Representations of the Seller. In connection with the transactions contemplated hereby, the Seller represents and warrants to the Company that: (a) Seller is duly organized and existing under the laws of its state of organization. (b) All consents, approvals, authorizations and orders necessary for the execution and delivery by Seller of this Agreement and for the sale and delivery of the Repurchase Shares to be sold by Seller hereunder, have been obtained; and Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver the Repurchase Shares to be sold by Seller hereunder, except for such consents, approvals, authorizations and orders as would not impair in any material respect the consummation of the Seller’s obligations hereunder. (c) This Agreement has been duly authorized, executed and delivered by Seller and constitutes a valid and binding agreement of Seller, enforceable in accordance with its terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other laws affecting enforcement of creditors’ rights or by general equitable principles. (d) The sale of the Repurchase Shares to be sold by Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein (i) will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which Seller is a party or by which Seller is bound or to which any of the property or assets of Seller is subject, (ii) nor will such action violate any of the provisions of (x) any organizational or similar documents pursuant to which Seller was formed or (y) any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over Seller or the property of such Seller; except in the case of clause (i) or clause (ii)(y), for such conflicts, breaches, violations or defaults as would not impair in any material respect the consummation of Seller’s obligations hereunder. (e) As of the date hereof and immediately prior to the delivery of the Repurchase Shares to the Company at each Closing, such Seller owns the Repurchase Shares or a security entitlement in respect thereof, and holds, or will hold, such Repurchase Shares free and clear of all liens, encumbrances, equities or claims; and, upon delivery of such Repurchase Shares (including by delivery of security certificates duly indorsed or crediting to a securities account of the Company) and payment therefor pursuant hereto, assuming that the Company has no notice of any adverse claims within the meaning of Section 8-105 of the New York Uniform Commercial Code as in effect in the State of New York from time to time (the “UCC”), the Company will acquire its interest in the Repurchase Shares purchased by the Company that are physically delivered to the Company free of adverse claims (within the meaning of Section 8-105 of the UCC) or, in the case of crediting to a securities account of the Company, will acquire a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Repurchase Shares purchased by the Company, and no action (whether framed in conversion, replevin, constructive trust, equitable lien or other theory) based on an adverse claim (within the meaning of Section 8-105 of the UCC) to such security entitlement may be asserted against the Company. (f) Seller (either alone or together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the Repurchase. Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the Repurchase and the Repurchase Shares and has had full access to such other information concerning the Repurchase Shares and the Company as it has requested. Seller has received all information that it believes is necessary or appropriate in connection with the Repurchase. Seller is an informed and sophisticated party and has engaged, to the extent such Seller deems appropriate, expert advisors experienced in the evaluation of transactions of the type contemplated hereby. Seller acknowledges that Seller has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of Seller in this Agreement. (g) As of the date hereof, the Seller is not aware of any material, nonpublic information about the Company or its securities and it is entering into this Agreement in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b5-1 of the Exchange Act.
Appears in 8 contracts
Samples: Stock Repurchase Agreement (Acushnet Holdings Corp.), Stock Repurchase Agreement (Acushnet Holdings Corp.), Stock Repurchase Agreement (Acushnet Holdings Corp.)
Representations of the Seller. In connection with the transactions contemplated hereby, the The Seller represents and warrants to the Company thatat the time of execution of this Agreement and at each closing as follows:
(a) Seller is duly organized and existing under the laws of its state of organization.
(b) All consents, approvals, authorizations and orders necessary for the execution and delivery by Seller of this Agreement and for the sale and delivery of the Repurchase Shares to be sold by Seller hereunder, have been obtained; and The Seller has full right, all necessary power and authority to enter into this Agreement and to sell, assign, transfer perform its obligations hereunder. This Agreement constitutes the valid and deliver the Repurchase Shares to be sold by Seller hereunder, except for such consents, approvals, authorizations and orders as would not impair in any material respect the consummation binding obligation of the Seller’s obligations hereunder.
(c) This Agreement has been duly authorized, executed and delivered by Seller and constitutes a valid and binding agreement of Seller, enforceable against the Seller in accordance with its terms, except subject to: (i) laws of general application relating to the extent that enforcement thereof may be limited by bankruptcy, insolvencyinsolvency and the relief of debtors; and (ii) rules of law governing specific performance, reorganization or injunctive relief and other laws affecting enforcement of creditors’ rights or by general equitable principlesremedies.
(db) The sale of Seller owns all right, title and interest in and to, and have the right to transfer to the Company, in connection with the Repurchase Shares to be sold by Seller hereunder and the compliance by such Seller with Option provided for herein, all of the provisions Shares being repurchased by the Company pursuant to the terms of this Agreement and the consummation of the transactions contemplated herein (i) will not conflict with or result in a breach or violation of any of the terms or provisions ofAgreement, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which Seller is a party or by which Seller is bound or to which any of the property or assets of Seller is subject, (ii) nor will such action violate any of the provisions of (x) any organizational or similar documents pursuant to which Seller was formed or (y) any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over Seller or the property of such Seller; except in the case of clause (i) or clause (ii)(y), for such conflicts, breaches, violations or defaults as would not impair in any material respect the consummation of Seller’s obligations hereunder.
(e) As of the date hereof and immediately prior to the delivery of the Repurchase Shares to the Company at each Closing, such Seller owns the Repurchase Shares or a security entitlement in respect thereof, and holds, or will hold, such Repurchase Shares free and clear of all liens, security interests, charges and o t her encumbrances, equities or claims; and, upon delivery of such Repurchase Shares (including by delivery of security certificates duly indorsed or crediting to a securities account of the Company) and payment therefor pursuant hereto, assuming that the Company has no notice of any adverse claims within the meaning of Section 8-105 of the New York Uniform Commercial Code as in effect in the State of New York from time to time (the “UCC”), the Company will acquire its interest in the Repurchase Shares purchased by the Company that are physically delivered to the Company free of adverse claims (within the meaning of Section 8-105 of the UCC) or, in the case of crediting to a securities account of the Company, will acquire a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Repurchase Shares purchased by the Company, and no action (whether framed in conversion, replevin, constructive trust, equitable lien or other theory) based on an adverse claim (within the meaning of Section 8-105 of the UCC) to such security entitlement may be asserted against the Company.
(fc) The Seller (either alone or together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the Repurchase. The Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the Repurchase and the Repurchase Shares Option and has had full access to such other information concerning the Repurchase Shares Option and the Company as it has requested. The Seller has received all information that it believes is necessary or appropriate in connection with the RepurchaseRepurchase Option. The Seller is an informed and sophisticated party and has engaged, to the extent such the Seller deems appropriate, expert advisors experienced in the evaluation of transactions of the type contemplated hereby. The Seller acknowledges that the Seller has not nor relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of the Seller in this Agreement.
(ge) As The Seller represents that it is an "accredited investor" as such term is defined in Rule 501 of Regulation D promulgated under the Securities Act of 1933, as amended.
(d) The Seller acknowledges and understands that the Company on or around the date of this Agreement or otherwise during the term of the date hereofRepurchase Option, may sell shares of Common Stock, or other securities of the Company, to third parties at per share, or effective per-share, purchase prices that may be significantly higher or lower than the per share purchase price being paid hereunder by the Company for the Shares. Notwithstanding any such sales, the Seller is not aware of any material, nonpublic information about agrees to accept the Company or its securities Purchase Price as full and it is entering into this Agreement in good faith and not as part of a plan or scheme fair payment for the Shares to evade the prohibitions of Rule 10b5-1 of the Exchange Actbe purchased hereunder.
Appears in 7 contracts
Samples: Repurchase Option Agreement (U.S. Rare Earths, Inc), Repurchase Option Agreement (U.S. Rare Earths, Inc), Repurchase Option Agreement (U.S. Rare Earths, Inc)
Representations of the Seller. In connection with the transactions contemplated hereby, the Seller represents and warrants to the Company as of the date hereof and as of the Closing (except to the extent any such representation and warranty expressly relates to an earlier date (in which case it shall be true and correct in all material respects as of such earlier date)) that:
(a) The Seller is a limited liability company duly organized organized, validly existing and existing in good standing under the laws of its state the State of organizationDelaware.
(b) All consents, approvals, authorizations and orders necessary for the execution and delivery by the Seller of this Agreement Agreement, and for the sale and delivery of the Repurchase Shares to be sold by the Seller hereunder, have been obtained; and the Seller has full right, power and authority to enter into this Agreement Agreement, and to sell, assign, transfer and deliver the Repurchase Shares to be sold by the Seller hereunder, except for such consents, approvals, authorizations and orders as would not impair in any material respect the consummation of the Seller’s obligations hereunder.
(c) This Agreement has been duly authorized, executed and delivered by the Seller and constitutes a valid and binding agreement of the Seller, enforceable in accordance with its terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other laws affecting enforcement of creditors’ rights or by general equitable principles.
(d) The sale of the Repurchase Shares to be sold by Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein (i) will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which Seller is a party or by which Seller is bound or to which any of the property or assets of Seller is subject, (ii) nor will such action violate any of the provisions of (x) any organizational or similar documents pursuant to which Seller was formed or (y) any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over Seller or the property of such Seller; except in the case of clause (i) or clause (ii)(y), for such conflicts, breaches, violations or defaults as would not impair in any material respect the consummation of Seller’s obligations hereunder.
(e) As of the date hereof and immediately prior to the delivery of Closing, the Seller has valid title to the Repurchase Shares to the Company at each ClosingShares, such Seller owns the Repurchase Shares or a security entitlement in respect thereof, and holds, or will hold, such Repurchase Shares free and clear of all liens, encumbrances, equities or adverse claims; , and, upon delivery transfer of such the Repurchase Shares (including by delivery of security certificates duly indorsed or crediting to a securities account of the Company) and payment therefor pursuant hereto, assuming that the Company has no notice of any adverse claims within the meaning of Section 8-105 of the New York Uniform Commercial Code as in effect in the State of New York from time to time (the “UCC”), the Company will acquire its interest in the Repurchase Shares purchased by the Company that are physically delivered to the Company free of adverse claims (within the meaning of Section 8-105 of the UCC) or, in the case of crediting to a securities account of the Company, will acquire a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) good and valid title to such Repurchase Shares purchased by the CompanyShares, free and no action (whether framed in conversionclear of all liens, replevinencumbrances, constructive trustequities or adverse claims, equitable lien or other theory) based on an adverse claim (within the meaning of Section 8-105 of the UCC) will pass to such security entitlement may be asserted against the Company.
(fe) The Seller (either alone or together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the Repurchase. The Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the Repurchase and the Repurchase Shares and has had full access to such other information concerning the Repurchase Shares and the Company as it has requested. The Seller has received all information that it believes is necessary or appropriate in connection with the Repurchase. The Seller is an informed and sophisticated party and has engaged, to the extent such the Seller deems appropriate, expert advisors experienced in the evaluation of transactions of the type contemplated hereby. The Seller acknowledges that neither the Company nor any person on behalf of the Company has made, and the Seller has not relied upon upon, any express or implied representations representations, warranties or warranties statements of any nature made nature, whether or not in writing or orally, including as to the accuracy and completeness of any information provided by or on behalf of the Company, whether Company to the Seller or not any such representations, warranties or statements were made in writing or orallyits representatives, except as expressly set forth for the benefit of the Seller in this Agreement.
(gf) As The Seller is, and has been at all times for at least three years prior to the date of this Agreement, and shall continue to be through Closing, an “interested stockholder” (as such term is defined in Section 203 of the date hereof, the Seller is not aware of any material, nonpublic information about the Company or its securities and it is entering into this Agreement in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b5-1 Delaware General Corporation Law) of the Exchange ActCompany.
Appears in 4 contracts
Samples: Stock Repurchase Agreement (Bresky Ellen S.), Stock Repurchase Agreement (Seaboard Corp /De/), Stock Repurchase Agreement (Seaboard Corp /De/)
Representations of the Seller. In connection with the transactions contemplated hereby, the Seller represents and warrants to the Company that:
(a) The Seller is duly organized and existing under the laws of the State of Delaware. The Seller has the requisite corporate power and authority to execute, deliver and perform its state of organizationobligations under this Agreement and to consummate the transactions contemplated hereby.
(b) All consents, approvals, authorizations and orders necessary for the execution and delivery by Seller of this Agreement and for the sale and delivery of the Repurchase Shares to be sold by Seller hereunder, have been obtained; and Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver the Repurchase Shares to be sold by Seller hereunder, except for such consents, approvals, authorizations and orders as would not impair in any material respect the consummation of the Seller’s obligations hereunder.
(c) This Agreement has been duly authorized, executed and delivered by the Seller and constitutes a valid and binding agreement of the Seller, enforceable in accordance with its terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other laws affecting enforcement of creditors’ rights or by general equitable principles.
(dc) The sale of the Repurchase Shares to be sold by the Seller hereunder and the compliance by such the Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein will not (i) will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, under any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Seller is a party or by which the Seller is bound or to which any of the property or assets of the Seller is subject, (ii) nor will such action violate any provision of the provisions of (x) any organizational or similar documents pursuant to which of the Seller was formed or (yiii) violate any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Seller or the property any of such Sellerits property; except in the case of clause (i) or clause (ii)(yiii), for such conflicts, breaches, violations or defaults as would not impair in any material respect the consummation of the Seller’s obligations hereunderhereunder or reasonably be expected to have a material adverse effect on the financial position, stockholders’ equity or results of operations of the Seller and its subsidiaries, taken as a whole, in the case of each such clause, after giving effect to any consents, approvals, authorizations, orders, registrations, qualifications, waivers and amendments as have been obtained or made prior to the execution and delivery by the Seller of this Agreement; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the execution, delivery and performance by the Seller of its obligations under this Agreement, including the consummation by the Seller of the transactions contemplated by this Agreement, except where the failure to obtain or make any such consent, approval, authorization, order, registration or qualification would not impair in any material respect the consummation of the Seller’s obligations hereunder or reasonably be expected to have a material adverse effect on the financial position, stockholders’ equity or results of operations of the Seller and its subsidiaries, taken as a whole.
(ed) As of the date hereof and immediately prior to the delivery of the Repurchase Shares to the Company at each the Closing, such the Seller owns holds good and valid title to the Repurchase Shares or a security securities entitlement in respect thereof, and holds, or and will hold, such the Repurchase Shares free and clear of all liens, encumbrances, equities or claims, other than any such liens, encumbrances, equities or claims established pursuant to this Agreement or otherwise incurred by the Company or its affiliates; and, upon delivery of such the Repurchase Shares (including by delivery of security certificates duly indorsed or crediting to a securities account of the Company) and payment therefor pursuant hereto, assuming that the Company has no notice of any adverse claims within the meaning of Section 8-105 of the New York Uniform Commercial Code as in effect in the State of New York from time to time (the “UCC”), the Company will acquire its interest all of the rights of the Seller in the Repurchase Shares purchased by the Company that are physically delivered to the Company free of adverse claims (within the meaning of Section 8-105 of the UCC) or, in the case of crediting to a securities account of the Company, and will acquire a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to its interests in such Repurchase Shares purchased by the Company, and no action (whether framed in conversion, replevin, constructive trust, equitable lien or other theory) based on an free of any adverse claim (within the meaning of Section 8-105 of the UCC) to such security entitlement may be asserted against the Companyclaim.
(fe) The Seller (either alone or together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the Repurchase. Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the Repurchase and the Repurchase Shares and has had full access to such other information concerning the Repurchase Shares and the Company as it has requested. Seller has received all information that it believes is necessary or appropriate in connection with the Repurchase. Seller is an informed and sophisticated party and has engaged, to the extent such Seller deems appropriate, expert advisors experienced in the evaluation of transactions of the type contemplated hereby. The Seller acknowledges that the Seller has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of the Seller in this Agreement.
(g) As of the date hereof, the Seller is not aware of any material, nonpublic information about the Company or its securities and it is entering into this Agreement in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b5-1 of the Exchange Act.
Appears in 2 contracts
Samples: Stock Repurchase Agreement (Carlyle Financial Services, Ltd.), Stock Repurchase Agreement (Boston Private Financial Holdings Inc)
Representations of the Seller. In connection with the transactions contemplated hereby, the The Seller hereby represents and warrants to the Company thatTrustee and the Certificateholders that as of the Closing Date:
(a) The Seller is a corporation duly organized organized, validly existing, and existing in good standing under the laws of the jurisdiction of its incorporation and has all licenses necessary to carry on its business as now being conducted and is licensed, qualified and in good standing in each state where the laws of organization.
(b) All consents, approvals, authorizations and orders necessary for the execution and delivery by Seller of this Agreement and for the sale and delivery such state require licensing or qualification in order to conduct business of the Repurchase Shares to be sold type conducted by the Seller and perform its obligations hereunder, have been obtained; and the Seller has full right, corporate power and authority to enter into execute and deliver this Agreement and to sell, assign, transfer and deliver the Repurchase Shares to be sold by Seller hereunder, except for such consents, approvals, authorizations and orders as would not impair in any material respect the consummation of the Seller’s obligations hereunder.
(c) This Agreement has been duly authorized, executed and delivered by Seller and constitutes a valid and binding agreement of Seller, enforceable perform in accordance with its termsherewith and therewith; the execution, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other laws affecting enforcement of creditors’ rights or by general equitable principles.
(d) The sale of the Repurchase Shares to be sold by Seller hereunder delivery and the compliance by such Seller with all of the provisions performance of this Agreement (including all instruments of transfer to be delivered pursuant to this Agreement) by the Seller and the consummation of the transactions contemplated herein hereby and thereby have been duly and validly authorized by all necessary corporate action; this Agreement evidences the valid, binding and enforceable obligation of the Seller; and all requisite action has been taken by the Seller to make this Agreement valid, binding and enforceable upon the Seller 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 SBA Loans by the Trustee, as trustee.
(ib) All actions, approvals, consents, waivers, exemptions, variances, franchises, orders, permits, authorizations, rights and licenses required to be taken, given or obtained, as the case may be, by or from any federal, state or other governmental authority or agency (other than any such actions, approvals, etc., under any state securities laws, real estate syndication or "Blue Sky" statutes, as to which the Seller makes no such representation or warranty), that are necessary or advisable in connection with the purchase and sale of the Certificates and the execution and delivery by the Seller of the documents to which it is a party, have been duly taken, given or obtained, as the case may be, are in full force and effect on the date hereof, are not subject to any pending proceedings or appeals (administrative, judicial or otherwise) and either the time within which any appeal therefrom may be taken or review thereof may be obtained has expired or no review thereof may be obtained or appeal therefrom taken, and are adequate to authorize the consummation of the transactions contemplated by this Agreement and the other documents on the part of the Seller and the performance by the Seller of its obligations under this Agreement and such of the other documents to which it is a party;
(c) The consummation of the transactions contemplated by this Agreement will not conflict with result in the breach of any terms or provisions of the articles of incorporation or bylaws of the Seller or result in a the breach or violation of any of the terms term or provisions provision of, or conflict with or constitute a default under or result in the acceleration of any obligation under, any indenturematerial agreement, mortgage, deed of trust, indenture or loan or credit agreement or other agreement or material instrument to which the Seller is a party or by which Seller is bound or to which any of the its property or assets of Seller is subject, or result in the violation of any law, rule, regulation, order, judgment or decree to which the Seller or its property is subject;
(iid) Neither this Agreement nor will such action violate any of the provisions of (x) any organizational statement, report or similar documents other document furnished or to be furnished pursuant to which Seller was formed this Agreement or (y) in connection with the transactions contemplated hereby and thereby contains any statute untrue statement of a material fact or any order, rule omits to state a material fact necessary to make the statements contained herein or regulation of any court or governmental agency or body having jurisdiction over Seller or the property of such Seller; except in the case of clause (i) or clause (ii)(y), for such conflicts, breaches, violations or defaults as would therein not impair in any material respect the consummation of Seller’s obligations hereunder.misleading;
(e) As of the date hereof and immediately prior The Seller does not believe, nor does it have any reason or cause to the delivery of the Repurchase Shares to the Company at each Closingbelieve, such Seller owns the Repurchase Shares or a security entitlement in respect thereof, and holds, or will hold, such Repurchase Shares free and clear of all liens, encumbrances, equities or claims; and, upon delivery of such Repurchase Shares (including by delivery of security certificates duly indorsed or crediting to a securities account of the Company) and payment therefor pursuant hereto, assuming that the Company has no notice of any adverse claims within the meaning of Section 8-105 of the New York Uniform Commercial Code as in effect in the State of New York from time to time (the “UCC”), the Company will acquire its interest in the Repurchase Shares purchased by the Company that are physically delivered to the Company free of adverse claims (within the meaning of Section 8-105 of the UCC) or, in the case of crediting to a securities account of the Company, will acquire a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Repurchase Shares purchased by the Company, and no action (whether framed in conversion, replevin, constructive trust, equitable lien or other theory) based on an adverse claim (within the meaning of Section 8-105 of the UCC) to such security entitlement may be asserted against the Company.
(f) Seller (either alone or together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits cannot perform each and risks of the Repurchase. Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the Repurchase and the Repurchase Shares and has had full access to such other information concerning the Repurchase Shares and the Company as it has requested. Seller has received all information that it believes is necessary or appropriate in connection with the Repurchase. Seller is an informed and sophisticated party and has engaged, to the extent such Seller deems appropriate, expert advisors experienced in the evaluation of transactions of the type contemplated hereby. Seller acknowledges that Seller has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of Seller every covenant contained in this Agreement.
(g) As of the date hereof, the Seller is not aware of any material, nonpublic information about the Company or its securities and it is entering into this Agreement in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b5-1 of the Exchange Act.;
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (BLC Financial Services Inc), Pooling and Servicing Agreement (BLC Financial Services Inc)
Representations of the Seller. In connection with the transactions contemplated hereby, the Seller represents and warrants to the Company that:
(a) The Seller is duly organized and existing as an entity in good standing under the laws of its state the State of organizationDelaware.
(b) All consents, approvals, authorizations and orders necessary for the execution and delivery by the Seller of this Agreement and for the sale and delivery of the Repurchase Shares to be sold by Seller hereunder, have been obtained; and the Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver the Repurchase Shares to be sold by Seller hereunderShares, except for such consents, approvals, authorizations and orders as would not impair in any material respect the consummation of the Seller’s obligations hereunder.
(c) This Agreement has been duly authorized, executed and delivered by the Seller and constitutes a valid and binding agreement of the Seller, enforceable in accordance with its terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other laws affecting enforcement of creditors’ rights or by general equitable principles.
(d) The sale of the Repurchase Shares to be sold by the Seller hereunder and the compliance by such the Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein (i) will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any statute, indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Seller is a party or by which the Seller is bound or to which any of the property or assets of the Seller is subject, (ii) nor will such action violate result in any violation of the provisions of (x) any organizational or similar documents pursuant to which the Seller was formed or is governed or (y) any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Seller or the property of such the Seller; except in the case of clause (i) or clause (ii)(y), for such conflicts, breaches, violations or defaults as would not impair in any material respect the consummation of the Seller’s obligations hereunder.
(e) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body having jurisdiction over the Seller or any of its properties is required for the execution, delivery and performance by the Seller of its obligations under this Agreement, including the consummation by the Seller of the transactions contemplated by this Agreement, except where the failure to obtain or make any such consent, approval, authorization, order, registration or qualification would not impair in any material respect the consummation of the Seller’s obligations hereunder.
(f) As of the date hereof and immediately prior to the delivery of the Repurchase Shares to the Company at each the Closing, such the Seller owns holds good and valid title to the Repurchase Shares or a security entitlement in respect thereofShares, and holds, or and will hold, such Repurchase Shares free and clear of all liens, encumbrances, equities or claims; and, upon delivery of such Repurchase Shares (including by delivery of security certificates duly indorsed or crediting to a securities account of the Company) and payment therefor pursuant hereto, assuming that the Company has no notice will acquire good and valid title to the Repurchase Shares, free and clear of any adverse claims all liens, encumbrances, equities or claims, as well as a valid security entitlement (within the meaning of Section 8-105 102(a)(17) of the New York Uniform Commercial Code as in effect in the State of New York from time to time (the “UCC”), the Company will acquire its interest in the Repurchase Shares purchased by the Company that are physically delivered to the Company free of adverse claims (within the meaning of Section 8-105 of the UCC) or, in the case of crediting to a securities account of the Company, will acquire a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Repurchase Shares purchased by the Company, and no action (whether framed in conversion, replevin, constructive trust, equitable lien or other theory) based on an adverse claim (within the meaning of Section 8-105 of the UCC) to such security entitlement may be asserted against the Company.
(fg) The Seller (either alone or together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the Repurchase. The Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the Repurchase and the Repurchase Shares and has had full access to such other information concerning the Repurchase Shares and the Company as it has requested. The Seller has received all information that it believes is necessary or appropriate in connection with the Repurchase. The Seller has had an opportunity to consult with its own accounting, tax, financial, legal and other advisors in connection with the Repurchase. The Seller is an informed and sophisticated party and has engaged, to the extent such the Seller deems appropriate, expert advisors experienced in the evaluation of transactions of the type contemplated hereby. The Seller acknowledges that the Seller has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the CompanyCompany or any of its subsidiaries, directors, officers, employees or agents, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of the Seller in this Agreement.
(g) As of . The Seller acknowledges that the date hereofCompany and its subsidiaries, officers and directors may possess material non-public information not known to the Seller is regarding or relating to the Company and/or its subsidiaries, including, but not aware limited to, information concerning the business, financial condition, results of any material, nonpublic information about operations or prospects of the Company or any of its securities subsidiaries. The Seller acknowledges and confirms that it is entering into this Agreement aware that future changes and developments in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b5-1 (i) each of the Exchange ActCompany’s and its subsidiaries’ business and financial condition and operating results, (ii) the industries in which each of the Company and its subsidiaries competes and (iii) overall market and economic conditions, may have a favorable impact on the value of the Common Stock after the sale by the Seller of the Repurchase Shares to the Company pursuant to terms of this Agreement.
Appears in 2 contracts
Samples: Share Repurchase Agreement (Veritiv Corp), Share Repurchase Agreement (UWW Holdings, LLC)
Representations of the Seller. In connection with (a) The Seller represents, on the transactions contemplated herebydate hereof, the Seller represents and warrants to the Company thatfollowing:
(ai) This Trust Agreement creates a valid and continuing security interest (as defined in the applicable UCC) in the Class A Defeasance Collateral in favor of the Trustee, which security interest is prior to all other liens and is enforceable as such as against creditors of and purchasers from the Seller.
(ii) All of the Class A Defeasance Collateral has been and will have been credited to one of the Accounts. The Securities Intermediary has agreed to treat all assets credited to the Accounts as "financial assets" within the meaning of the UCC.
(iii) The Seller is duly organized owns good and existing under marketable title to the laws Class A Defeasance Collateral free and clear of any lien, claim or encumbrance of any Person.
(iv) The Seller has received all consents and approvals required by the terms of the Class A Defeasance Collateral to the transfer to the Trustee of its state interest and rights in the Class A Defeasance Collateral hereunder.
(v) The Seller has caused or will have caused, within ten days, the filing of organizationall appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest granted in the Class A Defeasance Collateral to the Trustee hereunder.
(b) All consents, approvals, authorizations The foregoing representations and orders necessary for warranties shall survive the execution and delivery by Seller termination of this Trust Agreement and for shall not be waived without the sale and delivery written consent of S&P. Additionally, the Repurchase Shares to be sold by Seller hereundershall take such action, have been obtained; and Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer or execute and deliver the Repurchase Shares to be sold by Seller hereunder, except for such consents, approvals, authorizations and orders instruments as would not impair in any material respect the consummation of the Seller’s obligations hereunder.
(c) This Agreement has been duly authorized, executed and delivered by Seller and constitutes a valid and binding agreement of Seller, enforceable in accordance with its terms, except to the extent that enforcement thereof may be limited by bankruptcynecessary to maintain and perfect, insolvency, reorganization or other laws affecting enforcement of creditors’ rights or by general equitable principles.
(d) The sale of the Repurchase Shares to be sold by Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein (i) will not conflict with or result in as a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which Seller is a party or by which Seller is bound or to which any of the property or assets of Seller is subject, (ii) nor will such action violate any of the provisions of (x) any organizational or similar documents pursuant to which Seller was formed or (y) any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over Seller or the property of such Seller; except in the case of clause (i) or clause (ii)(y), for such conflicts, breaches, violations or defaults as would not impair in any material respect the consummation of Seller’s obligations hereunder.
(e) As of the date hereof and immediately prior to the delivery of the Repurchase Shares to the Company at each Closing, such Seller owns the Repurchase Shares or a security entitlement in respect thereof, and holds, or will hold, such Repurchase Shares free and clear of all liens, encumbrances, equities or claims; and, upon delivery of such Repurchase Shares (including by delivery of security certificates duly indorsed or crediting to a securities account of the Company) and payment therefor pursuant hereto, assuming that the Company has no notice of any adverse claims within the meaning of Section 8-105 of the New York Uniform Commercial Code as in effect in the State of New York from time to time (the “UCC”)first priority interest, the Company will acquire its Trustee's security interest in the Repurchase Shares purchased by the Company that are physically delivered to the Company free of adverse claims (within the meaning of Section 8-105 of the UCC) or, in the case of crediting to a securities account of the Company, will acquire a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Repurchase Shares purchased by the Company, and no action (whether framed in conversion, replevin, constructive trust, equitable lien or other theory) based on an adverse claim (within the meaning of Section 8-105 of the UCC) to such security entitlement may be asserted against the CompanyClass A Defeasance Collateral.
(f) Seller (either alone or together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the Repurchase. Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the Repurchase and the Repurchase Shares and has had full access to such other information concerning the Repurchase Shares and the Company as it has requested. Seller has received all information that it believes is necessary or appropriate in connection with the Repurchase. Seller is an informed and sophisticated party and has engaged, to the extent such Seller deems appropriate, expert advisors experienced in the evaluation of transactions of the type contemplated hereby. Seller acknowledges that Seller has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of Seller in this Agreement.
(g) As of the date hereof, the Seller is not aware of any material, nonpublic information about the Company or its securities and it is entering into this Agreement in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b5-1 of the Exchange Act.
Appears in 2 contracts
Samples: Defeasance Trust Agreement (Citibank Omni-S Master Trust), Defeasance Trust Agreement (Citibank Omni-S Master Trust)
Representations of the Seller. In connection with the transactions contemplated hereby, the Seller represents and warrants to the Company that:
(a) The Seller is duly organized and existing under the laws of its state the Grand Duchy of organizationLuxembourg.
(b) All consents, approvals, authorizations and orders necessary for the execution and delivery by the Seller of this Agreement and for the sale and delivery of the Repurchase Shares to be sold by Seller hereunder, have been obtained; and the Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver the Repurchase Shares to be sold by Seller hereunderShares, except for such consents, approvals, authorizations and orders as would not impair in any material respect the consummation of the Seller’s obligations hereunder.
(c) This Agreement has been duly authorized, executed and delivered by the Seller and constitutes a valid and binding agreement of the Seller, enforceable in accordance with its terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other laws affecting enforcement of creditors’ rights or by general equitable principles.
(d) The sale of the Repurchase Shares to be sold by the Seller hereunder and the compliance by such the Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein (i) will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any statute, indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Seller is a party or by which the Seller is bound or to which any of the property or assets of the Seller is subject, (ii) nor will such action violate result in any violation of the provisions of (x) any organizational or similar documents pursuant to which the Seller was formed or (y) any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Seller or the property of such the Seller; except in the case of clause (i) or clause (ii)(y), for such conflicts, breaches, violations or defaults as would not impair in any material respect the consummation of the Seller’s obligations hereunder.
(e) As of the date hereof and immediately prior to the delivery of the Repurchase Shares to the Company at each the Closing, such the Seller owns holds good and valid title to the Repurchase Shares or a security securities entitlement in respect thereof, and holds, or and will hold, such Repurchase Shares free and clear of all liens, encumbrances, equities or claims; and, upon delivery and transfer of such Repurchase Shares (including by delivery of security certificates duly indorsed or crediting to a securities account of the Company) and payment therefor pursuant hereto, assuming that the Company has no notice of any adverse claims within the meaning of Section 8-105 of the New York Uniform Commercial Code as in effect in the State of New York from time to time (the “UCC”), the Company will acquire its interest in good and valid title to the Repurchase Shares purchased by the Company that are physically delivered to the Company Shares, free and clear of adverse claims (within the meaning of Section 8-105 of the UCC) orall liens, in the case of crediting to encumbrances, equities or claims, as well as a securities account of the Company, will acquire a valid security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Repurchase Shares purchased by the Company, and no action (whether framed in conversion, replevin, constructive trust, equitable lien or other theory) based on an adverse claim (within the meaning of Section 8-105 of the UCC) to such security entitlement may be asserted against the Company.
(f) The Seller (either alone or together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the Repurchase. The Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the Repurchase and the Repurchase Shares and has had full access to such other information concerning the Repurchase Shares and the Company as it has requested. The Seller has received all information that it believes is necessary or appropriate in connection with the Repurchase. The Seller is an informed and sophisticated party and has engaged, to the extent such the Seller deems appropriate, expert advisors experienced in the evaluation of transactions of the type contemplated hereby. The Seller acknowledges that the Seller has not received or relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of the Seller in this Agreement.
(g) As of the date hereof, the Seller is not aware of any material, nonpublic information about the Company or its securities and it is entering into this Agreement in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b5-1 of the Exchange Act.
Appears in 2 contracts
Samples: Share Repurchase Agreement (Sensata Technologies Holding N.V.), Share Repurchase Agreement (Sensata Technologies Holding N.V.)
Representations of the Seller. In connection with the transactions contemplated hereby, the Seller hereby represents and warrants to the Company that, as of the date hereof and as of the Closing:
(a) The Seller is duly organized and validly existing under the laws of its state jurisdiction of organization.
(b) formation. The Seller has full right, power and authority to enter into this Agreement, and to consummate the transactions contemplated hereby, including the sale, assignment, transfer and delivery of the Repurchase Securities to be sold by the Seller hereunder. All consents, approvals, authorizations and orders necessary for the execution and delivery by the Seller of this Agreement Agreement, and for the sale and delivery of the Repurchase Shares Securities to be sold by the Seller hereunder, have been obtained; and Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver the Repurchase Shares to be sold by Seller hereunder, except for such consents, approvals, authorizations and orders as would not impair in any material respect the consummation of the Seller’s obligations hereunder.
(cb) This Agreement has been duly authorized, executed and delivered by the Seller and constitutes a valid and binding agreement of the Seller, enforceable in accordance with its terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other laws affecting enforcement of creditors’ rights or by general equitable principles.
(dc) The sale of execution, delivery and performance by the Repurchase Shares to be sold by Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement and the consummation by the Seller of the transactions contemplated herein will not (i) will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Seller pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Seller is a party or by which the Seller is bound or to which any of the property or assets of Seller the Seller, including any of the Repurchase Securities, is subject, (ii) nor will such action violate result in any violation of the provisions of (x) any the organizational or similar documents pursuant to which of the Seller was formed or (yiii) result in the violation of any law or statute applicable to the Seller or any judgment, writ, injunction, decree, order, rule or regulation of any court or arbitrator or governmental or regulatory agency or body having jurisdiction over Seller or the property of such Seller; except in the case of clause (i) or clause (ii)(y), for such conflicts, breaches, violations or defaults as would not impair in any material respect the consummation of Seller’s obligations hereunder.
(ed) As of the date hereof hereof, the Seller has valid title to the Seller Shares (including the Repurchase Securities) and will have valid title to the Seller Shares (including the Repurchase Securities) immediately prior to the delivery of the Repurchase Shares Securities to the Company at each the Closing, such Seller owns the Repurchase Shares or a security entitlement in respect thereof, and holds, or will hold, such Repurchase Shares free and clear of all liens, encumbrances, equities liens or claims; and, upon delivery of such Repurchase Shares other encumbrances (including by delivery of security certificates duly indorsed other than any lien or crediting to encumbrance arising as a securities account result of the Company) and payment therefor pursuant hereto, assuming that the Company has no notice ’s ownership of any adverse claims within the meaning of Section 8-105 of the New York Uniform Commercial Code as in effect in the State of New York from time to time (the “UCC”such Seller Shares), the Company will acquire its interest in the Repurchase Shares purchased by the Company that are physically delivered to the Company free of adverse claims (within the meaning of Section 8-105 of the UCC) or, in the case of crediting to a securities account of the Company, will acquire a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Repurchase Shares purchased by the Company, and no action (whether framed in conversion, replevin, constructive trust, equitable lien or other theory) based on an adverse claim (within the meaning of Section 8-105 of the UCC) to such security entitlement may be asserted against the Company.
(fe) The Seller (either alone or together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the Repurchase. The Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the Repurchase and the Repurchase Shares Securities and has had full access to such other information concerning the Repurchase Shares Securities and the Company as it has requested. The Seller has received all information that it believes is necessary or appropriate in connection with the Repurchase. The Seller is an informed and sophisticated party and has engaged, to the extent such the Seller deems appropriate, expert advisors experienced in the evaluation of transactions of the type contemplated hereby. The Seller acknowledges that Seller it has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of the Seller in this Agreement.
(gf) As Except for the representations and warranties contained in this Section 3, none of the date hereofSeller or any other person has made or makes any other express or implied representation or warranty, the Seller is not aware of any materialeither written or oral, nonpublic information about the Company or its securities and it is entering into this Agreement in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b5-1 on behalf of the Exchange ActSeller.
Appears in 2 contracts
Samples: Stock Repurchase Agreement (Madison Square Garden Entertainment Corp.), Stock Repurchase Agreement (Madison Square Garden Entertainment Corp.)
Representations of the Seller. In connection with the transactions contemplated hereby, the (a) Seller represents and warrants to the Company that:
(ai) Seller is a corporation duly organized organized, validly existing and existing in good standing under the laws of its state the State of organization.
(b) All consentsDelaware, approvalsis authorized to do business in the State of New Jersey, authorizations and orders necessary for the execution and delivery by Seller of this Agreement and for the sale and delivery of the Repurchase Shares to be sold by Seller hereunder, have been obtained; and Seller has full right, power and authority to enter into execute and deliver this Agreement and to sell, assign, transfer and deliver the Repurchase Shares all other documents now or hereafter to be sold by Seller hereunder, except for such consents, approvals, authorizations and orders as would not impair in any material respect the consummation of the Seller’s obligations hereunder.
(c) This Agreement has been duly authorized, executed and delivered by Seller it pursuant to this Agreement (the “Seller’s Documents”) and constitutes a to perform all obligations arising under this Agreement and the Seller’s Documents.
(ii) This Agreement constitutes, and the Seller’s Documents will each constitute, the legal, valid and binding agreement obligations of Seller, enforceable against Seller in accordance with its their respective terms, except subject to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or and other similar laws affecting the enforcement of creditors’ rights or generally and except as may be limited by general equitable principles.
(diii) The sale Neither Seller nor any person or entity owning or controlling any interest in Seller is acting, directly or indirectly, for or on behalf of any person, entity, group or nation named by the Repurchase Shares United States Treasury Department Office of Foreign Assets Control (OFAC) as a ‘Specifically Designated National and Blocked Person,’ or for or on behalf of any person, entity, group or nation designated in Presidential Executive Order 13224 as a person who commits, threatens to be sold by Seller hereunder and the compliance by such Seller with all of the provisions of this commit, or supports terrorism.
(iv) This Agreement and the consummation Seller’s Documents do not and will not contravene any provision of the transactions contemplated herein (i) will not conflict with organizational documents of Seller, any judgment, order, decree, writ or result in a breach injunction, or violation any provision of any of the terms existing law or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument regulation to which Seller is a party or by which Seller is bound or to which any bound. The execution and delivery of this Agreement by Seller and the consummation by Seller of the property transactions contemplated hereby do not and will not require (except to the extent, if any, set forth herein or in the documents listed in the Exhibits attached hereto) any consent by any third party (including, without limitation, the consent of any direct or indirect owner of Seller) or such consent has, as of the Effective Date, been obtained by Seller.
(v) Except as set forth on Exhibit B, Seller has not entered into any service contracts for the Property that will be binding on Buyer and/or the Property after the Closing.
(vi) There are no pending actions, suits, arbitrations, claims or proceedings at law or in equity affecting the Property or Seller which would have a Material Adverse Effect on the Property or Seller’s ability to perform under this Agreement and Seller has not received any written notices of any such threatened or contemplated actions, suits, arbitrations, claims or proceedings at law or in equity which claims would not be fully covered by insurance (subject to deductibles).
(vii) Except for the agreement for real estate services between the Seller and GVA Wxxxxxxx dated December 1, 2006, there are no leasing commission agreements entered into by Seller and in effect as of the Effective Date.
(viii) To Seller’s Knowledge, other than the ISRA review triggered by the signing of this Agreement and those exceptions on Exhibit I attached hereto, there is no pending or threatened proceeding or inquiry by any governmental agency with respect to the production, disposal or storage at the Property of any Hazardous Substances.
(ix) To Seller’s Knowledge, Seller has made available all Seller Documents (including, without limitation, the Environmental Documents) to Buyer and Seller has no Knowledge of any Environmental Conditions or non-compliance with Environmental Laws with regard to the Property other than as disclosed in the Environmental Documents.
(x) The Seller has not received any written notice of any violation or alleged violation of any legal requirement affecting the Property, including, without limitation, any violation or alleged violation of any local, state or federal environmental, zoning, handicap, health, safety, or fire law, ordinance, code, regulation, rule or order, and specifically including, without limitation, variances or special permits affecting the Property except for the exceptions on Exhibit I.
(xi) The Seller has not received any notice of any pending or threatened litigation, claim or governmental proceeding (including, without limitation, condemnation or eminent domain proceeding, special assessment, rezoning or moratorium) affecting the Seller’s ability to perform under this Agreement or the Property and has no knowledge that such litigation, claim or proceeding exists.
(xii) There are no contracts, agreements or understandings, oral or written, including any leases or license agreements that Seller has with any person, entity or governmental authority affecting the Property or under which Buyer will be obligated to pay any sums from and after the Closing, other than the Contracts.
(xiii) Seller has not filed and is not aware of any application, submission or request for any zoning, site plan approval, variance, waiver, license, sewer permit, building permit or other governmental or quasi-governmental approval from any governmental authority or utility company in connection with the development and/or use of the Property which is now pending.
(xiv) The Property is owned by Seller subject to the Permitted Exceptions and mortgage lien that secure Seller’s credit facilities which mortgages will be discharged of record at Closing.
(xv) There are no parties in possession of any portion of the Property (other than Seller) as trespassers or otherwise except for customer representatives who will vacate at the end of the term of the Lease.
(xvi) The sale of the Property does not represent substantially all the assets of the Seller.
(b) Notwithstanding anything herein to the contrary, Seller shall have no liability to Buyer for a breach of any representation or warranty hereunder, if the breach in question is subjectbased on a condition, state of facts or other matter which was actually known by Buyer or disclosed in writing to Buyer on or prior to the Effective Date, Seller shall be deemed to have not made any representation or warranty, and Seller shall have no obligation or liability to Buyer with respect to the inaccuracy or breach of any representation or warranty of Seller hereunder, to the extent such inaccuracy or breach (i) is actually known by Buyer or included in the information or any due diligence materials furnished or made available to Buyer by Seller or any other party (collectively, the “Specified Documents”), (ii) nor will becomes actually known to Buyer prior to the Closing Date and Buyer does not prior to the Closing Date, provide written notice thereof to Seller, or (iii) arises from the act or omission of Buyer or was consented to by Buyer in writing.
(c) If, as of the Closing Date, any agreement affecting the Property is not in effect or a party to any agreement with respect to the Property is in default (except for Seller), such action violate fact shall not, in any way, relieve Buyer of its obligation to purchase the Property or entitle Buyer to a reduction in the Purchase Price.
(d) To the extent the Specified Documents contain provisions inconsistent with or different from the representations and warranties made in Section 16(a) or Buyer has actual knowledge of such inconsistency or difference, then such representations and warranties shall be deemed modified to conform them to the provisions of (x) any organizational the Specified Documents or similar documents pursuant to which Seller was formed such different or (y) any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over Seller or the property of such Seller; except in the case of clause (i) or clause (ii)(y), for such conflicts, breaches, violations or defaults as would not impair in any material respect the consummation of Seller’s obligations hereunderinconsistent facts known to Buyer.
(e) As Seller’s representations and warranties under Section 16 shall be true and correct as of the date hereof Effective Date, shall be true and immediately prior to correct and deemed repeated as of Closing. The representations in Section 16(a)(v), (vi), (vii), (viii), (ix), (x), (xii) and (xv) of this Agreement shall survive the Closing and delivery of the Repurchase Shares to Deed for one (1) year after the Company at each Closing, such Seller owns the Repurchase Shares or a security entitlement in respect thereof, and holds, or will hold, such Repurchase Shares free and clear of all liens, encumbrances, equities or claims; and, upon delivery of such Repurchase Shares (including by delivery of security certificates duly indorsed or crediting to a securities account termination of the Company) Lease and payment therefor pursuant hereto, assuming that the Company has no notice of any adverse claims within the meaning of Section 8-105 surrender of the New York Uniform Commercial Code as in effect in the State of New York from time Property to time Buyer (the “UCCLease Survival Date”), the Company will acquire its interest in the Repurchase Shares purchased by the Company that are physically delivered to the Company free of adverse claims (within the meaning of Section 8-105 of the UCC) or, in the case of crediting to a securities account of the Company, will acquire a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Repurchase Shares purchased by the Company, . All other representations and no action (whether framed in conversion, replevin, constructive trust, equitable lien or other theory) based on an adverse claim (within the meaning of Section 8-105 of the UCC) to such security entitlement may be asserted against the Company.
(f) Seller (either alone or together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the Repurchase. Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the Repurchase and the Repurchase Shares and has had full access to such other information concerning the Repurchase Shares and the Company as it has requested. Seller has received all information that it believes is necessary or appropriate in connection with the Repurchase. Seller is an informed and sophisticated party and has engaged, to the extent such Seller deems appropriate, expert advisors experienced in the evaluation of transactions of the type contemplated hereby. Seller acknowledges that Seller has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of Seller in this Agreement.
Section 16 shall survive for one (g1) As year from the date of Closing and delivery of the date hereof, Deed (the Seller is not aware of any material, nonpublic information about the Company or its securities and it is entering into this “Agreement in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b5-1 of the Exchange ActSurvival Date.”).
Appears in 1 contract
Representations of the Seller. In connection with the transactions contemplated hereby, the Seller represents and warrants to the Company that:
(a) The Seller is a limited liability company duly organized and existing under the laws of its state the State of organizationDelaware.
(b) All consents, approvals, authorizations and orders necessary for the execution and delivery by the Seller of this Agreement and for the sale and delivery of the Repurchase Shares to be sold by the Seller hereunder, have been obtained; and the Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver the Repurchase Shares to be sold by the Seller hereunder, except for such consents, approvals, authorizations and orders as would not impair in any material respect the consummation of the Seller’s obligations hereunder.
(c) This Agreement has been duly authorized, executed and delivered by the Seller and constitutes a valid and binding agreement of the Seller, enforceable in accordance with its terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other laws affecting enforcement of creditors’ rights or by general equitable principles.
(d) The sale of the Repurchase Shares to be sold by the Seller hereunder and the compliance by such the Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein (i) will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any statute, indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Seller is a party or by which the Seller is bound or to which any of the property or assets of the Seller is subject, (ii) nor will such action violate result in any violation of the provisions of (x) any organizational or similar documents pursuant to which the Seller was formed or (y) any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Seller or the property of such the Seller; except in the case of clause (i) or clause (ii)(y), for such conflicts, breaches, violations or defaults as would not impair in any material respect the consummation of Seller’s obligations hereunder.
(e) As of the date hereof and immediately prior to the delivery of the Repurchase Shares to the Company at each the Closing, such the Seller owns holds good and valid title to the Repurchase Shares or a security securities entitlement in respect thereof, and holds, or and will hold, such Repurchase Shares free and clear of all liens, encumbrances, equities or claims; and, upon delivery of such Repurchase Shares (including by delivery of security certificates duly indorsed or crediting to a securities account of the Company) and payment therefor pursuant hereto, assuming that the Company has no notice of any adverse claims within the meaning of Section 8-105 of the New York Uniform Commercial Code as in effect in the State of New York from time to time (the “UCC”), the Company will acquire its interest in good and valid title to the Repurchase Shares purchased by the Company that are physically delivered to the Company Shares, free and clear of adverse claims (within the meaning of Section 8-105 of the UCC) orall liens, in the case of crediting to a securities account of the Companyencumbrances, will acquire a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Repurchase Shares purchased by the Company, and no action (whether framed in conversion, replevin, constructive trust, equitable lien equities or other theory) based on an adverse claim (within the meaning of Section 8-105 of the UCC) to such security entitlement may be asserted against the Companyclaims.
(f) The Seller (either alone or together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the Repurchase. The Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the Repurchase and the Repurchase Shares and has had full access to such other information concerning the Repurchase Shares and the Company as it has requested. The Seller has received all information that it believes is necessary or appropriate in connection with the Repurchase. The Seller is an informed and sophisticated party and has engaged, to the extent such the Seller deems appropriate, expert advisors experienced in the evaluation of transactions of the type contemplated hereby. The Seller acknowledges that the Seller has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of the Seller in this Agreement.
(g) As of the date hereof, the Seller is not aware of any material, nonpublic information about the Company or its securities and it is entering into this Agreement in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b5-1 of the Exchange Act.
Appears in 1 contract
Representations of the Seller. In connection with the transactions contemplated hereby, the The Seller hereby represents and warrants to the Company thatIndenture Trustee, the Owner Trustee, the Certificateholders, the Noteholders and each Hedge Counterparty as of each Transfer Date:
(a) The Seller is a Connecticut chartered bank duly organized and validly existing under the laws of the State of Connecticut 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 organization.
(b) All consentssuch state require licensing or qualification in order to conduct business of the type conducted by the Seller and perform its obligations hereunder; the Seller 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, approvals, authorizations delivery and orders necessary for the execution and delivery by Seller performance of this Agreement and for the sale and delivery each other Basic Document to which it is a party (including all instruments of the Repurchase Shares transfer to be sold delivered pursuant to this Agreement) by the Seller hereunder, have been obtained; and Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver the Repurchase Shares to be sold by Seller hereunder, except for such consents, approvals, authorizations and orders as would not impair in any material respect the consummation of the Seller’s obligations hereunder.
(c) This Agreement has been duly authorized, executed and delivered by Seller and constitutes a valid and binding agreement of Seller, enforceable in accordance with its terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other laws affecting enforcement of creditors’ rights or by general equitable principles.
(d) The sale of the Repurchase Shares to be sold by Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein (i) will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or hereby and thereby have been duly and validly authorized by all necessary corporate action; this Agreement and each other agreement or instrument Basic Document to which Seller it is a party or evidence the valid, binding and enforceable obligations of the Seller; and all requisite corporate action has been taken by which the Seller is bound or to make this Agreement and each other Basic Document to which it is a party valid, binding and enforceable upon the Seller 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 property or assets of Seller is subject, (ii) nor will such action violate any of the provisions of (x) any organizational or similar documents pursuant to which Seller was formed or (y) any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over Seller or the property of such Seller; except Unguaranteed Interests in the case of clause (i) or clause (ii)(y), for such conflicts, breaches, violations or defaults as would not impair in any material respect SBA Loans by the consummation of Seller’s obligations hereunderTrust.
(eb) As of All actions, approvals, consents, waivers, exemptions, variances, franchises, orders, permits, authorizations, rights and licenses required to be taken, given or obtained, as the date hereof and immediately prior 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 delivery of the Repurchase Shares to the Company at each Closing, Seller makes no such Seller owns the Repurchase Shares representation or a security entitlement in respect thereof, and holds, or will hold, such Repurchase Shares free and clear of all liens, encumbrances, equities or claims; and, upon delivery of such Repurchase Shares (including by delivery of security certificates duly indorsed or crediting to a securities account of the Company) and payment therefor pursuant hereto, assuming that the Company has no notice of any adverse claims within the meaning of Section 8-105 of the New York Uniform Commercial Code as in effect in the State of New York from time to time (the “UCC”warranty), the Company will acquire its interest in the Repurchase Shares purchased by the Company that are physically delivered to the Company free of adverse claims (within the meaning of Section 8-105 of the UCC) or, in the case of crediting to a securities account of the Company, will acquire a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Repurchase Shares purchased by the Company, and no action (whether framed in conversion, replevin, constructive trust, equitable lien or other theory) based on an adverse claim (within the meaning of Section 8-105 of the UCC) to such security entitlement may be asserted against the Company.
(f) Seller (either alone or together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the Repurchase. Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the Repurchase and the Repurchase Shares and has had full access to such other information concerning the Repurchase Shares and the Company as it has requested. Seller has received all information that it believes is necessary or appropriate advisable in connection with the Repurchase. Seller is an informed purchase and sophisticated party and has engaged, to the extent such Seller deems appropriate, expert advisors experienced in the evaluation of transactions sale of the type contemplated hereby. Notes and the execution and delivery by the Seller acknowledges that Seller has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Companydocuments to which it is a party, whether have been duly taken, given or not any such representationsobtained, warranties or statements were made as the case may be, are in writing or orally, except as expressly set forth for the benefit of Seller in this Agreement.
(g) As of full force and effect on the date hereof, are not subject to any pending proceedings or appeals (administrative, judicial or otherwise) and either the time within which any appeal therefrom may be taken or review thereof may be obtained has expired or no review thereof may be obtained or appeal therefrom taken, and are adequate to authorize the consummation of the transactions contemplated by this Agreement and each other Basic Document to which it is a party and the other documents on the part of the Seller is not aware and the performance by the Seller of any material, nonpublic information about its obligations under this Agreement and the Company or its securities and other Basic Documents to which it is entering into this Agreement in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b5-1 of the Exchange Act.party;
Appears in 1 contract
Samples: Sale and Servicing Agreement (First International Bancorp Inc)
Representations of the Seller. In connection with the transactions contemplated hereby, the 8.1 The Seller represents and warrants to the Company Purchaser, with the intent that the Purchaser shall rely upon such representations and warranties in concluding the transactions contemplated hereby, that:
(a) the Seller is a corporation that is duly organized incorporated, valid existing, and existing in good standing under the laws of its state of organization.
(b) All consentsOhio, approvalsand it has the power, authorizations authority, and orders necessary for capacity to carry on the execution Business as presently conducted and delivery by Seller of this Agreement and for the sale and delivery of the Repurchase Shares to be sold by Seller hereunder, have been obtained; and Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer carry out its terms;
(b) the execution and deliver delivery of this Agreement and the Repurchase Shares to be sold completion of the transactions contemplated hereby has been duly and validly authorized by Seller hereunder, except for such consents, approvals, authorizations and orders as would not impair in any material respect all necessary corporate action on the consummation part of the Seller’s obligations hereunder.
(c) This , and this Agreement has been duly authorized, executed and delivered by Seller and constitutes a valid and binding agreement obligation of Seller, the Seller enforceable against the Seller in accordance with its terms, except ;
(c) the Seller has previously disclosed to the extent that enforcement thereof may be limited by bankruptcyPurchaser in writing all material particulars relating to any officers, insolvencydirectors, reorganization employees, and agents of the Seller including particulars of any contracts, engagements, or other laws affecting enforcement commitments, whether oral or written, respecting all aspects of creditors’ rights or by general equitable principles.the Business and the Assumed Liabilities;
(d) The sale of except as will be remedied by those consents, approvals, releases and discharges which will be delivered by the Repurchase Shares to be sold by Seller hereunder at Closing, neither the execution and the compliance by such Seller with all of the provisions delivery of this Agreement and nor the consummation performance of the transactions contemplated herein Seller's obligations hereunder will:
(i) will not conflict with violate or result in a breach constitute default under the organizational documents, by-laws, or violation articles of incorporation of the Seller, any order, decree, judgment, statute, by-law, rule, regulation, or restriction applicable to the Seller, the Business or any of the terms or provisions ofassets, or constitute a default underany contract, any indentureagreement, mortgageinstrument, deed of trustcovenant, loan agreement mortgage or other agreement or instrument security to which the Seller is a party or by which Seller is bound or to which any of binding upon the property or assets of Seller is subject, Seller,
(ii) nor will such action violate give any person the right to terminate or cancel any contract, agreement, instrument, covenant, mortgage or security in favor of the provisions Seller,
(iii) result in any fees, duties, taxes, assessments, penalties or other amounts becoming due or payable, or
(iv) give rise to acceleration of (x) any organizational or similar documents pursuant to which Seller was formed or (y) any statute or any order, rule or regulation the time for payment of any court moneys payable or governmental agency or body having jurisdiction over Seller or for the property of such Seller; except in the case of clause (i) or clause (ii)(y), for such conflicts, breaches, violations or defaults as would not impair in any material respect the consummation of Seller’s obligations hereunder.
(e) As of the date hereof and immediately prior to the delivery of the Repurchase Shares to the Company at each Closing, such Seller owns the Repurchase Shares or a security entitlement in respect thereof, and holds, or will hold, such Repurchase Shares free and clear of all liens, encumbrances, equities or claims; and, upon delivery of such Repurchase Shares (including by delivery of security certificates duly indorsed or crediting to a securities account of the Company) and payment therefor pursuant hereto, assuming that the Company has no notice performance of any adverse claims within the meaning of Section 8-105 of the New York Uniform Commercial Code as in effect in the State of New York from time obligation to time (the “UCC”), the Company will acquire its interest in the Repurchase Shares purchased be performed by the Company that are physically delivered to the Company free of adverse claims (within the meaning of Section 8-105 of the UCC) or, in the case of crediting to a securities account of the Company, will acquire a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Repurchase Shares purchased by the Company, and no action (whether framed in conversion, replevin, constructive trust, equitable lien or other theory) based on an adverse claim (within the meaning of Section 8-105 of the UCC) to such security entitlement may be asserted against the Company.
(f) Seller (either alone or together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the Repurchase. Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the Repurchase and the Repurchase Shares and has had full access to such other information concerning the Repurchase Shares and the Company as it has requested. Seller has received all information that it believes is necessary or appropriate in connection with the Repurchase. Seller is an informed and sophisticated party and has engaged, to the extent such Seller deems appropriate, expert advisors experienced in the evaluation of transactions of the type contemplated hereby. Seller acknowledges that Seller has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of Seller in this Agreement.
(g) As of the date hereof, the Seller is not aware of any material, nonpublic information about the Company or its securities and it is entering into this Agreement in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b5-1 of the Exchange Act.Seller;
Appears in 1 contract
Representations of the Seller. In connection with the transactions contemplated hereby, the The Seller hereby represents and warrants to the Company thatIndenture Trustee, the Owner Trustee, the Certificateholders and the Noteholders as of the Closing Date:
(a) The Seller is duly a state chartered bank and trust company organized and validly existing under the laws of the State of Connecticut 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 organization.
(b) All consentssuch state require licensing or qualification in order to conduct business of the type conducted by the Seller and perform its obligations hereunder; the Seller 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, approvals, authorizations delivery and orders necessary for the execution and delivery by Seller performance of this Agreement and for the sale and delivery each other Basic Document to which it is a party (including all instruments of the Repurchase Shares transfer to be sold delivered pursuant to this Agreement) by the Seller hereunder, have been obtained; and Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver the Repurchase Shares to be sold by Seller hereunder, except for such consents, approvals, authorizations and orders as would not impair in any material respect the consummation of the Seller’s obligations hereunder.
(c) This Agreement has been duly authorized, executed and delivered by Seller and constitutes a valid and binding agreement of Seller, enforceable in accordance with its terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other laws affecting enforcement of creditors’ rights or by general equitable principles.
(d) The sale of the Repurchase Shares to be sold by Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein 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 the Seller; and all requisite corporate action has been taken by the Seller to make this Agreement and each other Basic Document to which it is a party valid, binding and enforceable upon the Seller 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.
(ib) All actions, approvals, consents, waivers, exemptions, variances, franchises, orders, permits, authorizations, rights and licenses required to be taken, given or obtained, as the case may be, by or from any federal, state or other governmental authority or agency (other than any such actions, approvals, etc., under any state securities laws, real estate syndication or "Blue Sky" statutes, as to which the Seller makes no such representation or warranty), that are necessary or advisable in connection with the purchase and sale of the Notes and the execution and delivery by the Seller of the documents to which it is a party, have been duly taken, given or obtained, as the case may be, are in full force and effect on the date hereof, are not subject to any pending proceedings or appeals (administrative, judicial or otherwise) and either the time within which any appeal therefrom may be taken or review thereof may be obtained has expired or no review thereof may be obtained or appeal therefrom taken, and are adequate to authorize the consummation of the transactions contemplated by this Agreement and each other Basic Document to which it is a party and the other documents on the part of the Seller and the performance by the Seller of its obligations under this Agreement and the other Basic Documents to which it is a party;
(c) The consummation of the transactions contemplated by this Agreement and the other Basic Documents to which the Seller is a party will not conflict with result in the breach of any terms or provisions of the certificate of incorporation or by-laws of the Seller or result in a the breach or violation of any of the terms term or provisions provision of, or conflict with or constitute a default under or result in the acceleration of any obligation under, any indenturematerial agreement, mortgage, deed of trust, indenture or loan or credit agreement or other agreement or material instrument to which the Seller or its property is subject, or result in the violation of any law, rule, regulation, order, judgment or decree to which the Seller or its property is subject;
(d) Neither this Agreement or any other Basic Document to which the Seller 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 the Seller is a party or by 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) The Seller does not believe, nor does it have any reason or cause to believe, that it cannot perform each and every covenant contained in this Agreement or any other Basic Document to which the Seller is bound a party;
(f) There is no action, suit, proceeding or investigation pending or, to which any the best of the property Seller's knowledge, threatened against the Seller 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 the Seller or in any material impairment of the right or ability of the Seller to carry on its business substantially as now conducted, or in any material liability on the part of the Seller or of any action taken or to be taken in connection with the obligations of the Seller contemplated herein, or which would be likely to impair materially the ability of the Seller to perform under the terms of this Agreement or any other Basic Document to which the Seller is subject, a party or (ii) nor which would draw into question the validity of this Agreement or any other Basic Document to which the Seller is a party or the Business Loans;
(g) The Trust will such action violate any not constitute an "investment company" within the meaning of the provisions Investment Company Act of 1940, as amended;
(xh) The Seller is not in default with respect to any organizational order or similar documents pursuant to which Seller was formed or (y) decree of any statute court or any order, rule regulation or regulation demand of any court federal, state, municipal or governmental agency agency, which default might have consequences that would materially and adversely affect the condition (financial or body having jurisdiction over other) or operations of the Seller or its properties or might have consequences that would materially and adversely affect its performance hereunder;
(i) The statements contained in the Private Placement Memorandum which describe the Seller or the property Business Loans or matters or activities for which the Seller is responsible in accordance with the Private Placement Memorandum, this Agreement or any other Basic Document to which the Seller is a party and all documents referred to therein or herein or delivered in connection therewith or herewith, or which are attributable to the Seller therein or herein are true and correct in all material respects, and the Private Placement Memorandum does not contain any untrue statement of such a material fact with respect to the Seller or the Business Loans and does not omit to state a material fact necessary to make the statements contained therein with respect to the Seller or the Business Loans not misleading in light of the circumstances under which they were made. The Seller 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 the Seller or the Business Loans and known to the Seller that materially adversely affects or in the future may (so far as the Seller can now reasonably foresee) materially adversely affect the Seller or the Business Loans that has not been set forth in the Private Placement Memorandum;
(j) No Noteholder or Certificateholder is subject to Connecticut state licensing requirements solely by virtue of holding the Notes or the Certificates;
(k) The transfer, assignment and conveyance of the Business Notes and the Mortgages by the Seller pursuant to this Agreement are not or, with respect to the Subsequent Business Loans, will not be, subject to the bulk transfer laws or any similar statutory provisions in effect in any applicable jurisdiction;
(l) The origination and collection practices used by the Seller with respect to each Business Note and Mortgage relating to the Initial Business Loans have been, and the origination and collection practices to be used by the Seller with respect to each Business Note and Mortgage relating to the Subsequent Business Loans will have been, in all material respects legal, proper, prudent and customary in the business loan origination and servicing business;
(m) Each Initial Business Loan was, and each Subsequent Business Loan will be, selected from among the existing business loans in the Seller; except 's portfolio at the date hereof or, in the case of clause the Subsequent Business Loans, at the related Subsequent Cut-Off Date, in a manner not designed to adversely affect the Noteholders or the Certificateholders;
(in) The Seller received fair consideration and reasonably equivalent value or, in the case of the Subsequent Business Loans, will have received fair consideration and reasonably equivalent value, in exchange for the sale of the Business Loans;
(o) Neither the Seller nor any of its affiliates sold or, in the case of the Subsequent Business Loans, will have sold any interest in any Business Loan with any intent to hinder, delay or clause defraud any of their respective creditors;
(ii)(yp) The Seller is solvent, and the Seller will not be rendered insolvent as a result of the transfer of the Business Loans to the Trust or the sale of the Notes;
(q) The chief executive office and legal name of the Seller is as set forth on the respective UCC-1 financing statement filed on behalf of the Seller pursuant to Section 2.04(a)(4), such office is the place where the Seller is "located" for such conflicts, breaches, violations or defaults as would not impair in any material respect the consummation purposes of Seller’s obligations hereunder.
(eSection 9-103(3)(d) As of the date hereof and immediately prior to the delivery of the Repurchase Shares to the Company at each Closing, such Seller owns the Repurchase Shares or a security entitlement in respect thereof, and holds, or will hold, such Repurchase Shares free and clear of all liens, encumbrances, equities or claims; and, upon delivery of such Repurchase Shares (including by delivery of security certificates duly indorsed or crediting to a securities account of the Company) and payment therefor pursuant hereto, assuming that the Company has no notice of any adverse claims within the meaning of Section 8-105 of the New York Uniform Commercial Code as in effect in the State of New York from time to time (York, and neither the “UCC”), location of such office nor the Company will acquire its interest legal name of the Seller has changed in the Repurchase Shares purchased by past four months except that the Company that are physically delivered to the Company free of adverse claims Seller changed its name from First International Bank, National Association;
(within the meaning of Section 8-105 r) The Seller has filed all required tax returns on a timely basis;
(s) The pension or profit sharing plans of the UCCSeller and all consolidated subsidiaries have been fully funded in accordance with the Seller's obligations;
(t) or, in the case of crediting to a securities account The legal name of the Company, will acquire a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Repurchase Shares purchased by the Company, and no action (whether framed in conversion, replevin, constructive trust, equitable lien or other theory) based on an adverse claim (within the meaning of Section 8-105 of the UCC) to such security entitlement may be asserted against the Company.
(f) Seller (either alone or together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the Repurchase. Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the Repurchase and the Repurchase Shares and has had full access to such other information concerning the Repurchase Shares and the Company as it has requested. Seller has received all information that it believes is necessary or appropriate in connection with the Repurchase. Seller is an informed and sophisticated party and has engaged, to the extent such Seller deems appropriate, expert advisors experienced in the evaluation of transactions of the type contemplated hereby. Seller acknowledges that Seller has not relied upon any express been changed in the last six years and the Seller does not have tradenames, fictitious names, assumed names or implied representations or warranties "doing business as" names except First National Bank of any nature made by or on behalf Connecticut, First National Bank of New England and First International Bank, N.A. and First International Capital;
(u) The Seller will treat the sale of the Company, whether or not any such representations, warranties or statements were made in writing or orally, except Business Loans as expressly set forth a sale for the benefit of Seller in this Agreement.federal income tax reporting and accounting purposes; and
(gv) As The Seller conducts its affairs such that the Trust would not be substantively consolidated in the trust estate of the date hereof, the Seller is not aware of any material, nonpublic information about the Company or its securities and it is entering into this Agreement their respective separate existences disregarded in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b5-1 of the Exchange Actbankruptcy.
Appears in 1 contract
Samples: Sale and Servicing Agreement (First International Bancorp Inc)
Representations of the Seller. In connection with the transactions contemplated hereby, the Seller represents and warrants as of the date hereof to the Company that:
(a) The Seller has been duly incorporated and is duly organized and validly existing under the laws of the State of Delaware, with corporate power and authority to execute, deliver and perform its state of organizationobligations under this Agreement and to consummate the transactions contemplated hereby.
(b) All consents, approvals, authorizations and orders necessary for the execution and delivery by the Seller of this Agreement and for the sale and delivery of the Repurchase Purchased Shares to be sold by Seller hereunder, hereunder have been obtained; and Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver the Repurchase Shares to be sold by Seller hereunder, except for such consents, approvals, authorizations and orders as would not impair not, individually or in any the aggregate, have a material respect adverse effect on the consummation ability of the Seller’s obligations hereunderSeller to consummate the transactions contemplated by this Agreement (a “Seller Material Adverse Effect”).
(c) This Agreement has been duly authorized, executed and delivered by the Seller and constitutes a valid and binding agreement of the Seller, enforceable in accordance with its terms, except to the extent that enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization or reorganization, moratorium, fraudulent transfer and other similar laws affecting enforcement of creditors’ rights generally from time to time in effect and to general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or by general equitable principlesat law.
(d) The sale of the Repurchase Purchased Shares to be sold by the Seller hereunder and hereunder, the compliance by such the Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein will not contravene (i) will not conflict with the certificate of incorporation or result in a breach or violation of any bylaws of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which Seller is a party or by which Seller is bound or to which any of the property or assets of Seller is subjectSeller, (ii) nor will such action violate any agreement or other instrument binding upon the Seller or any of the provisions of its subsidiaries or (xiii) any organizational or similar documents pursuant to which Seller was formed or (y) any statute provision of applicable law or any orderjudgment, rule order or regulation decree of any court or governmental body, agency or body court having jurisdiction over the Seller or the property any of such Seller; except its subsidiaries, except, in the case cases of clause clauses (iii) or clause and (ii)(y)iii) above, for such conflictscontravention that would not, breachesindividually or in the aggregate, violations or defaults as would not impair in any material respect the consummation of Seller’s obligations hereunderhave a Seller Material Adverse Effect.
(e) As of the date hereof and until immediately prior to the delivery of the Repurchase Purchased Shares to the Company at each the Closing, such the Seller owns holds and will hold good and valid title to the Repurchase Shares or a security entitlement in respect thereof, and holds, or will hold, such Repurchase Purchased Shares free and clear of all liens, encumbrances, equities or claims; and, upon delivery of such Repurchase Shares (including by delivery of security certificates duly indorsed or crediting to a securities account of the Company) and payment therefor pursuant hereto, assuming that the Company has no notice of any adverse claims within the meaning of Section 8-105 of the New York Uniform Commercial Code as in effect in the State of New York from time to time (the “UCC”), the Company will acquire its interest in the Repurchase Shares purchased by the Company that are physically delivered to the Company free of adverse claims (within the meaning of Section 8-105 of the UCC) or, in the case of crediting to a securities account of the Company, will acquire a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Repurchase Shares purchased by the Company, and no action (whether framed in conversion, replevin, constructive trust, equitable lien encumbrances or other theory) based on an adverse claim (within the meaning of Section 8-105 of the UCC) to such security entitlement may be asserted against the Companyclaims.
(f) As of the date hereof, the Seller is not tax resident in the Netherlands and is not subject to Dutch corporate income tax.
(either alone or together with its advisorsg) The Seller has such knowledge and experience in financial or and business matters that it is capable of evaluating the merits and risks of the Share Repurchase. The Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the Repurchase and the Repurchase Shares and has had full access to such other information concerning the Repurchase Shares Company and the Company Share Repurchase as it has requested. The Seller has received all information that it believes is necessary or appropriate in connection with the Share Repurchase. The Seller is an informed and sophisticated party and has engaged, to the extent such the Seller deems appropriate, expert advisors experienced in the evaluation of transactions of the type contemplated hereby. The Seller acknowledges that the Seller has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of the Seller in this Agreement.
(g) As of the date hereof, the Seller is not aware of any material, nonpublic information about the Company or its securities and it is entering into this Agreement in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b5-1 of the Exchange Act.
Appears in 1 contract
Representations of the Seller. In connection with the transactions contemplated hereby, the Seller represents and warrants to the Company that:
(a) The Seller is duly organized and validly existing under the laws of its state Hungary. The Seller has full right, power and authority to enter into this Agreement, and to consummate the transactions contemplated hereby, including the sale, assignment, transfer and delivery of organization.
(b) the Repurchase Shares to be sold by the Seller hereunder. All consents, approvals, authorizations and orders necessary for the execution and delivery by the Seller of this Agreement Agreement, and for the sale and delivery of the Repurchase Shares to be sold by the Seller hereunder, have been obtained; and Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver the Repurchase Shares to be sold by Seller hereunder, except for such consents, approvals, authorizations and orders as would not impair in any material respect the consummation of the Seller’s obligations hereunder.
(cb) This Agreement has been duly authorized, executed and delivered by the Seller and constitutes a valid and binding agreement of the Seller, enforceable in accordance with its terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other laws affecting enforcement of creditors’ rights or by general equitable principles.
(dc) The sale of execution, delivery and performance by the Repurchase Shares to be sold by Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement and the consummation by the Seller of the transactions contemplated herein will not (i) will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Seller pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Seller is a party or by which the Seller is bound or to which any of the property or assets of Seller the Seller, including any of the Repurchase Shares, is subject, (ii) nor will such action violate result in any violation of the provisions of (x) any organizational the charter or by-laws or similar organizational documents pursuant to which of the Seller was formed or (yiii) result in the violation of any law or statute applicable to the Seller or any judgment, writ, injunction, decree, order, rule or regulation of any court or arbitrator or governmental or regulatory agency or body having jurisdiction over Seller or the property of such Seller; except except, in the case of clause clauses (i) or clause and (ii)(y)iii) above, for any such conflictsconflict, breachesbreach, violations violation or defaults as default that would not reasonably be expected to have a Material Adverse Effect on the Seller, or impair in any material respect the consummation of Seller’s ability to fulfill its obligations hereunderunder this Agreement.
(ed) As of the date hereof hereof, the Seller has, and immediately prior to the delivery of the Repurchase Shares to the Company at each Closingthe Closing will have, such Seller owns valid title to the Repurchase Shares or a security entitlement in respect thereof, and holds, or will hold, such Repurchase Shares free and clear of all liens, encumbrances, equities or adverse claims; and, upon delivery of such Repurchase Shares (including by delivery of security certificates duly indorsed or crediting to a securities account of the Company) and payment therefor pursuant hereto, assuming that the Company has no notice of any adverse claims within the meaning of Section 8-105 of the New York Uniform Commercial Code as in effect in the State of New York from time to time (the “UCC”), the Company will acquire its interest in the Repurchase Shares purchased by the Company that are physically delivered to the Company free of adverse claims (within the meaning of Section 8-105 of the UCC) or, in the case of crediting to a securities account of the Company, will acquire a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Repurchase Shares purchased by the Company, and no action (whether framed in conversion, replevin, constructive trust, equitable lien or other theory) based on an adverse claim (within the meaning of Section 8-105 of the UCC) to such security entitlement may be asserted against the Company.
(fe) The Seller (either alone or together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the Repurchase. The Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the Repurchase and the Repurchase Shares and has had full access to such other information concerning the Repurchase Shares and the Company as it has requested. The Seller has received all information that it believes is necessary or appropriate in connection with the Repurchase. The Seller is an informed and sophisticated party and has engaged, to the extent such the Seller deems appropriate, expert advisors experienced in the evaluation of transactions of the type contemplated hereby. The Seller acknowledges that the Seller has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of the Seller in this Agreement.
(g) As of the date hereof, the Seller is not aware of any material, nonpublic information about the Company or its securities and it is entering into this Agreement in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b5-1 of the Exchange Act.
Appears in 1 contract
Samples: Stock Repurchase Agreement (Delek US Holdings, Inc.)
Representations of the Seller. In connection with the transactions contemplated hereby, the The Seller hereby represents and warrants to the Company thatTrustee and the Certificateholders as of the Closing Date:
(a) Such Seller is a corporation duly organized organized, validly existing, and existing in good standing under the laws of the jurisdiction of its incorporation and has all licenses necessary to carry on its business as now being conducted and is licensed, qualified and in good standing in each state where the laws of organization.
(b) All consentssuch state require licensing or qualification in order to conduct business of the type conducted by such Seller and perform its obligations hereunder; such Seller has corporate power and authority to execute and deliver this Agreement and each Subservicing Agreement and to perform in accordance herewith and therewith; the execution, approvals, authorizations delivery and orders necessary for the execution and delivery by Seller performance of this Agreement and for the sale and delivery each Subservicing Agreement (including all instruments of the Repurchase Shares transfer to be sold by Seller hereunder, have been obtained; and Seller has full right, power and authority delivered pursuant to enter into this Agreement and to sell, assign, transfer and deliver the Repurchase Shares to be sold by Seller hereunder, except for such consents, approvals, authorizations and orders as would not impair in any material respect the consummation of the Seller’s obligations hereunder.
(ceach Subservicing Agreement) This Agreement has been duly authorized, executed and delivered by Seller and constitutes a valid and binding agreement of Seller, enforceable in accordance with its terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other laws affecting enforcement of creditors’ rights or by general equitable principles.
(d) The sale of the Repurchase Shares to be sold by Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein hereby and thereby have been duly and validly authorized by all necessary corporate action; this Agreement and each Subservicing Agreement evidences the valid, binding and enforceable obligation of such Seller; and all requisite corporate action has been taken by such Seller to make this Agreement and each Subservicing Agreement valid, binding and enforceable upon such Seller in accordance with the respective terms of each, 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 Trustee, as trustee.
(ib) 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 such Seller makes no such representation or warranty), that are necessary or advisable in connection with the purchase and sale of the Certificates and the execution and delivery by such Seller of the documents to which it is a party, have been duly taken, given or obtained, as the case may be, are in full force and effect on the date hereof, are not subject to any pending proceedings or appeals (administrative, judicial or otherwise) and either the time within which any appeal therefrom may be taken or review thereof may be obtained has expired or no review thereof may be obtained or appeal therefrom taken, and are adequate to authorize the consummation of the transactions contemplated by this Agreement and each Subservicing Agreement and the other documents on the part of such Seller and the performance by such Seller of its obligations under this Agreement and each Subservicing Agreement and such of the other documents to which it is a party;
(c) The consummation of the transactions contemplated by this Agreement and each Subservicing Agreement will not conflict with result in the breach of any terms or provisions of the certificate of incorporation or by-laws of such Seller or result in a the breach or violation of any of the terms term or provisions provision of, or conflict with or constitute a default under or result in the acceleration of any obligation under, any indenturematerial agreement, mortgage, deed of trust, indenture or loan or credit agreement or other agreement or material instrument to which such Seller or its property is a party subject, or by result in the violation of any law, rule, regulation, order, judgment or decree to which such Seller or its property is bound subject.
(d) Neither this Agreement or any Subservicing Agreement nor any statement, report or other document furnished or to which be furnished pursuant to this Agreement and each Subservicing Agreement 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 property statements contained herein or therein not misleading;
(e) Such Seller does not believe, nor does it have any reason or cause to believe, that it cannot perform each and every covenant contained in this Agreement or any Subservicing Agreement;
(f) There is no action, suit, proceeding or investigation pending or, to the best of such Seller's knowledge, threatened against such Seller which, either in any one instance or in the aggregate, may (i) except as described in the Registration Statement, result in any material adverse change in the business, operations, financial condition, properties or assets of such Seller is subjector in any material impairment of the right or ability of such Seller to carry on its business substantially as now conducted, or in any material liability on the part of such Seller or of any action taken or to be taken in connection with the obligations of such Seller contemplated herein, or which would be likely to impair materially the ability of such Seller to perform under the terms of this Agreement and each Subservicing Agreement or (ii) nor which would draw into question the validity of this Agreement and each Subservicing Agreement or the Business Loans;
(g) The Trust Fund will not constitute an "investment company" within the meaning of such action violate Act;
(h) Such Seller is not in default with respect to any order or decree of the provisions of (x) any organizational or similar documents pursuant to which Seller was formed or (y) any statute court or any order, rule regulation or regulation demand of any court federal, state, municipal or governmental agency agency, which default might have consequences that would materially and adversely affect the condition (financial or body having jurisdiction over other) or operations of such Seller or its properties or might have consequences that would materially and adversely affect its performance hereunder;
(i) The statements contained in the Registration Statement which describe such Seller or the property Business Loans or matters or activities for which such Seller is responsible in accordance with the Registration Statement, this Agreement and all documents referred to therein or herein or delivered in connection therewith or herewith, or which are attributable to such Seller therein or herein are true and correct in all material respects, and the Registration Statement does not contain any untrue statement of a material fact with respect to such Seller or the Business Loans and does not omit to state a material fact necessary to make the statements contained therein with respect to such Seller or the Business Loans not misleading. Such Seller is not aware that the Registration Statement contains any untrue statement of a material fact or omits to state any material fact necessary to make the statements contained therein not misleading. There is no fact peculiar to such Seller or the Business Loans and known to such Seller that materially adversely affects or in the future may (so far as such Seller can now reasonably foresee) materially adversely affect such Seller or the Business Loans or the ownership interests therein represented by the Certificates that has not been set forth in the Registration Statement;
(j) No Certificateholder is subject to state licensing requirements solely by virtue of holding the Certificates;
(k) The transfer, assignment and conveyance of the Business Notes and the Mortgages by such Seller pursuant to this Agreement are not subject to the bulk transfer laws or any similar statutory provisions in effect in any applicable jurisdiction and do not violate the SBA Rules and Regulations;
(l) The origination and collection practices used by such Seller with respect to each Business Note and Mortgage relating to the Initial Business Loans have been, and the origination and collection practices to be used by such Seller with respect to each Business Note and Mortgage relating to the Subsequent Business Loans will have been, in all material respects legal, proper, prudent and customary in the business loan origination and servicing business;
(m) Each Initial Business Loan was, and each Subsequent Business Loan will be, selected from among the existing SBA 504 Loans and Section 7
(a) Companion Loans in such Seller; except 's portfolio at the date hereof or, in the case of clause the Subsequent Business Loans at the related Subsequent Cut-Off Date in a manner not designed to adversely affect the Certificateholders;
(in) Such Seller received fair consideration and reasonably equivalent value in exchange for the sale of the Business Loans evidenced by the Certificates;
(o) Neither such Seller nor any of its affiliates sold any interest in any Business Loan evidenced by the Certificates with any intent to hinder, delay or clause defraud any of their respective creditors;
(ii)(yp) Such Seller is solvent, and such Seller will not be rendered insolvent as a result of the transfer of the Business Loans to the Trust Fund or the sale of the Certificates; and
(q) The chief executive office and legal name of the Seller is as set forth on the respective UCC-1 financing statement filed on behalf of such Seller pursuant to Section 2.04(h), such office is the place where such Seller is "located" for such conflicts, breaches, violations or defaults as would not impair in any material respect the consummation purposes of Seller’s obligations hereunder.
(eSection 9-103(3)(d) As of the date hereof and immediately prior to the delivery of the Repurchase Shares to the Company at each Closing, such Seller owns the Repurchase Shares or a security entitlement in respect thereof, and holds, or will hold, such Repurchase Shares free and clear of all liens, encumbrances, equities or claims; and, upon delivery of such Repurchase Shares (including by delivery of security certificates duly indorsed or crediting to a securities account of the Company) and payment therefor pursuant hereto, assuming that the Company has no notice of any adverse claims within the meaning of Section 8-105 of the New York Uniform Commercial Code as in effect in the State of New York from time to time (York, and neither the “UCC”), location of such office nor the Company will acquire its interest legal name of the Seller has changed in the Repurchase Shares purchased by the Company that are physically delivered to the Company free of adverse claims (within the meaning of Section 8-105 of the UCC) or, in the case of crediting to a securities account of the Company, will acquire a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Repurchase Shares purchased by the Company, and no action (whether framed in conversion, replevin, constructive trust, equitable lien or other theory) based on an adverse claim (within the meaning of Section 8-105 of the UCC) to such security entitlement may be asserted against the Companypast four months.
(f) Seller (either alone or together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the Repurchase. Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the Repurchase and the Repurchase Shares and has had full access to such other information concerning the Repurchase Shares and the Company as it has requested. Seller has received all information that it believes is necessary or appropriate in connection with the Repurchase. Seller is an informed and sophisticated party and has engaged, to the extent such Seller deems appropriate, expert advisors experienced in the evaluation of transactions of the type contemplated hereby. Seller acknowledges that Seller has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of Seller in this Agreement.
(g) As of the date hereof, the Seller is not aware of any material, nonpublic information about the Company or its securities and it is entering into this Agreement in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b5-1 of the Exchange Act.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Money Store Commercial Mortgage Inc)
Representations of the Seller. In connection with the transactions contemplated hereby, the The Seller hereby represents and warrants to the Company thatPurchaser that as of each Closing Date or as of such date specifically provided herein:
(a) The Seller is a corporation duly organized organized, validly existing and existing in good standing under the laws of the jurisdiction of its state organization and is an operating subsidiary of organization.
(b) All consentsNational City Bank of Indiana. As a national bank operating subsidiary, approvalsit is regulated by the Office of the Comptroller of the Currency and is subject to all applicable laws and regulations. Seller is duly authorized to carry on its business as now being conducted as an operating subsidiary of a national bank, authorizations and orders in any event the Seller is in compliance with all applicable laws to the extent necessary for to ensure the execution and delivery by Seller enforceability of the related Mortgage Loan in accordance with the terms of this Agreement and for Agreement; the sale and delivery of the Repurchase Shares to be sold by Seller hereunder, have been obtained; and Seller has full right, the corporate power and authority to hold each Mortgage Loan, to sell each Mortgage Loan, to enter into this Agreement and to sellinto, assign, transfer execute and deliver the Repurchase Shares to be sold by Seller hereunderthis Agreement, except for such consents, approvals, authorizations and orders as would not impair in any material respect the consummation of the Seller’s obligations hereunder.
(c) This Agreement has been duly authorized, all documents and instruments executed and delivered by Seller pursuant hereto and constitutes a valid and binding agreement of Seller, enforceable to perform its obligations in accordance with its termstherewith; the execution, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other laws affecting enforcement of creditors’ rights or by general equitable principles.
(d) The sale of the Repurchase Shares to be sold by Seller hereunder delivery and the compliance by such Seller with all of the provisions performance of this Agreement by the Seller and the consummation of the transactions contemplated herein (i) will not conflict with or result in a breach or violation of any hereby, including, without limitation, the repurchase obligations hereinafter contained, have been duly and validly authorized; this Agreement evidences the valid, binding and enforceable obligations of the terms or provisions ofSeller; and all requisite corporate action has been taken by the Seller to make this Agreement valid and binding upon the Seller in accordance with its terms.
(b) No consent, approval, authorization, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which Seller is a party or by which Seller is bound or to which any of the property or assets of Seller is subject, (ii) nor will such action violate any of the provisions of (x) any organizational or similar documents pursuant to which Seller was formed or (y) any statute or any order, rule or regulation order of any court or governmental agency or body having jurisdiction over relating to the transactions contemplated by this Agreement and the transfer of legal title to the Mortgage Loans to the Purchaser, is required as to the Seller or, if required, such consent, approval, authorization, or order has been or will, prior to the Closing Date, be obtained except for any recordations of Assignments of the Mortgages to or for the benefit of the Purchaser pursuant to this Agreement.
(c) The consummation of the transactions contemplated by this Agreement, including without limitation the transfer and assignment of the Mortgage Loans to or for the benefit of the Purchaser pursuant to this Agreement and the fulfillment of or compliance with the terms and conditions of this Agreement, are in the ordinary course of business of the Seller and will not result in the breach of any term or provision of the articles of incorporation or by-laws of the Seller or the property of such Seller; except result in the case breach of clause any term or provision of, or conflict with or constitute a default under, or result in the acceleration of any obligation under, any agreement, indenture, loan or credit agreement, or other instrument to which the Seller or its property is subject, or result in the violation of any law, rule, regulation, order, judgment, or decree to which the Seller or its property is subject.
(id) There is no action, suit, proceeding or clause (ii)(y)investigation pending or to the Seller's knowledge, for such conflictsthreatened against the Seller which, breacheseither in any one instance or in the aggregate, violations or defaults as would not impair is likely to result in any material respect impairment of the consummation right or ability of the Seller to carry on its business substantially as now conducted, or any material liability to the Seller’s , or any material adverse change in the financial condition of the Seller, 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 hereunderof the Seller contemplated herein or therein, or which would be likely to impair materially the ability of the Seller to perform its obligations hereunder or thereunder.
(e) As The Seller is an approved seller/servicer of conventional mortgage loans for Xxxxxx Xxx or Xxxxxxx Mac in good standing and is a HUD approved mortgagee pursuant to Section 203 of the date hereof National Housing Act, with the facilities, procedures, and immediately prior to experienced personnel necessary for the delivery sound servicing of mortgage loans of the Repurchase Shares same type as the Mortgage Loans. The Seller is in good standing to the Company at each Closing, such Seller owns the Repurchase Shares sell mortgage loans to and service mortgage loans for Xxxxxx Mae or a security entitlement in respect thereof, and holds, or will hold, such Repurchase Shares free and clear of all liens, encumbrances, equities or claims; and, upon delivery of such Repurchase Shares (including by delivery of security certificates duly indorsed or crediting to a securities account of the Company) and payment therefor pursuant hereto, assuming that the Company has no notice of any adverse claims within the meaning of Section 8-105 of the New York Uniform Commercial Code as in effect in the State of New York from time to time (the “UCC”), the Company will acquire its interest in the Repurchase Shares purchased by the Company that are physically delivered to the Company free of adverse claims (within the meaning of Section 8-105 of the UCC) or, in the case of crediting to a securities account of the Company, will acquire a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Repurchase Shares purchased by the CompanyXxxxxxx Mac, and no action (whether framed event has occurred, including but not limited to a change in conversioninsurance coverage, replevinwhich would make the Seller unable to comply with Xxxxxx Mae, constructive trustXxxxxxx Mac or HUD eligibility requirements or which would require notification to either Xxxxxx Mae, equitable lien Xxxxxxx Mac or other theory) based on an adverse claim (within the meaning of Section 8-105 of the UCC) to such security entitlement may be asserted against the CompanyHUD.
(f) The Seller (either alone or together with its advisors) has acknowledges and agrees that the Servicing Fee, as calculated at the Servicing Fee Rate, represents reasonable compensation for performing such knowledge services and experience in financial or business matters that it is capable of evaluating the merits entire Servicing Fee shall be treated by the Seller, for accounting and risks tax purposes, as compensation for the servicing and administration of the Repurchase. Seller has had the opportunity Mortgage Loans pursuant to ask questions and receive answers concerning the terms and conditions of the Repurchase and the Repurchase Shares and has had full access to such other information concerning the Repurchase Shares and the Company as it has requested. Seller has received all information that it believes is necessary or appropriate in connection with the Repurchase. Seller is an informed and sophisticated party and has engaged, to the extent such Seller deems appropriate, expert advisors experienced in the evaluation of transactions of the type contemplated hereby. Seller acknowledges that Seller has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of Seller in this Agreement.
(g) As The Mortgage Loans were selected from among the outstanding fixed rate one- to four-family or one- to two-family adjustable rate mortgage loans in the Seller's portfolio at the related Closing Date as to which the representations and warranties set forth in Section 3.1 could be made and such selection (i) was not made in a manner so as to affect adversely the interests of the date hereofPurchaser and (ii) did not identify the Mortgage Loans as being less desirable or valuable than other comparable Mortgage Loans in the Seller's portfolio as of the Cut-off Date.
(h) The disposition of the Mortgage Loans shall be treated as a sale on the books and records of the Seller. The Seller has determined that the disposition of the Mortgage Loans pursuant to this Agreement will be afforded sale treatment for accounting and tax purposes. The Seller shall maintain a complete set of books and records for each Mortgage Loan, which shall be clearly marked to reflect the ownership of such Mortgage Loan.
(i) The Seller has delivered to the Purchaser financial statements as to its last three complete fiscal years and any later quarter ended more than 60 days prior to the execution of this Agreement. All such financial statements fairly present the pertinent results of operations and changes in financial position at the end of each such period of the Seller is not aware of any materialand its subsidiaries and have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods involved, nonpublic information about except as set forth in the Company notes thereto. There has been no change in the business, operations, financial condition, properties or its securities and it is entering into this Agreement in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b5-1 assets of the Exchange ActSeller since the date of the Seller's financial statements that would have a material adverse effect on its ability to perform its obligations under this Agreement. The Seller has completed any forms requested by the Purchaser in a timely manner and in accordance with the provided instructions.
(j) The Seller has not dealt with any broker, investment banker, agent or other person that may be entitled to any commission or compensation in connection with the sale of the Mortgage Loans..
Appears in 1 contract
Samples: Master Purchase and Servicing Agreement (Luminent Mortgage Trust 2006-7)
Representations of the Seller. In connection with the transactions contemplated hereby, the Seller represents and warrants to the Company thatas follows:
(a) Seller is duly organized and existing under the laws of its state of organization.
(b) All consents, approvals, authorizations and orders necessary for the execution and delivery by Seller of this Agreement and for the sale and delivery of the Repurchase Shares to be sold by Seller hereunder, have been obtained; and a. Seller has full legal right, power power, capacity, and authority to enter into sign and perform its obligations under this Agreement and to sell, assign, transfer and deliver the Repurchase Shares to be sold by Seller hereunder, except for such consents, approvals, authorizations and orders as would not impair in any material respect the consummation of the Seller’s obligations hereunder.
(c) Agreement. This Agreement has been duly authorized, executed and delivered by Seller and constitutes a valid and binding agreement obligation of Seller, enforceable in accordance with its terms. There are no agreements, except to the extent that enforcement thereof may be limited by bankruptcylaws, insolvencyregulations, reorganization rules or other laws affecting enforcement restrictions of creditors’ rights any kind that would prevent or by general equitable principles.
(d) The sale of restrict the Repurchase Shares to be sold by Seller hereunder and the compliance by such Seller with all of the provisions execution, delivery or performance of this Agreement and by Seller. No consent or approval is necessary for Seller to transfer the consummation of the transactions contemplated herein (i) will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which Seller is a party or by which Seller is bound or to which any of the property or assets of Seller is subject, (ii) nor will such action violate any of the provisions of (x) any organizational or similar documents pursuant to which Seller was formed or (y) any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over Seller or the property of such Seller; except in the case of clause (i) or clause (ii)(y), for such conflicts, breaches, violations or defaults as would not impair in any material respect the consummation of Seller’s obligations hereunder.
(e) As of the date hereof and immediately prior to the delivery of the Repurchase Shares to the Company at each Closing, such pursuant to this Agreement that has not been obtained on or prior to the date hereof.
b. Seller owns the Repurchase Shares or a security entitlement in respect thereof, and holds, or will hold, such Repurchase Shares free and clear of all liens, encumbrances, equities or claims; and, upon delivery of such Repurchase Shares (including by delivery of security certificates duly indorsed or crediting to a securities account of the Company) and payment therefor pursuant hereto, assuming that the Company has no notice of any adverse claims is an “accredited investor” within the meaning of Section 8-105 of the New York Uniform Commercial Code as in effect in the State of New York from time to time Securities Exchange Commission (the “UCCSEC”), the Company will acquire its interest in the Repurchase Shares purchased by the Company that are physically delivered to the Company free of adverse claims () Rule 501 and a “qualified institutional buyer” within the meaning of Section 8-105 of the UCC) or, in the case of crediting to a securities account of the Company, will acquire a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Repurchase Shares purchased by the CompanySEC Rule 144 that can fend for itself, and no action (whether framed in conversion, replevin, constructive trust, equitable lien or other theory) based on an adverse claim (within the meaning of Section 8-105 of the UCC) to such security entitlement may be asserted against the Company.
(f) Seller (either alone or together with its advisors) has such sufficiently sophisticated knowledge and experience in financial or and business matters that it to evaluate the merits and risks of selling the Shares.
c. Seller
(i) has been represented in the preparation, negotiation and execution of this Agreement by legal counsel, (ii) is fully capable of evaluating the merits and risks of the Repurchase. Seller sale of the Shares pursuant to this Agreement, (iii) understands the terms and consequences of this Agreement and is fully aware of the legal and binding effect of this Agreement, (iv) is not in a disparate bargaining position with the Company, (v) has been represented and advised by financial advisors and tax advisors that have assisted in understanding and evaluating the risks and merits associated with Seller’s sale of the Shares pursuant to this Agreement, (vi) is generally familiar with the business and operations of the Company, (vii) has had the opportunity to review such information about the Company as Seller has requested, including the Company Update attached hereto as Exhibit A, and to ask questions and receive answers concerning from the Company’s officers and representatives as Seller deems necessary to evaluate the terms and conditions of the Repurchase sale of the Shares as contemplated in this Agreement, including the purchase price for the Shares, and (viii) is not relying on any representation or statement by the Repurchase Shares Company regarding the business, financial condition or prospects of the Company or the value of the Shares, but rather is executing this Agreement based upon its own review and has had full access investigation of the Company and upon the advice of counsel and financial advisors.
d. Seller understands that (i) the Company and its management may be exploring potential financing, merger, acquisition, combination or other restructuring alternatives involving the Company that may have an impact on the value of the Shares, and (ii) other than its contingent right to such other information concerning the Repurchase Shares an Additional Amount, as described in this Agreement, Seller shall have no rights (and the Company as it has requested. shall have no obligations to Seller) relating to any such transaction that may be consummated by the Company at any time after the Effective Date.
e. Seller has received all information understands that it believes is necessary after the Effective Date or appropriate in connection with after the Repurchase. Seller is an informed and sophisticated party and has engagedClosing, to the extent such Seller deems appropriatevalue of the Shares may increase for any number of reasons, expert advisors experienced including without limitation (i) changes in the evaluation of transactions of the type contemplated hereby. Seller acknowledges that Seller has not relied upon any express business, financial condition, business relationships or implied representations or warranties of any nature made by or on behalf prospects of the Company, whether or (ii) general industry, market or economic conditions.
f. Except for (i) any Encumbrances imposed by the Securities Act, the Securities Exchange Act, or the rules and regulations enacted under the Securities Act and the Securities Exchange Act, (ii) any rules and regulations imposed by NASDAQ, and (iii) the Company’s Tax Benefits Preservation Plan (collectively, the “Permitted Encumbrances”), Seller has sole, absolute and marketable title to the Shares, free and clear of all Encumbrances. Except under this Agreement, Seller has not sold, pledged, hypothecated or otherwise transferred any such representations, warranties of the Shares or statements were made any interest in writing or orally, except as expressly set forth the Shares. Upon payment for the benefit Shares to be purchased from Seller pursuant to the terms of Seller in this Agreement.
(g) As of the date hereof, the Seller is not aware of any materialCompany will acquire good, nonpublic information about valid and marketable title thereto, subject only to the Company or its securities and it is entering into this Agreement in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b5-1 of the Exchange ActPermitted Encumbrances.
Appears in 1 contract
Representations of the Seller. In connection with the transactions contemplated hereby, the The Seller hereby represents and warrants to the Company thatIssuer, the Note Insurer, the Indenture Trustee, the Noteholders and the Certificateholders as of the Closing Date:
(a) The Seller is a federally chartered stock savings bank, duly organized organized, validly existing and existing in good standing under the laws of the United States and has all licenses necessary to carry on its business as now being conducted and is licensed, qualified and in good standing in each state in which a Mortgaged Property is located if the laws of organization.
(b) All consents, approvals, authorizations and orders necessary for the execution and delivery by Seller of this Agreement and for the sale and delivery such state require licensing or qualification in order to conduct business of the Repurchase Shares to be sold type conducted by the Seller and perform its obligations as Seller hereunder, have been obtained; and the Seller has full right, the power and authority to enter into execute and deliver this Agreement and to sell, assign, transfer and deliver the Repurchase Shares to be sold by Seller hereunder, except for such consents, approvals, authorizations and orders as would not impair in any material respect the consummation of the Seller’s obligations hereunder.
(c) This Agreement has been duly authorized, executed and delivered by Seller and constitutes a valid and binding agreement of Seller, enforceable perform in accordance with its termsherewith; the execution, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other laws affecting enforcement of creditors’ rights or by general equitable principles.
(d) The sale of the Repurchase Shares to be sold by Seller hereunder delivery and the compliance by such Seller with all of the provisions performance of this Agreement (including all instruments of transfer to be delivered pursuant to this Agreement) by the Seller and the consummation of the transactions contemplated herein hereby have been duly and validly authorized by all necessary action; this Agreement evidences the valid, binding and enforceable obligation of the Seller; all requisite action has been taken by the Seller to make this Agreement valid, binding and enforceable upon the Seller 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; and the chief executive office and principal place of business of the Seller is located in the county of DuPage in the state of Illinois;
(ib) All actions, approvals, consents, waivers, exemptions, variances, franchises, orders, permits, authorizations, rights and licenses required to be taken, given or obtained, as the case may be, by or from any federal, state or other governmental authority or agency (other than any such actions, approvals, etc. under any state securities laws, real estate syndication or "Blue Sky" statutes, as to which the Seller makes no such representation or warranty), that are necessary in connection with the purchase and sale of the Certificates and the execution and delivery by the Seller of the 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 (administrative, judicial or otherwise) and either the time within which any appeal therefrom may be taken or review thereof may be obtained has expired or no review thereof may be obtained or appeal therefrom taken, and are adequate to authorize the consummation of the transactions contemplated by this Agreement and the other documents on the part of the Seller and the performance by the Seller of its obligations as Seller or Servicer under this Agreement and such of the other documents to which it is a party;
(c) The consummation of the transactions contemplated by this Agreement will not conflict with result in the breach of any terms or provisions of the charter or by-laws of the Seller or result in a the breach or violation of any of the terms term or provisions provision of, or conflict with or constitute a default under or result in the acceleration of any obligation under, any indenturematerial agreement, mortgage, deed of trust, indenture or loan or credit agreement or other agreement or material instrument to which the Seller is a party or by which Seller is bound or to which any of the its property or assets of Seller is subject, or result in the violation of any law, rule, regulation, order, judgment or decree to which the Seller or its property is subject;
(iid) Neither this Agreement nor will such action violate the Prospectus nor any of statement, report or other document prepared by the provisions of (x) any organizational Seller and furnished or similar documents to be furnished pursuant to which Seller was formed this Agreement or (y) any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over Seller or the property of such Seller; except in the case of clause (i) or clause (ii)(y), for such conflicts, breaches, violations or defaults as would not impair in any material respect the consummation of Seller’s obligations hereunder.
(e) As of the date hereof and immediately prior to the delivery of the Repurchase Shares to the Company at each Closing, such Seller owns the Repurchase Shares or a security entitlement in respect thereof, and holds, or will hold, such Repurchase Shares free and clear of all liens, encumbrances, equities or claims; and, upon delivery of such Repurchase Shares (including by delivery of security certificates duly indorsed or crediting to a securities account of the Company) and payment therefor pursuant hereto, assuming that the Company has no notice of any adverse claims within the meaning of Section 8-105 of the New York Uniform Commercial Code as in effect in the State of New York from time to time (the “UCC”), the Company will acquire its interest in the Repurchase Shares purchased by the Company that are physically delivered to the Company free of adverse claims (within the meaning of Section 8-105 of the UCC) or, in the case of crediting to a securities account of the Company, will acquire a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Repurchase Shares purchased by the Company, and no action (whether framed in conversion, replevin, constructive trust, equitable lien or other theory) based on an adverse claim (within the meaning of Section 8-105 of the UCC) to such security entitlement may be asserted against the Company.
(f) Seller (either alone or together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the Repurchase. Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the Repurchase and the Repurchase Shares and has had full access to such other information concerning the Repurchase Shares and the Company as it has requested. Seller has received all information that it believes is necessary or appropriate in connection with the Repurchase. Seller is an informed and sophisticated party and has engaged, transactions contemplated hereby contains any untrue statement of material fact or omits to state a material fact necessary to make the extent such Seller deems appropriate, expert advisors experienced in the evaluation of transactions of the type contemplated hereby. Seller acknowledges that Seller has statements contained herein or therein not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of Seller in this Agreement.
(g) As of the date hereof, the Seller is not aware of any material, nonpublic information about the Company or its securities and it is entering into this Agreement in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b5-1 of the Exchange Act.misleading;
Appears in 1 contract
Samples: Sale and Servicing Agreement (Afc Mortgage Loan Asset Backed Notes Series 2000-1)
Representations of the Seller. In connection with the transactions contemplated hereby, the 7.01 The Seller represents and warrants to the Company thatPurchaser, that on the date hereof:
(a) Seller is duly organized and existing under the laws of its state of organization.
(b) All consents, approvals, authorizations and orders necessary for the execution and delivery by Seller of The persons executing this Agreement and for the sale and delivery on behalf of the Repurchase Shares to be sold by Seller hereunder, have been obtained; and Seller has full right, power and duly authorized to do so by the appropriate governing or managing authority to enter into this Agreement and to sell, assign, transfer and deliver the Repurchase Shares to be sold by Seller hereunder, except for such consents, approvals, authorizations and orders as would not impair in any material respect the consummation of the Seller’s obligations hereunder.
(c) This , and this Agreement has been duly authorized, executed and delivered by Seller and constitutes a the valid and binding agreement obligation of the Seller, enforceable in accordance with its terms, except .
(b) The information with respect to the extent that enforcement thereof may be limited by bankruptcyReal Property set forth in the following Schedules annexed hereto and made part hereof is, insolvencyas of the date hereof, reorganization true and complete information respecting each of the sets of matters referred to in such Schedules: Schedules C (current rent roll of the Building), Schedule D (Contracts), Schedule F (employees of the Buildings), Schedule G (insurance coverage for the Buildings and Other Improvements), Schedule H (Personal Property as of the date thereon set forth), Schedule I (unpaid costs of improvements and allowances owed to Tenants under Leases), and Schedule J (unpaid commissions owed to brokers in connection with Leases). Schedule E has been intentionally omitted.
(c) The Seller has not received notice of violation of any zoning, building, fire or safety code, Environmental Law, the Federal Fair Housing Act or any state or municipal equivalent, or other laws affecting enforcement of creditors’ rights or by general equitable principlesapplicable law that has not been discharged.
(d) The sale To the best of the Repurchase Shares to be sold by Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein (i) will Seller’s knowledge, it is not conflict with or result in a material breach or violation of any of the terms or provisions of, or constitute a default under, Lease and it has not received notice from any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which Seller is a party or by which Seller is bound or to which any of the property or assets of Seller is subject, (ii) nor will such action violate any of the provisions of (x) any organizational or similar documents pursuant to which Seller was formed or (y) any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over Seller or the property tenant of such Seller; except in the case of clause (i) or clause (ii)(y), for such conflicts, breaches, violations or defaults as would a material breach that has not impair in any material respect the consummation of Seller’s obligations hereunder.been cured;
(e) As of the date hereof and immediately prior to the delivery of the Repurchase Shares to the Company at each Closing, such Seller owns the Repurchase Shares or a security entitlement in respect thereof, and holds, or will hold, such Repurchase Shares free and clear of all liens, encumbrances, equities or claims; and, upon delivery of such Repurchase Shares (including by delivery of security certificates duly indorsed or crediting to a securities account of the Company) and payment therefor pursuant hereto, assuming that the Company It has no not received notice of any adverse claims within the meaning material breach of Section 8-105 any material obligation to any third party under any of the New York Uniform Commercial Code as in effect in documents listed among the State of New York from time to time (the “UCC”), the Company will acquire its interest in the Repurchase Shares purchased by the Company Permitted Title Exceptions or under any Contract that are physically delivered to the Company free of adverse claims (within the meaning of Section 8-105 of the UCC) or, in the case of crediting to a securities account of the Company, will acquire a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Repurchase Shares purchased by the Company, and no action (whether framed in conversion, replevin, constructive trust, equitable lien or other theory) based on an adverse claim (within the meaning of Section 8-105 of the UCC) to such security entitlement may be asserted against the Companyhas not been cured.
(f) Seller (either alone or together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the Repurchase. Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the Repurchase and the Repurchase Shares and has had full access to such other information concerning the Repurchase Shares and the Company as it has requested. Seller has received all information that it believes is necessary or appropriate in connection with the Repurchase. Seller is an informed and sophisticated party and has engaged, to the extent such Seller deems appropriate, expert advisors experienced in the evaluation of transactions of the type contemplated hereby. Seller acknowledges that Seller has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of Seller in this AgreementNo real estate tax contests are pending.
(g) As No apartment units comprising the Property are occupied by persons other than bona fide tenants, and no employees of Seller or its property manager are in possession of any apartments, except two employees under Leases that provide that any such Lease may be terminated upon ten (10) days’ notice if the relevant employee’s employment is terminated.
7.02 The Seller shall update and revise each of the Schedules referred to in paragraph (b) of Section 7.01 so that the same shall be accurate as of a date not earlier later than two (2) Business Days preceding the Closing Date, but no such updated and revised Schedule shall be deemed to be a representation (or contain representations) which shall survive the delivery of the Conveyancing Instruments at the Closing except as provided in Section 7.08 hereof.
7.03 No representation is made with respect to the existence of any Lease, tenancy, or Contract on the Closing Date, and the existence of any of the foregoing on the Closing Date is not a condition precedent to the Purchaser’s obligation to consummate this transaction. Notwithstanding the foregoing, the updated rent roll shall be true, correct and complete as of the date hereofmade.
7.04 A representation of the Seller shall be deemed untrue or incomplete only if (i) the Purchaser did not know that such representation is untrue, (ii) such representation is factually untrue and (iii) such representation is material. Notwithstanding the provisions of the preceding sentence, if the Purchaser shall discover any of the Seller’s representations to be untrue factually, the Purchaser shall give the Seller notice thereof promptly after discovering such fact and the Seller shall have the opportunity (not to exceed thirty (30) days) to correct any such untrue factual representation. If the Seller is not aware able to correct such conditions that made the representation untrue factually so that it is true as of the date of such correction, the representation shall be deemed true as if made accurately on the date hereof. If the Purchaser fails to afford the Seller the opportunity to correct such condition, then the Purchaser shall be deemed to have waived any rights and remedies arising by reason of such untrue representation.
7.05 Subject to the terms and provisions of Section 7.04, the Purchaser’s sole right and remedy arising by reason of any material, nonpublic information about untrue or incomplete representation discovered by the Company or its securities and it is entering into Purchaser prior to Closing shall be to terminate this Agreement in good faith and not as part have the Escrow Fund paid to the Purchaser together with the Purchaser’s reasonable costs of a plan or scheme due diligence up to evade the prohibitions of Rule 10b5-1 $75,000.
7.06 All of the Exchange ActSeller’s representations hereunder shall be deemed merged in the Conveyancing Instruments and shall not survive the conveyances of the Property to the Purchaser, except as provided in Section 7.07. The acceptance by the Purchaser of the Conveyancing Instruments by the Purchaser shall constitute conclusive proof that the Seller shall have performed all of its obligations under this Agreement and shall have no further or continuing obligations or liabilities to the Purchaser arising under or by virtue of this Agreement or out of the transactions contemplated by the parties hereto, except as may be expressly set forth in this Agreement or the closing documents.
7.07 The Seller’s representations set forth in Section 7.01 shall survive the Closing for one hundred eighty (180) days. Following the Closing, if any such representation shall prove to be untrue or incomplete as defined in Section 7.04, the Purchaser may commence an action for the actual damages suffered thereby, provided that such action shall have been commenced within such 180-day period, time being of the essence.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Comstock Homebuilding Companies, Inc.)
Representations of the Seller. In connection with The Seller makes the transactions contemplated hereby, the Seller represents following representations and warrants warranties to the Company that:Debtor as to itself, on which the Debtor and the Lender rely until the Loan and Security Agreement is terminated. All such representations and warranties shall survive the sale, transfer and assignment of the Related Consumer Loans to the Debtor and the pledge thereof to the Lender pursuant to the Loan and Security Agreement.
(a) The Seller is an entity duly organized formed, validly existing and existing in good standing under the laws of its state the State of organization.
(b) All consentsDelaware, approvalsis duly qualified to do business and is in good standing in all states where such qualification is required, authorizations and orders necessary for except in those states where the execution and delivery by Seller of this Agreement and for the sale and delivery of the Repurchase Shares failure to be sold by Seller hereunderso qualified has not had and could not be reasonably expected to have, have been obtained; and Seller a Material Adverse Effect, has full right, all necessary corporate power and authority to enter into this Agreement and each other Loan Document to sellwhich it is a party and to perform all of its obligations hereunder and thereunder.
(b) The Seller has all requisite right and power and is duly authorized and empowered to enter into, assignexecute, transfer deliver and deliver perform this Agreement and each other Loan Document to which it is a party and this Agreement and each other Loan Document to which the Repurchase Shares to be sold by Seller hereunderis a party are the legal, except for such consents, approvals, authorizations valid and orders as would not impair in any material respect the consummation binding obligations of the Seller’s obligations hereunder, and are enforceable against the Seller in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws and legal principles affecting creditors’ rights generally from time to time in effect and to general equitable principles, whether applied in an action at law or in equity).
(c) This Agreement has been duly authorizedThe execution, executed delivery and delivered performance by the Seller and constitutes a valid and binding agreement of Seller, enforceable in accordance with its terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other laws affecting enforcement of creditors’ rights or by general equitable principles.
(d) The sale of the Repurchase Shares to be sold by Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement and the consummation each of the transactions contemplated herein Loan Documents to which it is a party does not and shall not (i) will not conflict with violate any provision of any applicable law, order, writ, judgment, injunction, decree, determination or award presently in effect having applicability to the Seller, (ii) violate any provision of its articles of incorporation, by-laws or formation documents or (iii) result in a breach or violation of any of the terms or provisions of, or constitute a default under, under the terms of any indenture, mortgageloan, deed of trust, loan credit agreement or any other agreement agreement, lease or instrument to which the Seller is a party or by which it or any of its assets or properties may be bound or affected; and the Seller is bound not in default of any such law, order, writ, judgment, injunction, decree, determination or to which award or any such indenture, agreement, lease or instrument.
(d) No consent, approval, license, exemption of or filing or registration with, giving of notice to, or other authorization of or by, any court, administrative agency or other Governmental Authority is or shall be required in connection with the execution, delivery or performance by the Seller of this Agreement and each other Loan Document for the valid consummation of the property transactions contemplated hereby or assets thereby, other than the filing of Seller is subject, (ii) nor will such action violate any of the provisions of (x) any organizational or similar documents pursuant to which Seller was formed or (y) any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over Seller or the property of such Seller; except in the case of clause (i) or clause (ii)(y), for such conflicts, breaches, violations or defaults as would not impair in any material respect the consummation of Seller’s obligations hereunderfinancing statements.
(e) As There is no action, suit, proceeding or investigation pending or threatened against or affecting the Seller before or by any court, administrative agency or other Governmental Authority that brings into question the validity of the date hereof and immediately prior to the delivery of the Repurchase Shares to the Company at each Closing, such Seller owns the Repurchase Shares or a security entitlement in respect thereof, and holdstransactions contemplated hereby, or will hold, such Repurchase Shares free and clear of all liens, encumbrances, equities or claims; and, upon delivery of such Repurchase Shares (including by delivery of security certificates duly indorsed or crediting to a securities account of the Company) and payment therefor pursuant hereto, assuming that the Company has no notice of might result in any adverse claims within the meaning of Section 8-105 of the New York Uniform Commercial Code as in effect in the State of New York from time to time (the “UCC”), the Company will acquire its interest in the Repurchase Shares purchased by the Company that are physically delivered to the Company free of adverse claims (within the meaning of Section 8-105 of the UCC) or, in the case of crediting to a securities account of the Company, will acquire a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Repurchase Shares purchased by the Company, and no action (whether framed in conversion, replevin, constructive trust, equitable lien or other theory) based on an adverse claim (within the meaning of Section 8-105 of the UCC) to such security entitlement may be asserted against the CompanyMaterial Adverse Effect.
(f) The Seller (either alone or together and each of its Subsidiaries are in compliance in all material respects with its advisors) has such knowledge all United States economic sanctions laws, Executive Orders and experience in financial or business matters that it is capable of evaluating the merits implementing regulations as promulgated by OFAC, and risks all applicable anti-money laundering and counter-terrorism financing provisions of the Repurchase. Seller has had the opportunity Bank Secrecy Act and all regulations issued pursuant to ask questions and receive answers concerning the terms and conditions of the Repurchase and the Repurchase Shares and has had full access to such other information concerning the Repurchase Shares and the Company as it has requested. Seller has received all information that it believes is necessary or appropriate in connection with the Repurchase. Seller is an informed and sophisticated party and has engaged, to the extent such Seller deems appropriate, expert advisors experienced in the evaluation of transactions of the type contemplated hereby. Seller acknowledges that Seller has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of Seller in this Agreementit.
(g) As of the date hereof, the Seller is not aware of any material, nonpublic information about the Company or its securities and it is entering into this Agreement in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b5-1 of the Exchange Act.
Appears in 1 contract
Representations of the Seller. In connection with the transactions contemplated hereby, the The Seller hereby represents and warrants to the Company Buyer that:
(a) it has good and marketable title to the Stock free and clear of all liens, security interests, charges or encumbrances of any kind and that upon the execution of this Agreement title to the Stock will pass to the Buyer free and clear of any pledge, lien, security interest, charge or encumbrance of any kind and thereupon the Buyer, as record and beneficial owner, will be entitled to all rights including voting rights with respect to the Stock;
(b) the Company has good and marketable title to the Partnership Interests free and clear of all liens, security interests, charges or encumbrances of any kind;
(c) the Seller is a duly organized formed and validly existing limited partnership under the laws of its state the Commonwealth of organization.
(b) All consents, approvals, authorizations and orders necessary for Massachusetts with the execution and delivery by Seller of this Agreement and for the sale and delivery of the Repurchase Shares to be sold by Seller hereunder, have been obtained; and Seller has full right, power and authority to enter into and carry out the provisions of this Agreement; Equis Corporation is the sole general partner of the Seller; and Xxxx X. Xxxxx is an officer of such general partner who has been duly authorized by all necessary partnership and corporate action to execute, deliver and perform on behalf of the Seller all such instruments and agreements and take all such other action as he may deem necessary or desirable for the Seller to consummate the sale of the Stock to the Buyer, including, without limiting the generality of the foregoing, this Agreement and to sell, assign, the stock power effecting the transfer and deliver the Repurchase Shares to be sold by Seller hereunder, except for such consents, approvals, authorizations and orders as would not impair in any material respect the consummation of the Seller’s obligations hereunder.
(c) This Agreement has been duly authorized, executed and delivered by Seller and constitutes a valid and binding agreement of Seller, enforceable in accordance with its terms, except Stock to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other laws affecting enforcement of creditors’ rights or by general equitable principles.Buyer;
(d) The sale of the Repurchase Shares to be sold by Seller hereunder execution, delivery and the compliance by such Seller with all of the provisions performance of this Agreement by the Seller and the consummation by the Seller of the transactions transaction contemplated herein (i) hereby do not and will not violate, conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default underunder any of the terms, conditions or provisions of any indenture, mortgage, deed of trust, loan agreement instrument or other agreement or instrument contract to which the Seller is a party or by which Seller it or any of its properties or assets is bound or to which any of the property or assets of Seller is subjectjudgment, (ii) nor will such action violate any of the provisions of (x) any organizational or similar documents pursuant to which Seller was formed or (y) any statute or any decree, order, statute, rule or regulation to which it is subject or by which it or any of its properties or assets is bound, or result in the creation of any court lien, charge or governmental agency encumbrance on any of its properties or body having jurisdiction over Seller or assets, including the property of such Seller; except in the case of clause (i) or clause (ii)(y), for such conflicts, breaches, violations or defaults as would not impair in any material respect the consummation of Seller’s obligations hereunder.Partnership Interests;
(e) As of the date hereof and immediately prior to the delivery of the Repurchase Shares to the Company at each Closing, such Seller owns the Repurchase Shares or a security entitlement in respect thereof, and holds, or will hold, such Repurchase Shares free and clear of all liens, encumbrances, equities or claims; and, upon delivery of such Repurchase Shares (including by delivery of security certificates duly indorsed or crediting to a securities account of the Company) and payment therefor pursuant hereto, assuming that the Company has no notice of any adverse claims within the meaning of Section 8-105 of the New York Uniform Commercial Code as in effect in the State of New York from time to time (the “UCC”), the Company will acquire its interest in the Repurchase Shares purchased by the Company that are physically delivered to the Company free of adverse claims (within the meaning of Section 8-105 Buyer true, accurate and complete copies of the UCC) or, in the case Certificate of crediting to a securities account Organization and By-Laws of the Company, will acquire a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Repurchase Shares purchased by the Company, and no action (whether framed in conversion, replevin, constructive trust, equitable lien or other theory) based on an adverse claim (within the meaning of Section 8-105 of the UCC) to such security entitlement may be asserted against the Company.
(f) Seller (either alone or together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the Repurchase. Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the Repurchase and the Repurchase Shares and has had full access to such other information concerning the Repurchase Shares and the Company as it has requested. Seller has received all information that it believes is necessary or appropriate in connection with the Repurchase. Seller is an informed and sophisticated party and has engaged, delivered to the extent such Seller deems appropriate, expert advisors experienced in Buyer the evaluation of transactions of the type contemplated hereby. Seller acknowledges that Seller has not relied upon any express or implied representations or warranties of any nature made by or on behalf original minute book and stock ledger of the Company, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of Seller in this Agreement.
(g) As . The minute book of the date hereofCompany contains accurate and complete records of all meetings and other corporate actions of its stockholders and Board of Directors, and the Seller stock ledger included in the minute book is not aware of any material, nonpublic information about the Company or its securities accurate and it is entering into this Agreement in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b5-1 of the Exchange Actcomplete.
Appears in 1 contract
Samples: Purchase and Sale of Stock Agreement (Semele Group Inc)
Representations of the Seller. In connection with the transactions contemplated hereby, the The Seller represents and warrants to the Company that:
Purchaser that (ai) the Seller is a limited liability company duly organized organized, validly existing and existing in good standing under the laws of its state the State of organization.
Ohio, (bii) All consentsXxxxxxx Xxxxxx and Xxxxxxx Xxxxx are the sole members of the Seller, approvals(iii) the execution, authorizations delivery and orders necessary for the execution and delivery by Seller performance of this Agreement and for the sale and delivery Xxxx of the Repurchase Shares to be sold by Seller hereunder, Sale have been obtainedduly authorized; (iv) the corporate action required hereunder will not violate any agreement to which it is a party or by which it is bound, and Seller has full right, power and authority to enter into both this Agreement and to sell, assign, transfer and deliver the Repurchase Shares to be sold by Seller hereunder, except for such consents, approvals, authorizations and orders as would not impair in any material respect the consummation Xxxx of the Seller’s obligations hereunder.
(c) This Agreement has been duly authorized, Sale when executed and delivered by Seller and constitutes a valid will be legally enforceable and binding agreement upon the As of SellerJanuary 1, enforceable 2006 Seller in accordance with its their terms, except (v) the Seller has duly filed all tax returns, paid all taxes, charges, penalties and interest and there are no ongoing audits by any government; (vi) the balance sheet and other financial information provided by Seller as of December 31, 2005 is true and correct in all material respects (vii) the Seller has not entered into any contract, understanding or agreement relating to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization sale or other laws affecting enforcement of creditors’ rights or by general equitable principles.
(d) The sale transfer of the Repurchase Shares Business; (viii)the Seller has good and marketable title to be sold by Seller hereunder and the compliance by such Seller with all of the provisions Acquired Assets, free and clear of this Agreement any agreement or understanding with respect to the use or possession thereof or any rights thereto and of all liens, leases, mortgages, pledges, encumbrances, security interests, or charges of any kind or character; (ix) there is no action, suit, investigation or other proceeding pending or threatened against or involving the Seller, the Business or the Acquired Assets , the Seller does not know of any material basis for any such action, suit, investigation or other proceeding, and there are no judgments or judgment liens outstanding against the Seller; (x) there are no warranty or other product claims pending or threatened against the Seller (xi) the Intellectual Property is owned and used solely and exclusively by, no other person has any rights in the Intellectual Property whether by license, sublease or otherwise, (xii) the Intellectual Property does not, to the best of Seller's knowledge, conflict or infringe upon the rights of others; (xiii) Seller is not aware of any third party infringement with respect to the Intellectual Property, (xiv) the Seller is in compliance in all respects with, and the Seller has not received in the last twelve (12) months any notice of failure to comply with, any applicable statutes, laws, ordinances, rules, regulations, orders or directives pertaining to the operation of the Business, and (xv) the consummation of the transactions contemplated herein (i) will by this Agreement does not conflict with or result in a breach or violation of any of require the terms or provisions consent of, or constitute a default undernotice to, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which Seller is a party or by which Seller is bound or to which any of the property or assets of Seller is subject, (ii) nor will such action violate any of the provisions of (x) any organizational or similar documents pursuant to which Seller was formed or (y) any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over Seller or the property of such Seller; except in the case of clause (i) or clause (ii)(y), for such conflicts, breaches, violations or defaults as would not impair in any material respect the consummation of Seller’s obligations hereunderthird party.
(e) As of the date hereof and immediately prior to the delivery of the Repurchase Shares to the Company at each Closing, such Seller owns the Repurchase Shares or a security entitlement in respect thereof, and holds, or will hold, such Repurchase Shares free and clear of all liens, encumbrances, equities or claims; and, upon delivery of such Repurchase Shares (including by delivery of security certificates duly indorsed or crediting to a securities account of the Company) and payment therefor pursuant hereto, assuming that the Company has no notice of any adverse claims within the meaning of Section 8-105 of the New York Uniform Commercial Code as in effect in the State of New York from time to time (the “UCC”), the Company will acquire its interest in the Repurchase Shares purchased by the Company that are physically delivered to the Company free of adverse claims (within the meaning of Section 8-105 of the UCC) or, in the case of crediting to a securities account of the Company, will acquire a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Repurchase Shares purchased by the Company, and no action (whether framed in conversion, replevin, constructive trust, equitable lien or other theory) based on an adverse claim (within the meaning of Section 8-105 of the UCC) to such security entitlement may be asserted against the Company.
(f) Seller (either alone or together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the Repurchase. Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the Repurchase and the Repurchase Shares and has had full access to such other information concerning the Repurchase Shares and the Company as it has requested. Seller has received all information that it believes is necessary or appropriate in connection with the Repurchase. Seller is an informed and sophisticated party and has engaged, to the extent such Seller deems appropriate, expert advisors experienced in the evaluation of transactions of the type contemplated hereby. Seller acknowledges that Seller has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of Seller in this Agreement.
(g) As of the date hereof, the Seller is not aware of any material, nonpublic information about the Company or its securities and it is entering into this Agreement in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b5-1 of the Exchange Act.
Appears in 1 contract
Representations of the Seller. In connection with the transactions contemplated hereby, the Seller represents and warrants to the Company thatthat as of the date hereof and at the Closing:
(a) Seller It is duly organized and existing under the laws of its state of organizationDelaware.
(b) All consents, approvals, authorizations and orders necessary for the execution and delivery by the Seller of this Agreement and for the sale and delivery of the Repurchase Shares to be sold by the Seller hereunder, hereunder have been obtained; and the Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver the Repurchase Shares to be sold by Seller hereunder, except for such consents, approvals, authorizations and orders as would not impair in any material respect the consummation of the Seller’s obligations hereunder.
(c) This Agreement has been duly authorized, executed and delivered by the Seller and constitutes a valid and binding agreement of the Seller, enforceable in accordance with its terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other laws affecting enforcement of creditors’ rights or by general equitable principles.
(d) The sale of the Repurchase Shares to be sold by Seller hereunder and the compliance by such the Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein (i) will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any statute, indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which Seller is a party or by which Seller is bound or to which any of the property or assets of Seller is subject, (ii) nor will such action violate result in any violation of the provisions of (x) any organizational or similar documents pursuant to which Seller was formed or (y) any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over Seller or the property of such Seller; except in the case of clause (i) or clause (ii)(y), for such conflicts, breaches, violations or defaults as would not impair in any material respect the consummation of Seller’s obligations hereunder.
(e) As of the date hereof and immediately prior to the delivery of the Repurchase Shares to the Company at each the Closing, such Seller owns holds good and valid title to the Repurchase Shares or a security entitlement in respect thereofShares, and holds, or will hold, holds such Repurchase Shares free and clear of all liens, encumbrances, equities or claims; and, upon delivery of such Repurchase Shares (including by delivery of security certificates duly indorsed or crediting to a securities account of the Company) Company and payment therefor pursuant hereto, assuming that the Company has no notice of any adverse claims within the meaning of Section 8-105 of the New York Uniform Commercial Code as in effect in the State of New York from time to time (the “UCC”), the Company will acquire its interest in good and valid title to the Repurchase Shares purchased by the Company that are physically delivered to the Company Shares, free and clear of adverse claims (within the meaning of Section 8-105 of the UCC) orall liens, in the case of crediting to a securities account of the Companyencumbrances, will acquire a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Repurchase Shares purchased by the Company, and no action (whether framed in conversion, replevin, constructive trust, equitable lien equities or other theory) based on an adverse claim (within the meaning of Section 8-105 of the UCC) to such security entitlement may be asserted against the Companyclaims.
(f) Seller (either alone or together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the RepurchaseRepurchase and it has made an independent decision to sell the Repurchase Shares to the Company based on Seller’s knowledge about the Company and its business and other information available to Seller. Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the Repurchase and the Repurchase Shares and has had full access to such other information concerning the Repurchase Shares and the Company as it has requested. Seller has received all information that it believes is necessary or appropriate in connection with the Repurchase. Seller is an informed and sophisticated party and has engaged, to the extent such Seller deems appropriate, expert advisors experienced in the evaluation of transactions of the type contemplated hereby. Seller acknowledges that Seller has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of Seller in this Agreement. Seller acknowledges that the Company and its affiliates, officers and directors may possess material non-public information not known to Seller regarding or relating to the Company, including information concerning the business, financial condition, results of operations or prospects of the Company. Seller acknowledges and confirms that it is aware that future changes or developments in (1) the Company’s business and financial condition and operating results, (2) the industries in which the Company competes and (3) overall market and economic conditions, may have a favorable impact on the value of the Common Stock after the sale by Seller of the Repurchase Shares to the Company pursuant to terms of this Agreement. Without limiting the generality of the foregoing, except as set forth in this Agreement, the Company makes no representations with respect to the information provided to Seller in connection with this Agreement or the transactions contemplated herein, including any current or projected financial information.
(g) As of Seller was given adequate time to consider this transaction and Company exerted no pressure on Seller to participate in the date hereof, the Seller is not aware of any material, nonpublic information about the Company or its securities and it is entering into this Agreement in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b5-1 of the Exchange ActRepurchase.
Appears in 1 contract
Samples: Stock Repurchase Agreement (Retractable Technologies Inc)
Representations of the Seller. In connection with the transactions contemplated hereby, the (A) The Seller represents and warrants to the Company thatPurchaser that each of the following representations of the Seller is true, accurate, complete and not misleading on the Signing Date and will be true, accurate, complete and not misleading on the SPA I Closing Date:
(i) The Seller is validly incorporated under the laws of Belgium.
(ii) The Seller has full capacity, power and authority to execute this Agreement, and this Agreement constitutes valid and binding obligations of it and enforceable by the Purchaser against the Seller in accordance with its terms.
(iii) The Seller has obtained all corporate authorisations and all other governmental, statutory, regulatory or other consents, licences and authorisations required to empower it to enter into and perform its obligations under this Agreement (if any).
(iv) The entry into and performance by it of this Agreement will not result in a breach of:
(a) Seller is duly organized and existing under the laws any provision of its state of organization.
constitutional documents; (b) All consents, approvals, authorizations and orders necessary for the execution and delivery by Seller any laws or regulations in Belgium or any order decree or judgment of this Agreement and for the sale and delivery of the Repurchase Shares to be sold by Seller hereunder, have been obtainedany court or any governmental or regulatory authority; and Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver the Repurchase Shares to be sold by Seller hereunder, except for such consents, approvals, authorizations and orders as would not impair in any material respect the consummation of the Seller’s obligations hereunder.
or (c) This Agreement has been duly authorized, executed and delivered by Seller and constitutes a valid and binding agreement of Seller, enforceable in accordance with its terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other laws affecting enforcement of creditors’ rights or by general equitable principles.
(d) The sale of the Repurchase Shares to be sold by Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein (i) will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which Seller it is a party or by which it is bound.
(v) The Seller is bound not insolvent or bankrupt under the laws of its jurisdiction of incorporation, is not unable to pay its debts as they fall due and has not proposed or is not liable to any arrangement (whether by court process or otherwise) under which its creditors (or any group of them) would receive less than the amounts due to them, there are no proceedings in relation to any compromise or arrangement with creditors or any winding up, bankruptcy or insolvency proceedings concerning it.
(B) The Seller represents and warrants to the Purchaser that each of the property or assets following representations of the Seller will be true, accurate, complete and not misleading on the SPA I Closing Date:
(i) The Company is subject, newly and validly incorporated under the laws of Belgium.
(ii) nor will such action violate any of the provisions of (x) any organizational or similar documents pursuant to which Seller was formed or (y) any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over Seller or the property of such Seller; except The Shares have been duly and validly issued in the case of clause (i) or clause (ii)(y), for such conflicts, breaches, violations or defaults as would not impair in any material respect the consummation of Seller’s obligations hereundercompliance with Belgian law.
(eiii) As The Seller has had full and exclusive ownership of the date hereof and immediately prior to Shares since the delivery of the Repurchase Shares to the Company at each Closing, such Seller owns the Repurchase Shares or a security entitlement in respect thereofIncorporation, and holdshas full capacity, or will holdpower and authority to execute this Agreement, such Repurchase and this Agreement constitutes valid and binding obligations of it and enforceable by the Purchaser against the Seller in accordance with its terms.
(iv) The Shares are free and clear of all liensEncumbrances, encumbrances, equities or claims; and, upon delivery of such Repurchase Shares (including by delivery of security certificates duly indorsed or crediting to a securities account of the Company) and payment therefor pursuant hereto, assuming that the Company has no notice any other third-party rights of any adverse claims within kind, and there are no restrictions affecting (the meaning of Section 8-105 of rights attached to) the New York Uniform Commercial Code as in effect Shares, other than those provided for by law or in the State articles of New York from time to time (the “UCC”), the Company will acquire its interest in the Repurchase Shares purchased by the Company that are physically delivered to the Company free association of adverse claims (within the meaning of Section 8-105 of the UCC) or, in the case of crediting to a securities account of the Company, will acquire a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Repurchase Shares purchased by the Company, and no action (whether framed in conversion, replevin, constructive trust, equitable lien or other theory) based on an adverse claim (within the meaning of Section 8-105 of the UCC) to such security entitlement may be asserted against the Company.
(fv) Seller (either alone The Company is not insolvent or together with bankrupt under the laws of its advisors) has such knowledge and experience in financial or business matters that it jurisdiction of incorporation, is capable of evaluating the merits and risks of the Repurchase. Seller has had the opportunity not unable to ask questions and receive answers concerning the terms and conditions of the Repurchase and the Repurchase Shares pay its debts as they fall due and has had full access to such other information concerning the Repurchase Shares and the Company as it has requested. Seller has received all information that it believes is necessary not proposed or appropriate in connection with the Repurchase. Seller is an informed and sophisticated party and has engaged, to the extent such Seller deems appropriate, expert advisors experienced in the evaluation of transactions of the type contemplated hereby. Seller acknowledges that Seller has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of Seller in this Agreement.
(g) As of the date hereof, the Seller is not aware liable to any arrangement (whether by court process or otherwise) under which its creditors (or any group of them) would receive less than the amounts due to them, there are no proceedings in relation to any materialcompromise or arrangement with creditors or any winding up, nonpublic information about the Company bankruptcy or its securities and it is entering into this Agreement in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b5-1 of the Exchange Actinsolvency proceedings concerning it.
Appears in 1 contract
Samples: Share Purchase Agreement
Representations of the Seller. In connection with the transactions contemplated hereby, the The Seller represents and warrants to the Company thatat the time of execution of this Agreement and at each closing as follows:
(a) Seller is duly organized and existing under the laws of its state of organization.
(b) All consents, approvals, authorizations and orders necessary for the execution and delivery by Seller of this Agreement and for the sale and delivery of the Repurchase Shares to be sold by Seller hereunder, have been obtained; and The Seller has full right, all necessary power and authority to enter into this Agreement and to sell, assign, transfer perform its obligations hereunder. This Agreement constitutes the valid and deliver the Repurchase Shares to be sold by Seller hereunder, except for such consents, approvals, authorizations and orders as would not impair in any material respect the consummation binding obligation of the Seller’s obligations hereunder.
(c) This Agreement has been duly authorized, executed and delivered by Seller and constitutes a valid and binding agreement of Seller, enforceable against the Seller in accordance with its terms, except subject to: (i) laws of general application relating to the extent that enforcement thereof may be limited by bankruptcy, insolvencyinsolvency and the relief of debtors; and (ii) rules of law governing specific performance, reorganization or injunctive relief and other laws affecting enforcement of creditors’ rights or by general equitable principlesremedies.
(db) The sale of Seller owns all right, title and interest in and to, and have the right to transfer to the Company, in connection with the Repurchase Shares to be sold by Seller hereunder and the compliance by such Seller with Option provided for herein, all of the provisions Common Stock being repurchased by the Company, pursuant to the terms of this Agreement and the consummation of the transactions contemplated herein (i) will not conflict with or result in a breach or violation of any of the terms or provisions ofAgreement, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which Seller is a party or by which Seller is bound or to which any of the property or assets of Seller is subject, (ii) nor will such action violate any of the provisions of (x) any organizational or similar documents pursuant to which Seller was formed or (y) any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over Seller or the property of such Seller; except in the case of clause (i) or clause (ii)(y), for such conflicts, breaches, violations or defaults as would not impair in any material respect the consummation of Seller’s obligations hereunder.
(e) As of the date hereof and immediately prior to the delivery of the Repurchase Shares to the Company at each Closing, such Seller owns the Repurchase Shares or a security entitlement in respect thereof, and holds, or will hold, such Repurchase Shares free and clear of all liens, security interests, charges and other encumbrances, equities or claims; and, upon delivery of such Repurchase Shares (including by delivery of security certificates duly indorsed or crediting to a securities account of the Company) and payment therefor pursuant hereto, assuming that the Company has no notice of any adverse claims within the meaning of Section 8-105 of the New York Uniform Commercial Code as in effect in the State of New York from time to time (the “UCC”), the Company will acquire its interest in the Repurchase Shares purchased by the Company that are physically delivered to the Company free of adverse claims (within the meaning of Section 8-105 of the UCC) or, in the case of crediting to a securities account of the Company, will acquire a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Repurchase Shares purchased by the Company, and no action (whether framed in conversion, replevin, constructive trust, equitable lien or other theory) based on an adverse claim (within the meaning of Section 8-105 of the UCC) to such security entitlement may be asserted against the Company.
(fc) The Seller (either alone or together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the Repurchase. The Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the Repurchase and the Repurchase Shares Option and has had full access to such other information concerning the Repurchase Shares Option and the Company as it has requested. The Seller has received all information that it believes is necessary or appropriate in connection with the RepurchaseRepurchase Option. The Seller is an informed and sophisticated party and has engaged, to the extent such the Seller deems appropriate, expert advisors experienced in the evaluation of transactions of the type contemplated hereby. The Seller acknowledges that the Seller has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of the Seller in this Agreement.
(gd) As The Seller represents that it is an "accredited investor" as such term is defined in Rule 501 of Regulation D promulgated under the Securities Act of 1933, as amended.
(e) The Seller acknowledges and understands that the Company on or around the date of this Agreement or otherwise during the term of the date hereofRepurchase Option, may sell shares of Common Stock, or other securities of the Company, to third parties at per share, or effective per-share, purchase prices that may be significantly higher or lower than the per share purchase price being paid hereunder by the Company for the Common Stock. Notwithstanding any such sales, the Seller is not aware of any material, nonpublic information about agrees to accept the Company or its securities Purchase Price as full and it is entering into this Agreement in good faith and not as part of a plan or scheme fair payment for the Common Stock to evade the prohibitions of Rule 10b5-1 of the Exchange Actbe purchased hereunder.
Appears in 1 contract
Samples: Repurchase Option Agreement (U.S. Rare Earths, Inc)
Representations of the Seller. In connection with the transactions contemplated hereby, the The Seller hereby represents and warrants to the Company thatTrustee and the Certificateholders that as of the Closing Date:
(a) The Seller is a corporation duly organized organized, validly existing, and existing in good standing under the laws of the jurisdiction of its incorporation and has all licenses necessary to carry on its business as now being conducted and is licensed, qualified and in good standing in each state where the laws of organization.
(b) All consents, approvals, authorizations and orders necessary for the execution and delivery by Seller of this Agreement and for the sale and delivery such state require licensing or qualification in order to conduct business of the Repurchase Shares to be sold type conducted by the Seller and perform its obligations hereunder, have been obtained; and the Seller has full right, corporate power and authority to enter into execute and deliver this Agreement and to sell, assign, transfer and deliver the Repurchase Shares to be sold by Seller hereunder, except for such consents, approvals, authorizations and orders as would not impair in any material respect the consummation of the Seller’s obligations hereunder.
(c) This Agreement has been duly authorized, executed and delivered by Seller and constitutes a valid and binding agreement of Seller, enforceable perform in accordance with its termsherewith and therewith; the execution, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other laws affecting enforcement of creditors’ rights or by general equitable principles.
(d) The sale of the Repurchase Shares to be sold by Seller hereunder delivery and the compliance by such Seller with all of the provisions performance of this Agreement (including all instruments of transfer to be delivered pursuant to this Agreement) by the Seller and the consummation of the transactions contemplated herein hereby and thereby have been duly and validly authorized by all necessary corporate action; this Agreement evidences the valid, binding and enforceable obligation of the Seller; and all requisite action has been taken by the Seller to make this Agreement valid, binding and enforceable upon the Seller 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 SBA Loans by the Trustee, as trustee.
(ib) All actions, approvals, consents, waivers, exemptions, variances, franchises, orders, permits, authorizations, rights and licenses required to be taken, given or obtained, as the case may be, by or from any federal, state or other governmental authority or agency (other than any such actions, approvals, etc., under any state securities laws, real estate syndication or "Blue Sky" statutes, as to which the Seller makes no such representation or warranty), that are necessary or advisable in connection with the purchase and sale of the Certificates and the execution and delivery by the Seller of the documents to which it is a party, have been duly taken, given or obtained, as the case may be, are in full force and effect on the date hereof, are not subject to any pending proceedings or appeals (administrative, judicial or otherwise) and either the time within which any appeal therefrom may be taken or review thereof may be obtained has expired or no review thereof may be obtained or appeal therefrom taken, and are adequate to authorize the consummation of the transactions contemplated by this Agreement and the other documents on the part of the Seller and the performance by the Seller of its obligations under this Agreement and such of the other documents to which it is a party;
(c) The consummation of the transactions contemplated by this Agreement will not conflict with result in the breach of any terms or provisions of the articles of incorporation or bylaws of the Seller or result in a the breach or violation of any of the terms term or provisions provision of, or conflict with or constitute a default under or result in the acceleration of any obligation under, any indenturematerial agreement, mortgage, deed of trust, indenture or loan or credit agreement or other agreement or material instrument to which the Seller is a party or by which Seller is bound or to which any of the its property or assets of Seller is subject, or result in the violation of any law, rule, regulation, order, judgment or decree to which the Seller or its property is subject;
(iid) Neither this Agreement nor will such action violate any statement, report or other document furnished or to be furnished pursuant to this Agreement 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 provisions of (x) any organizational or similar documents pursuant to circumstances under which Seller was formed or (y) any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over Seller or the property of such Seller; except in the case of clause (i) or clause (ii)(y), for such conflicts, breaches, violations or defaults as would not impair in any material respect the consummation of Seller’s obligations hereunder.they were made;
(e) As of the date hereof and immediately prior The Seller does not believe, nor does it have any reason or cause to the delivery of the Repurchase Shares to the Company at each Closingbelieve, such Seller owns the Repurchase Shares or a security entitlement in respect thereof, and holds, or will hold, such Repurchase Shares free and clear of all liens, encumbrances, equities or claims; and, upon delivery of such Repurchase Shares (including by delivery of security certificates duly indorsed or crediting to a securities account of the Company) and payment therefor pursuant hereto, assuming that the Company has no notice of any adverse claims within the meaning of Section 8-105 of the New York Uniform Commercial Code as in effect in the State of New York from time to time (the “UCC”), the Company will acquire its interest in the Repurchase Shares purchased by the Company that are physically delivered to the Company free of adverse claims (within the meaning of Section 8-105 of the UCC) or, in the case of crediting to a securities account of the Company, will acquire a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Repurchase Shares purchased by the Company, and no action (whether framed in conversion, replevin, constructive trust, equitable lien or other theory) based on an adverse claim (within the meaning of Section 8-105 of the UCC) to such security entitlement may be asserted against the Company.
(f) Seller (either alone or together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits cannot perform each and risks of the Repurchase. Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the Repurchase and the Repurchase Shares and has had full access to such other information concerning the Repurchase Shares and the Company as it has requested. Seller has received all information that it believes is necessary or appropriate in connection with the Repurchase. Seller is an informed and sophisticated party and has engaged, to the extent such Seller deems appropriate, expert advisors experienced in the evaluation of transactions of the type contemplated hereby. Seller acknowledges that Seller has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of Seller every covenant contained in this Agreement.
(g) As of the date hereof, the Seller is not aware of any material, nonpublic information about the Company or its securities and it is entering into this Agreement in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b5-1 of the Exchange Act.;
Appears in 1 contract
Samples: Pooling and Servicing Agreement (BLC Financial Services Inc)
Representations of the Seller. In connection with the transactions contemplated hereby, the Seller The SELLER represents and warrants to the Company BUYER that:
(a) Seller is duly organized the ASSETS are free and existing under clear of all LIENS and the laws SELLER has not received notice of its state of organization.any pending CLAIM;
(b) All consents, approvals, authorizations the SELLER has the authority and orders has performed all acts necessary for the execution and delivery by Seller of this Agreement and for the sale and delivery of the Repurchase Shares to be sold by Seller hereunder, have been obtained; and Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver the Repurchase Shares ASSETS to be sold by Seller hereunder, except for such consents, approvals, authorizations the BUYER pursuant to the terms of this AGREEMENT and orders as would not impair in any material respect the consummation person executing this AGREEMENT on behalf of the Seller’s obligations hereunder.SELLER is duly authorized to do so;
(c) This Agreement has been duly authorized, executed and delivered by Seller and constitutes a valid and binding agreement of Seller, enforceable in accordance with its terms, except to the extent best of the SELLER’s knowledge - - (i) none of the ASSETS infringes or violates (or contains any components or parts that enforcement thereof may be limited by bankruptcyinfringe or violate) any third party’s trademarks, insolvencypatents, reorganization copyrights, trade secrets or other laws affecting enforcement proprietary rights, title or interest, and (ii) the SALE does not constitute a bulk sale or bulk transfer subject to any applicable bulk sale or bulk transfer act or article of creditors’ rights the Uniform Commercial Code, as amended, or by general equitable principles.any other applicable statute or law;
(d) The sale of the Repurchase Shares to be sold by Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein either - - (i) will the SALE does not conflict with constitute a foreclosure sale or result a disposition of collateral following a default, or the SALE otherwise is not related to the SELLER’s exercise of any remedies available to the SELLER under Article 9 of the Uniform Commercial Code, as amended, or any other applicable statute or law pertaining to the enforcement of a lien or security interest in a breach or violation of to any of the terms or provisions ofASSETS (collectively, “SECURED TRANSACTIONS LAWS”), or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which Seller is a party or by which Seller is bound or to which any of the property or assets of Seller is subject, (ii) nor will such action violate any the SELLER has complied with the relevant provisions of the provisions applicable SECURED TRANSACTIONS LAWS, including but not limited to the satisfaction of (x) any organizational or similar documents pursuant to which Seller was formed or (y) any statute or any orderall applicable notice requirements, rule or regulation and the SELLER otherwise shall ensure that every aspect of any court or governmental agency or body having jurisdiction over Seller or the property of such Seller; except in the case of clause (i) or clause (ii)(y), for such conflicts, breaches, violations or defaults as would not impair in any material respect the consummation of Seller’s obligations hereunder.SALE shall be commercially reasonable;
(e) As of no brokerage fees are due and owing in connection with the date hereof and immediately prior to the delivery of the Repurchase Shares to the Company at each Closing, such Seller owns the Repurchase Shares or a security entitlement in respect thereof, and holds, or will hold, such Repurchase Shares free and clear of all liens, encumbrances, equities or claims; and, upon delivery of such Repurchase Shares (including by delivery of security certificates duly indorsed or crediting to a securities account of the Company) and payment therefor pursuant hereto, assuming that the Company has no notice of any adverse claims within the meaning of Section 8-105 of the New York Uniform Commercial Code as in effect in the State of New York from time to time (the “UCC”), the Company will acquire its interest in the Repurchase Shares purchased by the Company that are physically delivered to the Company free of adverse claims (within the meaning of Section 8-105 of the UCC) or, in the case of crediting to a securities account of the Company, will acquire a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Repurchase Shares purchased by the Company, and no action (whether framed in conversion, replevin, constructive trust, equitable lien or other theory) based on an adverse claim (within the meaning of Section 8-105 of the UCC) to such security entitlement may be asserted against the Company.SALE;
(f) Seller (either alone or together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating to the merits and risks best of the Repurchase. Seller SELLER’s knowledge, information or belief, the ASSETS have never been and are not being used to make, store, handle, treat, dispose, generate, or transport “HAZARDOUS SUBSTANCES” (as that term is defined below) in violation of any applicable laws; and
(g) the BUYER has had no - - (i) obligation to remove any contaminated ASSETS or any HAZARDOUS SUBSTANCES that may be located at the opportunity PREMISES or otherwise associated with the ASSETS, or (ii) capacity to ask questions and receive answers concerning the terms and conditions of the Repurchase and the Repurchase Shares and has had full access to such other information concerning the Repurchase Shares and the Company as it has requested. Seller has received all information that it believes is necessary or appropriate influence any decisions whatsoever in connection with the Repurchase. Seller is an informed and sophisticated party and has engagedpurchasing, to the extent such Seller deems appropriateselling, expert advisors experienced in the evaluation of transactions of the type contemplated hereby. Seller acknowledges that Seller has not relied upon any express making, storing, handling, treating, disposing, generating, transporting or implied representations or warranties removing of any nature made by HAZARDOUS SUBSTANCES that may be located at the PREMISES or on behalf of otherwise associated with the Company, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of Seller in this AgreementASSETS.
(g) As of the date hereof, the Seller is not aware of any material, nonpublic information about the Company or its securities and it is entering into this Agreement in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b5-1 of the Exchange Act.
Appears in 1 contract
Samples: Purchase Agreement
Representations of the Seller. In connection with the transactions contemplated hereby, the Seller represents and warrants to the Company that:
(a) Seller is duly organized and existing under the laws of its state of organization.
(b) All consents, approvals, authorizations and orders necessary for the execution and delivery by the Seller of this Agreement and for the sale and delivery of the Repurchase Shares to be sold by the Seller hereunder, have been obtained; and Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver the Repurchase Shares to be sold by Seller hereunder, except for such consents, approvals, authorizations and orders as would not impair in any material respect the consummation of the Seller’s obligations hereunder.
(c) This Agreement has been duly authorized, executed and delivered by the Seller and constitutes a valid and binding agreement of Seller, enforceable in accordance with its terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other laws affecting enforcement of creditors’ rights or by general equitable principles.
(d) The sale of the Repurchase Shares to be sold by the Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein hereby (i) will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any statute, indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which Seller is a party or by which the Seller is bound or to which any of the property or assets of the Seller is subject, (ii) nor will such action violate result in any violation of the provisions of (x) any organizational or similar documents pursuant to which Seller was formed or (y) any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over Seller or the property of such Seller; except in the case of clause (i) or clause (ii)(y), for such conflicts, breaches, violations or defaults as would not impair in any material respect the consummation of Seller’s obligations hereunder.
(e) As of the date hereof and immediately prior to the delivery of the Repurchase Shares to the Company at each the Closing, such Seller owns holds good and valid title to the Repurchase Shares or a security securities entitlement in respect thereof, and holds, or and will hold, such Repurchase Shares free and clear of all liens, encumbrances, equities or claims; and, upon delivery of such Repurchase Shares (including by delivery of security certificates duly indorsed or crediting to a securities account of the Company) and payment therefor pursuant hereto, assuming that the Company has no notice of any adverse claims within the meaning of Section 8-105 of the New York Delaware Uniform Commercial Code as in effect in the State of New York Delaware from time to time (the “UCC”), the Company will acquire its interest in good and valid title to the Repurchase Shares purchased by the Company that are physically delivered to the Company Shares, free and clear of adverse claims (within the meaning of Section 8-105 of the UCC) orall liens, in the case of crediting to encumbrances, equities or claims, as well as a securities account of the Company, will acquire a valid security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Repurchase Shares purchased by the Company, and no action (whether framed in conversion, replevin, constructive trust, equitable lien or other theory) based on an adverse claim (within the meaning of Section 8-105 of the UCC) to such security entitlement may be asserted against the Company.
(f) The Seller (either alone or together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the RepurchaseRepurchase Transaction. Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the Repurchase Transaction and the Repurchase Shares and has had full access to such other information concerning the Repurchase Shares and the Company as it has requested. Seller has received all information that it believes is necessary or appropriate in connection with the RepurchaseRepurchase Transaction. Seller is an informed and sophisticated party and has engaged, to the extent such Seller deems appropriate, expert advisors experienced in the evaluation of transactions of the type contemplated hereby. Seller acknowledges that Seller it has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of Seller in this Agreement.
(g) As The Seller has received and carefully reviewed the Annual Report of the date hereofCompany on Form 10-K for the fiscal year ended December 31, 2014 and all subsequent public filings of the Company with the Securities and Exchange Commission (the “SEC”), other publicly available information regarding the Company, and such other information that it and its advisers deem necessary to make its decision to proceed with the Repurchase Transaction.
(h) Seller acknowledges and understands that the Company and its officers and affiliates may possess material non-public information not known to Seller that may impact the value of the Securities (the “Information”), that the Company is unable to disclose to Seller, including without limitation, (i) information received by principals and employees of the Company in their capacities as directors, officers, significant stockholders and/or affiliates of the Company, (ii) information otherwise received from the Company on a confidential basis, and (iii) information received on a privileged basis from the attorneys and financial advisers representing the Company and its Board. Seller understands, based on its experience, the disadvantage to which Seller is not aware subject due to the disparity of information between Seller and the Company. Notwithstanding this, Seller has deemed it appropriate to engage in the Repurchase Transaction.
(i) Seller agrees that the Company Releasees (as defined below) shall have no liability to any materialSeller Releasor (as defined below), nonpublic information about whatsoever due to or in connection with the Company’s use or non-disclosure of the Information, and Seller hereby irrevocably waives any claims that it might have based on the failure of the Company or any of its securities affiliates to disclose the Information, and Seller hereby irrevocably waives any claims that it is entering into this Agreement in good faith and not as part of a plan might have based on any such acts or scheme to evade the prohibitions of Rule 10b5-1 of the Exchange Actomissions.
Appears in 1 contract
Representations of the Seller. In connection with the transactions contemplated hereby, the The Seller hereby represents and warrants to the Company thatIndenture Trustee, the Owner Trustee, the Certificateholders, the Noteholders and each Hedge Counterparty as of each Transfer Date:
(a) The Seller is a corporation duly organized organized, validly existing and existing in good standing under the laws of the jurisdiction of its incorporation 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 organization.
(b) All consentssuch state require licensing or qualification in order to conduct business of the type conducted by the Seller and perform its obligations hereunder; the Seller 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, approvals, authorizations delivery and orders necessary for the execution and delivery by Seller performance of this Agreement and for the sale and delivery each other Basic Document to which it is a party (including all instruments of the Repurchase Shares transfer to be sold delivered pursuant to this Agreement) by the Seller hereunder, have been obtained; and Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver the Repurchase Shares to be sold by Seller hereunder, except for such consents, approvals, authorizations and orders as would not impair in any material respect the consummation of the Seller’s obligations hereunder.
(c) This Agreement has been duly authorized, executed and delivered by Seller and constitutes a valid and binding agreement of Seller, enforceable in accordance with its terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other laws affecting enforcement of creditors’ rights or by general equitable principles.
(d) The sale of the Repurchase Shares to be sold by Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein 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 the Seller; and all requisite corporate action has been taken by the Seller to make this Agreement and each other Basic Document to which it is a party valid, binding and enforceable upon the Seller 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 Unguaranteed Interests in the SBA Loans by the Trust.
(ib) All actions, approvals, consents, waivers, exemptions, variances, franchises, orders, permits, authorizations, rights and licenses required to be taken, given or obtained, as the case may be, by or from any federal, state or other governmental authority or agency (other than any such actions, approvals, etc., under any state securities laws, real estate syndication or "Blue Sky" statutes, as to which the Seller makes no such representation or warranty), that are necessary or advisable in connection with the purchase and sale of the Notes and the execution and delivery by the Seller of the documents to which it is a party, have been duly taken, given or obtained, as the case may be, are in full force and effect on the date hereof, are not subject to any pending proceedings or appeals (administrative, judicial or otherwise) and either the time within which any appeal therefrom may be taken or review thereof may be obtained has expired or no review thereof may be obtained or appeal therefrom taken, and are adequate to authorize the consummation of the transactions contemplated by this Agreement and each other Basic Document to which it is a party and the other documents on the part of the Seller and the performance by the Seller of its obligations under this Agreement and the other Basic Documents to which it is a party;
(c) The consummation of the transactions contemplated by this Agreement and the other Basic Documents to which the Seller is a party will not conflict with result in the breach of any terms or provisions of the certificate of incorporation or by-laws of the Seller or result in a the breach or violation of any of the terms term or provisions provision of, or conflict with or constitute a default under or result in the acceleration of any obligation under, any indenturematerial agreement, mortgage, deed of trust, indenture or loan or credit agreement or other agreement or material instrument to which the Seller or its property is subject, or result in the violation of any law, rule, regulation, order, judgment or decree to which the Seller or its property is subject;
(d) Neither this Agreement or any other Basic Document to which the Seller 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 the Seller is a party or by 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) The Seller does not believe, nor does it have any reason or cause to believe, that it cannot perform each and every covenant contained in this Agreement or any other Basic Document to which the Seller is bound a party;
(f) There is no action, suit, proceeding or investigation pending or, to which any the best of the property Seller's knowledge, threatened against the Seller 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 the Seller or in any material impairment of the right or ability of the Seller to carry on its business substantially as now conducted, or in any material liability on the part of the Seller or of any action taken or to be taken in connection with the obligations of the Seller contemplated herein, or which would be likely to impair materially the ability of the Seller to perform under the terms of this Agreement or any other Basic Document to which the Seller is subject, a party or (ii) nor which would draw into question the validity of this Agreement or any other Basic Document to which the Seller is a party or the SBA Loans;
(g) The Trust will such action violate any not constitute an "investment company" within the meaning of the provisions Investment Company Act of 1940, as amended;
(xh) The Seller is not in default with respect to any organizational order or similar documents pursuant to which Seller was formed or (y) decree of any statute court or any order, rule regulation or regulation demand of any court federal, state, municipal or governmental agency agency, which default might have consequences that would materially and adversely affect the condition (financial or body having jurisdiction over other) or operations of the Seller or the property of such Seller; except in the case of clause its properties or might have consequences that would materially and adversely affect its performance hereunder;
(i) The Seller is Well Capitalized;
(j) The transfer, assignment and conveyance of the SBA Notes and the Mortgages by the Seller pursuant to this Agreement are not subject to the bulk transfer laws or clause (ii)(y), for such conflicts, breaches, violations or defaults as would not impair any similar statutory provisions in effect in any material respect applicable jurisdiction and do not violate the consummation of Seller’s obligations hereunder.SBA Rules and Regulations;
(ek) As The origination and collection practices used by the Seller with respect to each SBA Note and Mortgage have been in all material respects legal, prudent and customary in the SBA loan origination and servicing business and comply with the Credit and Collection Policy;
(l) Each SBA Loan was selected from among the existing SBA loans in the Seller's portfolio at the related Transfer Date, in a manner not designed to adversely affect the Noteholders or the Certificateholders;
(m) The Seller received fair consideration and reasonably equivalent value in exchange for the sale of the date hereof Unguaranteed Interests in the SBA Loans;
(n) Neither the Seller nor any of its affiliates sold any interest in any SBA Loan with any intent to hinder, delay or defraud any of their respective creditors;
(o) The Seller is solvent, and immediately prior the Seller will not be rendered insolvent as a result of the transfer of the Unguaranteed interests in the SBA Loans to the delivery Trust or the sale of the Repurchase Shares Notes;
(p) The chief executive office and legal name of the Seller is as set forth on the respective UCC-1 financing statement filed on behalf of the Seller pursuant to the Company at each ClosingSection 2.04, such office is the place where the Seller owns is "located" for the Repurchase Shares or a security entitlement in respect thereof, and holds, or will hold, such Repurchase Shares free and clear purposes of all liens, encumbrances, equities or claims; and, upon delivery of such Repurchase Shares (including by delivery of security certificates duly indorsed or crediting to a securities account Section 9-103(3)(d) of the Company) and payment therefor pursuant hereto, assuming that the Company has no notice of any adverse claims within the meaning of Section 8-105 of the New York Uniform Commercial Code as in effect in the State of New York from time to time (York, and neither the “UCC”), location of such office nor the Company will acquire its interest legal name of the Seller has changed in the Repurchase Shares purchased by past four months;
(q) The Seller has no trade names, fictitious names, or "doing business as" names, except for "Business Loan Center;"
(r) The Seller will treat the Company that are physically delivered to the Company free of adverse claims (within the meaning of Section 8-105 transfer of the UCC) or, in the case of crediting to SBA Loans as a securities account of the Company, will acquire a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Repurchase Shares purchased by the Company, and no action (whether framed in conversion, replevin, constructive trust, equitable lien or other theory) based on an adverse claim (within the meaning of Section 8-105 of the UCC) to such security entitlement may be asserted against the Company.sale for accounting purposes; and
(fs) Seller (either alone or together with its advisors) has such knowledge and experience in financial or business matters that it is capable To the best of evaluating the merits and risks of the Repurchase. Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the Repurchase and the Repurchase Shares and has had full access to such other information concerning the Repurchase Shares and the Company as it has requested. Seller has received Seller's knowledge, all information that it believes is necessary or appropriate in connection with the Repurchase. Seller is an informed and sophisticated party and has engaged, to the extent such Seller deems appropriate, expert advisors experienced in the evaluation of transactions of the type contemplated hereby. Seller acknowledges that Seller has not relied upon any express or implied representations or warranties of any nature made by or tax returns have been filed on behalf of the Company, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of Seller in this Agreementa timely basis.
(g) As of the date hereof, the Seller is not aware of any material, nonpublic information about the Company or its securities and it is entering into this Agreement in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b5-1 of the Exchange Act.
Appears in 1 contract
Samples: Sale and Servicing Agreement (BLC Financial Services Inc)
Representations of the Seller. In connection with the transactions contemplated hereby, the 8.1 The Seller represents and warrants to the Company Purchaser, with the intent that the Purchaser shall rely upon such representations and warranties in concluding the transactions contemplated hereby, that:
(a) the Seller is a corporation that is duly organized incorporated, valid existing, and existing in good standing under the laws of its state of organization.
(b) All consentsOhio, approvalsand it has the power, authorizations authority, and orders necessary for capacity to carry on the execution Business as presently conducted and delivery by Seller of this Agreement and for the sale and delivery of the Repurchase Shares to be sold by Seller hereunder, have been obtained; and Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer carry out its terms;
(b) the execution and deliver delivery of this Agreement and the Repurchase Shares to be sold completion of the transactions contemplated hereby has been duly and validly authorized by Seller hereunder, except for such consents, approvals, authorizations and orders as would not impair in any material respect all necessary corporate action on the consummation part of the Seller’s obligations hereunder.
(c) This , and this Agreement has been duly authorized, executed and delivered by Seller and constitutes a valid and binding agreement obligation of Seller, the Seller enforceable against the Seller in accordance with its terms, except ;
(c) the Seller has previously disclosed to the extent that enforcement thereof may be limited by bankruptcyPurchaser in writing all material particulars relating to any officers, insolvencydirectors, reorganization employees, and agents of the Seller including particulars of any contracts, engagements, or other laws affecting enforcement commitments, whether oral or written, respecting all aspects of creditors’ rights or by general equitable principles.the Business, the Assets, and the Assumed Liabilities;
(d) The sale of except as will be remedied by those consents, approvals, releases and discharges which will be delivered by the Repurchase Shares to be sold by Seller hereunder at Closing, neither the execution and the compliance by such Seller with all of the provisions delivery of this Agreement and nor the consummation performance of the transactions contemplated herein Seller's obligations hereunder will:
(i) will not conflict with violate or result in a breach constitute default under the organizational documents, by-laws, or violation articles of incorporation of the Seller, any order, decree, judgment, statute, by-law, rule, regulation, or restriction applicable to the Seller, the Business or any of the terms or provisions ofAssets, or constitute a default underany contract, any indentureagreement, mortgageinstrument, deed of trustcovenant, loan agreement mortgage or other agreement or instrument security to which the Seller is a party or by which Seller is bound or to which any of binding upon the property or assets of Seller is subject, Seller,
(ii) nor will such action violate give any person the right to terminate or cancel any contract, agreement, instrument, covenant, mortgage or security in favor of the provisions Seller,
(iii) result in any fees, duties, taxes, assessments, penalties or other amounts becoming due or payable, or
(iv) give rise to acceleration of (x) any organizational or similar documents pursuant to which Seller was formed or (y) any statute or any order, rule or regulation the time for payment of any court moneys payable or governmental agency or body having jurisdiction over Seller or for the property performance of such any obligation to be performed by the Seller; except in the case of clause (i) or clause (ii)(y), for such conflicts, breaches, violations or defaults as would not impair in any material respect the consummation of Seller’s obligations hereunder.;
(e) As of the date hereof Seller owns and immediately prior possesses and has good and marketable title to the delivery of Business and the Repurchase Shares to the Company at each Closing, such Seller owns the Repurchase Shares or a security entitlement in respect thereof, and holds, or will hold, such Repurchase Shares Assets free and clear of all liens, encumbrances, equities or claims; and, upon delivery of such Repurchase Shares (including by delivery of security certificates duly indorsed or crediting to a securities account of the Company) and payment therefor pursuant hereto, assuming that the Company has no notice of any adverse claims within the meaning of Section 8-105 of the New York Uniform Commercial Code as in effect in the State of New York from time to time (the “UCC”), the Company will acquire its interest in the Repurchase Shares purchased by the Company that are physically delivered to the Company free of adverse claims (within the meaning of Section 8-105 of the UCC) or, in the case of crediting to a securities account of the Company, will acquire a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Repurchase Shares purchased by the Companycharges, and no action (whether framed in conversion, replevin, constructive trust, equitable lien or other theory) based on an adverse claim (within the meaning encumbrances of Section 8-105 of the UCC) to such security entitlement may be asserted against the Company.every kind and nature whatsoever;
(f) the Business comprises all property, both tangible and intangible and Assets used and/or owned by the Seller (either alone or together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the Repurchase. Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the Repurchase and the Repurchase Shares and has had full access to such other information concerning the Repurchase Shares and the Company as it has requested. Seller has received all information that it believes is necessary or appropriate in connection with the Repurchase. Business;
(g) the Seller is an informed and sophisticated party and does not have any indebtedness which might be by operation of law or otherwise now or hereafter may constitute a lien, charge, or encumbrance upon any of the Assets;
(h) the Seller has engaged, previously disclosed to the extent Purchaser all contracts, engagements and commitments, whether oral or written, relating to the Business or the Assets, including in particular contracts, engagements, and commitments;
(i) the Seller has previously provided to the Purchaser an accurate and complete description of all Material Contracts and, except as previously disclosed by the Seller to the Purchaser in writing:
(i) there has not been any default in any obligation or liability in respect of such contracts, engagements, or commitments;
(ii) there has not been any amendment, modification, variation, surrender, or release of such contracts, engagements, and commitments; and
(iii) each of such contracts, engagements, and commitments is in good standing and in full force and effect;
(j) the Seller deems appropriatehas previously provided to the Purchaser an accurate and complete description of all instruments evidencing or relating to, expert advisors experienced and all material particulars of the Assumed Indebtedness represented by the Note;
(k) the amount of Assumed Indebtedness as at the Closing Date will not exceed US $1,500,000 and shall be incorporated into the form of Note to be delivered on the Closing Date;
(l) there is no basis for and there is no action, suit, litigation, investigation, arbitration proceeding, governmental proceeding or other proceedings (including appeals and applications for review) outstanding, pending, threatened against or involving, affecting or possibly affecting the Seller, the Business or the Assets; or any judgment, decree, injunction, rule or order of any court, governmental department, commission, agency, officer, instrumentality or arbitrator, which, if determined adversely to the Seller, might adversely affect the ability of the Seller to enter into this Agreement or to consummate the transactions contemplated hereby, or adversely affect title to any of the Business or the Assets, either at law or in equity, or the evaluation Seller' ability to dispose of the Business and the Assets in its sole discretion; or any investigations, complaints, orders, directives or notices of defect or non-compliance by or before any court, governmental or domestic commission, department, board, tribunal, or authority, or administrative, licensing, or regulatory agency, body, or officer issued, pending, or threatened against the Seller or in respect of the Business or any of the Assets;
(m) the facts contained in all "due diligence" and other disclosure materials provided by the Seller to the Purchaser are substantially true and correct, and the Seller does not have any information or knowledge of any facts relating to the Business or the Assets, which, if known to the Purchaser, might reasonably be expected to deter the Purchaser from completing the transactions contemplated by this Agreement;
(n) the representations and warranties of the Seller included in this Agreement are true and correct and do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained in such representations and warranties not misleading to a prospective purchaser of the Business and the Assets;
(o) all financial statements of the Seller have been prepared in accordance with generally accepted United States accounting principles consistently applied and present fairly and completely the assets and liabilities, whether accrued, absolute, contingent or otherwise, and the financial condition of the Seller and the results of the operation of the Business for the periods reported thereby; and the Seller has disclosed to the Purchaser in writing all material financial information respecting the Seller, the Business and the Assets as at the date of this Agreement and as of the Closing Date;
(p) the books and records of the Seller present fairly and completely in all material respects, in accordance with sound accounting practices consistently applied, the matters which such books and records purport to present, and all material financial transactions of the type contemplated hereby. Seller acknowledges that relating to the Business and the Assets have been accurately recorded in such books and records; and
(q) since the date of the most recent financial statements of the Seller provided to the Purchaser, there has not relied upon been:
(i) any express change, event, or implied representations circumstance which would adversely affect the affairs, prospects, operation, or warranties condition of the Business;
(ii) any nature loss, damage, or defaults, which would adversely affect the affairs, prospects, operations, or condition of the Business.
8.2 Notwithstanding any investigations or inquiries made by or on behalf of the CompanyPurchaser prior to Closing or the waiver of any condition by the Purchaser, whether or not any such representationsthe representations and warranties of the Seller shall survive the Closing and, warranties or statements were made notwithstanding the closing of the purchase and sale herein provided for, shall continue in writing or orally, except as expressly set forth full force and effect for the benefit of Seller in this Agreement.
(g) As the Purchaser until the third anniversary of the Closing Date, with the exception that all representations and warranties with respect to tax matters shall continue in full force and effect until the date hereofthat is one year after the date on which the last applicable limitations period under the applicable income tax or other tax legislation expires with respect to any taxation year which is relevant in determining any liability under this Agreement with respect to tax matters, and with the further exception that there shall be no limit on the representations and warranties relating to title of the Seller is not aware of any material, nonpublic information about to the Company or its securities Business and it is entering into this Agreement in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b5-1 of the Exchange ActAssets.
Appears in 1 contract
Representations of the Seller. In connection with the transactions contemplated hereby, the The Seller hereby represents and warrants to the Company Buyer that:
(a) it has good and marketable title to the Special Beneficiary Interests free and clear of all liens, security interests, charges or encumbrances of any kind except as set forth on Schedule 3 hereto, and upon the execution of this Agreement title to the Special Beneficiary Interests will pass to the Buyer free and clear of any pledge, lien, security interest, charge or encumbrance of any kind except as set forth on such Schedule, and thereupon the Buyer, as record and beneficial owner, will be entitled to all rights of the Seller with respect to the Special Beneficiary Interests;
(c) the Seller is a duly organized formed and validly existing limited partnership under the laws of its state the Commonwealth of organization.
(b) All consents, approvals, authorizations and orders necessary for Massachusetts with the execution and delivery by Seller of this Agreement and for the sale and delivery of the Repurchase Shares to be sold by Seller hereunder, have been obtained; and Seller has full right, power and authority to enter into and carry out the provisions of this Agreement; Equis Corporation is the sole general partner of the Seller; and Xxxx X. Xxxxx is an officer of such general partner who has been duly authorized by all necessary partnership and corporate action to execute, deliver and perform on behalf of the Seller all such instruments and agreements and take all such other action as he may deem necessary or desirable for the Seller to consummate the sale of the Special Beneficiary Interests to the Buyer, including, without limiting the generality of the foregoing, this Agreement and to sell, assign, transfer and deliver the Repurchase Shares to be sold by Seller hereunder, except for such consents, approvals, authorizations and orders Assignment attached hereto as would not impair in any material respect the consummation of the Seller’s obligations hereunder.
(c) This Agreement has been duly authorized, executed and delivered by Seller and constitutes a valid and binding agreement of Seller, enforceable in accordance with its terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other laws affecting enforcement of creditors’ rights or by general equitable principles.Exhibit C;
(d) The sale of the Repurchase Shares to be sold by Seller hereunder execution, delivery and the compliance by such Seller with all of the provisions performance of this Agreement by the Seller and the consummation by the Seller of the transactions transaction contemplated herein (i) hereby do not and will not violate, conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default underunder any of the terms, conditions or provisions of any indenture, mortgage, deed of trust, loan agreement instrument or other agreement or instrument contract to which the Seller is a party or by which Seller it or any of its properties or assets is bound or to which any of the property or assets of Seller is subjectjudgment, (ii) nor will such action violate any of the provisions of (x) any organizational or similar documents pursuant to which Seller was formed or (y) any statute or any decree, order, statute, rule or regulation to which it is subject or by which it or any of its properties or assets is bound, or result in the creation of any court lien, charge or governmental agency encumbrance on any of its properties or body having jurisdiction over Seller or the property of such Seller; except in the case of clause (i) or clause (ii)(y), for such conflicts, breaches, violations or defaults as would not impair in any material respect the consummation of Seller’s obligations hereunder.assets;
(e) As of the date hereof and immediately prior to the delivery of the Repurchase Shares to the Company at each Closing, such Seller owns the Repurchase Shares or a security entitlement in respect thereof, and holds, or will hold, such Repurchase Shares free and clear of all liens, encumbrances, equities or claims; and, upon delivery of such Repurchase Shares (including by delivery of security certificates duly indorsed or crediting to a securities account of the Company) and payment therefor pursuant hereto, assuming that the Company has no notice of any adverse claims within the meaning of Section 8-105 of the New York Uniform Commercial Code as in effect in the State of New York from time to time (the “UCC”), the Company will acquire its interest in the Repurchase Shares purchased by the Company that are physically delivered to the Company free of adverse claims (within the meaning of Section 8-105 Buyer true, accurate and complete copies of the UCC) or, in the case Declaration of crediting to a securities account Trust of each of the Company, will acquire a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Repurchase Shares purchased by the Company, and no action (whether framed in conversion, replevin, constructive trust, equitable lien or other theory) based on an adverse claim (within the meaning of Section 8-105 of the UCC) to such security entitlement may be asserted against the CompanyTrusts.
(f) Seller (either alone or together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the Repurchase. Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the Repurchase and the Repurchase Shares and has had full access to such other information concerning the Repurchase Shares and the Company as it has requested. Seller has received all information that it believes is necessary or appropriate in connection with the Repurchase. Seller is an informed and sophisticated party and has engaged, to the extent such Seller deems appropriate, expert advisors experienced in the evaluation of transactions of the type contemplated hereby. Seller acknowledges that Seller has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of Seller in this Agreement.
(g) As of the date hereof, the Seller is not aware of any material, nonpublic information about the Company or its securities and it is entering into this Agreement in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b5-1 of the Exchange Act.
Appears in 1 contract
Representations of the Seller. In connection with the transactions contemplated hereby, the The Seller hereby represents and warrants to the Company thatTrustee and the Certificateholders as of the Closing Date:
(a) Such Seller is a corporation duly organized organized, validly existing, and existing in good standing under the laws of the jurisdiction of its incorporation and has all licenses necessary to carry on its business as now being conducted and is licensed, qualified and in good standing in each state where the laws of organization.
(b) All consentssuch state require licensing or qualification in order to conduct business of the type conducted by such Seller and perform its obligations hereunder; such Seller has corporate power and authority to execute and deliver this Agreement and each Subservicing Agreement and to perform in accordance herewith and therewith; the execution, approvals, authorizations delivery and orders necessary for the execution and delivery by Seller performance of this Agreement and for the sale and delivery each Subservicing Agreement (including all instruments of the Repurchase Shares transfer to be sold by Seller hereunder, have been obtained; and Seller has full right, power and authority delivered pursuant to enter into this Agreement and to sell, assign, transfer and deliver the Repurchase Shares to be sold by Seller hereunder, except for such consents, approvals, authorizations and orders as would not impair in any material respect the consummation of the Seller’s obligations hereunder.
(ceach Subservicing Agreement) This Agreement has been duly authorized, executed and delivered by Seller and constitutes a valid and binding agreement of Seller, enforceable in accordance with its terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other laws affecting enforcement of creditors’ rights or by general equitable principles.
(d) The sale of the Repurchase Shares to be sold by Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein hereby and thereby have been duly and validly authorized by all necessary corporate action; this Agreement and each Subservicing Agreement evidences the valid, binding and enforceable obligation of such Seller; and all requisite corporate action has been taken by such Seller to make this Agreement and each Subservicing Agreement valid, binding and enforceable upon such Seller in accordance with the respective terms of each, 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 Trustee, as trustee.
(ib) 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 such Seller makes no such representation or warranty), that are necessary or advisable in connection with the purchase and sale of the Certificates and the execution and delivery by such Seller of the documents to which it is a party, have been duly taken, given or obtained, as the case may be, are in full force and effect on the date hereof, are not subject to any pending proceedings or appeals (administrative, judicial or otherwise) and either the time within which any appeal therefrom may be taken or review thereof may be obtained has expired or no review thereof may be obtained or appeal therefrom taken, and are adequate to authorize the consummation of the transactions contemplated by this Agreement and each Subservicing Agreement and the other documents on the part of such Seller and the performance by such Seller of its obligations under this Agreement and each Subservicing Agreement and such of the other documents to which it is a party;
(c) The consummation of the transactions contemplated by this Agreement and each Subservicing Agreement will not conflict with result in the breach of any terms or provisions of the certificate of incorporation or by-laws of such Seller or result in a the breach or violation of any of the terms term or provisions provision of, or conflict with or constitute a default under or result in the acceleration of any obligation under, any indenturematerial agreement, mortgage, deed of trust, indenture or loan or credit agreement or other agreement or material instrument to which such Seller or its property is a party subject, or by result in the violation of any law, rule, regulation, order, judgment or decree to which such Seller or its property is bound subject.
(d) Neither this Agreement or any Subservicing Agreement nor any statement, report or other document furnished or to which be furnished pursuant to this Agreement and each Subservicing Agreement 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 property statements contained herein or therein not misleading;
(e) Such Seller does not believe, nor does it have any reason or cause to believe, that it cannot perform each and every covenant contained in this Agreement or any Subservicing Agreement;
(f) There is no action, suit, proceeding or investigation pending or, to the best of such Seller's knowledge, threatened against such Seller which, either in any one instance or in the aggregate, may (i) except as described in the Registration Statement, result in any material adverse change in the business, operations, financial condition, properties or assets of such Seller is subjector in any material impairment of the right or ability of such Seller to carry on its business substantially as now conducted, or in any material liability on the part of such Seller or of any action taken or to be taken in connection with the obligations of such Seller contemplated herein, or which would be likely to impair materially the ability of such Seller to perform under the terms of this Agreement and each Subservicing Agreement or (ii) nor which would draw into question the validity of this Agreement and each Subservicing Agreement or the Business Loans;
(g) The Trust Fund will such action violate any not constitute an "investment company" within the meaning of the provisions Investment Company Act of 1940, as amended;
(xh) Such Seller is not in default with respect to any organizational order or similar documents pursuant to which Seller was formed or (y) decree of any statute court or any order, rule regulation or regulation demand of any court federal, state, municipal or governmental agency agency, which default might have consequences that would materially and adversely affect the condition (financial or body having jurisdiction over other) or operations of such Seller or its properties or might have consequences that would materially and adversely affect its performance hereunder;
(i) The statements contained in the Registration Statement which describe such Seller or the property Business Loans or matters or activities for which such Seller is responsible in accordance with the Registration Statement, this Agreement and all documents referred to therein or herein or delivered in connection therewith or herewith, or which are attributable to such Seller therein or herein are true and correct in all material respects, and the Registration Statement does not contain any untrue statement of a material fact with respect to such Seller or the Business Loans and does not omit to state a material fact necessary to make the statements contained therein with respect to such Seller or the Business Loans not misleading. Such Seller is not aware that the Registration Statement contains any untrue statement of a material fact or omits to state any material fact necessary to make the statements contained therein not misleading. There is no fact peculiar to such Seller or the Business Loans and known to such Seller that materially adversely affects or in the future may (so far as such Seller can now reasonably foresee) materially adversely affect such Seller or the Business Loans or the ownership interests therein represented by the Certificates that has not been set forth in the Registration Statement;
(j) No Certificateholder is subject to state licensing requirements solely by virtue of holding the Certificates;
(k) The transfer, assignment and conveyance of the Business Notes and the Mortgages by such Seller pursuant to this Agreement are not subject to the bulk transfer laws or any similar statutory provisions in effect in any applicable jurisdiction and do not violate the SBA Rules and Regulations;
(l) The origination and collection practices used by such Seller with respect to each Business Note and Mortgage relating to the Initial Business Loans have been, and the origination and collection practices to be used by such Seller with respect to each Business Note and Mortgage relating to the Subsequent Business Loans will have been, in all material respects legal, proper, prudent and customary in the business loan origination and servicing business;
(m) Each Initial Business Loan was, and each Subsequent Business Loan will be, selected from among the existing SBA 504 Loans, Section 7
(a) Companion Loans and CCL Loans in such Seller; except 's portfolio at the date hereof or, in the case of clause the Subsequent Business Loans at the related Subsequent Cut-Off Date in a manner not designed to adversely affect the Certificateholders;
(in) Such Seller received fair consideration and reasonably equivalent value in exchange for the sale of the Business Loans evidenced by the Certificates;
(o) Neither such Seller nor any of its affiliates sold any interest in any Business Loan evidenced by the Certificates with any intent to hinder, delay or clause defraud any of their respective creditors;
(ii)(yp) Such Seller is solvent, and such Seller will not be rendered insolvent as a result of the transfer of the Business Loans to the Trust Fund or the sale of the Certificates; and
(q) The chief executive office and legal name of the Seller is as set forth on the respective UCC-1 financing statement filed on behalf of such Seller pursuant to Section 2.04(h), such office is the place where such Seller is "located" for such conflicts, breaches, violations or defaults as would not impair in any material respect the consummation purposes of Seller’s obligations hereunder.
(eSection 9-103(3)(d) As of the date hereof and immediately prior to the delivery of the Repurchase Shares to the Company at each Closing, such Seller owns the Repurchase Shares or a security entitlement in respect thereof, and holds, or will hold, such Repurchase Shares free and clear of all liens, encumbrances, equities or claims; and, upon delivery of such Repurchase Shares (including by delivery of security certificates duly indorsed or crediting to a securities account of the Company) and payment therefor pursuant hereto, assuming that the Company has no notice of any adverse claims within the meaning of Section 8-105 of the New York Uniform Commercial Code as in effect in the State of New York from time to time (York, and neither the “UCC”), location of such office nor the Company will acquire its interest legal name of the Seller has changed in the Repurchase Shares purchased by the Company that are physically delivered to the Company free of adverse claims (within the meaning of Section 8-105 of the UCC) or, in the case of crediting to a securities account of the Company, will acquire a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Repurchase Shares purchased by the Company, and no action (whether framed in conversion, replevin, constructive trust, equitable lien or other theory) based on an adverse claim (within the meaning of Section 8-105 of the UCC) to such security entitlement may be asserted against the Companypast four months.
(f) Seller (either alone or together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the Repurchase. Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the Repurchase and the Repurchase Shares and has had full access to such other information concerning the Repurchase Shares and the Company as it has requested. Seller has received all information that it believes is necessary or appropriate in connection with the Repurchase. Seller is an informed and sophisticated party and has engaged, to the extent such Seller deems appropriate, expert advisors experienced in the evaluation of transactions of the type contemplated hereby. Seller acknowledges that Seller has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of Seller in this Agreement.
(g) As of the date hereof, the Seller is not aware of any material, nonpublic information about the Company or its securities and it is entering into this Agreement in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b5-1 of the Exchange Act.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Money Store Commercial Mortgage Inc)
Representations of the Seller. In connection with the transactions contemplated hereby, the The Seller hereby represents and warrants to the Company thatIndenture Trustee, the Owner Trustee, the Certificateholders, the Noteholders and each Hedge Counterparty as of each Transfer Date:
(a) The Seller is a Connecticut chartered bank and trust company duly organized and validly existing under the laws of the State of Connecticut 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 organization.
(b) All consentssuch state require licensing or qualification in order to conduct business of the type conducted by the Seller and perform its obligations hereunder; the Seller 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, approvals, authorizations delivery and orders necessary for the execution and delivery by Seller performance of this Agreement and for the sale and delivery each other Basic Document to which it is a party (including all instruments of the Repurchase Shares transfer to be sold delivered pursuant to this Agreement) by the Seller hereunder, have been obtained; and Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver the Repurchase Shares to be sold by Seller hereunder, except for such consents, approvals, authorizations and orders as would not impair in any material respect the consummation of the Seller’s obligations hereunder.
(c) This Agreement has been duly authorized, executed and delivered by Seller and constitutes a valid and binding agreement of Seller, enforceable in accordance with its terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other laws affecting enforcement of creditors’ rights or by general equitable principles.
(d) The sale of the Repurchase Shares to be sold by Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein (i) will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or hereby and thereby have been duly and validly authorized by all necessary corporate action; this Agreement and each other agreement or instrument Basic Document to which Seller it is a party or evidence the valid, binding and enforceable obligations of the Seller; and all requisite corporate action has been taken by which the Seller is bound or to make this Agreement and each other Basic Document to which it is a party valid, binding and enforceable upon the Seller 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 property or assets of Seller is subject, (ii) nor will such action violate any of the provisions of (x) any organizational or similar documents pursuant to which Seller was formed or (y) any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over Seller or the property of such Seller; except Unguaranteed Interests in the case of clause (i) or clause (ii)(y), for such conflicts, breaches, violations or defaults as would not impair in any material respect the consummation of Seller’s obligations hereunder.
(e) As of the date hereof and immediately prior to the delivery of the Repurchase Shares to the Company at each Closing, such Seller owns the Repurchase Shares or a security entitlement in respect thereof, and holds, or will hold, such Repurchase Shares free and clear of all liens, encumbrances, equities or claims; and, upon delivery of such Repurchase Shares (including by delivery of security certificates duly indorsed or crediting to a securities account of the Company) and payment therefor pursuant hereto, assuming that the Company has no notice of any adverse claims within the meaning of Section 8-105 of the New York Uniform Commercial Code as in effect in the State of New York from time to time (the “UCC”), the Company will acquire its interest in the Repurchase Shares purchased SBA Loans by the Company that are physically delivered to the Company free of adverse claims (within the meaning of Section 8-105 of the UCC) or, in the case of crediting to a securities account of the Company, will acquire a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Repurchase Shares purchased by the Company, and no action (whether framed in conversion, replevin, constructive trust, equitable lien or other theory) based on an adverse claim (within the meaning of Section 8-105 of the UCC) to such security entitlement may be asserted against the CompanyTrust.
(f) Seller (either alone or together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the Repurchase. Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the Repurchase and the Repurchase Shares and has had full access to such other information concerning the Repurchase Shares and the Company as it has requested. Seller has received all information that it believes is necessary or appropriate in connection with the Repurchase. Seller is an informed and sophisticated party and has engaged, to the extent such Seller deems appropriate, expert advisors experienced in the evaluation of transactions of the type contemplated hereby. Seller acknowledges that Seller has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of Seller in this Agreement.
(g) As of the date hereof, the Seller is not aware of any material, nonpublic information about the Company or its securities and it is entering into this Agreement in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b5-1 of the Exchange Act.
Appears in 1 contract
Samples: Sale and Servicing Agreement (First International Bancorp Inc)
Representations of the Seller. In connection with the transactions contemplated hereby, the The Seller hereby represents and warrants to the Company thatIndenture Trustee, the Owner Trustee, the Certificateholders and the Noteholders as of the Closing Date:
(a) The Seller is a nationally chartered bank duly organized and validly existing under the laws of the United States 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 organization.
(b) All consentssuch state require licensing or qualification in order to conduct business of the type conducted by the Seller and perform its obligations hereunder; the Seller 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, approvals, authorizations delivery and orders necessary for the execution and delivery by Seller performance of this Agreement and for the sale and delivery each other Basic Document to which it is a party (including all instruments of the Repurchase Shares transfer to be sold delivered pursuant to this Agreement) by the Seller hereunder, have been obtained; and Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver the Repurchase Shares to be sold by Seller hereunder, except for such consents, approvals, authorizations and orders as would not impair in any material respect the consummation of the Seller’s obligations hereunder.
(c) This Agreement has been duly authorized, executed and delivered by Seller and constitutes a valid and binding agreement of Seller, enforceable in accordance with its terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other laws affecting enforcement of creditors’ rights or by general equitable principles.
(d) The sale of the Repurchase Shares to be sold by Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein 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 the Seller; and all requisite corporate action has been taken by the Seller to make this Agreement and each other Basic Document to which it is a party valid, binding and enforceable upon the Seller 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.
(ib) All actions, approvals, consents, waivers, exemptions, variances, franchises, orders, permits, authorizations, rights and licenses required to be taken, given or obtained, as the case may be, by or from any federal, state or other governmental authority or agency (other than any such actions, approvals, etc., under any state securities laws, real estate syndication or "Blue Sky" statutes, as to which the Seller makes no such representation or warranty), that are necessary or advisable in connection with the purchase and sale of the Notes and the execution and delivery by the Seller of the documents to which it is a party, have been duly taken, given or obtained, as the case may be, are in full force and effect on the date hereof, are not subject to any pending proceedings or appeals (administrative, judicial or otherwise) and either the time within which any appeal therefrom may be taken or review thereof may be obtained has expired or no review thereof may be obtained or appeal therefrom taken, and are adequate to authorize the consummation of the transactions contemplated by this Agreement and each other Basic Document to which it is a party and the other documents on the part of the Seller and the performance by the Seller of its obligations under this Agreement and the other Basic Documents to which it is a party;
(c) The consummation of the transactions contemplated by this Agreement and the other Basic Documents to which the Seller is a party will not conflict with result in the breach of any terms or provisions of the articles of association or by-laws of the Seller or result in a the breach or violation of any of the terms term or provisions provision of, or conflict with or constitute a default under or result in the acceleration of any obligation under, any indenturematerial agreement, mortgage, deed of trust, indenture or loan or credit agreement or other agreement or material instrument to which the Seller or its property is subject, or result in the violation of any law, rule, regulation, order, judgment or decree to which the or its property is subject;
(d) Neither this Agreement or any other Basic Document to which the Seller 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 the Seller is a party or by 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) The Seller does not believe, nor does it have any reason or cause to believe, that it cannot perform each and every covenant contained in this Agreement or any other Basic Document to which the Seller is bound a party;
(f) There is no action, suit, proceeding or investigation pending or, to which any the best of the property Seller's knowledge, threatened against the Seller 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 the Seller or in any material impairment of the right or ability of the to carry on its business substantially as now conducted, or in any material liability on the part of the Seller or of any action taken or to be taken in connection with the obligations of the Seller contemplated herein, or which would be likely to impair materially the ability of the Seller to perform under the terms of this Agreement or any other Basic Document to which the Seller is subject, a party or (ii) nor which would draw into question the validity of this Agreement or any other Basic Document to which the Seller is a party or the Business Loans;
(g) The Trust will such action violate any not constitute an "investment company" within the meaning of the provisions Investment Company Act of 1940, as amended;
(xh) The Seller is not in default with respect to any organizational order or similar documents pursuant to which Seller was formed or (y) decree of any statute court or any order, rule regulation or regulation demand of any court federal, state, municipal or governmental agency agency, which default might have consequences that would materially and adversely affect the condition (financial or body having jurisdiction over other) or operations of the Seller or its properties or might have consequences that would materially and adversely affect its performance hereunder;
(i) The statements contained in the Private Placement Memorandum which describe the Seller or the property Business Loans or matters or activities for which the Seller is responsible in accordance with the Private Placement Memorandum, this Agreement or any other Basic Document to which the Seller is a party and all documents referred to therein or herein or delivered in connection therewith or herewith, or which are attributable to the Seller therein or herein are true and correct in all material respects, and the Private Placement Memorandum does not contain any untrue statement of such a material fact with respect to the Seller or the Business Loans and does not omit to state a material fact necessary to make the statements contained therein with respect to the Seller or the Business Loans not misleading in light of the circumstances under which they were made. The Seller 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 the Seller or the Business Loans and known to the Seller that materially adversely affects or in the future may (so far as the Seller can now reasonably foresee) materially adversely affect the Seller or the Business Loans that has not been set forth in the Private Placement Memorandum;
(j) No Noteholder or Certificateholder is subject to Connecticut state licensing requirements solely by virtue of holding the Notes or the Certificates;
(k) The transfer, assignment and conveyance of the Business Notes and the Mortgages by the Seller pursuant to this Agreement are not or, with respect to the Subsequent Business Loans, will not be, subject to the bulk transfer laws or any similar statutory provisions in effect in any applicable jurisdiction;
(l) The origination and collection practices used by the Seller with respect to each Business Note and Mortgage relating to the Initial Business Loans have been, and the origination and collection practices to be used by the Seller with respect to each Business Note and Mortgage relating to the Subsequent Business Loans will have been, in all material respects legal, proper, prudent and customary in the business loan origination and servicing business;
(m) Each Initial Business Loan was, and each Subsequent Business Loan will be, selected from among the existing business loans in the Seller; except 's portfolio at the date hereof or, in the case of clause the Subsequent Business Loans, at the related Subsequent Cut-Off Date, in a manner not designed to adversely affect the Noteholders or the Certificateholders;
(in) The Seller received fair consideration and reasonably equivalent value or, in the case of the Subsequent Business Loans, will have received fair consideration and reasonably equivalent value, in exchange for the sale of the Business Loans;
(o) Neither the Seller nor any of its affiliates sold or, in the case of the Subsequent Business Loans, will have sold any interest in any Business Loan with any intent to hinder, delay or clause defraud any of their respective creditors;
(ii)(yp) The Seller is solvent, and the Seller will not be rendered insolvent as a result of the transfer of the Business Loans to the Trust or the sale of the Notes; and
(q) The chief executive office and legal name of the Seller is as set forth on the respective UCC-1 financing statement filed on behalf of the Seller pursuant to Section 2.04(a)(4), such office is the place where the Seller is "located" for such conflicts, breaches, violations or defaults as would not impair in any material respect the consummation purposes of Seller’s obligations hereunder.
(eSection 9-103(3)(d) As of the date hereof and immediately prior to the delivery of the Repurchase Shares to the Company at each Closing, such Seller owns the Repurchase Shares or a security entitlement in respect thereof, and holds, or will hold, such Repurchase Shares free and clear of all liens, encumbrances, equities or claims; and, upon delivery of such Repurchase Shares (including by delivery of security certificates duly indorsed or crediting to a securities account of the Company) and payment therefor pursuant hereto, assuming that the Company has no notice of any adverse claims within the meaning of Section 8-105 of the New York Uniform Commercial Code as in effect in the State of New York from time to time (York, and neither the “UCC”), location of such office nor the Company will acquire its interest legal name of the Seller has changed in the Repurchase Shares purchased by the Company that are physically delivered to the Company free of adverse claims (within the meaning of Section 8-105 of the UCC) or, in the case of crediting to a securities account of the Company, will acquire a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Repurchase Shares purchased by the Company, and no action (whether framed in conversion, replevin, constructive trust, equitable lien or other theory) based on an adverse claim (within the meaning of Section 8-105 of the UCC) to such security entitlement may be asserted against the Companypast four months.
(f) Seller (either alone or together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the Repurchase. Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the Repurchase and the Repurchase Shares and has had full access to such other information concerning the Repurchase Shares and the Company as it has requested. Seller has received all information that it believes is necessary or appropriate in connection with the Repurchase. Seller is an informed and sophisticated party and has engaged, to the extent such Seller deems appropriate, expert advisors experienced in the evaluation of transactions of the type contemplated hereby. Seller acknowledges that Seller has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of Seller in this Agreement.
(g) As of the date hereof, the Seller is not aware of any material, nonpublic information about the Company or its securities and it is entering into this Agreement in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b5-1 of the Exchange Act.
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Samples: Sale and Servicing Agreement (First International Bancorp Inc)
Representations of the Seller. In connection with the transactions contemplated hereby, the The Seller represents and warrants to the Company Purchaser that, as of the Closing Date:
(a) Seller Owner is a limited partnership duly organized and existing under the laws of its state the State of organizationFlorida and ALF Operator is corporation duly organized and in good standing under the laws of the State of Florida. The sale of the Project and the execution and delivery of this Agreement and all other documents and instruments of conveyance and/or related to the sale of the Project (the "Seller's Documents") by the signatories hereto on behalf of Seller have been duly authorized by Seller, and are binding on Seller and enforceable against Seller in accordance with there respective terms. No consent to such execution, delivery and performance is required from any joint venturer, creditor, investor, judicial or administrative body, governmental authority or other party other than any such consent which already has been unconditionally given. Neither the execution of any of the Seller's Documents nor the consummation of the sale of Project will violate any restriction, court order or agreement to which Seller or the Project is subject.
(b) All consentsSeller is not prohibited from (i) executing or delivering this Agreement or any other Seller's Document, approvals, authorizations and orders necessary for (ii) complying with the execution and delivery by Seller terms of this Agreement and for Agreement, or (iii) consummating the sale and delivery of the Repurchase Shares to be sold transactions contemplated by Seller hereunder, have been obtained; and Seller has full right, power and authority to enter into this Agreement and to sellor any other Seller's Document by any applicable governmental requirement, assignagreement, transfer and deliver the Repurchase Shares to be sold instrument, restriction, or by a judgment, order or decree of any governmental authority having jurisdiction over Seller hereunder, except for such consents, approvals, authorizations and orders as would not impair in any material respect the consummation of the or Seller’s obligations hereunder's properties.
(c) This Agreement has been duly authorizedThere are no attachments, executed and delivered by Seller and constitutes a valid and binding agreement of Sellerexecutions, enforceable in accordance with its terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other laws affecting enforcement of creditors’ rights or by general equitable principles.
(d) The sale of the Repurchase Shares to be sold by Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein (i) will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which Seller is a party or by which Seller is bound or to which any of the property or assets of Seller is subject, (ii) nor will such action violate any of the provisions of (x) any organizational or similar documents pursuant to which Seller was formed or (y) any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over Seller or the property of such Seller; except in the case of clause (i) or clause (ii)(y), for such conflicts, breaches, violations or defaults as would not impair in any material respect the consummation of Seller’s obligations hereunder.
(e) As of the date hereof and immediately prior to the delivery of the Repurchase Shares to the Company at each Closing, such Seller owns the Repurchase Shares or a security entitlement in respect thereof, and holds, or will hold, such Repurchase Shares free and clear of all liens, encumbrances, equities or claims; and, upon delivery of such Repurchase Shares (including by delivery of security certificates duly indorsed or crediting to a securities account of the Company) and payment therefor pursuant hereto, assuming that the Company has no notice of any adverse claims within the meaning of Section 8-105 of the New York Uniform Commercial Code as in effect in the State of New York from time to time (the “UCC”), the Company will acquire its interest in the Repurchase Shares purchased by the Company that are physically delivered to the Company free of adverse claims (within the meaning of Section 8-105 of the UCC) or, in the case of crediting to a securities account of the Company, will acquire a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Repurchase Shares purchased by the Company, and no action (whether framed in conversion, replevin, constructive trust, equitable lien or other theory) based on an adverse claim (within the meaning of Section 8-105 of the UCC) to such security entitlement may be asserted against the Company.
(f) Seller (either alone or together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the Repurchase. Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the Repurchase and the Repurchase Shares and has had full access to such other information concerning the Repurchase Shares and the Company as it has requested. Seller has received all information that it believes is necessary or appropriate in connection with the Repurchase. Seller is an informed and sophisticated party and has engaged, to the extent such Seller deems appropriate, expert advisors experienced in the evaluation of transactions of the type contemplated hereby. Seller acknowledges that Seller has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth assignments for the benefit of creditors, receiverships, conservatorship or voluntary or involuntary proceedings in bankruptcy or pursuant to any other debtor relief laws contemplated or filed by Seller in this Agreementor pending against Seller or the Project.
(g) As of the date hereof, the Seller is not aware of any material, nonpublic information about the Company or its securities and it is entering into this Agreement in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b5-1 of the Exchange Act.
Appears in 1 contract
Representations of the Seller. In connection with the transactions contemplated hereby, the Seller represents and warrants to the Company as of the date hereof and as of the Closing (except to the extent any such representation and warranty expressly relates to an earlier date (in which case it shall be true and correct in all material respects as of such earlier date)) that:
(a) The Seller is a limited liability company duly organized organized, validly existing and existing in good standing under the laws of its state the State of organizationDelaware.
(b) All consents, approvals, authorizations and orders necessary for the execution and delivery by the Seller of this Agreement Agreement, and for the sale and delivery of the Repurchase Shares to be sold by the Seller hereunder, have been obtained; and the Seller has full right, power and authority to enter into this Agreement Agreement, and to sell, assign, transfer and deliver the Repurchase Shares to be sold by the Seller hereunder, except for such consents, approvals, authorizations and orders as would not impair in any material respect the consummation of the Seller’s obligations hereunder.
(c) This Agreement has been duly authorized, executed and delivered by the Seller and constitutes a valid and binding agreement of the Seller, enforceable in accordance with its terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other laws affecting enforcement of creditors’ rights or by general equitable principles.
(d) The sale of the Repurchase Shares to be sold by Seller hereunder and the compliance by such Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein (i) will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which Seller is a party or by which Seller is bound or to which any of the property or assets of Seller is subject, (ii) nor will such action violate any of the provisions of (x) any organizational or similar documents pursuant to which Seller was formed or (y) any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over Seller or the property of such Seller; except in the case of clause (i) or clause (ii)(y), for such conflicts, breaches, violations or defaults as would not impair in any material respect the consummation of Seller’s obligations hereunder.
(e) As of the date hereof and immediately prior to the delivery of Closing, the Seller has valid title to the Repurchase Shares to the Company at each ClosingShares, such Seller owns the Repurchase Shares or a security entitlement in respect thereof, and holds, or will hold, such Repurchase Shares free and clear of all liens, encumbrances, equities or adverse claims; , and, upon delivery transfer of such the Repurchase Shares (including by delivery of security certificates duly indorsed or crediting to a securities account of the Company) and payment therefor pursuant hereto, assuming that the Company has no notice of any adverse claims within the meaning of Section 8-105 of the New York Uniform Commercial Code as in effect in the State of New York from time to time (the “UCC”), the Company will acquire its interest in the Repurchase Shares purchased by the Company that are physically delivered to the Company free of adverse claims (within the meaning of Section 8-105 of the UCC) or, in the case of crediting to a securities account of the Company, will acquire a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) good and valid title to such Repurchase Shares purchased by the CompanyShares, free and no action (whether framed in conversionclear of all liens, replevinencumbrances, constructive trustequities or adverse claims, equitable lien or other theory) based on an adverse claim (within the meaning of Section 8-105 of the UCC) will pass to such security entitlement may be asserted against the Company.
(fe) The Seller (either alone or together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the Repurchase. The Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the Repurchase and the Repurchase Shares and has had full access to such other information concerning the Repurchase Shares and the Company as it has requested. The Seller has received all information that it believes is necessary or appropriate in connection with the Repurchase. The Seller is an informed and sophisticated party and has engaged, to the extent such the Seller deems appropriate, expert advisors experienced in the evaluation of transactions of the type contemplated hereby. The Seller acknowledges that neither the Company nor any person on behalf of the Company has made, and the Seller has not relied upon upon, any express or implied representations representations, warranties or warranties statements of any nature made nature, whether or not in writing or orally, including as to the accuracy and completeness of any information provided by or on behalf of the Company, whether Company to the Seller or not any such representations, warranties or statements were made in writing or orallyits representatives, except as expressly set forth for the benefit of the Seller in this Agreement.
(gf) As of From the date hereofhereof through the Pre-Closing Transfer, the Seller is not aware and will be owned and controlled by “persons” (as such term is defined in Section 203 of any materialthe Delaware General Corporation Law (“DGCL”)) who are, nonpublic information about and have been at all times for at least three years prior to the date of this Agreement, and will be through the Pre-Closing Transfer, an “affiliate” (as such term is defined in Section 203 of the DGCL) of either Seaboard Flour LLC or SFC Preferred, LLC, each of which is, and has been at all times for at least three years prior to the date of this Agreement, and will be through the Pre-Closing Transfer, an “interested stockholder” (as such term is defined in Section 203 of the DGCL) of the Company, such that Seller is, and has been at all times for at least three years prior to the date of this Agreement, and will be through the Pre-Closing Transfer, an “interested stockholder” (as such term is defined in Section 203 of the DGCL) of the Company. From the Pre-Closing Transfer through Closing, Seller shall continue to be an “interested stockholder” (as such term is defined in Section 203 of the DGCL) of the Company or by virtue of its securities and it ownership (as such term is entering into this Agreement defined in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b5-1 Section 203 of the Exchange ActDGCL) of the Repurchase Shares.
Appears in 1 contract
