting it or its property other than such restrictions that could not reasonably be expected to adversely affect the Transferor’s ability to perform its material obligations hereunder or, with respect to the transfer of the Receivables and Collections thereon, in any Immaterial Respect, or (iv) any material order, writ, judgment, award, injunction or decree binding on or affecting it or its propertyhereunder, and do not result in or require the creation of any Lien upon or with respect to any of its properties (other than in favor of the Company with respect to the Transferred Property), and no transaction contemplated hereby requires compliance with any bulk sales act or similar law. This this Agreement and each other Transferor Document to be entered into by the Transferor have has been duly executed and delivered by itthe Transferor.
(b) Subject to any approval required from the Bankruptcy Court, the Transferor is authorized, empowered and qualified to execute this Agreement and consummate the transactions contemplated hereby. The individual signing this Agreement and all agreements contemplated hereby on the Transferor’s behalf has been duly authorized to do so.
(c) No authorization Subject to any approval required from the Bankruptcy Court, the execution and delivery of this Agreement, the consummation of the transactions contemplated hereby and the performance of the Transferor’s obligations hereunder will not conflict with, or approval result in any violation of or default under, any provision of any governing instrument applicable to the Transferor, any agreement or other action by, and no notice instrument to which the Transferor is a party or filing with, any governmental authority or regulatory body is required for its due execution, delivery and performance of this Agreement by which the Transferor or any other of its properties is bound, or any judgment, decree, order, statute, rule or regulation applicable to the Transferor Document to be entered into by it, except (i) for the filing of UCC financing statements, all of which financing statements have been duly filed and, to its knowledge, are in full force and effect, (ii) such as have been made or obtained and are in full force and effect and (iii) where the failure to make or obtain could not reasonably be expected to adversely affect the Company’s ability to perform its material obligations hereunder or the ability to assign Transferor’s business or collect the Receivables hereunderproperties.
(d) This Agreement Upon the consummation of the transactions contemplated hereby, the Transferee will receive good and each valid title to the Transferred Interest, free and clear of any lien, liability or encumbrance (other Transferor Document than the obligations of the Transferee assumed (i) hereunder to be entered into by pay the Transferor constitute its legal, valid and binding obligation enforceable against unpaid portion of the Transferor Transferor’s capital commitment in accordance with their respective the terms of the Partnership Agreement and the Subscription Agreement and (ii) under the Partnership Agreement), and, subject to bankruptcy the terms of the Partnership Agreement, the Transferee will be entitled to exercise all rights and similar laws affecting creditors generally and general principles receive all benefits to which the Transferor has heretofore been entitled as a limited partner of equity (regardless of whether enforcement is sought in a proceeding in equity or at law)the Fund with respect to the Transferred Interest.
(e) The Transferor has had an opportunity to ask the General Partner questions and receive answers regarding the Fund and the Fund’s investments and has had full access to such other information concerning the Fund and the Fund’s investments as the Transferor has requested.
(f) Except for any alterations to this Agreement that have been clearly marked or otherwise specifically identified in writing to the General Partner prior to the execution of this Agreement, the Transferor has not altered or otherwise revised this Agreement in any manner from the version initially received by the Transferor nor, to the knowledge of the Transferor, has the Transferee altered or otherwise revised this Agreement in any manner from the version initially received by the Transferor.
(g) The Transferor has conducted its own independent evaluation and made its own analysis as it has deemed necessary, prudent or advisable in order for it to make its own determination and decision to transfer the Transferred Interest hereunder, enter into this Agreement and consummate the transactions contemplated hereby. The Transferor is entering into this Agreement and the transactions contemplated hereby relying entirely upon such independent evaluation and analysis and without reliance upon any oral or written representations and warranties of any kind or nature by the General Partner, or its general partner, or any of their respective direct or indirect equity owners, shareholders, directors, officers, agents, partners, managers, members or employees or by the Transferee (other than as provided in Section 2 below).
(h) The Transferor acknowledges that it is transferring the Transferred Interest at a significant discount to the most recent net asset value provided by the General Partner in respect of the Transferred Interest and that the Purchase Price is significantly less than the amount of Capital Contributions made by the Transferor to the Fund as of the date hereof. In addition, the Transferor acknowledges that the net asset value of the Transferred Interest may increase and, upon sale of the Fund’s portfolio companies, lead to significant profits.
(i) The Transferor has furnished to the Company and the Administrative Agent copies Transfer of the Parent’s audited consolidated balance sheet Transferred Interest:
(i) is not being effected on or through (A) a U.S. national, regional or local securities exchange, (B) a foreign securities exchange or (C) an interdealer quotation system that regularly disseminates firm buy or sell quotations by identified brokers or dealers (including, without limitation, the NASDAQ System);
(ii) is not being made by, through or on behalf of (A) a person or entity, such as at December 31a broker or a dealer, 2011, and making a market in interests in the related audited consolidated statements of income and cash flow for the fiscal year of the Parent then ended reported on by Deloitte & Touche LLP which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at December 31, 2011, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year of the Parent then ended, which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at such date, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year then ended; andFund or
Appears in 1 contract
Samples: Transfer Agreement
Representations and Warranties of the Transferor. The Transferor hereby represents and warrants to the Trustee, the Certificateholders, the Certificate Insurer, Life and the Depositor that as follows:of the Closing Date or the Subsequent Transfer Date, as the case may be (except as otherwise specifically provided herein):
(a) It The Transferor is a corporation, corporation duly incorporatedorganized, validly existing and in good standing under the laws of the State of Delaware Delaware, has the requisite power and authority to own its assets and to transact the business in which it is currently engaged and has all licenses necessary to carry on its business as now being conducted and is duly licensed, qualified and in good standing in each state where a Mortgaged Property is located if the laws of such state require licensing or qualification in order for the Transferor to do businessconduct such business and to perform its obligations as the Transferor hereunder, and in any event the Transferor is in good standingcompliance with the laws of any such state to the extent necessary to ensure the enforceability of the related Mortgage Loans, in every jurisdiction in which and had at all relevant times, full corporate power to originate or purchase the nature of Mortgage Loans, to own its property, to carry on its business requires it as presently conducted and to be so qualified enter into and the failure to do so could reasonably be expected to have a Material Adverse Effect.perform its obligations under this Agreement;
(b) The execution, execution and delivery and performance of this Agreement by the Transferor and its performance of and compliance with the terms of this Agreement and all other Transferor Documents to be entered into by it, including will not violate the Transferor’s sale or contribution 's certificate of Receivables, and, in the case of a Purchase, its use of the proceeds of Purchases, are within the Transferor’s corporate powers, have been duly authorized by all necessary corporate action, do not contravene (i) its charter incorporation or by-lawslaws or constitute a default (or an event that, (iiwith notice or lapse of time, or both, would constitute a default) any Applicable Law except where such contravention could not reasonably be expected to under, or result in a Material Adverse Effectthe breach or acceleration of, (iii) any material contractual restriction binding on contract, agreement or affecting it other instrument to which the Transferor is a party or its property other than such restrictions that could not reasonably which may be expected to adversely affect the Transferor’s ability to perform its material obligations hereunder or, with respect applicable to the transfer of the Receivables and Collections thereon, in any Immaterial Respect, Transferor or (iv) any material order, writ, judgment, award, injunction or decree binding on or affecting it or its property, and do not result in or require the creation of any Lien upon or with respect to any of its properties (other than in favor of the Company with respect to the Transferred Property), and no transaction contemplated hereby requires compliance with any bulk sales act or similar law. This Agreement and each other Transferor Document to be entered into by the Transferor have been duly executed and delivered by it.assets;
(c) No authorization or approval or other action byThe Transferor has the full power and authority to enter into and consummate all transactions contemplated by this Agreement to be consummated by it, and no notice to or filing with, any governmental authority or regulatory body is required for its due has duly authorized the execution, delivery and performance of this Agreement or any other Transferor Document to be entered into by itAgreement, except (i) for the filing of UCC financing statementsand has duly executed and delivered this Agreement. This Agreement, all of which financing statements have been duly filed andassuming due authorization, to its knowledge, are in full force execution and effect, (ii) such as have been made or obtained and are in full force and effect and (iii) where the failure to make or obtain could not reasonably be expected to adversely affect the Company’s ability to perform its material obligations hereunder or the ability to assign or collect the Receivables hereunder.
(d) This Agreement and each other Transferor Document to be entered into delivery by the Transferor constitute its legalServicer, valid the Trustee and the Depositor, constitutes a valid, legal and binding obligation of the Transferor, enforceable against the Transferor it in accordance with their respective the terms subject to bankruptcy and hereof, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting the rights of creditors generally generally, and by general equity principles of equity (regardless of whether such enforcement is sought considered in a proceeding in equity or at law);
(d) The Transferor is not in violation of, and the execution and delivery of this Agreement by the Transferor 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 court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction, which violation would materially and adversely affect the condition (financial or otherwise) or operations of the Transferor or its properties or materially and adversely affect the performance of its duties hereunder, or constitute a material breach of, or result in the creation or imposition of any lien, charge or encumbrance upon any of its properties pursuant to any mortgage, indenture, contract or other agreement to which it is a party or may be bound.
(e) There is no action, suit, proceeding or investigation pending or, to the knowledge of the Transferor, threatened, before any court, administrative agency or governmental tribunal against the Transferor or any of its properties which, either in any one instance or in the aggregate, may result in any material adverse change in the business, operations, financial condition, properties or assets of the Transferor, or in any material impairment of the right or ability of the Transferor to carry on its business substantially as now conducted, or in any material liability on the part of the Transferor, or which would draw into question the validity of this Agreement, the Mortgage Loans, or of any action taken or to be taken in connection with the obligations of the Transferor contemplated herein, or which would impair materially the ability of the Transferor to perform under the terms of this Agreement or that might prohibit its entering into this Agreement or the consummation of any of the transactions contemplated hereby;
(f) No consent, approval, authorization or order of any person or any court or governmental agency or body is required for the execution, delivery and performance by the Transferor of, or compliance by the Transferor with, this Agreement or the Certificates, or for the consummation of the transactions contemplated by this Agreement, except for such consents, approvals, authorizations, licenses and orders, if any, that have been obtained or filed prior to the Closing Date;
(g) The Transferor acquired title to the Mortgage Loans in good faith, without notice of any adverse claim;
(h) The collection practices, if any, used by the Transferor with respect to the Mortgage Loans have been, in all material respects, legal, proper, prudent and customary in the non-conforming mortgage servicing business;
(i) No Officers' Certificate, statement, report or other document prepared by the Transferor and furnished or to be furnished by it 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 herein or therein not misleading;
(j) The Transferor has furnished is duly licensed where required as a "licensee" or is otherwise qualified in each state in which it transacts business and is not in default of such state's applicable laws, rules and regulations, except where the failure to so qualify or such default would not have a material adverse effect on the ability of the Transferor to conduct its business or perform its obligations hereunder;
(k) The Transferor 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. The Transferor is solvent and the sale of the Mortgage Loans by the Transferor pursuant to the Company terms of this Agreement will not cause the Transferor to become insolvent and the Administrative Agent copies Transferor is not aware of any pending insolvency of it. The sale of the Parent’s audited consolidated balance sheet as at December 31Mortgage Loans by the Transferor pursuant to the terms of this Agreement was not undertaken with the intent to hinder, 2011, and the related audited consolidated statements of income and cash flow for the fiscal year delay or defraud any of the Parent then ended reported on by Deloitte & Touche LLP which financial Transferor's creditors;
(l) Neither this Agreement nor the information contained in the Prospectus Supplement under the captions "Summary--The Mortgage Loans," "Risk Factors," "Underwriting Guidelines" and "Life Bank" contains an untrue statement of a material fact or omits to state any material fact necessary to make the statements present fairly contained herein or therein, in all material respects in accordance with GAAP the financial position light of the Parent and its consolidated subsidiaries as at December 31circumstances under which they were made, 2011, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year of the Parent then ended, which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at such date, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year then ended; andnot misleading;
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Morgan Stanley Abs Capital I Inc)
Representations and Warranties of the Transferor. The To induce the Transferee to accept the Founder Shares and the Private Placement Warrants from the Transferor, the Transferor hereby represents and warrants to the Transferee and agrees with the Transferee as follows:
(a) It 2.1 The Transferor is a corporation, duly incorporatedCayman Islands limited liability company, validly existing and in good standing under the laws of the State of Delaware Cayman Islands and is duly qualified possesses all requisite legal capacity, power and authority to do business, enter into the Agreement and is in good standing, in every jurisdiction in which to carry out the nature of its business requires it to be so qualified transactions contemplated by this Agreement. Upon execution and the failure to do so could reasonably be expected to have a Material Adverse Effect.
(b) The execution, delivery and performance by the Transferor of parties thereto, this Agreement and all other Transferor Documents to will be entered into by it, including the Transferor’s sale or contribution of Receivables, and, in the case of a Purchase, its use of the proceeds of Purchases, are within the Transferor’s corporate powers, have been duly authorized by all necessary corporate action, do not contravene (i) its charter or by-laws, (ii) any Applicable Law except where such contravention could not reasonably be expected to result in a Material Adverse Effect, (iii) any material contractual restriction binding on or affecting it or its property other than such restrictions that could not reasonably be expected to adversely affect the Transferor’s ability to perform its material obligations hereunder or, with respect to the transfer of the Receivables and Collections thereon, in any Immaterial Respect, or (iv) any material order, writ, judgment, award, injunction or decree binding on or affecting it or its property, and do not result in or require the creation of any Lien upon or with respect to any of its properties (other than in favor of the Company with respect to the Transferred Property), and no transaction contemplated hereby requires compliance with any bulk sales act or similar law. This Agreement and each other Transferor Document to be entered into by the Transferor have been duly executed and delivered by it.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for its due execution, delivery and performance of this Agreement or any other Transferor Document to be entered into by it, except (i) for the filing of UCC financing statements, all of which financing statements have been duly filed and, to its knowledge, are in full force and effect, (ii) such as have been made or obtained and are in full force and effect and (iii) where the failure to make or obtain could not reasonably be expected to adversely affect the Company’s ability to perform its material obligations hereunder or the ability to assign or collect the Receivables hereunder.
(d) This Agreement and each other Transferor Document to be entered into by the Transferor constitute its legal, valid and binding obligation agreement of the Transferor, enforceable against the Transferor in accordance with their respective terms subject to bankruptcy and its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance or similar laws affecting creditors the enforcement of creditors’ rights generally and subject to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity or at lawequity).
(e) 2.2 The execution, delivery and performance of this Agreement and the consummation by the Transferor of the transactions contemplated hereby do not violate, conflict with or constitute a default under (i) The Transferor has furnished to the Company formation and the Administrative Agent copies governing documents of the Parent’s audited consolidated balance sheet as at December 31Transferor, 2011(ii) any agreement, indenture or instrument to which the Transferor is a party or (iii) any law, statute, rule or regulation to which the Transferor is subject, or any agreement, order, judgment or decree to which the Transferor is subject.
2.3 There are no actions, suits, investigations or proceedings pending, threatened against or affecting the Transferor which: (i) seek to restrain, enjoin, prevent the consummation of or otherwise affect the transactions contemplated by this Agreement or (ii) question the validity or legality of any transactions or seeks to recover damages or to obtain other relief in connection with any transactions.
2.4 The Founder Shares are, and the related audited consolidated statements of income and cash flow for the fiscal year Shares issuable upon exercise of the Parent then ended reported on by Deloitte & Touche LLP which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent Private Placement Warrants will be, duly and its consolidated subsidiaries as at December 31validly issued, 2011fully paid and non-assessable, and the results of operations Shares issuable upon exercise of the Parent Private Placement Warrants have been reserved for issuance. Upon registration in the Company’s register of members, the Transferee will have good title to the Founder Shares, the Private Placement Warrants and its consolidated subsidiaries for the fiscal year Shares issuable upon exercise of such Private Placement Warrants (collectively, the “Securities”), free and clear of all liens, claims and encumbrances of any kind, other than (i) transfer restrictions hereunder and under the other agreements contemplated hereby, (ii) transfer restrictions under federal and state securities laws, and (iii) liens, claims or encumbrances imposed due to the actions of the Parent then endedTransferee.
2.5 Neither the Transferor nor, which financial statements present fairly in all material respects in accordance with GAAP to its actual knowledge, any of its affiliates, members, officers, directors or beneficial shareholders of 20% or more of its outstanding securities, has experienced a disqualifying event as enumerated pursuant to Rule 506(d) of Regulation D under the financial position Securities Act.
2.6 Neither the Transferor nor any of its affiliates has, prior to the date hereof, made any offer or sale of any securities of the Parent Company which are required to be "integrated" pursuant to the Securities Act, or the rules and its consolidated subsidiaries as at such date, and the results of operations regulations of the Parent U.S. Securities and its consolidated subsidiaries for Exchange Commission thereunder, with the fiscal year then ended; andTransfer.
Appears in 1 contract
Samples: Share and Warrant Transfer Agreement (New Emerging Markets Horizon)
Representations and Warranties of the Transferor. The Transferor hereby represents and warrants to the Servicer, the Indenture Trustee, the Owner Trustee, the Grantor Trustee, the Noteholders and the Depositor that as follows:of the Closing Date or the Subsequent Transfer Date, as the case may be (except as otherwise specifically provided herein):
(a) It The Transferor is a corporation, corporation licensed as a mortgage lender duly incorporatedorganized, validly existing and in good standing under the laws of the State of Delaware Oklahoma and is duly qualified has and had at all relevant times, full corporate power to do businessoriginate or purchase the Home Loans, and is in good standingto own its property, in every jurisdiction in which the nature of to carry on its business requires it as presently conducted and to be so qualified enter into and the failure to do so could reasonably be expected to have a Material Adverse Effect.perform its obligations under this Agreement;
(b) The execution, execution and delivery and performance of this Agreement by the Transferor and its performance of and compliance with the terms of this Agreement and all other Transferor Documents to be entered into by it, including will not violate the Transferor’s sale or contribution 's articles of Receivables, and, in the case of a Purchase, its use of the proceeds of Purchases, are within the Transferor’s corporate powers, have been duly authorized by all necessary corporate action, do not contravene (i) its charter incorporation or by-lawslaws or constitute a default (or an event which, (iiwith notice or lapse of time, or both, would constitute a default) any Applicable Law except where such contravention could not reasonably be expected to under, or result in a Material Adverse Effectthe breach or acceleration of, (iii) any material contractual restriction binding on contract, agreement or affecting it other instrument to which the Transferor is a party or its property other than such restrictions that could not reasonably which may be expected to adversely affect the Transferor’s ability to perform its material obligations hereunder or, with respect applicable to the transfer of the Receivables and Collections thereon, in any Immaterial Respect, Transferor or (iv) any material order, writ, judgment, award, injunction or decree binding on or affecting it or its property, and do not result in or require the creation of any Lien upon or with respect to any of its properties (other than in favor of the Company with respect to the Transferred Property), and no transaction contemplated hereby requires compliance with any bulk sales act or similar law. This Agreement and each other Transferor Document to be entered into by the Transferor have been duly executed and delivered by it.assets;
(c) No authorization or approval or other action byThe Transferor has the full power and authority to enter into and consummate all transactions contemplated by this Agreement to be consummated by it, and no notice to or filing with, any governmental authority or regulatory body is required for its due has duly authorized the execution, delivery and performance of this Agreement or any other Transferor Document to be entered into by itand has duly executed and delivered this Agreement. This Agreement, except (i) for the filing of UCC financing statementsassuming due authorization, all of which financing statements have been duly filed and, to its knowledge, are in full force execution and effect, (ii) such as have been made or obtained and are in full force and effect and (iii) where the failure to make or obtain could not reasonably be expected to adversely affect the Company’s ability to perform its material obligations hereunder or the ability to assign or collect the Receivables hereunder.
(d) This Agreement and each other Transferor Document to be entered into delivery by the Transferor constitute its legalOwner Trustee, valid the Indenture Trustee, the Grantor Trustee and the Depositor, constitutes a valid, legal and binding obligation of the Transferor, enforceable against the Transferor it in accordance with their respective the terms subject to bankruptcy and hereof, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting the rights of creditors generally generally, and by general equity principles of equity (regardless of whether such enforcement is sought considered in a proceeding in equity or at law).;
(d) The Transferor is not in violation of, and the execution and delivery of this Agreement by the Transferor 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 court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction, which violation would materially and adversely affect the condition (financial or otherwise) or operations of the Transferor or its properties or materially and adversely affect the performance of its duties hereunder;
(e) There are no actions or proceedings against, or investigations of, the Transferor currently pending with regard to which the Transferor has received service of process and no action or proceeding against, or investigation of, the Transferor is, to the knowledge of the Transferor, threatened or otherwise pending, before any court, administrative agency or other tribunal that (A) if determined adversely, would prohibit its entering into this Agreement or render the Notes invalid, (B) seek to prevent the issuance of the Notes or the consummation of any of the transactions contemplated by this Agreement or (C) if determined adversely, would prohibit or materially and adversely affect the sale of the Home Loans to the Depositor, the performance by the Transferor of its obligations under, or the validity or enforceability of, this Agreement or the Notes;
(f) No consent, approval, authorization or order of any court or governmental agency or body is required for: (1) the execution, delivery and performance by the Transferor of, or compliance by the Transferor with, this Agreement or the Grantor Trust Agreement, (2) the issuance of the Notes, (3) the sale of the Home Loans under the Home Loan Purchase Agreement or (4) the consummation of the transactions required of it by this Agreement, except such as shall have been obtained before the Closing Date;
(g) The Transferor acquired title to the Home Loans in good faith, without notice of any adverse claim;
(h) The collection practices used by the Transferor with respect to the Home Loans have been, in all material respects, legal, proper, prudent and customary in the non-conforming mortgage servicing business;
(i) No Officer's Certificate, statement, report or other document prepared by the Transferor and furnished or to be furnished by it 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 herein or therein not misleading;
(j) The Transferor is solvent, is able to pay its debts as they become due and has furnished capital sufficient to carry on its business and its obligations hereunder; it will not be rendered insolvent by the execution and delivery of this Agreement or by the performance of its obligations hereunder; no petition of bankruptcy (or similar insolvency proceeding) has been filed by or against the Transferor prior to the Company date hereof;
(k) The Prospectus Supplement (other than (i) the statements set forth in the paragraph immediately preceding the final paragraph of the cover of the Prospectus Supplement and the Administrative Agent copies first sentence of the Parent’s audited consolidated balance sheet as at December 31, 2011, and the related audited consolidated statements of income and cash flow for the fiscal year final paragraph of the Parent then ended reported on by Deloitte & Touche LLP which financial statements present fairly in all material respects in accordance with GAAP the financial position cover of the Parent Prospectus Supplement and its consolidated subsidiaries (ii) the statements under the following captions: "SUMMARY -- Securities Issued", "-- Priority of Payments", "--Maturity Date", "-- Credit Enhancement", "-- Tax Status", "-- ERISA", "-- Legal Investment", "DESCRIPTION OF THE OFFERED SECURITIES", "DESCRIPTION OF CREDIT ENHANCEMENT", "FEDERAL INCOME TAX CONSEQUENCES", "ERISA CONSIDERATIONS", "LEGAL INVESTMENT MATTERS" and "UNDERWRITING", as at December 31to which the Transferor makes no statement) does not contain an untrue statement of a material fact and does not omit to state a material fact necessary to make the statements therein, 2011, and the results of operations in light of the Parent and its consolidated subsidiaries for the fiscal year of the Parent then endedcircumstances under which they were made, which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at such date, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year then ended; andnot misleading;
Appears in 1 contract
Samples: Sale and Servicing Agreement (Empire Funding Home Loan Owner Trust 1997-5)
Representations and Warranties of the Transferor. The Transferor hereby represents and warrants to the Trust as followsof the Amendment Closing Date:
(a) It The Transferor is a corporation, limited liability company duly incorporated, formed and validly existing and in good standing under the laws of the State of Delaware Delaware. The Transferor has full power and authority, in all material respects, to own its properties as currently owned, to conduct its business as currently conducted, and to execute, deliver, and perform its obligations under this Agreement.
(b) In all material respects, in each jurisdiction in which the conduct of its business requires, the Transferor is duly qualified to do business, and is in good standing, in every jurisdiction in which the nature of its business requires it to be so qualified and the failure to do so could reasonably be expected to have a Material Adverse Effecthas all necessary licenses and approvals.
(bc) The executionTransferor has duly authorized, by all necessary limited liability company action, its execution and delivery and performance by the Transferor of this Agreement and all its consummation of the transactions contemplated by this Agreement.
(d) The Transferor’s execution and delivery of this Agreement, its performance of the transactions contemplated by this Agreement, and its fulfillment of the terms of this Agreement do not conflict with, breach any material term of, or cause a material default under (with or without notice or lapse of time or both) any indenture, contract, agreement, mortgage, deed of trust, or other instrument to which the Transferor Documents is a party or by which the Transferor or any of its properties are bound.
(e) The Transferor’s execution and delivery of this Agreement, its performance of the transactions contemplated by this Agreement, and its fulfillment of the terms of this Agreement do not conflict with or violate any Requirement of Law applicable to be entered into by itthe Transferor.
(f) No proceeding or investigation against the Transferor is pending or, including to the best of the Transferor’s sale knowledge, threatened before any Governmental Authority that (A) asserts that this Agreement is invalid, (B) seeks to prevent the consummation of any transaction contemplated by this Agreement, (C) seeks any determination or contribution of Receivables, andruling that, in the case of a Purchase, its use of the proceeds of Purchases, are within the Transferor’s corporate powersreasonable judgment, have been duly authorized by all necessary corporate action, do not contravene (i) its charter or by-laws, (ii) any Applicable Law except where such contravention could not reasonably be expected to result in a Material Adverse Effect, (iii) any material contractual restriction binding on or affecting it or its property other than such restrictions that could not reasonably be expected to would materially and adversely affect the Transferor’s ability performance under this Agreement, or (D) seeks any determination or ruling that would materially and adversely affect the validity or enforceability of this Agreement.
(g) As of the Amendment Date, no selection procedures adverse to perform the Investor Certificateholders have been employed by the Transferor in selecting the related Accounts.
(h) The Transferor has obtained all approvals, authorizations, licenses, consents, and orders required of any Person in connection with the Transferor’s execution and delivery of this Agreement, its material obligations hereunder orperformance of the transactions contemplated by this Agreement, and its fulfillment of the terms of this Agreement. The representations and warranties set forth in this Section 2.03 shall survive the transfer and assignment of the Receivables to the Trustee. The Transferor hereby represents and warrants to the Trustee, with respect to any Series of Certificates, as of its Closing Date, unless otherwise stated in such Supplement, that the transfer representations and warranties of the Receivables Transferor set forth in Section 2.03 are true and Collections thereoncorrect as of such date. Upon discovery by the Transferor, in any Immaterial Respect, the Servicer or (iv) any material order, writ, judgment, award, injunction or decree binding on or affecting it or its property, and do not result in or require the creation Trustee of a breach of any Lien upon or with respect to any of its properties (other than in favor of the Company with respect foregoing representations and warranties, the party discovering such breach shall give prompt written notice to the Transferred Property), and no transaction contemplated hereby requires compliance with any bulk sales act or similar law. This Agreement and each other Transferor Document to be entered into by the Transferor have been duly executed and delivered by itothers.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for its due execution, delivery and performance of this Agreement or any other Transferor Document to be entered into by it, except (i) for the filing of UCC financing statements, all of which financing statements have been duly filed and, to its knowledge, are in full force and effect, (ii) such as have been made or obtained and are in full force and effect and (iii) where the failure to make or obtain could not reasonably be expected to adversely affect the Company’s ability to perform its material obligations hereunder or the ability to assign or collect the Receivables hereunder.
(d) This Agreement and each other Transferor Document to be entered into by the Transferor constitute its legal, valid and binding obligation enforceable against the Transferor in accordance with their respective terms subject to bankruptcy and similar laws affecting creditors generally and general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
(e) (i) The Transferor has furnished to the Company and the Administrative Agent copies of the Parent’s audited consolidated balance sheet as at December 31, 2011, and the related audited consolidated statements of income and cash flow for the fiscal year of the Parent then ended reported on by Deloitte & Touche LLP which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at December 31, 2011, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year of the Parent then ended, which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at such date, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year then ended; and
Appears in 1 contract
Samples: Pooling and Servicing Agreement (BA Master Credit Card Trust II)
Representations and Warranties of the Transferor. The Transferor represents and warrants to Corporation that as followsof the date hereof and as of the Closing Date the following information is true and correct:
(a) It A. Transferor is a corporation, cooperative association duly incorporatedorganized, validly existing and in good standing under the laws of the State state of Delaware and is duly qualified to do business, and is in good standing, in every jurisdiction in which the nature of its business requires it to be so qualified and the failure to do so could reasonably be expected to have a Material Adverse Effect.
(b) Iowa. The execution, delivery and performance by the Transferor of this Agreement and all other Transferor Documents to be entered into by it, including the Transferor’s sale or contribution of Receivables, and, in the case of a Purchase, its use of the proceeds of Purchases, are within the Transferor’s corporate powers, have been duly authorized by all necessary corporate action, do not contravene (i) its charter or by-laws, (ii) any Applicable Law except where such contravention could not reasonably be expected to result in a Material Adverse Effect, (iii) any material contractual restriction binding on or affecting it or its property other than such restrictions that could not reasonably be expected to adversely affect the Transferor’s ability to perform its material obligations hereunder or, with respect to the transfer of the Receivables and Collections thereon, in any Immaterial Respect, or (iv) any material order, writ, judgment, award, injunction or decree binding on or affecting it or its property, and do not result in or require the creation of any Lien upon or with respect to any of its properties (other than in favor of the Company with respect to the Transferred Property), and no transaction contemplated hereby requires compliance with any bulk sales act or similar law. This Agreement and each other Transferor Document to be entered into by the Transferor have been duly executed and delivered by it.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for its due execution, delivery and performance of this Agreement by Transferor has been duly authorized by all necessary action on the part of Transferor, its governing body and members, and will not result in any violation or breach of any other law, rule, regulation, contract, agreement, instrument, order, decree or judgment to which the Transferor Document to be entered into is a party or by it, except (i) which it is bound. Except for the filing of UCC financing statementstitle transfer documents as may be required and except for such consents, all approvals, and authorizations as already set out on Schedules 2.3 and 2.14(b) to the Stock Purchase Agreement dated the 1st day of which financing statements have been duly filed andAugust, to its knowledge2006, are between Corporation, Transferor, REG, LLC (f/k/a Renewable Energy Group, LLC), InterWest, L.C. and others (the “Stock Purchase Agreement”), no consent, approval or authorization of or declaration or filing with any person or entity (including any governmental authority) is required on the part of the Transferor for or in full force connection with the execution, delivery and effect, (ii) such as have been made or obtained and are in full force and effect and (iii) where the failure to make or obtain could not reasonably be expected to adversely affect the Company’s ability to perform its material obligations hereunder or the ability to assign or collect the Receivables hereunder.
(d) performance of this Agreement. This Agreement and each other Transferor Document to be entered into by the Transferor constitute its legal, constitutes a valid and binding obligation of Transferor enforceable against the Transferor in accordance with their respective terms subject to bankruptcy and similar laws affecting creditors generally and general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law)its terms.
(e) (i) The Transferor has furnished to B. All tangible property included within the Company Fixed Assets and the Administrative Agent copies of the Parent’s audited consolidated balance sheet as at December 31, 2011, and the related audited consolidated statements of income and cash flow for the fiscal year of the Parent then ended reported on by Deloitte & Touche LLP which financial statements present fairly Equipment is in all material respects in accordance good working order and condition at the execution of this Agreement subject, however, to the effect of ordinary wear and tear and depreciation arising from lapse of time or use with GAAP appropriate maintenance, and will be maintained in such condition through Closing.
C. The Accounts Receivable included within the financial position Assets are valid, genuine, and subsisting, arose out of bona fide sales and deliveries of goods or the performance of services, and to the knowledge of Transferor are not subject to any defenses, set offs, or counterclaims.
D. The Inventory included within the Assets consists of items of quality, condition and quantity saleable in the ordinary course of the Parent and its consolidated subsidiaries as at December 31, 2011, and the results business of operations of the Parent and its consolidated subsidiaries for the fiscal year of the Parent then ended, which financial statements present fairly Transferor.
E. Transferor has in all material respects in accordance with GAAP the financial position performed all obligations required to be performed by Transferor to date under each of the Parent Contract Rights referred to herein and its consolidated subsidiaries is not in default thereunder, or in breach thereof, nor in receipt of any claim of default or breach thereunder, nor, to Transferor’s knowledge, has any event occurred which, with the passage of time or the giving of notice, or both, would cause a breach of, or a default under, any such agreement.
F. Intellectual Property included within the Assets constitutes all intellectual property being used in Transferor’s Biodiesel Business as at such datecurrently conducted. No claims of third parties for infringement with respect to Intellectual Property being transferred are currently pending or, to the knowledge of Transferor, are threatened. Except as set out on Schedule 1(A)(vi), Transferor does not have knowledge of any valid grounds for any bona fide claims (a) to the effect that the manufacture, sale, licensing or use of any products as now used, sold or licensed or proposed for use, sale or license by Transferor infringes on any copyright, patent, trademark, trade name, service xxxx or trade secret; (b) against the use by Transferor of any Intellectual Property; (c) challenging the ownership, validity or effectiveness of any of the Intellectual Property; or (d) challenging the license or legally enforceable right to use the Intellectual Property. To the knowledge of Transferor, there is no unauthorized use infringement or misappropriation of any of the Intellectual Property by any third party, including any employee or former employee of Transferor.
G. Except as expressly provided in this Agreement, the Assets are being assigned, transferred and conveyed to Corporation in “as is, where is” condition and Transferor makes no express or implied representation or warranty as to the condition, operability, or merchantability or any other aspect of the Assets. Transferor hereby disclaims any and all other express or implied representations or warranties regarding the Assets, including, but not limited to, any implied warranty of merchantability or fitness for a particular purpose, and the results of operations no such representation or warranty has been or will become a basis of the Parent bargain between the parties, nor has been or will be relied upon by Corporation.
H. Other than with respect to Intellectual Property and its consolidated subsidiaries except as set out on Schedule 6(H) (“Exceptions to Title”), Transferor owns good and marketable title to the Assets to be conveyed hereunder free and clear of any and all liens, security interests, restrictions and encumbrances. With respect to title to the Intellectual Property, Transferor at Closing will transfer all of Transferor’s rights in the Intellectual Property, free of any mortgage or security interest granted by Transferor.
I. The Assets, together with the assets, properties and rights provided or to be provided to the Corporation pursuant to the Ground Lease, Asset Use Agreement and the Contract for Services (as such terms are defined in the fiscal year then ended; andStock Purchase Agreement) constitute all of the assets, properties and rights which are required for or currently used in connection with the conduct of the Biodiesel Business of Transferor conducted as of the date hereof.
Appears in 1 contract
Samples: Contribution Agreement (Renewable Energy Group, Inc.)
Representations and Warranties of the Transferor. The Transferor hereby represents and warrants as followsto the Owner Trustee that:
(a) It The Transferor is a corporation, duly incorporated, formed and validly existing and as a limited liability company in good standing under the laws of the State of Delaware Delaware, with power and is duly qualified authority to do business, own its properties and is in good standing, in every jurisdiction in which the nature of to conduct its business requires it to be so qualified as such properties are currently owned and the failure to do so could reasonably be expected to have a Material Adverse Effectsuch business is presently conducted.
(b) The execution, delivery and performance by the Transferor of this Agreement and all other Transferor Documents to be entered into by it, including the Transferor’s sale or contribution of Receivables, and, in the case of is not a Purchase, its use of the proceeds of Purchases, are within the Transferor’s corporate powers, have been duly authorized by all necessary corporate action, do not contravene (i) its charter or by-laws, (ii) any Applicable Law except where such contravention could not reasonably be expected to result in a Material Adverse Effect, (iii) any material contractual restriction binding on or affecting it or its property other than such restrictions that could not reasonably be expected to adversely affect the Transferor’s ability to perform its material obligations hereunder or, with respect to the transfer of the Receivables and Collections thereon, in any Immaterial Respect, or (iv) any material order, writ, judgment, award, injunction or decree binding on or affecting it or its property, and do not result in or require the creation of any Lien upon or with respect to any of its properties (other than in favor of the Company with respect to the Transferred Property), and no transaction contemplated hereby requires compliance with any bulk sales act or similar law. This Agreement and each other Transferor Document to be entered into by the Transferor have been duly executed and delivered by itBenefit Plan.
(c) No authorization The Transferor is duly qualified to do business as a foreign limited liability company in good standing 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 shall require such qualifications except when the failure to have any such license, approval or other action byqualification would not have a material adverse effect on the condition, financial or otherwise, of the Transferor or would not have a material adverse effect on the ability of the Transferor to perform its obligations under this Agreement.
(d) The Transferor has the power and no notice authority to or filing with, any governmental authority or regulatory body is required for execute and deliver this Agreement and to carry out its due terms and to transfer and assign the property to be transferred and assigned to and deposited with the Issuer; and the execution, delivery and performance of this Agreement or any other Transferor Document to be entered into by itand such transfer, except (i) for the filing of UCC financing statements, all of which financing statements assignment and deposit have been duly filed and, to its knowledge, are in full force and effect, (ii) such as have been made or obtained and are in full force and effect and (iii) where authorized by the failure to make or obtain could not reasonably be expected to adversely affect the Company’s ability to perform its material obligations hereunder or the ability to assign or collect the Receivables hereunderTransferor by all necessary limited liability company action.
(de) This Agreement and each other Transferor Document to be entered into by the Transferor constitute its constitutes a legal, valid and binding obligation of the Transferor, enforceable against the Transferor in accordance with their respective terms its terms, except as such enforceability may be subject to bankruptcy and or limited by bankruptcy, liquidation, insolvency, reorganization, moratorium, liquidation, fraudulent conveyance or other similar laws affecting creditors generally the enforcement of creditors’ rights in general and by general principles of equity (equity, regardless of whether enforcement is sought such enforceability shall be considered in a proceeding in equity or at law).
(ef) The consummation of the transactions contemplated by this Agreement and the fulfillment of the terms hereof 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 formation or limited liability company agreement of the Transferor, or any indenture, agreement or other instrument to which the Transferor is a party or by which it is bound; nor result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement or other instrument (other than pursuant to the 2015-A Basic Documents); nor violate any law or, to the best of the Transferor’s knowledge, any order, rule or regulation applicable to the Transferor of any Governmental Authority having jurisdiction over the Transferor or its properties.
(g) To the knowledge of the Transferor, there are no proceedings or investigations pending or threatened before any Governmental Authority having jurisdiction over the Transferor or its properties (i) The Transferor has furnished asserting the invalidity of this Agreement, (ii) seeking to prevent the Company and the Administrative Agent copies consummation of any of the Parent’s audited consolidated balance sheet as at December 31transactions contemplated by this Agreement or (iii) seeking any determination or ruling that might materially and adversely affect the performance by the Transferor of its obligations under, 2011or the validity or enforceability of, and the related audited consolidated statements of income and cash flow for the fiscal year of the Parent then ended reported on by Deloitte & Touche LLP which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at December 31, 2011, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year of the Parent then ended, which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at such date, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year then ended; andthis Agreement.
Appears in 1 contract
Samples: Trust Agreement (Mercedes-Benz Auto Lease Trust 2015-A)
Representations and Warranties of the Transferor. The Transferor hereby represents and warrants to the Agent and the Purchasers that as followsof the date hereof and the Closing Date and each Borrowing Date:
(a) It is a corporation, duly incorporated, corporation validly existing and in good standing under the laws of the State of Delaware Delaware, with full power and is duly qualified authority under such laws to do business, own its properties and is in good standing, in every jurisdiction in which the nature of conduct its business requires it as such properties are currently owned and such business is currently conducted and to be so qualified execute, deliver and perform its obligations under this Agreement and the failure other Related Documents to do so could reasonably be expected to have which it is a Material Adverse Effectparty.
(b) The executionIt has the power, delivery authority and performance by the Transferor of right to make, execute, deliver and perform this Agreement and all the other Transferor Related Documents to be entered into by it, including which it is a party and all the Transferor’s sale or contribution of Receivables, and, in the case of a Purchase, its use of the proceeds of Purchases, are within the Transferor’s corporate powers, have been duly authorized by transactions contemplated hereby and thereby and has taken all necessary corporate action, do not contravene (i) its charter or by-laws, (ii) any Applicable Law except where such contravention could not reasonably be expected action to result in a Material Adverse Effect, (iii) any material contractual restriction binding on or affecting it or its property other than such restrictions that could not reasonably be expected to adversely affect authorize the Transferor’s ability to perform its material obligations hereunder or, with respect to the transfer of the Receivables and Collections thereon, in any Immaterial Respect, or (iv) any material order, writ, judgment, award, injunction or decree binding on or affecting it or its property, and do not result in or require the creation of any Lien upon or with respect to any of its properties (other than in favor of the Company with respect to the Transferred Property), and no transaction contemplated hereby requires compliance with any bulk sales act or similar law. This Agreement and each other Transferor Document to be entered into by the Transferor have been duly executed and delivered by it.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for its due execution, delivery and performance of this Agreement or any and the other Transferor Document Related Documents to be entered into by itwhich it is a party. When executed and delivered, except (i) for the filing each of UCC financing statements, all of which financing statements have been duly filed and, to its knowledge, are in full force and effect, (ii) such as have been made or obtained and are in full force and effect and (iii) where the failure to make or obtain could not reasonably be expected to adversely affect the Company’s ability to perform its material obligations hereunder or the ability to assign or collect the Receivables hereunder.
(d) This this Agreement and each the other Transferor Document Related Documents to be entered into by the Transferor which it is a party will constitute its legal, valid and binding obligation obligations, enforceable against the Transferor it in accordance with their respective terms subject its terms, subject, as to bankruptcy such enforceability, to applicable bankruptcy, reorganization, insolvency, moratorium and similar other laws relating to or affecting creditors creditors' rights generally and from time to time in effect. The enforceability of its obligations under such agreements may also be limited by general principles of equity (equity, regardless of whether enforcement such enforceability is sought considered in a proceeding in equity or at law, and no representation or warranty is made with respect to the enforceability of its obligations under any indemnification provisions in such agreements to the extent that indemnification is sought in connection with securities laws violations.
(c) No consent, license, approval or authorization of, or registration with, any Governmental Authority is required to be obtained by it in connection with the execution, delivery or performance of each of this Agreement and the other Related Documents to which it is a party that has not been duly obtained and that is not and will not be in full force and effect on the Closing Date, except such that may be required by the blue sky laws of any state and except for any UCC filings necessary to perfect the Liens granted pursuant to the Indenture or mortgage recordings required following an Assignment Event.
(d) The execution, delivery and performance of each of this Agreement and the other Related Documents to which it is a party do not violate any provision of any existing law or regulation applicable to it, any order or decree of any court to which it is subject, its charter or By-laws, or any mortgage, indenture, contract or other agreement to which it is a party or by which it or any significant portion of its properties is bound (other than violations of such laws, regulations, orders, decrees, mortgages, indentures, contracts and other agreements that, individually or in the aggregate, would not have a material adverse effect on its ability to perform its obligations under this Agreement or the other Related Documents to which it is a party).
(e) Except as disclosed in writing to the Agent prior to the Closing Date, there is no litigation or administrative proceeding before any court, tribunal or governmental body pending or, to its knowledge, threatened against it, with respect to this Agreement, the other Related Documents to which it is a party, the transactions contemplated hereby or thereby or the issuance of the Notes, and there is no such litigation or proceeding against it or any significant portion of its properties that it expects to have a material adverse effect on the transactions contemplated by, or its ability to perform its obligations under, this Agreement or the other Related Documents to which it is a party.
(f) No report, statement, exhibit or other written information required to be furnished by it or any of its Affiliates to the Agent or any Purchaser pursuant to this Agreement or the other Related Documents is or shall be inaccurate in any material respect, or contains or shall contain any material misstatement of fact, or omits or shall omit to state a material fact necessary to make the statements contained therein, in light of the circumstances under which such statements were made, not misleading, in each case, as of the date it is or shall be dated or (except as otherwise disclosed to the Agent at such time) as of the date so furnished.
(g) Each of the Related Documents to which it is a party is in full force and effect and no Default or Event of Default with respect to it has occurred and is continuing.
(h) The Transferor repeats and reaffirms to the Agent and the Owners each of the representations and warranties made by it in Section 2.1 of the Sale and Servicing Agreement and each other document delivered in connection therewith or herewith, and represents that such representations and warranties are true and correct in all material respects.
(i) The Transferor has furnished Any taxes, fees and other charges of Governmental Authorities applicable to it, except for franchise or income taxes, in connection with the execution, delivery and performance by it of this Agreement and the other Related Documents to which it is a party or otherwise applicable to it in connection with the transactions contemplated hereby or thereby have been paid or will be paid at or prior to the Company and Closing Date to the Administrative Agent copies extent then due.
(j) As of the Parent’s audited consolidated balance sheet as at December 31Closing Date, 2011, and the related audited consolidated statements of income and cash flow for the fiscal year chief executive office of the Parent then ended reported on by Deloitte & Touche LLP which financial statements present fairly Transferor is at the address indicated in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at December 31, 2011, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year of the Parent then ended, which financial statements present fairly in all material respects in accordance with GAAP the financial position of the Parent and its consolidated subsidiaries as at such date, and the results of operations of the Parent and its consolidated subsidiaries for the fiscal year then ended; andSection 9.2 hereof.
Appears in 1 contract
Samples: Class a Note Purchase Agreement (Oakwood Homes Corp)
