Servicer Representations and Warranties The Servicer represents and warrants, as of the date of this Agreement and, except as otherwise provided, throughout the term of this Agreement, that the statements set forth below in this Section 5.2 are true and accurate. Relative to the Servicer:
Seller Representations and Warranties The Seller represents and warrants to the Purchaser, as of the Closing Date (or if otherwise specified below, as of the date so specified):
Depositor’s Representations and Warranties The Depositor represents and warrants to the Issuer as of the Closing Date, on which the Issuer is relying in purchasing the Sold Property and which will survive the sale and assignment of the Sold Property by the Depositor to the Issuer under this Agreement and the pledge of the Sold Property by the Issuer to the Indenture Trustee under the Indenture:
Customer Representations and Warranties (a) The Customer represents and warrants that: (i) the Customer has the legal right, power and authority to execute, deliver and perform this Agreement and to carry out all of the transactions contemplated hereby; (ii) the execution and delivery of this Agreement by MDP on behalf of the Customer will not violate any provision of its charter, bylaws or any other governing documents, or any law, or any regulation, interpretation or order or any court or other government agency, or judgment, applicable to the Customer; (iii) the Customer has obtained all necessary authorizations, including those from any persons who may have an interest in the Securities, including the consent or approval of any governmental agency or instrumentality; (iv) the execution, delivery and performance of this Agreement and the carrying out of any of the transactions contemplated hereby will not be in conflict with, result in a breach of or constitute a default under any agreement or other instrument to which the Customer is a party or which is otherwise known to the Customer, including but not limited to, liens against and/or pledges of Securities; and (v) all persons executing this Agreement on behalf of the Customer and carrying out the transactions contemplated hereby on behalf of the Customer are duly authorized to do so.
(b) The Customer represents and warrants that it is an "investment company" as defined in the Investment Company Act and that it will indicate each "affiliate" as defined in the Investment Company Act by instructing the Bank not to lend the Customer's Securities to such Borrower, or to enter into repurchase agreements on Customer's behalf with such Borrower and/or its affiliates, by completion of Exhibit B hereto.
(c) The Customer is aware that it is possible to loan portfolio securities without incurring the loan fees payable pursuant hereto by administering such a program itself, rather than hiring the Bank.
(d) The Customer represents and warrants that each Person who owns, controls or possesses securities which may be lent pursuant to this agreement is identified in the Customer Information Sheet attached hereto as Exhibit A and made a part hereof, such Customer Information Sheet to be updated from time to time upon written notice to the Bank from the Customer ("Customer Information Sheet") and that the tax identification number of such Person is set forth opposite such Person's name on such Customer Information Sheet.
(e) The Customer represents and warrants that (i) it has reviewed and understands the offering memorandum or similar materials relating to Customer's initial Collateral Investment; (ii) it will review and develop an understanding of the offering memorandum or similar materials in connection with any future Collateral Investments; and (iii) it will provide a Collateral Investment letter for acceptance by Bank in substantially the form attached hereto as Exhibit D and made a part hereof in connection with each Collateral Investment.
(f) The Customer represents and warrants that the information contained in the attached Customer Information Sheet is complete and accurate in all respects as of the date hereof and the Customer acknowledges and affirms that the Bank may rely upon the accuracy and completeness of the information contained in the Customer Information Sheet in complying with its obligations under applicable laws and regulations.
(g) The Customer represents and warrants that all recitals contained herein are true and correct in all respects as they relate to the Customer.
Purchaser Representations and Warranties The Purchaser hereby represents and warrants to the Sellers as of the Closing Date (or if otherwise specified below, as of the date so specified) that:
1. the Purchaser is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware;
2. the Purchaser has full corporate power to own its property, to carry on its business as presently conducted and to enter into and perform its obligations under this Agreement;
3. the execution and delivery by the Purchaser of this Agreement have been duly authorized by all necessary corporate action on the part of the Purchaser; and neither the execution and delivery of this Agreement, nor the consummation of the transactions herein contemplated hereby, nor compliance with the provisions hereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Purchaser or its properties or the certificate of formation or limited liability company agreement of the Purchaser, except those conflicts, breaches or defaults which would not reasonably be expected to have a material adverse effect on the Purchaser’s ability to enter into this Agreement and to consummate the transactions contemplated hereby;
4. the execution, delivery and performance by the Purchaser of this Agreement and the consummation of the transactions contemplated hereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except those consents, approvals, notices, registrations or other actions as have already been obtained, given or made;
5. this Agreement has been duly executed and delivered by the Purchaser and, assuming due authorization, execution and delivery by the Sellers, constitutes a valid and binding obligation of the Purchaser enforceable against it in accordance with its terms (subject to applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally); and
6. except as previously disclosed in the Prospectus Supplement, there are no actions, suits or proceedings pending or, to the knowledge of the Purchaser, threatened against the Purchaser, before or by any court, administrative agency, arbitrator or governmental body (i) with respect to any of the transactions contemplated by this Agreement or (ii) with respect to any other matter which in the judgment of the Purchaser if determined adversely to the Purchaser would reasonably be expected to materially and adversely affect the Purchaser’s ability to perform its obligations under this Agreement; and the Purchaser is not in default with respect to any order of any court, administrative agency, arbitrator or governmental body so as to materially and adversely affect the transactions contemplated by this Agreement;
Lender’s Representations and Warranties Lender makes the following warranties and representations to CSO, all of which shall survive the execution and termination of this Agreement for any reason:
a. This Agreement is valid, binding and enforceable against Lender in accordance with its terms, and Lender has received all necessary approvals to enter into this Agreement and to perform its obligations hereunder.
b. Lender is a Texas corporation duly formed, validly existing, and in good standing under the laws of the State of Texas and is authorized to do business in the State of Texas and in each state in which the Loans are being offered and in each state in which the nature of its activities makes such authorization, registration, or licensing necessary or required. Lender is not affiliated with CSO or any affiliate of CSO.
c. Lender has the full organizational power and authority to execute and deliver this Agreement and perform all of its obligations hereunder.
d. The provisions of this Agreement and the performance of each of Lender’s obligations hereunder do not conflict with Lender’s organizational documents or any agreement, contract, lease, or obligation to which Lender is a party or by which Lender is bound.
e. The governing authority of Lender has approved the terms and conditions of this Agreement and has determined that the entering of this Agreement by Lender is in the best interests of Lender.
f. Neither Lender nor any principal thereof has been or is the subject of any of the following:
i. Criminal conviction (other than misdemeanor traffic offenses);
ii. IRS lien;
iii. Enforcement agreement, memorandum of understanding, cease and desist order, administrative penalty, or similar agreement concerning lending matters that has not been resolved;
iv. Administrative or enforcement proceeding or investigation commenced by the Securities Exchange Commission, state securities regulatory authority, Federal Trade Commission, or any other state or federal Regulatory Authority (excluding routine examinations conducted by a Regulatory Authority and excluding communications received in the ordinary course of business from any Regulatory Authority such as communications concerning consumer complaints or communications related to immaterial issues) that has not been resolved; or
v. Restraining order, decree, injunction, or judgment in any proceeding or lawsuit alleging fraud or deceptive practices or illegal activity on the part of Lender or any principal thereof. For purposes of this Section 15(f) the word “principal” of Lender shall include (i) any person directly or indirectly owning a TEN PERCENT (10.00%) or more equity interest of Lender, (ii) any officer or director of Lender, and (iii) any other person having the power or authority to control Lender’s business.
Buyer Representations and Warranties The Buyer represents and warrants to, and covenants and agrees with, the Company, as of the date hereof and as of the Closing Date, as follows:
Issuer Representations and Warranties The Issuer represents and warrants that at the time of the signing of this Agreement and at the time of each closing of the Offering:
a. it is duly organized, validly existing and in good standing in the state in which it is incorporated with the power to own its properties and to conduct its business as described in the Offering Materials;
b. it is in good standing in each other jurisdiction in which the conduct of its business or ownership or leasing of its properties requires it to be so qualified or licensed, except whether the failure to be so qualified or licensed would not have a material adverse effect on the business, properties, assets, condition (financial or otherwise) or prospects of the Issuer taken as a whole;
c. the Issuer incorporates Section 3(b) above into this Section;
d. this Agreement has been duly authorized, executed, and delivered on behalf of the Issuer, and is the valid, binding and obligation of the Issuer, enforceable in accordance with its terms;
e. no authorization, approval, consent, or license of any regulatory body or authority is required for the valid authorization, sale or delivery of the securities in the Offering, or, if so required, all authorizations, approvals, consents and licenses have been or will be obtained and will remain in full force and effect;
f. the securities subject to the Offering will, when issued, sold and delivered in accordance with the terms of the Offering, be duly and validly issued, fully paid and nonassessable and free of restrictions on transfer other than restrictions on transfer under agreements with the Investors purchasing such securities and applicable state and federal securities laws;
g. if conducted in accordance with the terms of the Offering Materials and this Agreement, the Offering is exempt from the registration requirements of the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder and any applicable state requirements and is in compliance with all applicable rules and regulations under the Federal and any applicable State securities laws.
Holder’s Representations and Warranties Holder represents and warrants to and covenants and agrees with the Company as follows:
1. Holder is purchasing the Debenture and the Common Stock issuable upon conversion or redemption of the Debenture (the “Conversion Shares” and, collectively with the Debenture, the “Securities”) for its own account, for investment purposes only and not with a view towards or in connection with the public sale or distribution thereof in violation of the Securities Act.
2. Holder is (i) an “accredited investor” within the meaning of Rule 501 of Regulation D under the Securities Act, (ii) experienced in making investments of the kind contemplated by this Agreement, (iii) capable, by reason of its business and financial experience, of evaluating the relative merits and risks of an investment in the Securities, and (iv) able to afford the loss of its investment in the Securities.
3. Holder understands that the Securities are being offered and sold by the Company in reliance on an exemption from the registration requirements of the Securities Act and equivalent state securities and “blue sky” laws, and that the Company is relying upon the accuracy of, and Holder’s compliance with, Holder’s representations, warranties and covenants set forth in this Agreement to determine the availability of such exemption and the eligibility of Holder to purchase the Securities;
4. Holder understands that the Securities have not been approved or disapproved by the Securities and Exchange Commission (the “Commission”) or any state or provincial securities commission.
5. This Agreement has been duly and validly authorized, executed and delivered by Holder and is a valid and binding agreement of Holder enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally and except as rights to indemnity and contribution may be limited by federal or state securities laws or the public policy underlying such laws.
Investment Representations and Warranties Each Transferor Partner for itself, severally and not jointly, represents, warrants, acknowledges and agrees as follows:
(a) Such Transferor Partner is acquiring the BRI Partnership Units for investment only to be received by it for its own account and not with any view to the sale or distribution of the same or any part thereof in violation of the Securities Act of 1933, as amended (the "Act") and it will not sell or otherwise dispose of such BRI Partnership Units except in compliance with the registration requirements or exemption provisions of any applicable securities laws and in accordance with the terms of the BRI Partnership Agreement and the Registration Rights Agreement.
(b) Such Transferor Partner understands that the BRI Partnership Units to be issued to each Transferor Partner will not be registered under the Act, or the securities laws of any state ("Blue Sky Laws") by reason of a specific exemption or exemptions from registration under the Act and applicable Blue Sky Laws and that BRI's and the BRI Partnership's reliance on such exemptions is predicated in part on the accuracy and completeness of the representations and warranties of such Transferor Partner.
(c) Such Transferor Partner acknowledges and agrees that, for the reasons set forth in Sections 5.35(a) and (b) above, the BRI Partnership Units (or shares of common stock issued upon exchange of the BRI Partnership Units) may not be offered, sold, transferred, pledged, or otherwise disposed of by such Transferor Partner except (i) pursuant to an effective registration statement under the Act and any applicable Blue Sky Laws, (ii) pursuant to a no-action letter issued by the Securities and Exchange Commission to the effect that a proposed transfer of the BRI Partnership Units (or shares of common stock issued upon exchange of the BRI Partnership Units) may be made without registration under the Act, together with either registration or an exemption under applicable Blue Sky Laws, or (iii) upon the BRI Partnership or BRI, as the case may be, receiving an opinion of counsel knowledgeable in securities law matters (and which opinion and counsel shall be reasonably acceptable to both the BRI Partnership and BRI) to the effect that the proposed transfer is exempt from the registration requirements of the Act and any applicable Blue Sky Laws, and that, accordingly, such Transferor Partner must bear the economic risk of an investment in the BRI Partnership Units (and the shares of common stock issued upon exchange of the BRI Partnership Units) for an indefinite period of time. Such Transferor Partner acknowledges, represents and agrees that (i) its economic circumstances are such that it is able to bear all risks of the investment in the BRI Partnership and BRI for an indefinite period of time, including the risk of a complete loss of its investment in the BRI Partnership Units (or shares of common stock issued upon exchange of the BRI Partnership Units), (ii) it has knowledge and experience in financial and business matters sufficient to evaluate the risks of investment in the BRI Partnership Units and BRI, and (iii) it has consulted with its own separate counsel and tax advisor, to the extent deemed necessary by it, as to all legal and taxation matters covered by this Agreement and has not relied upon the BRI Partnership or the Transferor Agent, its affiliates or its other legal counsel and advisors for any explanation of the application of the various United States or state securities laws or tax laws with regard to its acquisition of the BRI Partnership Units. Such Transferor Partner further acknowledges and represents that it has made its own independent investigation of the BRI Partnership and the business conducted or proposed to be conducted by the BRI Partnership.
(d) Such Transferor Partner is an "accredited investor" within the meaning of Rule 501(a) promulgated under the Act.
(e) Such Transferor Partner understands that an investment in the BRI Partnership and BRI involves substantial risks. Such Transferor Partner acknowledges that it has (i) been given full and complete access to the BRI Partnership and its management in connection with this Agreement and the transactions contemplated hereby, (ii) received and read the BRI Partnership Agreement, as amended to date, and has had the opportunity to review all documents and information relevant to its decision to enter into this Agreement and to invest in the BRI Partnership and BRI, including, without limitation, the Private Placement Memorandum of BRI, dated as of August 25, 1997 (the "PPM") and (iii) had the opportunity to ask questions of the BRI Partnership and BRI and its management concerning its investment in the BRI Partnership and the transactions contemplated hereby, which questions were answered to its satisfaction.
(f) Such Transferor Partner acknowledges and agrees that:
(i) the BRI Partnership Units to be acquired by it hereunder will not be registered under the Act in reliance upon the exemption afforded by Section 4
