Representations of Holdings. Holdings hereby represents and warrants to the Trustee and the Noteholders as of the Closing Date: (a) Holdings is a duly organized, validly existing and in good standing under the laws of the State of Delaware and has all licenses necessary to carry on its business as now being conducted and is licensed and qualified in each state where the laws of such state require licensing or qualification in order to conduct business of the type conducted by Holdings and perform its obligations hereunder; Holdings has all requisite power and authority to execute and deliver this Agreement and each other Basic Document to which it is a party and to perform in accordance herewith and therewith; the execution, delivery and performance of this Agreement and each other Basic Document to which it is a party (including all instruments of transfer to be delivered pursuant to this Agreement) by Holdings and the consummation of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary corporate action; this Agreement and each other Basic Document to which it is a party evidence the valid, binding and enforceable obligations of Holdings; and all requisite corporate action has been taken by Holdings to make this Agreement and each other Basic Document to which it is a party valid, binding and enforceable upon Holdings in accordance with its respective terms, 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, none of which will affect the ownership of the Business Loans by the Trust; (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 Holdings makes no such representation or warranty), that are necessary or advisable in connection with the purchase and sale of the Notes and the execution and delivery by Holdings of the documents to which it is a party, have been (c) Holdings has good and marketable title to each Business Loan listed on Exhibit H-2 free and clear of any lien (other than liens to be released upon consummation of the transactions contemplated hereby) and Holdings has the authority to sell the Business Loans listed on Exhibit H-2 to the Trust as contemplated in this Agreement; (d) Neither this Agreement or any other Basic Document to which Holdings is a party nor any statement, report or other document furnished or to be furnished pursuant to this Agreement or any other Basic Document to which Holdings is a party or in connection with the transactions contemplated hereby and thereby 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 in light of the circumstances under which they were made; (e) Holdings 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 or any other Basic Document to which Holdings is a party; (f) The statements contained in the Private Placement Memorandum which describe Holdings or the Business Loans or matters or activities for which Holdings is responsible in accordance with the Private Placement Memorandum, this Agreement or any other Basic Document to which Holdings is a party and all documents referred to therein or herein or delivered in connection therewith or herewith, or which are attributable to Holdings therein or herein are true and correct in all material respects, and the Private Placement Memorandum does not contain any untrue statement of a material fact with respect to Holdings or the Business Loans and does not omit to state a material fact necessary to make the statements contained therein with respect to Holdings or the Business Loans not misleading in light of the circumstances under which they were made. Holdings is not aware that the Private Placement Memorandum contains any untrue statement of a material fact or omits to state any material fact necessary to make the statements contained therein not misleading in light of the circumstances under which they were made. There is no fact peculiar to Holdings or the Business Loans and known to Holdings that materially adversely affects or in the future may (so far as Holdings can now reasonably foresee) materially adversely affect Holdings or the Business Loans that has not been set forth in the Private Placement Memorandum; (g) Holdings received fair consideration and reasonably equivalent value in (h) All requisite action has been taken by Holdings to make this Agreement valid, binding and enforceable upon Holdings in accordance with its terms, 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, none of which will affect the ownership of the Business Loans by the Trust; (i) The consummation of the transactions contemplated by this Agreement will not result in the breach of any terms or provisions of the Certificate of Incorporation of By-Laws of Holdings 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 which Holdings or its property is subject, or result in the violation of any law, rule, regulation, order, judgment or decree to which Holdings or its property is subject; (j) There is no action, order, suit, proceeding or investigation pending or, to the best of Holding's knowledge, threatened against Holdings which, either in any one instance or in the aggregate, may (i) result in any material adverse change in the business, operations, financial condition, properties or assets of Holdings or in any material impairment of the right or ability of Holdings to carry on its business substantially as now conducted, or in any material liability on the part of Holdings or of any action taken or to be taken in connection with the obligations of Holdings contemplated herein, or which would be likely to impair materially the ability of Holdings to perform under the terms of this Agreement or (ii) which would draw into question the validity of this Agreement or the Business Loans; (k) Holdings 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 Holdings or its properties or might have consequences that would materially and adversely affect its performance hereunder; (l) Holdings is solvent, and Holdings will not be rendered insolvent as a result of the transfer of the Business Loans to the Trust; (m) The chief executive office and legal name of Holdings is as set forth on the respective UCC-1 financing statement filed on behalf of Holdings pursuant to Section 2.04(i), such office is the place where Holdings is "located" for the purposes of Section 9-103(3)(d) of the Uniform Commercial Code as in effect in the State of New York, and neither the location of such office nor the legal name of Holdings has changed in the past four months; (n) Holdings has filed all required tax returns on a timely basis; (o) The pension or profit sharing plans of Holdings and all consolidated subsidiaries have been fully funded in accordance with Holdings's obligations; (p) The legal name of Holdings has not been changed in the last six years and Holdings does not have tradenames, fictitious names, assumed names or "doing business as" names except First National Bank of Connecticut, First National Bank of New England and First International Bank, N.A. and First International Capital; (q) Holdings will treat the sale of the Business Loans as a sale for federal income tax reporting and accounting purposes; and (r) Holdings conducts its affairs such that the Trust would not be substantively consolidated in the trust estate of Holdings and their respective separate existences disregarded in bankruptcy.
Appears in 1 contract
Samples: Sale and Servicing Agreement (First International Bancorp Inc)
Representations of Holdings. Holdings hereby represents and warrants to the Trustee and the Noteholders as of the Closing Dateeach Stockholder that:
(a) Holdings is a duly organizedthe record and beneficial owner (for purposes of this Agreement, validly existing and such term shall have the meaning set forth in good standing Rule 13d-3 under the laws Exchange Act and the rules and regulations promulgated thereunder, but without regard to any conditions (including the passage of time) to the acquisition of such shares) of, and has good and valid and marketable title to, its Current Shares listed on the signature pages hereto.
(b) As of the State date hereof, Holdings is not the record or beneficial owner of Delaware any shares of Common Stock or other voting securities of the Company, other than its Current Shares and the shares set forth on Schedule 2, and, except as set forth on its signature page or Schedule 2, Holdings holds no options to purchase or rights to subscribe for or otherwise acquire any securities of the Company, including without limitation any options, warrants, convertible securities or other securities, calls, commitments, conversion privileges, preemptive rights, rights of first refusal, rights of first offer or other rights or agreements outstanding to purchase or otherwise acquire (whether directly or indirectly) any shares of Common Stock or any securities convertible into or exchangeable for any shares of Common Stock or obligating the Company to grant, issue, extend or enter into any such option, warrant, convertible security or other security, call, commitment, conversion privilege, preemptive right, right of first refusal, right of first offer or other right or agreement, and has all licenses necessary no other interest in or voting rights with respect to carry on its business as now being conducted and is licensed and qualified in each state where the laws of any such state require licensing or qualification in order to conduct business securities of the type conducted by Holdings and perform its obligations hereunder; Company.
(c) Holdings has all requisite corporate power and authority or legal capacity, as the case may be, to execute and deliver this Agreement and each other Basic Document to which it is a party and to perform in accordance herewith and therewith; consummate the transactions contemplated hereby.
(d) The execution, delivery and performance of this Agreement and each other Basic Document to which it is a party (including all instruments of transfer to be delivered pursuant to this Agreement) by Holdings and the consummation of the transactions contemplated hereby and thereby have been duly and validly authorized by all requisite limited liability company action and no other limited liability company proceedings on the part of Holdings are necessary corporate action; to authorize this Agreement and each other Basic Document to which it is a party evidence the valid, binding and enforceable obligations of Holdings; and all requisite corporate action has been taken by Holdings to make this Agreement and each other Basic Document to which it is a party valid, binding and enforceable upon Holdings in accordance with its respective terms, 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, none of which will affect the ownership of the Business Loans by the Trust;
(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 Holdings makes no such representation or warranty), that are necessary or advisable in connection with the purchase and sale of the Notes and the execution and delivery by Holdings of the documents to which it is a party, have been
(c) Holdings has good and marketable title to each Business Loan listed on Exhibit H-2 free and clear of any lien (other than liens to be released upon consummation of the transactions contemplated hereby) . This Agreement has been duly and Holdings has the authority to sell the Business Loans listed on Exhibit H-2 to the Trust as contemplated in this Agreement;
(d) Neither this Agreement or any other Basic Document to which Holdings validly executed and delivered and is a party nor any statementvalid and binding agreement thereof, report or other document furnished or to be furnished pursuant to this Agreement or any other Basic Document to which Holdings is a party or in connection with the transactions contemplated hereby and thereby 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 in light of the circumstances under which they were made;
(e) Holdings 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 or any other Basic Document to which Holdings is a party;
(f) The statements contained in the Private Placement Memorandum which describe Holdings or the Business Loans or matters or activities for which Holdings is responsible in accordance with the Private Placement Memorandum, this Agreement or any other Basic Document to which Holdings is a party and all documents referred to therein or herein or delivered in connection therewith or herewith, or which are attributable to Holdings therein or herein are true and correct in all material respects, and the Private Placement Memorandum does not contain any untrue statement of a material fact with respect to Holdings or the Business Loans and does not omit to state a material fact necessary to make the statements contained therein with respect to Holdings or the Business Loans not misleading in light of the circumstances under which they were made. Holdings is not aware that the Private Placement Memorandum contains any untrue statement of a material fact or omits to state any material fact necessary to make the statements contained therein not misleading in light of the circumstances under which they were made. There is no fact peculiar to Holdings or the Business Loans and known to Holdings that materially adversely affects or in the future may (so far as Holdings can now reasonably foresee) materially adversely affect Holdings or the Business Loans that has not been set forth in the Private Placement Memorandum;
(g) Holdings received fair consideration and reasonably equivalent value in
(h) All requisite action has been taken by Holdings to make this Agreement valid, binding and enforceable upon against Holdings in accordance with its terms, subject to the effect of bankruptcy, insolvency, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors' ’ rights generally or the application and to general equity principles (regardless of equitable principles whether such enforcement is considered in any proceeding, whether a proceeding at law or in equity).
(e) Other than as set forth in or permitted under this Agreement, none Holdings’ Voting Shares are now owned by Holdings free and clear of which all pledges, liens, proxies, claims, charges, security interests, preemptive rights, voting trusts, voting agreements, options, rights of first offer or refusal and any other encumbrances or arrangements whatsoever with respect to the ownership, transfer or voting of such Voting Shares in any such case that would, individually or in the aggregate, reasonably be expected to materially impair Holdings’ ability to perform its obligations under this Agreement, and there are no outstanding options, warrants or rights to purchase or acquire, or agreements or arrangements relating to the voting of, any of such Voting Shares other than this Agreement.
(f) The execution and delivery of this Agreement by Holdings and the performance by Holdings of its obligations hereunder will affect the ownership not (including with or without due notice or lapse of the Business Loans by the Trust;time or both):
(i) The require any consent, approval, order, authorization or permit of, or registration or filing with or notification to, any governmental entity or authority or other party, except for the filing with the SEC of any Schedules 13D or amendments to Schedules 13D and filings under Section 16 of the Exchange Act, as may be required in connection with this Agreement and the transactions contemplated hereby;
(ii) result in any violation or the breach of, or constitute a default under, or give rise to any right of termination, cancellation or acceleration or any payments under, or result in a loss of a benefit or in the creation or imposition of a lien under, any of the terms, conditions or provisions of any note, lease, mortgage, indenture, license, agreement or other instrument or obligation to which it or he is a party or by which it or he or any of its assets are bound that would, individually or in the aggregate, reasonably be expected to materially impair the its ability to perform its obligations under this Agreement or prevent or delay the consummation of any of the transactions contemplated by this Agreement will not result in Agreement; or
(iii) violate the breach provisions of any terms or provisions of the Certificate of Incorporation of By-Laws of Holdings 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 which Holdings or its property is subject, or result in the violation of any law, rule, regulation, order, judgment writ, injunction, judgment, decree, statute, rule or decree regulation applicable to which Holdings it or its property is subject;
(j) There is no actionhim in such a manner as would, order, suit, proceeding or investigation pending or, to the best of Holding's knowledge, threatened against Holdings which, either in any one instance individually or in the aggregate, may (i) result in any material adverse change in the business, operations, financial condition, properties or assets of Holdings or in any material impairment of the right or reasonably be expected to materially impair its ability of Holdings to carry on its business substantially as now conducted, or in any material liability on the part of Holdings or of any action taken or to be taken in connection with the obligations of Holdings contemplated herein, or which would be likely to impair materially the ability of Holdings to perform its obligations under the terms of this Agreement or prevent or delay the consummation of any of the transactions contemplated by this Agreement.
(iiiv) which would draw into question Holdings understands and acknowledges that the validity Stockholders are entering this Agreement in reliance upon its execution, delivery and performance of this Agreement or the Business Loans;
(k) Holdings 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 Holdings or its properties or might have consequences that would materially and adversely affect its performance hereunder;
(l) Holdings is solvent, and Holdings will not be rendered insolvent as a result of the transfer of the Business Loans to the Trust;
(m) The chief executive office and legal name of Holdings is as set forth on the respective UCC-1 financing statement filed on behalf of Holdings pursuant to Section 2.04(i), such office is the place where Holdings is "located" for the purposes of Section 9-103(3)(d) of the Uniform Commercial Code as in effect in the State of New York, and neither the location of such office nor the legal name of Holdings has changed in the past four months;
(n) Holdings has filed all required tax returns on a timely basis;
(o) The pension or profit sharing plans of Holdings and all consolidated subsidiaries have been fully funded in accordance with Holdings's obligations;
(p) The legal name of Holdings has not been changed in the last six years and Holdings does not have tradenames, fictitious names, assumed names or "doing business as" names except First National Bank of Connecticut, First National Bank of New England and First International Bank, N.A. and First International Capital;
(q) Holdings will treat the sale of the Business Loans as a sale for federal income tax reporting and accounting purposes; and
(r) Holdings conducts its affairs such that the Trust would not be substantively consolidated in the trust estate of Holdings and their respective separate existences disregarded in bankruptcyAgreement.
Appears in 1 contract
Representations of Holdings. Holdings hereby represents and warrants to the Trustee and the Noteholders as of the Closing Date:
(a) Holdings is a duly organized, validly existing and in good standing under the laws of the State of Delaware and has all licenses necessary to carry on its business as now being conducted and is licensed and qualified in each state where the laws of such state require licensing or qualification in order to conduct business of the type conducted by Holdings and perform its obligations hereunder; Holdings has all requisite power and authority to execute and deliver this Agreement and each other Basic Document to which it is a party and to perform in accordance herewith and therewith; the execution, delivery and performance of this Agreement and each other Basic Document to which it is a party (including all instruments of transfer to be delivered pursuant to this Agreement) by Holdings and the consummation of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary corporate action; this Agreement and each other Basic Document to which it is a party evidence the valid, binding and enforceable obligations of Holdings; and all requisite corporate action has been taken by Holdings to make this Agreement and each other Basic Document to which it is a party valid, binding and enforceable upon Holdings in accordance with its respective terms, 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, none of which will affect the ownership of the Business Loans by the Trust;
(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 Holdings makes no such representation or warranty), that are necessary or advisable in connection with the purchase and sale of the Notes and the execution and delivery by Holdings of the documents to which it is a party, have been
(c) Holdings has good and marketable title to each Business Loan listed on Exhibit H-2 free and clear of any lien (other than liens to be released upon consummation of the transactions contemplated hereby) and Holdings has the authority to sell the Business Loans listed on Exhibit H-2 to the Trust as contemplated in this Agreement;
(d) Neither this Agreement or any other Basic Document to which Holdings is a party nor any statement, report or other document furnished or to be furnished pursuant to this Agreement or any other Basic Document to which Holdings is a party or in connection with the transactions contemplated hereby and thereby 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 in light of the circumstances under which they were made;
(e) Holdings 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 or any other Basic Document to which Holdings is a party;
(f) The statements contained in the Private Placement Memorandum which describe Holdings or the Business Loans or matters or activities for which Holdings is responsible in accordance with the Private Placement Memorandum, this Agreement or any other Basic Document to which Holdings is a party and all documents referred to therein or herein or delivered in connection therewith or herewith, or which are attributable to Holdings therein or herein are true and correct in all material respects, and the Private Placement Memorandum does not contain any untrue statement of a material fact with respect to Holdings or the Business Loans and does not omit to state a material fact necessary to make the statements contained therein with respect to Holdings or the Business Loans not misleading in light of the circumstances under which they were made. Holdings is not aware that the Private Placement Memorandum contains any untrue statement of a material fact or omits to state any material fact necessary to make the statements contained therein not misleading in light of the circumstances under which they were made. There is no fact peculiar to Holdings or the Business Loans and known to Holdings that materially adversely affects or in the future may (so far as Holdings can now reasonably foresee) materially adversely affect Holdings or the Business Loans that has not been set forth in the Private Placement Memorandum;
(g) Holdings received fair consideration and reasonably equivalent value in
(h) All requisite action has been taken by Holdings to make this Agreement valid, binding and enforceable upon Holdings in accordance with its terms, 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, none of which will affect the ownership of the Business Loans by the Trust;
(i) The consummation of the transactions contemplated by this Agreement will not result in the breach of any terms or provisions of the Certificate of Incorporation of By-Laws of Holdings 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 which Holdings or its property is subject, or result in the violation of any law, rule, regulation, order, judgment or decree to which Holdings or its property is subject;
(j) There is no action, order, suit, proceeding or investigation pending or, to the best of Holding's knowledge, threatened against Holdings which, either in any one instance or in the aggregate, may (i) result in any material adverse change in the business, operations, financial condition, properties or assets of Holdings or in any material impairment of the right or ability of Holdings to carry on its business substantially as now conducted, or in any material liability on the part of Holdings or of any action taken or to be taken in connection with the obligations of Holdings contemplated herein, or which would be likely to impair materially the ability of Holdings to perform under the terms of this Agreement or (ii) which would draw into question the validity of this Agreement or the Business Loans;
(k) Holdings 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 Holdings or its properties or might have consequences that would materially and adversely affect its performance hereunder;
(l) Holdings is solvent, and Holdings will not be rendered insolvent as a result of the transfer of the Business Loans to the Trust;
(m) The chief executive office and legal name of Holdings is as set forth on the respective UCC-1 financing statement filed on behalf of Holdings pursuant to Section 2.04(i), such office is the place where Holdings is "located" for the purposes of Section 9-103(3)(d) of the Uniform Commercial Code as in effect in the State of New York, and neither the location of such office nor the legal name of Holdings has changed in the past four months;
(n) Holdings has filed all required tax returns on a timely basis;
(o) The pension or profit sharing plans of Holdings and all consolidated subsidiaries have been fully funded in accordance with Holdings's obligations;
(p) The legal name of Holdings has not been changed in the last six years and Holdings does not have tradenames, fictitious names, assumed names or "doing business as" names except First National Bank of Connecticut, First National Bank of New England and First International Bank, N.A. and First International Capital;
(q) Holdings will treat the sale of the Business Loans as a sale for federal income tax reporting and accounting purposes; and
(r) Holdings conducts its affairs such that the Trust would not be substantively consolidated in the trust estate of Holdings and their respective separate existences disregarded in bankruptcy.
Appears in 1 contract
Samples: Sale and Servicing Agreement (First International Bancorp Inc)
Representations of Holdings. Holdings hereby represents Holdings, for itself, and warrants its successors and assigns, and on behalf of the Company as the Company’s sole member prior to the Trustee Effective Date, hereby warrants and represents to HomeFed as to Holdings and the Noteholders as of the Closing DateApplicable Companies:
(a) Holdings has taken all necessary action to authorize the execution, delivery and performance of this Agreement and has the full power and authority to 3357235 23293.00002 2 execute and deliver this Agreement and the documents and instruments to be executed and delivered by Holdings at the Closing and to consummate the transactions contemplated hereby, and no further consent or approval by any other person or entity is required for the issuance of the Membership Interests contemplated by this Agreement. The person signing this Agreement on behalf of Holdings is authorized to do so. Assuming that this Agreement has been duly authorized, executed and delivered by HomeFed, this Agreement and all obligations of Holdings hereunder are the legal, valid and binding obligations of Holdings, enforceable in accordance with the terms of this Agreement, except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law);
(b) The Membership Interests have been duly authorized and, when issued and paid for in accordance with this Agreement and the A&R Company Operating Agreement, will be validly issued, fully paid and nonassessable and will be free and clear from any security interest or other lien or encumbrance, other than any liens created by the Property Owner I Loan and the Property Owner II Loan;
(c) Holdings has furnished HomeFed with true, complete and correct copies of the Loan Documents, which Loan Documents have not been modified (except as set forth in Exhibits C and F annexed hereto), and which Loan Documents are in force and effect;
(d) Holdings has neither furnished nor received any notice of default under the Loan Documents, other than any such notice which pertains to a default which has since been cured;
(e) As of the date hereof, the outstanding principal balance of the Property Owner I Loan is $135,005,000, and the outstanding principal balance of the Property Owner II Loan is $7,250,000;
(f) Neither Holdings nor any of the Applicable Companies is a foreign corporation, foreign partnership, foreign trust or foreign estate (as those terms are defined in the Internal Revenue Code of 1986, as amended (the “Code”) and Income Tax Regulations);
(g) Each of Holdings and the Applicable Companies is a limited liability company, duly organized, validly existing and in good standing under the laws of the State state of Delaware their respective formations, and has all licenses necessary the Property Owners are authorized to carry on its do business as now being conducted and is licensed and qualified in each state where under the laws of such state require licensing or qualification in order to conduct business the State of the type conducted by Holdings New York; 3357235 23293.00002 3
(h) The execution and perform its obligations hereunder; Holdings has all requisite power and authority to execute and deliver delivery of this Agreement and each other Basic Document the performance by Holdings of its obligations hereunder will not conflict with any provision of any law or regulation to which any of Holdings or any of the Applicable Companies is subject or any agreement or instrument to which Holdings or any of the Applicable Companies is a party or by which any of them is bound, or any order or decree applicable to Holdings or any of the Applicable Companies, which would materially and adversely affect the ability of Holdings to carry out the terms of this Agreement, or otherwise result in the creation or imposition of any lien on any of Holdings’, the Company’s or either of the Property Owner’s assets or properties. Holdings has obtained any consent, approval, authorization or order of any lender, or court or governmental agency or body required for the execution, delivery or performance by Holdings of this Agreement;
(i) Neither Holdings nor any of the Applicable Companies is in default (beyond the applicable notice and cure periods) in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any agreement or instrument to which it is a party and to perform in accordance herewith and therewith; the execution, delivery and performance of this Agreement and each other Basic Document to or by which it or any of its properties is a party bound that is reasonably likely to materially adversely affect its business operations, properties, assets or financial condition;
(including all instruments j) Each of transfer to be delivered pursuant to this Agreement) by Holdings and the consummation Applicable Companies has been and is in compliance with all applicable anti-money laundering and anti-terrorist laws, regulations, rules, executive orders and government guidance, including the reporting, record keeping and compliance requirements of the transactions contemplated hereby Bank Secrecy Act, as amended by The International Money Laundering Abatement and thereby Financial Anti-Terrorism Act of 2001, Title III of the USA PATRIOT Act, and other authorizing statutes, executive orders and regulations administered by U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”);
(k) No attachments, execution, or other writs of process have been duly and validly authorized by all necessary corporate action; this Agreement and each other Basic Document to which it is a party evidence issued against the validCompany Membership Interests;
(l) Neither Holdings nor any of the Applicable Companies has filed any petition in bankruptcy, binding and enforceable obligations nor has any petition in bankruptcy been filed against any of Holdings; and all requisite corporate action them;
(m) Neither Holdings nor any of the Applicable Companies has been taken adjudicated bankrupt;
(n) There is no litigation pending (i.e., legal actions, arbitrations or governmental proceedings or investigations known to Holdings) or threatened in writing against Holdings or any of the Applicable Companies, except as disclosed on Exhibit H annexed hereto; 3357235
(o) No statement of fact made by Holdings to make HomeFed in this Agreement and each other Basic Document to which it is a party valid, binding and enforceable upon Holdings in accordance with its respective terms, 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, none of which will affect the ownership of the Business Loans by the Trust;
(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 Holdings makes no such representation or warranty), that are necessary or advisable in connection with the purchase and sale of the Notes and the execution and delivery by Holdings of the documents to which it is a party, have been
(c) Holdings has good and marketable title to each Business Loan listed on Exhibit H-2 free and clear of any lien (other than liens to be released upon consummation of the transactions contemplated hereby) and Holdings has the authority to sell the Business Loans listed on Exhibit H-2 to the Trust as contemplated in this Agreement;
(d) Neither this Agreement or any other Basic Document to which Holdings is a party nor any statement, report or other document furnished or to be furnished pursuant to this Agreement or any other Basic Document to which Holdings is a party or in connection with the transactions contemplated hereby and thereby 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 in light of the circumstances under which they were made;
(e) Holdings 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 or any other Basic Document to which Holdings is a party;
(f) The statements contained in the Private Placement Memorandum which describe Holdings or the Business Loans or matters or activities for which Holdings is responsible in accordance with the Private Placement Memorandum, this Agreement or any other Basic Document to which Holdings is a party and all documents referred to therein or herein or delivered in connection therewith or herewith, or which are attributable to Holdings therein or herein are true and correct in all material respects, and the Private Placement Memorandum does not contain any untrue statement of a material fact with respect to Holdings or the Business Loans and does not omit to state a material fact necessary to make the statements contained therein with respect to Holdings or the Business Loans not misleading in light of the circumstances under which they were made. Holdings is not aware that the Private Placement Memorandum contains any untrue statement of a material fact or omits to state any material fact necessary to make the statements contained therein not misleading in light of the circumstances under which they were madeherein misleading. There is no material fact peculiar to Holdings or the Business Loans and currently known to Holdings that materially adversely affects or in the future may (so far as Holdings can now reasonably foresee) materially adversely affect Holdings or the Business Loans that which has not been set forth in the Private Placement Memorandum;
(g) Holdings received fair consideration and reasonably equivalent value in
(h) All requisite action has been taken by Holdings disclosed to make this Agreement validHomeFed which adversely affects, binding and enforceable upon Holdings in accordance with its terms, subject nor 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, none of which will affect the ownership of the Business Loans by the Trust;
(i) The consummation of the transactions contemplated by this Agreement will not result in the breach of any terms or provisions of the Certificate of Incorporation of By-Laws of Holdings 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 which Holdings or its property is subject, or result in the violation of any law, rule, regulation, order, judgment or decree to which Holdings or its property is subject;
(j) There is no action, order, suit, proceeding or investigation pending or, to the best of Holding's Holdings’ knowledge, threatened against Holdings whichmight adversely affect, either in any one instance or in the aggregate, may (i) result in any material adverse change in Real Property and the business, operations, financial condition, properties or assets of Holdings or in any material impairment of the right or ability of Holdings to carry on its business substantially as now conducted, or in any material liability on the part of Holdings or of any action taken or to be taken in connection with the obligations of Holdings contemplated herein, or which would be likely to impair materially the ability of Holdings to perform under the terms of this Agreement or (ii) which would draw into question the validity of this Agreement or the Business Loans;
(k) Holdings 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 Holdings or its properties or might have consequences that would materially and adversely affect its performance hereunder;
(l) Holdings is solvent, and Holdings will not be rendered insolvent as a result of the transfer of the Business Loans to the Trust;
(m) The chief executive office and legal name of Holdings is as set forth on the respective UCC-1 financing statement filed on behalf of Holdings pursuant to Section 2.04(i), such office is the place where Holdings is "located" for the purposes of Section 9-103(3)(d) of the Uniform Commercial Code as in effect in the State of New York, and neither the location of such office nor the legal name of Holdings has changed in the past four months;
(n) Holdings has filed all required tax returns on a timely basis;
(o) The pension or profit sharing plans of Holdings and all consolidated subsidiaries have been fully funded in accordance with Holdings's obligationsoperation thereof;
(p) The legal name financial information in respect of Holdings the Applicable Companies set forth in Exhibit I (hereinafter, the “Balance Sheet”) is true, correct, and complete as of the date hereof. The Balance Sheets have been prepared on an accrual non-GAAP basis, not on a GAAP basis. Since the date of the Balance Sheet, except as otherwise disclosed in writing to HomeFed, there has not been changed no material adverse change in the last six years and Holdings does financial condition of any of the Applicable Companies. None of the Applicable Companies has incurred any material obligation or liability, contingent or otherwise, not have tradenames, fictitious names, assumed names or "doing business as" names except First National Bank reflected in the Balance Sheet. The Balance Sheet fairly represents the current financial condition of Connecticut, First National Bank the Applicable Companies as of New England and First International Bank, N.A. and First International Capitalthe Effective Date;
(q) Each of Holdings will treat and the sale Applicable Companies has (i) filed all tax returns required to have been filed (or is within any properly-filed extension period) by such person under the Code and any state or local tax statutes or regulations and (ii) paid all taxes that are due and payable by such person as applicable;
(r) Each of the Business Loans as Property Owners is a sale for federal income tax reporting single purpose entity and accounting purposescomplies with the single purpose entity requirements set forth in its organization documents; and
(rs) Holdings conducts its affairs such that has furnished HomeFed with true, complete and correct copies of the Trust would Property Owner I Operating Agreement and the Property Owner II Operating Agreement, each of which is in full force and effect and has not be substantively consolidated in the trust estate of Holdings and their respective separate existences disregarded in bankruptcybeen modified.
Appears in 1 contract
Representations of Holdings. Holdings hereby represents and warrants to the Trustee and the Noteholders as of the Closing DateStockholders that:
(a) Holdings is a limited liability company duly organizedformed, validly existing and in good standing under the laws of the State its jurisdiction of Delaware incorporation and has all licenses corporate powers necessary to carry on its business as now being conducted and is licensed and qualified in each state where the laws of such state require licensing or qualification in order to conduct business of the type conducted by Holdings and perform its obligations hereunder; Holdings has all requisite power and authority to execute and deliver this the Agreement and each other Basic Document to which it is consummate the transactions contemplated hereby.
(b) No limited liability company proceedings on the part of Holdings are necessary, as a party and to perform in accordance herewith and therewith; the executionmatter of law or otherwise, delivery and performance of this Agreement and each other Basic Document to which it is a party (including all instruments of transfer to be delivered pursuant to this Agreement) by Holdings and for the consummation of the transactions contemplated hereby and thereby have hereby. The Agreement has been duly and validly authorized executed and delivered by all necessary corporate action; this Holdings and, assuming the due authorization, execution and delivery of the Agreement and each other Basic Document to which it by the Stockholders, is a party evidence the valid, valid and binding and agreement of Holdings enforceable obligations of Holdings; and all requisite corporate action has been taken by Holdings to make this Agreement and each other Basic Document to which against it is a party valid, binding and enforceable upon Holdings in accordance with its respective terms, subject except to the effect of extent that the enforcement thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium and moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to or affecting creditors' creditor's rights generally or the application generally, (ii) general principles of equitable principles equity (regardless of whether such enforcement is considered in any proceeding, whether a proceeding at law or in equity, none ) and (iii) the remedy of which will affect specific performance and injunctive and other forms of equitable relief may be subject to the ownership discretion of the Business Loans by the Trust;court before which any enforcement proceeding therefor may be brought.
(bc) All actionsThe execution, approvals, consents, waivers, exemptions, variances, franchises, orders, permits, authorizations, rights delivery 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 Holdings makes no such representation or warranty), that are necessary or advisable in connection with the purchase and sale of the Notes and the execution and delivery performance by Holdings of the documents to which it is a party, have been
(c) Agreement and the consummation by Holdings has good and marketable title to each Business Loan listed on Exhibit H-2 free and clear of any lien (other than liens to be released upon consummation of the transactions contemplated herebyhereby do not and will not (a) and Holdings has the authority to sell the Business Loans listed on Exhibit H-2 to the Trust as contemplated in this Agreement;
(d) Neither this Agreement contravene or any other Basic Document to which Holdings is a party nor any statement, report or other document furnished or to be furnished pursuant to this Agreement or any other Basic Document to which Holdings is a party or in connection conflict with the transactions contemplated hereby and thereby contains any untrue statement certificate of material fact formation or omits to state a material fact necessary to make the statements contained herein or therein not misleading in light operating agreement of the circumstances under which they were made;
Holdings, (eb) Holdings does not believecontravene, nor does it have any reason or cause to believe, that it cannot perform each and every covenant contained in this Agreement or any other Basic Document to which Holdings is a party;
(f) The statements contained in the Private Placement Memorandum which describe Holdings or the Business Loans or matters or activities for which Holdings is responsible in accordance with the Private Placement Memorandum, this Agreement or any other Basic Document to which Holdings is a party and all documents referred to therein or herein or delivered in connection therewith or herewith, or which are attributable to Holdings therein or herein are true and correct in all material respects, and the Private Placement Memorandum does not contain any untrue statement of a material fact with respect to Holdings or the Business Loans and does not omit to state a material fact necessary to make the statements contained therein with respect to Holdings or the Business Loans not misleading in light of the circumstances under which they were made. Holdings is not aware that the Private Placement Memorandum contains any untrue statement of a material fact or omits to state any material fact necessary to make the statements contained therein not misleading in light of the circumstances under which they were made. There is no fact peculiar to Holdings or the Business Loans and known to Holdings that materially adversely affects or in the future may (so far as Holdings can now reasonably foresee) materially adversely affect Holdings or the Business Loans that has not been set forth in the Private Placement Memorandum;
(g) Holdings received fair consideration and reasonably equivalent value in
(h) All requisite action has been taken by Holdings to make this Agreement valid, binding and enforceable upon Holdings in accordance with its terms, 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, none of which will affect the ownership of the Business Loans by the Trust;
(i) The consummation of the transactions contemplated by this Agreement will not result in the breach of any terms or provisions of the Certificate of Incorporation of By-Laws of Holdings or result in the breach of any term or provision of, or conflict with or constitute a violation of any provision of law, regulation, judgment, order or decree binding upon Holdings, or (c) constitute a default under or result in the give rise to any right of termination, cancellation or acceleration of any right or obligation under, of Holdings or to a loss of any material agreement, indenture or loan or credit agreement or other material instrument benefit to which Holdings is entitled under any agreement, contract or its property is subject, or result other instrument binding upon Holdings which in the violation of any law, rule, regulation, order, judgment or decree to which Holdings or its property is subject;
aggregate would have a Material Adverse Effect (j) There is no action, order, suit, proceeding or investigation pending or, to the best of Holding's knowledge, threatened against Holdings which, either in any one instance or as defined in the aggregate, may (iMerger Agreement) result in any material adverse change in the business, operations, financial condition, properties or assets of Holdings or in any material impairment of the right or ability of Holdings to carry on its business substantially as now conducted, or in any material liability on the part of Holdings or of any action taken or to be taken in connection with the obligations of Holdings contemplated herein, or which would be likely to impair materially the ability of Holdings to perform under the terms of this Agreement or (ii) which would draw into question the validity of this Agreement or the Business Loans;
(k) Holdings 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 Holdings or its properties or might have consequences that would materially and adversely affect its performance hereunder;
(l) Holdings is solvent, and Holdings will not be rendered insolvent as a result of the transfer of the Business Loans to the Trust;
(m) The chief executive office and legal name of Holdings is as set forth on the respective UCC-1 financing statement filed on behalf of Holdings pursuant to Section 2.04(i), such office is the place where Holdings is "located" for the purposes of Section 9-103(3)(d) of the Uniform Commercial Code as in effect in the State of New York, and neither the location of such office nor the legal name of Holdings has changed in the past four months;
(n) Holdings has filed all required tax returns on a timely basis;
(o) The pension or profit sharing plans of Holdings and all consolidated subsidiaries have been fully funded in accordance with Holdings's obligations;
(p) The legal name of Holdings has not been changed in the last six years and Holdings does not have tradenames, fictitious names, assumed names or "doing business as" names except First National Bank of Connecticut, First National Bank of New England and First International Bank, N.A. and First International Capital;
(q) Holdings will treat the sale of the Business Loans as a sale for federal income tax reporting and accounting purposes; and
(r) Holdings conducts its affairs such that the Trust would not be substantively consolidated in the trust estate of Holdings and their respective separate existences disregarded in bankruptcy.
Appears in 1 contract
