Representations of the Sellers. Each Seller hereby represents and warrants to the Trustee and the Certificateholders as of the Closing Date: (a) Such Seller is a corporation duly organized, validly existing, and 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 such 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, delivery and performance of this Agreement and each Subservicing Agreement (including all instruments of transfer to be delivered pursuant to this Agreement and each Subservicing Agreement) by such Seller and the consummation of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary corporate action; this Agreement and each 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 SBA Loans by the Trustee, as trustee. (b) All actions, approvals, consents, waivers, exemptions, variances, franchises, orders, permits, authorizations, rights and licenses required to be taken, given or obtained, as the case may be, by or from any federal, state or other governmental authority or agency (other than any such actions, approvals, etc., under any state securities laws, real estate syndication or "Blue Sky" statutes, as to which 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 result in the breach of any terms or provisions of the certificate of incorporation or by-laws of such Seller or result in the breach of any term or provision of, or conflict with or constitute a default under or result in the acceleration of any obligation under, any material agreement, indenture or loan or credit agreement or other material instrument to which such Seller or its property is subject, or result in the violation of any law, rule, regulation, order, judgment or decree to which such Seller or its property is subject; (d) Neither this Agreement or any Subservicing Agreement nor any statement, report or other document furnished or to 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 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;
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Money Store of New York Inc), Pooling and Servicing Agreement (Money Store Sba Loan Backed Adj Rak Cert Series 1997-I)
Representations of the Sellers. Each Seller hereby represents and warrants to the Trustee and the Certificateholders as of the Closing Date:
(a) Such Seller is a corporation duly organized, validly existing, and in good standing under the laws of the jurisdiction of its incorporation and has The Sellers have 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 such 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 enter into and to perform in accordance herewith their obligations hereunder. This Agreement constitutes the valid and therewith; the execution, delivery and performance of this Agreement and each Subservicing Agreement (including all instruments of transfer to be delivered pursuant to this Agreement and each Subservicing Agreement) by such Seller and the consummation binding obligation of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary corporate action; this Agreement and each Subservicing Agreement evidences Sellers, enforceable against 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 Sellers in accordance with the respective terms of eachits terms, subject to: (i) laws of general application relating to the effect of bankruptcy, insolvencyinsolvency and the relief of debtors; and (ii) rules of law governing specific performance, reorganization, moratorium injunctive relief 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 trusteeremedies.
(b) All actionsThe Sellers own all right, approvalstitle and interest in and to, consentsand have the right to transfer to the Company, 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 Repurchase provided for herein, all of the Certificates Shares being repurchased by the Company, pursuant to the terms of this Agreement, free and the execution clear of all liens, security interests, charges 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;encumbrances.
(c) The consummation Sellers have had a reasonable opportunity to ask questions of and receive answers from a person or persons acting on behalf of the transactions contemplated by this Agreement and each Subservicing Agreement will not result in Company concerning the breach of any terms or provisions Repurchase of the certificate Shares and the business, financial condition, and results of incorporation or by-laws operations of the Company, and all such Seller or result in questions have been answered to the breach full satisfaction of any term or provision of, or conflict with or constitute a default under or result in the acceleration of any obligation under, any material agreement, indenture or loan or credit agreement or other material instrument to which such Seller or its property is subject, or result in the violation of any law, rule, regulation, order, judgment or decree to which such Seller or its property is subject;Sellers.
(d) Neither this Agreement The Sellers acknowledge and understand that the Company on or any Subservicing Agreement nor any statementaround the date of the consummation of the Repurchase may (i) sell shares of Common Stock, report or other document furnished 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; (ii) repurchase shares of Common Stock from other shareholders of the Company 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; and/or (iii) repurchase shares of Common Stock from other shareholders including, without limitation, among the Sellers herein, for a number of shares that is more or less than the percentage being repurchased from each of the Sellers. Notwithstanding any such sales or other repurchases, the Sellers agree to accept the Purchase Price as full and fair payment for the Shares. Additionally, the Sellers each acknowledge and agree that to the extent the Company repurchases a lesser percentage of the number of shares of Common Stock held by other shareholders of the Company than repurchased from each of the Sellers, their interests in the Company will 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 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;diluted.
Appears in 1 contract
Samples: Share Exchange Agreement (Lihua International Inc.)
Representations of the Sellers. Each Seller hereby represents and warrants to the Trustee and the Certificateholders as of the Closing Date:
(a) Such Seller is a corporation duly organized, validly existing, and 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 such 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, delivery and performance of this Agreement and each Subservicing Agreement (including all instruments of transfer to be delivered pursuant to this Agreement and each Subservicing Agreement) by such Seller and the consummation of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary corporate action; this Agreement and each 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 SBA Loans by the Trustee, as trustee.
(b) All actions, approvals, consents, waivers, exemptions, variances, franchises, orders, permits, authorizations, rights and licenses required to be taken, given or obtained, as the case may be, by or from any federal, state or other governmental authority or agency (other than any such actions, approvals, etc., under any state securities laws, real estate syndication or "Blue Sky" statutes, as to which 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 result in the breach of any terms or provisions of the certificate of incorporation or by-laws of such Seller or result in the breach of any term or provision of, or conflict with or constitute a default under or result in the acceleration of any obligation under, any material agreement, indenture or loan or credit agreement or other material instrument to which such Seller or its property is subject, or result in the violation of any law, rule, regulation, order, judgment or decree to which such Seller or its property is subject;
(d) Neither this Agreement or any Subservicing Agreement nor any statement, report or other document furnished or to 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 statements contained herein or therein not misleadingmisleading in light of the circumstances under which they were made;
(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, order, 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 or 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) which would draw into question the validity of this Agreement and each Subservicing Agreement or the SBA Loans;
(g) The Trust Fund will not constitute an "investment company" within the meaning of the Investment Company Act of 1940, as amended;
(h) Such Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or 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 SBA 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 SBA Loans and does not omit to state a material fact necessary to make the statements contained therein with respect to such Seller or the SBA 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 SBA 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 SBA 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 SBA Notes and the Mortgages by such Seller pursuant to this Agreement are not or, with respect to the Subsequent SBA Loans, will not be, 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 SBA Note and Mortgage relating to the Initial SBA Loans have been, and the origination and collection practices to be used by such Seller with respect to each SBA Note and Mortgage relating to the Subsequent SBA Loans will have been, in all material respects legal, proper, prudent and customary in the SBA loan origination and servicing business;
(m) Each Initial SBA Loan was, and each Subsequent SBA Loan will be, selected from among the existing SBA loans in such Seller's portfolio at the date hereof or, in the case of the Subsequent SBA Loans, at the related Subsequent Cut-Off Date, in a manner not designed to adversely affect the Certificateholders;
(n) Such Seller received fair consideration and reasonably equivalent value or, in the case of the Subsequent SBA Loans, will have received fair consideration and reasonably equivalent value, in exchange for the sale of the Unguaranteed Interest of the SBA Loans evidenced by the Certificates;
(o) Neither such Seller nor any of its affiliates sold or, in the case of the Subsequent SBA Loans, will have sold any interest in any SBA Loan evidenced by the Certificates with any intent to hinder, delay or defraud any of their respective creditors;
(p) Such Seller is solvent, and such Seller will not be rendered insolvent as a result of the transfer of the SBA Loans to the Trust Fund or the sale of the Certificates;
(q) The Subservicing Agreement to which such Seller is a party conforms to the requirements for a Subservicing Agreement contained in this Agreement; and
(r) The chief executive office and legal name of each 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 the purposes of Section 9-103(3)(d) of the Uniform Commercial Code as in effect in the State of New York, and neither the location of such office nor the legal name of such Seller has changed in the past four months.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Money Store of New York Inc)
Representations of the Sellers. Each Seller hereby represents severally and warrants to the Trustee and the Certificateholders as of the Closing Datenot jointly that:
(a) Such Seller is a corporation duly organized, validly existing, has all requisite power and in good standing under the laws authority to own and to dispose of the jurisdiction Company Securities owned by such Seller.
(b) The number 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 such state require licensing or qualification in order to conduct business shares and/or principal amount of the type conducted Company Securities owned by such Seller and perform its obligations hereunder; as of the date of this Agreement is set forth beside the name of such Seller on Annex A hereto. Except as set forth on Schedule 3.25(b), such Seller owns his respective Company Securities, free and clear of any Liens, and at the Closing, Buyer will acquire good, valid and marketable title to the Company Securities owned by such Seller, free and clear of any Liens.
(c) Such Seller has corporate full power and authority to execute and deliver this Agreement and each Subservicing Agreement and to perform in accordance herewith and therewith; the execution, delivery and performance of this Agreement and each Subservicing Agreement (including all instruments of transfer to be delivered pursuant to this Agreement and each Subservicing Agreement) by such Seller and the consummation of consummate the transactions contemplated hereby and thereby have to sell to Buyer such Seller's Company Securities. This Agreement has been duly and validly authorized executed and delivered by all necessary corporate action; such Seller and, assuming that this Agreement constitutes a valid and binding agreement of Buyer, the Company and each Subservicing Agreement evidences the validother Seller, constitutes a valid and binding and enforceable obligation agreement 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 against such Seller in accordance with the respective terms of eachits terms, subject to the effect of except (i) as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to or affecting enforcement of creditors' rights generally or the application and (ii) as such enforceability may be limited by general principles of equitable principles in any proceeding, whether at law or in equity, none regardless of which will affect the ownership of the SBA Loans by the Trustee, as trusteewhether asserted in a proceeding in equity or at law.
(bd) 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 Neither the execution and delivery of this Agreement by such Seller nor the sale by such Seller of the documents Company Securities owned by such Seller pursuant to which it is a partythis Agreement at the Closing will (i) conflict with or result in any breach of (with or without notice or lapse of time, 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 both) 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 provision of the transactions contemplated by this Agreement and each Subservicing Agreement and the other Certificate of Incorporation, By-Laws or similar governing documents on the part of such Seller and which is not a natural person, (ii) except for filings required under the performance HSR Act, require any consent, approval, authorization or permit of, or filing with or notification to, any governmental or regulatory authority by such Seller of its obligations under this Agreement and each Subservicing Agreement and Seller, except where the failure to obtain such of the other documents consent, approval, authorization or permit, or to which it is make such filing or notification, would not reasonably be expected to have a party;
Material Adverse Effect, (ciii) The consummation of the transactions contemplated by this Agreement and each Subservicing Agreement will not result in the breach a violation of or default under (with or without notice or lapse of time, or both) or give rise to any terms right of termination, cancellation or provisions of the certificate of incorporation or by-laws of such Seller acceleration or result in the breach creation of any term or provision of, or conflict with or constitute a default under or result in the acceleration of any obligation Lien under, any material agreementof the terms, indenture conditions or loan or credit provisions of any note, bond, mortgage, indenture, license, agreement or other material instrument or obligation to which such Seller is a party or its property is subject, or result in the violation of any law, rule, regulation, order, judgment or decree to by which such Seller or any of its property is subject;assets may be bound, except for such defaults or rights of termination, cancellation or acceleration or Liens as to which requisite waivers or consents have been obtained or which, in the aggregate, would not reasonably be expected to have a Material Adverse Effect, or (iv) violate any order, writ, injunction, decree, statute, rule or regulation applicable to such Seller or any of its assets, which violation would reasonably be expected to have a Material Adverse Effect.
(de) Neither this Agreement or any Subservicing Agreement nor any statementNo broker, report finder or other document furnished person is entitled to any brokerage fees, commissions or to be furnished pursuant to this Agreement and each Subservicing Agreement or finder's fees in connection with the transactions transaction contemplated hereby and thereby contains by reason of any untrue statement of material fact or omits to state a material fact necessary to make the 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;action taken by such Seller.
Appears in 1 contract
Samples: Securities Purchase Agreement (Fields MRS Original Cookies Inc)
Representations of the Sellers. Each Seller In connection with the transactions contemplated hereby, each of the Sellers (as to itself only) hereby represents and warrants to the Trustee and the Certificateholders as of the Closing DateCompany that:
(a) Such Seller is a corporation limited partnership duly organized, validly existing, existing and in good standing under the laws Laws of the jurisdiction State of its incorporation and Delaware. Such Seller 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 such 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 Agreement, to perform its obligations hereunder and to perform in accordance herewith and therewith; the execution, delivery and performance of this Agreement and each Subservicing Agreement (including all instruments of transfer to be delivered pursuant to this Agreement and each Subservicing Agreement) by such Seller and the consummation of consummate the transactions contemplated 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 SBA Loans by the Trustee, as trustee.
(b) hereby. All actionsconsents, approvals, consents, waivers, exemptions, variances, franchises, orders, permits, authorizations, rights authorizations 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 orders necessary or advisable in connection with the purchase and sale of the Certificates and for the execution and delivery by such Seller of this Agreement, and for the documents sale and delivery of the Repurchase Shares to which it is a partybe sold by such Seller hereunder, have been obtained.
(b) The execution, delivery and performance by such Seller of this Agreement and the consummation by such Seller of the transactions contemplated hereby have been duly takenauthorized and approved by all necessary action on the part of such Seller, given and no further action, approval or obtainedauthorization by any of its directors, managers, stockholders, partners, members or other equity owners, as the case may be, are is necessary to authorize the execution, delivery and performance by such Seller of this Agreement and the consummation by each Seller of the transactions contemplated hereby. This Agreement has been duly executed and delivered by such Seller and, assuming due authorization, execution and delivery hereof by the Company, constitutes a legal, valid and binding obligation of such Seller, enforceable against it in full force accordance with its terms, subject to the Bankruptcy and effect on Equity Exception.
(c) Neither the execution and delivery of this Agreement by such Seller, nor the consummation of the transactions contemplated hereby by such Seller, nor performance or compliance by such Seller with any of the terms or provisions hereof, will (i) conflict with or violate any provision of the certificate or articles of incorporation, bylaws, limited partnership agreement or other comparable charter or organizational documents of such Seller or (ii) (x) violate any Law or Judgment applicable to such Seller or any of its subsidiaries or (y) violate or constitute a default (or constitute an event which, with notice or lapse of time or both, would violate or constitute a default) under any of the terms, conditions or provisions of any Contract to which such Seller or any of its subsidiaries is a party or accelerate such Seller’s or any of its subsidiaries’, if applicable, obligations under any such Contract.
(d) As of the date hereof, are not subject such Seller has, and immediately prior to the delivery of the Repurchase Shares to the Company at the Closing will have, valid title to its Repurchase Shares free and clear of all liens or other encumbrances (other than any pending proceedings lien or appeals encumbrance arising as a result of the Company’s ownership of any such shares).
(administrativee) Such Seller (i) has such knowledge and experience in financial and business matters and in investments of this type that it is capable of evaluating the merits and risks of the Repurchase and of making an informed investment decision without reliance on the Company or any of its affiliates or representatives, judicial or otherwise(ii) is an “accredited investor” (as that term is defined by Rule 501 of the Securities Act), (iii) is a “qualified institutional buyer” (as that term is defined in Rule 144A of the Securities Act) and either (iv) (1) has been furnished with or has had full access to all the time within information that it considers necessary or appropriate to make an informed investment decision with respect to the Repurchase and (2) has had an opportunity to discuss with the Company and its representatives the intended business and financial affairs of the Company and to obtain information necessary to verify any information furnished to it or to which any appeal therefrom it had access. Such Seller has such knowledge and experience in business and financial matters so as to enable it to understand and evaluate the risks of, and form an investment decision with respect to, the Repurchase. Such Seller has made its own independent analysis and decision to enter into this Agreement and effect the transactions contemplated by this Agreement relying solely upon the advice of its own financial, legal, tax, accounting and other advisors as it has deemed necessary. Such Seller understands that, in making a decision to enter into this Agreement and effect the transactions contemplated by this Agreement, the Company is expressly relying on the acknowledgements and agreements of the Sellers set forth in this Agreement.
(f) Such Seller is a sophisticated entity with knowledge and experience in financial and business matters, including considerable experience in investments in securities such as the Series A Preferred Stock and the Common Stock, has adequate information concerning the Series A Preferred Stock and the Common Stock and understands the disadvantage to which such Seller may be taken or review thereof may be obtained has expired or no review thereof may be obtained or appeal therefrom takensubject on account of the disparity of information between the Company and such Seller. Such Seller believes, by reason of its business and are adequate to authorize financial experience, that such Seller is capable of evaluating the consummation merits and risks of the transactions contemplated by this Agreement and each Subservicing Agreement and the other documents on the part of protecting 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 result in the breach of any terms or provisions of the certificate of incorporation or by-laws of such Seller or result in the breach of any term or provision of, or conflict with or constitute a default under or result in the acceleration of any obligation under, any material agreement, indenture or loan or credit agreement or other material instrument to which such Seller or its property is subject, or result in the violation of any law, rule, regulation, order, judgment or decree to which such Seller or its property is subject;
(d) Neither this Agreement or any Subservicing Agreement nor any statement, report or other document furnished or to be furnished pursuant to this Agreement and each Subservicing Agreement or Seller’s own interest 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;by this Agreement.
(ei) The Company currently may have, and later may come into possession of, material, non-public information regarding the Company (financial or otherwise), including, but not limited to, results of operations, businesses, properties, plans (including acquisition and divestiture plans) and prospects (collectively, “Information”), which Information is not currently known to such Seller and may (x) impact the value of the Series A Preferred Stock being sold or the Common Stock and (y) be material to such Seller’s decision to enter into this Agreement, (ii) the Company has no duty to disclose to such Seller any of the Information, (iii) such Seller acknowledges that the Company possesses the Information and after discussing these matters with such Seller’s counsel and such other advisors as such Seller deems appropriate, such Seller wishes to consummate the transactions contemplated by this Agreement, which are the result of independent arms-length negotiations between the Company and such Seller, notwithstanding such Seller’s lack of knowledge of the Information and (iv) such Seller does not wish to receive any such Information and will not request from the Company any Information the Company may now have or of which the Company may later come into possession.
(h) Such Seller does not believeacknowledges its responsibilities under the federal and state securities laws relating to restrictions on trading in securities of an issuer while in possession of material, nor does it have any reason non-public information, and restrictions on sharing such information with other persons who may engage in such trading.
(i) Such Seller makes no representations or cause to believewarranties, that it cannot perform each and every covenant contained express or implied, about the Repurchase, the Conversion, the Sellers or otherwise, except as expressly set forth in this Agreement Section 3, and the Company expressly disclaims reliance on any such other representations or warranties.
(j) Each Seller is a “United States person” as defined in Section 7701(a)(30) of the Internal Revenue Code of 1986, as amended (the “Code”) and is not receiving the Consideration as an agent, nominee, or custodian on behalf of any Subservicing Agreement;other person.
Appears in 1 contract
Samples: Stock Repurchase and Conversion Agreement (NCR Corp)
Representations of the Sellers. Each Seller hereby represents and warrants to the Trustee and the Certificateholders as of the Closing Date:
(a) Such Seller is a corporation duly organized, validly existing, and 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 such 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, delivery and performance of this Agreement and each Subservicing Agreement (including all instruments of transfer to be delivered pursuant to this Agreement and each Subservicing Agreement) by such Seller and the consummation of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary corporate action; this Agreement and each 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 SBA Loans by the Trustee, as trustee.
(b) All actions, approvals, consents, waivers, exemptions, variances, franchises, orders, permits, authorizations, rights and licenses required to be taken, given or obtained, as the case may be, by or from any federal, state or other governmental authority or agency (other than any such actions, approvals, etc., under any state securities laws, real estate syndication or "Blue Sky" statutes, as to which 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 result in the breach of any terms or provisions of the certificate of incorporation or by-laws of such Seller or result in the breach of any term or provision of, or conflict with or constitute a default under or result in the acceleration of any obligation under, any material agreement, indenture or loan or credit agreement or other material instrument to which such Seller or its property is subject, or result in the violation of any law, rule, regulation, order, judgment or decree to which such Seller or its property is subject;
(d) Neither this Agreement or any Subservicing Agreement nor any statement, report or other document furnished or to 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 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 or 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) which would draw into question the validity of this Agreement and each Subservicing Agreement or the SBA Loans;
(g) The Trust Fund will not constitute an "investment company" within the meaning of such Act;
(h) Such Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or 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 SBA 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 SBA Loans and does not omit to state a material fact necessary to make the statements contained therein with respect to such Seller or the SBA 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 SBA 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 SBA 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 SBA Notes and the Mortgages by such Seller pursuant to this Agreement are not or, with respect to the Subsequent SBA Loans, will not be, 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 SBA Note and Mortgage relating to the Initial SBA Loans have been, and the origination and collection practices to be used by such Seller with respect to each SBA Note and Mortgage relating to the Subsequent SBA Loans will have been, in all material respects legal, proper, prudent and customary in the SBA loan origination and servicing business;
(m) Each Initial SBA Loan was, and each Subsequent SBA Loan will be, selected from among the existing SBA loans in such Seller's portfolio at the date hereof or, in the case of the Subsequent SBA Loans, at the related Subsequent Cut-Off Date, in a manner not designed to adversely affect the Certificateholders;
(n) Such Seller received fair consideration and reasonably equivalent value or, in the case of the Subsequent SBA Loans, will have received fair consideration and reasonably equivalent value, in exchange for the sale of the Unguaranteed Interest of the SBA Loans evidenced by the Certificates;
(o) Neither such Seller nor any of its affiliates sold or, in the case of the Subsequent SBA Loans, will have sold any interest in any SBA Loan evidenced by the Certificates with any intent to hinder, delay or defraud any of their respective creditors;
(p) Such Seller is solvent, and such Seller will not be rendered insolvent as a result of the transfer of the SBA Loans to the Trust Fund or the sale of the Certificates;
(q) The Subservicing Agreement to which such Seller is a party conforms to the requirements for a Subservicing Agreement contained in this Agreement; and
(r) The chief executive office and legal name of each 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 the purposes of Section 9-103(3)(d) of the Uniform Commercial Code as in effect in the State of New York, and neither the location of such office nor the legal name of such Seller has changed in the past four months.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Money Store of New York Inc)
Representations of the Sellers. Each Seller hereby In connection with the transactions contemplated hereby, each of the Sellers, severally and not jointly, represents and warrants to the Trustee and the Certificateholders Company as of the Closing Datedate hereof and covenants and agrees that:
(a) Such Seller is a corporation duly organized, validly existing, organized and in good standing existing under the laws of the its 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 such 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, delivery and performance of this Agreement and each Subservicing Agreement (including all instruments of transfer to be delivered pursuant to this Agreement and each Subservicing Agreement) by such Seller and the consummation of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary corporate action; this Agreement and each 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 SBA Loans by the Trustee, as trusteeorganization.
(b) All actionsconsents, approvals, consents, waivers, exemptions, variances, franchises, orders, permits, authorizations, rights authorizations 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 orders necessary or advisable in connection with the purchase and sale of the Certificates and for the execution and delivery by such Seller of this Agreement and for the documents sale and delivery of the Purchased Interests to which it is a partybe sold by such Seller hereunder, have been duly takenobtained (except for such consents, given or obtainedapprovals, filings, authorizations and orders 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 required under the Securities Act of 1933, state securities or review Blue Sky laws,, the rules and regulations of FINRA or the rules and regulations of any exchange); and such Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver the Purchased Interests to be sold by such Seller hereunder, except for such consents, approvals, authorizations and orders as would not impair in any material respect the consummation of such Seller’s obligations hereunder.
(c) This Agreement has been duly executed and delivered by such Seller and constitutes a valid and binding agreement of such Seller, enforceable in accordance with its terms, except to the extent that enforcement thereof may be obtained has expired limited by bankruptcy, insolvency, reorganization or no review thereof may other laws affecting enforcement of creditors’ rights or by general equitable principles.
(d) The sale of the Purchased Interests to be obtained or appeal therefrom taken, sold by such Seller hereunder and are adequate to authorize the compliance by such Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated by this Agreement herein (i) does not and each Subservicing Agreement and the other documents on the part will not conflict with or result in a breach or violation of such Seller and the performance by such Seller of its obligations under this Agreement and each Subservicing Agreement and such any 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 result in the breach of any terms or provisions of the certificate of incorporation or by-laws of such Seller or result in the breach of any term or provision of, or conflict with or constitute a default under or result in the acceleration of any obligation under, any material agreementstatute, indenture or indenture, mortgage, deed of trust, loan or credit agreement or other material agreement or instrument to which such Seller is a party or its by which such Seller is bound or to which any of the property or assets of such Seller is subjectsubject as of the date hereof, or (ii) and will not result in the any violation of the provisions of any law, rule, regulation, order, judgment organizational or decree similar documents pursuant to which such Seller was formed (to the extent such Seller is not an individual) or its any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Seller or the property is subject;of such Seller; except in the case of clause (i) or clause (ii), for such conflicts, breaches, violations or defaults as would not impair in any material respect the consummation of such Seller’s obligations hereunder.
(de) Neither this Agreement As of the date hereof and immediately prior to the delivery of its Purchased Interests to the Company at the Firm Closing, such Seller holds good and valid title to the Purchased Interests to be sold at the Firm Closing or a securities entitlement in respect thereof, and holds, and will hold until delivered to the Company, such Purchased Interests free and clear of all liens, encumbrances, equities or claims; and, upon delivery of such Purchased Interests (including by crediting to a securities account of the Company) and payment therefor pursuant hereto, assuming that the Company has no notice of any Subservicing Agreement nor any statementadverse 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”), report (A) under 8-501 of the UCC, the Company will acquire a valid security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Purchased Interests purchased by the Company and (B) no action (whether framed in conversion, replevin, constructive trust, equitable lien or other document furnished 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) Such 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 Purchases. Such Seller has had the opportunity to be furnished pursuant ask questions and receive answers concerning the terms and conditions of the Purchases, and has had full access to this Agreement and each Subservicing Agreement such other information concerning the Purchases as it has requested. Such Seller has received all information that it believes is necessary or appropriate in connection with the Purchases. Such 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 and thereby contains hereby. Such Seller acknowledges that such Seller has not relied upon any untrue statement express or implied representations or warranties of material fact any nature made by or omits to state a material fact necessary to make on behalf of the Company, whether or not any such representations, warranties or statements contained herein were made in writing or therein not misleading;orally, except as expressly set forth for the benefit of such Seller in this Agreement.
(eg) Such If such Seller (or if such Seller is a disregarded entity for U.S. federal income tax purposes (“Disregarded Entity”), its regarded tax owner) is a “United States person” (within the meaning of Section 7701(a)(30) of the Code), such Seller (or if such Seller is a Disregarded Entity, its regarded tax owner) will deliver, on or prior to the Firm Closing, (i) a properly completed and executed Internal Revenue Service Form W-9 and (ii) a certificate of non-foreign status of Seller in the form of Exhibit A.
(h) If such Seller (or if such Seller is a Disregarded Entity, its regarded tax owner) is not a “United States person” (within the meaning of Section 7701(a)(30) of the Code) (a “Non-U.S. Seller”), such Seller (or if such Seller is a Disregarded Entity, its regarded tax owner) will deliver, (i) on or prior to the Firm Closing, a properly completed and executed Internal Revenue Service Form W-8 and (ii) on or prior to the Firm Closing, a certificate that such Seller’s interest in the Common Stock does not believeconstitute a U.S. real property interest under the provisions of Section 897 of the Code and the corresponding Treasury Regulations in the form of Exhibit B. If, nor does as of the time of the Firm Closing (including as a result of a transfer permitted under Section 1(b)(iv), neither Seller is a Non-U.S. Seller, this Section 3(h) shall not apply and shall be treated as if it have any reason or cause to believe, that it canwere not perform each and every covenant contained in this Agreement or any Subservicing the Agreement;.
Appears in 1 contract
Representations of the Sellers. Each As an inducement to Purchaser to enter into this Agreement, each Seller hereby represents and warrants to the Trustee and the Certificateholders as of the Closing DatePurchaser that:
(a) Such Seller is a corporation duly organized, validly existing, owns beneficially and in good standing under of record the laws of the jurisdiction of its incorporation Shares and has good and valid title to the Shares, free and clear of 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 such state require licensing or qualification in order to conduct business of the type conducted by such Seller and perform its obligations hereunder; such Liens. Such Seller has corporate the unrestricted power and authority to execute transfer the Shares to Purchaser. The delivery of and deliver this Agreement and each Subservicing Agreement and to perform in accordance herewith and therewith; payment for the execution, delivery and performance of this Agreement and each Subservicing Agreement (including all instruments of transfer to be delivered Shares pursuant to this Agreement will transfer to Purchaser good and each Subservicing Agreement) by valid title to such Seller Seller's Shares free and clear of any perfected security interest or any other security interests, claims, liens or encumbrances. There are no voting trusts, stockholder agreements, proxies or other agreements or understandings in effect with respect to the consummation voting or transfer of the transactions contemplated 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 any 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 SBA Loans by the Trustee, as trustee's Shares.
(b) All actions, approvals, consents, waivers, exemptions, variances, franchises, orders, permits, authorizations, rights Such Seller has all requisite power and licenses required authority to be taken, given or obtained, as enter into and perform its obligations under this Agreement and to consummate 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 transactions contemplated hereby; and the execution and delivery of this Agreement by such Seller of the documents to which it is a partySeller, 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 hereunder and each Subservicing Agreement and the consummation by such Seller of the other documents to which it is a party;transactions contemplated hereby have been duly authorized by all requisite action on the part of such Seller.
(c) The This Agreement has been duly executed and delivered by such Seller and constitutes a legal, valid and binding obligation of such Seller, enforceable against such Seller in accordance with its terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws of general application affecting enforcement of creditors' rights generally and (ii) the availability of the remedy of specific performance or injunctive or other forms of equitable relief may be subject to equitable defenses and would be subject to the discretion of the court before which any proceeding therefor may be brought.
(d) (i) No Order has been issued by any court or other Governmental Authority against such Seller purporting to enjoin or restrain the execution, delivery or performance of this Agreement; and (ii) as of the date hereof, there is no litigation, suit, claim, action or proceeding pending or, to the knowledge of such Seller, threatened in writing against such Seller or any of its property or assets, before any court, arbitrator or Governmental Authority, domestic or foreign, seeking relief which, if ordered, would delay or prevent the consummation of the transactions transaction contemplated hereby.
(e) The execution, delivery and performance by such Seller of this Agreement and each Subservicing Agreement will not result in the breach of any terms or provisions transactions contemplated hereby and thereby, including, without limitation, the sale of the certificate Shares by such Seller (i) if applicable, do not contravene the terms of the articles of incorporation or by-laws laws, or similar instrument of organization, or any amendment thereof, of such Seller Seller, (ii) do not violate, conflict with or result in any breach, default or contravention of (or with due notice or lapse of time or both would result in any breach, default or contravention of), or the breach creation of any term or provision of, or conflict with or constitute a default under or result in the acceleration of any obligation Lien under, any material agreementcontract, indenture or indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument (collectively, a "Contractual Obligation") of such Seller, or any law, statute, rule or regulation (collectively, a "Requirement of Law") applicable to such Seller and (iii) do not violate any Orders against, or binding upon, such Seller.
(f) No approval, consent, compliance, exemption, authorization or other material instrument to which action by, or notice to, or filing with, any Governmental Authority or any other Person, and no lapse of a waiting period under a Requirement of Law, is necessary or required in connection with the execution, delivery or performance (including, without limitation, the sale and delivery of the Shares) by, or enforcement against, such Seller of this Agreement and the transactions contemplated hereby.
(g) No form of general solicitation or general advertising was used by such Seller or its property is subject, or result in the violation of any law, rule, regulation, order, judgment or decree to which such Seller or its property is subject;
(d) Neither this Agreement or any Subservicing Agreement nor any statement, report or other document furnished or to be furnished pursuant to this Agreement and each Subservicing Agreement or representatives in connection with the transactions sale of the Shares.
(h) No broker, finder or investment banker is entitled to any brokerage, finder's or other fee or commission in connection with the transaction contemplated hereby and thereby contains any untrue statement based upon arrangements made by or on behalf of material fact or omits to state a material fact necessary to make the 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;Sellers.
Appears in 1 contract
Samples: Stock Purchase Agreement (Turn Works Acquisition Iii Sub a Inc)
Representations of the Sellers. Each Seller hereby In connection with the transactions contemplated hereby, each of the Sellers, severally and not jointly, represents and warrants to the Trustee and the Certificateholders Company as of the Closing Datedate hereof and covenants and agrees that:
(a) Such Seller is a corporation duly organized, validly existing, organized and in good standing existing under the laws of the its 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 such 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, delivery and performance of this Agreement and each Subservicing Agreement (including all instruments of transfer to be delivered pursuant to this Agreement and each Subservicing Agreement) by such Seller and the consummation of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary corporate action; this Agreement and each 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 SBA Loans by the Trustee, as trusteeorganization.
(b) All actionsconsents, approvals, consents, waivers, exemptions, variances, franchises, orders, permits, authorizations, rights authorizations 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 orders necessary or advisable in connection with the purchase and sale of the Certificates and for the execution and delivery by such Seller of this Agreement and for the documents sale and delivery of the Purchased Interests to which it is a partybe sold by such Seller hereunder, have been duly takenobtained (except for such consents, given or obtainedapprovals, filings, authorizations and orders 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 required under the Securities Act of 1933, state securities or review Blue Sky laws,, the rules and regulations of FINRA or the rules and regulations of any exchange); and such Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver the Purchased Interests to be sold by such Seller hereunder, except for such consents, approvals, authorizations and orders as would not impair in any material respect the consummation of such Seller’s obligations hereunder.
(c) This Agreement has been duly executed and delivered by such Seller and constitutes a valid and binding agreement of such Seller, enforceable in accordance with its terms, except to the extent that enforcement thereof may be obtained has expired limited by bankruptcy, insolvency, reorganization or no review thereof may other laws affecting enforcement of creditors’ rights or by general equitable principles.
(d) The sale of the Purchased Interests to be obtained or appeal therefrom taken, sold by such Seller hereunder and are adequate to authorize the compliance by such Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated by this Agreement herein (i) does not and each Subservicing Agreement and the other documents on the part will not conflict with or result in a breach or violation of such Seller and the performance by such Seller of its obligations under this Agreement and each Subservicing Agreement and such any 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 result in the breach of any terms or provisions of the certificate of incorporation or by-laws of such Seller or result in the breach of any term or provision of, or conflict with or constitute a default under or result in the acceleration of any obligation under, any material agreementstatute, indenture or indenture, mortgage, deed of trust, loan or credit agreement or other material agreement or instrument to which such Seller is a party or its by which such Seller is bound or to which any of the property or assets of such Seller is subjectsubject as of the date hereof, or (ii) and will not result in the any violation of the provisions of any law, rule, regulation, order, judgment organizational or decree similar documents pursuant to which such Seller was formed (to the extent such Seller is not an individual) or its any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Seller or the property is subject;of such Seller; except in the case of clause (i) or clause (ii), for such conflicts, breaches, violations or defaults as would not impair in any material respect the consummation of such Seller’s obligations hereunder.
(de) Neither this Agreement As of the date hereof and immediately prior to the delivery of its Purchased Interests to the Company at the Firm Closing, such Seller holds good and valid title to the Purchased Interests to be sold at the Firm Closing or a securities entitlement in respect thereof, and holds, and will hold until delivered to the Company, such Purchased Interests free and clear of all liens, encumbrances, equities or claims; and, upon delivery of such Purchased Interests (including by crediting to a securities account of the Company) and payment therefor pursuant hereto, assuming that the Company has no notice of any Subservicing Agreement nor any statementadverse 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”), report (A) under 8-501 of the UCC, the Company will acquire a valid security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to such Purchased Interests purchased by the Company and (B) no action (whether framed in conversion, replevin, constructive trust, equitable lien or other document furnished 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) Such 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 Purchases. Such Seller has had the opportunity to be furnished pursuant ask questions and receive answers concerning the terms and conditions of the Purchases, and has had full access to this Agreement and each Subservicing Agreement such other information concerning the Purchases as it has requested. Such Seller has received all information that it believes is necessary or appropriate 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;
(e) Purchases. Such Seller does 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. Such Seller acknowledges that such Seller has not believerelied upon any express or implied representations or warranties of any nature made by or on behalf of the Company, nor does it have whether or not any reason such representations, warranties or cause to believestatements were made in writing or orally, that it cannot perform each and every covenant contained except as expressly set forth for the benefit of such Seller in this Agreement or any Subservicing Agreement;.
Appears in 1 contract
