Warranties and Representations 9.3.1 The Supplier warrants and represents that:-
(a) it has full capacity and authority and all necessary consents (including where its procedures so require, the consent of its Parent Company) to enter into and perform its obligations under the Contract;
(b) the Contract is executed by a duly authorised representative of the Supplier;
(c) in entering the Contract it has not committed any Fraud;
(d) as at the Commencement Date, all information, statements and representations contained in the Tender for the Services are true, accurate and not misleading save as may have been specifically disclosed in writing to the Authority prior to execution of the Contract and it will advise the Authority of any fact, matter or circumstance of which it may become aware which would render any such information, statement or representation to be false or misleading;
(e) no claim is being asserted and no litigation, arbitration or administrative proceeding is presently in progress or, to the best of its knowledge and belief, pending or threatened against it or its assets which will or might affect its ability to perform its obligations under the Contract;
(f) it is not subject to any contractual obligation, compliance with which is likely to have an adverse effect on its ability to perform its obligations under the Contract;
(g) no proceedings or other steps have been taken and not discharged (nor, to the best of its knowledge, are threatened) for the winding up of the Supplier or for its dissolution or for the appointment of a receiver, administrative receiver, liquidator, manager, administrator or similar officer in relation to any of the Supplier’s assets or revenue;
(h) it owns, has obtained or is able to obtain valid licences for all Intellectual Property Rights that are necessary for the performance of its obligations under the Contract;
(i) the Services shall be provided and carried out by appropriately experienced, qualified and trained Staff with all due skill, care and diligence;
(j) in the three (3) years prior to the date of the Contract:
(i) it has conducted all financial accounting and reporting activities in compliance in all material respects with the generally accepted accounting principles that apply to it in any country where it files accounts;
(ii) it has been in full compliance with all applicable securities and tax laws and regulations in the jurisdiction in which it is established; and
(k) it has not done or omitted to do anything which could have an adverse effect on its assets, financial condition or position as an ongoing business concern or its ability to fulfil its obligations under the Contract.
WARRANTIES AND REPRESENTATION 34.1 Neither of the Parties will be bound by any express or implied term, representation, warranty, promise or the like, not recorded herein.
GENERAL WARRANTIES AND REPRESENTATIONS The Borrower warrants and represents to the Agent and the Lenders that except as hereafter disclosed to and accepted by the Agent and the Majority Lenders in writing:
Seller’s Warranties and Representations The matters set forth in this Section 11.1 constitute representations and warranties by Seller which are now and (subject to matters contained in any notice given pursuant to the next succeeding sentence) shall, in all material respects, at the Closing be true and correct. If Seller learns of, or has a reason to believe that any of the representations and warranties contained in this Article 11 may cease to be true and correct, Seller shall give prompt notice to Purchaser (which notice shall include copies of the instrument, correspondence, or document, if any, upon which Seller’s notice is based) and, in such event, Purchaser may terminate this Agreement, upon written notice to Seller, without recourse against Seller; provided, however; Seller cannot act voluntary in a manner which would cause a representation and warranty to become materially incorrect or inaccurate. As used in this Section 11.1, the phrase “to the extent of Seller’s actual knowledge” shall mean the actual current knowledge of Xxxx Xxxxxxx, with respect to water and sewage issues only, Xxxxxx Xxxxxx, Xxxx Xxxxxxxxx, Xxxx Xxxxxx, Xxx Xxxxxxxx and Xxxxx Xxxxxx whom Seller represents to be the representatives of Seller having the responsibility for the management and sale of the Golf Course and accordingly the individuals responsible for being informed of matters relevant to this Agreement. There shall be no duty imposed or implied to investigate, inspect, or audit any such matters, and there shall be no imputed or personal liability on the part of such individuals. To the extent Purchaser has or acquires actual knowledge prior to the Closing Date that these representations and warranties are inaccurate, untrue or incorrect in any way, Purchaser may proceed to Closing without reduction in the Purchase Price and without recourse against Seller for such misrepresentation, in which even such representation or warranties shall be deemed modified to reflect Purchaser’s actual knowledge.
Covenants, Warranties and Representations Each of the parties covenants, warrants and represents for itself as follows:
Representations and Warranties of Owner The Owner warrants and represents to and covenants with the Servicer that as of the date hereof, and as of each Effective Date as to the Mortgage Loans the servicing obligations with respect to which are transferred to the Servicer thereon, or as of such other date specifically provided herein:
(a) The Owner is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. The Owner is qualified or registered to transact business, and is duly licensed, in each jurisdiction in which the ownership of property or the conduct of its respective business requires such qualification, registration or licensing, except to the extent that there is an applicable exemption or where the failure to be so licensed, registered, qualified or in good standing is not material.
(b) The Owner has the power, authority and legal right to enter into and perform this Agreement and to perform the obligations required of it hereunder, and this Agreement and any document or instrument to be delivered to the Servicer by the Owner pursuant hereto has been duly authorized, executed and delivered.
(c) This Agreement and any documents or instruments now or hereafter executed and delivered to the Servicer by the Owner pursuant to this Agreement constitute (or shall, when delivered to the Servicer by the Owner, constitute) valid and legally binding obligations of the Owner enforceable against the Owner in accordance with their respective terms, subject to bankruptcy laws and other similar laws of general application affecting the rights of creditors and subject to the application of the rules of equity, including those respecting the availability of specific performance.
(d) None of the execution and delivery of this Agreement, the consummation of the transactions contemplated thereby and hereby, or the fulfillment of or compliance with the terms and conditions of this Agreement will conflict with any of the terms, conditions or provisions of the Owner’s articles of incorporation or by-laws or materially conflict with or result in a material breach of any of the terms, conditions or provisions of any legal restriction or any agreement or instrument to which the Owner is now a party or by which it is bound, or constitute a default or result in an acceleration under any of the foregoing, or result in the material violation of any law, rule, regulation, order, judgment or decree to which the Owner or its property is subject.
(e) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Owner of or compliance by the Owner with this Agreement or the consummation of the transactions contemplated by this Agreement except for consents, approvals, authorizations and orders which have been obtained.
(f) The Owner shall, on or before the related Effective Date, deliver or cause to be delivered to the Servicer or the Custodian, as applicable, all of the books, records, data, files and Mortgage Loan Documents, including records on microfiche or its equivalent, reasonably required by the Servicer to document and service each Mortgage Loan; such books, records, data, files and documents contain all of the items (including hazard insurance policies, flood insurance policies and private mortgage insurance policies) which are required by the Qualified Insurers or by Accepted Servicing Practices to service the Mortgage Loans; are true, accurate and complete in all material respects; and it is reasonable for the Servicer to rely thereon.
(g) As of the applicable Effective Date, if any Mortgage Loan is secured by a Mortgaged Property located in Federal Emergency Management Agency designated flood areas, then (to the extent required by Accepted Servicing Practices) flood insurance policies are in full force and effect in the amounts required by Accepted Servicing Practices or are insured through the Owner’s or the Prior Servicer’s “gap coverage” flood insurance policy.
(h) As of the applicable Effective Date, all Mortgaged Property is currently insured against fire and has extended coverage insurance in the amounts required under Accepted Servicing Practices; all insurance premiums on such insurance policies have been paid in a timely manner; and there have been no fire losses on any Mortgaged Property where the Owner’s estimate of loss is materially greater than the net recovery from the fire insurance carrier. To the Owner’s knowledge, there have been no fire losses on any Mortgaged Property as to which there is a pending coinsurance claim.
(i) There is no litigation pending or, to the Owner’s knowledge, threatened with respect to the Owner which is reasonably likely to have a material adverse effect on the execution, delivery or enforceability of this Agreement, or which is reasonably likely to have a material adverse effect on the servicing or the financial condition of the Owner.
(j) As of the applicable Effective Date, all of the Mortgage Loans have, or the Owner shall promptly cause to be obtained, a valid, fully paid, freely transferable, life of the loan tax service contract and flood service contract.
(k) There are no accounts of Mortgagors that are pledged in lieu of the maintenance of an escrow account for taxes, assessments, insurance or other escrow items owed by the Mortgagor.
(l) As of the applicable Effective Date, all calculations required to be made by the Owner with respect to the amount of principal, interest, escrow payments and other amounts due and owing by a Mortgagor from time to time under each Mortgage Loan have been made in compliance with Accepted Servicing Practices. All invoices transmitted to the Mortgagors by the Owner for principal, interest, escrow payments and all other amounts due and payable under each Mortgage Loan have been prepared, and the funds collected from the Mortgagors have been applied for the payment of such amounts, in compliance with Accepted Servicing Practices.
(m) No written statement, report or other document furnished or to be furnished pursuant to the Agreement contains or will contain any statement that is or will be inaccurate or misleading in any material respect or omits to state a material fact required to be stated therein or necessary to make the information and statements therein not misleading.
Survival of Warranties and Representations The parties hereto agree that all warranties and representations of the parties survive the closing of this transaction.
Representations, Warranties and Agreements of Seller The Seller agrees and acknowledges that it shall, as a condition to the consummation of the transactions contemplated hereby, make the representations and warranties specified in Section 3.01 and 3.02 of the Seller's Warranties and Servicing Agreement, as of the Closing Date. The meaning of the term "Agreement" as used in Sections 3.01 and 3.02 of the Seller's Warranties and Servicing Agreement shall include this Agreement. The Seller, without conceding that the Mortgage Loans are securities, hereby makes the following additional representations, warranties and agreements which shall be deemed to have been made as of the Closing Date:
a) neither the Seller nor anyone acting on its behalf has offered, transferred, pledged, sold or otherwise disposed of any Mortgage Loans, any interest in any Mortgage Loans or any other similar security to, or solicited any offer to buy or accept a transfer, pledge or other disposition of any Mortgage Loans, any interest in any Mortgage Loans or any other similar security from, or otherwise approached or negotiated with respect to any Mortgage Loans, any interest in any Mortgage Loans or any other similar security with, any person in any manner, or made any general solicitation by means of general advertising or in any other manner, or taken any other action which would constitute a distribution of the Mortgage Loans under the Securities Act of 1933 (the "1933 Act") or which would render the disposition of any Mortgage Loans a violation of Section 5 of the 1933 Act or require registration pursuant thereto, nor will it act, nor has it authorized or will it authorize any person to act, in such manner with respect to the Mortgage Loans; and
b) the Seller has not dealt with any broker or agent or anyone else who might be entitled to a fee or commission in connection with this transaction other than the Purchaser.
Representations, Warranties and Covenants of Seller (a) The Seller hereby represents and warrants to and covenants with the Purchaser, as of the date hereof, that:
(i) The Seller is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and possesses all requisite authority, power, licenses, permits and franchises to carry on its business as currently conducted by it and to execute, deliver and comply with its obligations under the terms of this Agreement.
(ii) This Agreement has been duly and validly authorized, executed and delivered by the Seller and, assuming due authorization, execution and delivery hereof by the Purchaser, constitutes a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except as such enforcement may be limited by (A) bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws affecting the enforcement of creditors' rights in general, and (B) general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law).
(iii) The execution and delivery of this Agreement by the Seller and the Seller's performance and compliance with the terms of this Agreement will not (A) violate the Seller's organizational documents, (B) violate any law or regulation or any administrative decree or order to which the Seller is subject, or (C) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material contract, agreement or other instrument to which the Seller is a party or by which the Seller is bound.
(iv) The 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 other governmental agency or body, which default might have consequences that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or have consequences that would materially and adversely affect its performance hereunder.
(v) The Seller is not a party to or bound by any agreement or instrument or subject to any organizational document or any other corporate restriction or any judgment, order, writ, injunction, decree, law or regulation that would, in the Seller's reasonable and good faith judgment, materially and adversely affect the ability of the Seller to perform its obligations under this Agreement or that requires the consent of any third person to the execution and delivery of this Agreement by the Seller or the performance by the Seller of its obligations under this Agreement.
(vi) Except for the recordation and/or filing of assignments and other transfer documents with respect to the Mortgage Loans, as contemplated by Section 2(d) hereof, no consent, approval, authorization or order of, registration or filing with, or notice to, any court or governmental agency or body, is required for the execution, delivery and performance by the Seller of or compliance by the Seller with this Agreement or the consummation of the transactions contemplated by this Agreement; and no bulk sale law applies to such transactions.
(vii) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller that would, in the Seller's good faith and reasonable judgment, prohibit its entering into this Agreement or materially and adversely affect the performance by the Seller of its obligations under this Agreement.
(viii) Under generally accepted accounting principles ("GAAP") and for federal income tax purposes, the Seller will report the transfer of the Mortgage Loans to the Purchaser, as provided herein, as a sale of the Mortgage Loans to the Purchaser in exchange for the consideration specified in Section 1 hereof. In connection with the foregoing, the Seller shall cause all of its records to reflect such transfer as a sale (as opposed to a secured loan). The consideration received by the Seller upon the sale of the Mortgage Loans to the Purchaser will constitute at least reasonably equivalent value and fair consideration for the Mortgage Loans. The Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the Mortgage Loans to the Purchaser. The Seller is not selling the Mortgage Loans to the Purchaser with any intent to hinder, delay or defraud any of the creditors of the Seller. After giving effect to its transfer of the Mortgage Loans to the Purchaser, as provided herein, the value of the Seller's assets, either taken at their present fair saleable value or at fair valuation, will exceed the amount of the Seller's debts and obligations, including contingent and unliquidated debts and obligations of the Seller, and the Seller will not be left with unreasonably small assets or capital with which to engage in and conduct its business. The Mortgage Loans do not constitute all or substantially all of the assets of the Seller. The Seller does not intend to, and does not believe that it will, incur debts or obligations beyond its ability to pay such debts and obligations as they mature.
(ix) No proceedings looking toward merger, liquidation, dissolution or bankruptcy of the Seller are pending or contemplated.
(b) The Seller hereby makes, for the benefit of the Purchaser, with respect to each Mortgage Loan, as of the Closing Date or as of such other date expressly set forth therein, each of the representations and warranties made by the initial Purchaser pursuant to Section 2.04(b) of the Pooling and Servicing Agreement, except that all references therein to the "Depositor" shall be deemed to be references to the Seller and all references therein to the Mortgage Pool shall be deemed to be references to all the Securitized Loans.
Representations and Warranties and Agreements The Adviser represents and warrants to the Sub-Adviser, on an on-going basis, that:
(a) The Fund is a “Qualified Purchaser” within the meaning of Investment Company Act of 1940; and
(b) The Fund is a “Qualified Eligible Person” as defined in CFTC Rule 4.7, and is either a member of, or exempt from any requirement to become a member of, the National Futures Association, and will maintain and renew such membership or exemption during the term of this Agreement. Further, the Adviser and the Sub-Adviser agree as follows:
(c) The Adviser acknowledges that the Sub-Adviser has been authorized to invest in derivatives for the Fund in accordance with the Fund’s investment objective and policies as stated in the Registration Statement. To the extent so authorized, the Adviser agrees that the Sub-Adviser, on the Fund’s behalf, and on such terms as the Sub-Adviser deems appropriate, with prior telephonic or email notice to and in consultation with the Adviser, may take any all such steps as may be required or permitted by the rules and regulations and/or by appropriate market practice to engage in derivatives transactions, including entering into ISDA agreements, clearing agreements, completing documentation, including documentation for clearing facilities, making representations and granting, and providing or executing counterparty documentation and account opening documentation on the Fund’s behalf, on such terms as the Sub-Adviser deems appropriate, in consultation with the Adviser.
(d) Further, subject to the limitations under the 1940 Act, the Adviser on request of the Sub-Adviser or the Sub-Adviser may, acting as agent on the Fund’s behalf, agree to a collateral mechanism with counterparties in the market and instruct the custodian to advance cash or securities as collateral to an account designated by the Fund’s custodian and counterparty, broker and/or futures commission merchant (“FCM”) (as applicable) to meet margin/collateral payments if and to the extent required by the rules of exchanges or markets on which such instruments are dealt or as may have been agreed in any master agreement or other contract with a counterparty, including with respect to agency MBS collateral. The Adviser authorizes the Sub-Adviser, to the extent required by regulatory agencies or market practice, to reveal its and/or the Fund’s identity and address to any counterparty, broker or FCM through which or with which financial derivatives and foreign exchange instruments are traded or cleared. The Sub-Adviser may use such clearing firm as it deems appropriate to clear its derivatives transactions. The Adviser covenants that the Fund has full capacity to invest in financial derivatives and foreign exchange instruments.
(e) The Sub-Adviser (which is registered with the CFTC as a Commodity Trading Adviser) intends to operate the Fund as an exempt account under CFTC Rule 4.5. PURSUANT TO AN EXEMPTION FROM THE COMMODITY FUTURES TRADING COMMISSION IN CONNECTION WITH ACCOUNTS OF QUALIFIED ELIGIBLE PERSONS, THIS AGREEMENT IS NOT REQUIRED TO BE, AND HAS NOT BEEN, FILED WITH THE COMMODITY FUTURES TRADING COMMISSION. THE COMMODITY FUTURES TRADING COMMISSION DOES NOT PASS UPON THE MERITS OF PARTICIPATING IN A TRADING PROGRAM OR UPON THE ADEQUACY OR ACCURACY OF COMMODITY TRADING ADVISOR DISCLOSURE. CONSEQUENTLY, THE COMMODITY FUTURES TRADING COMMISSION HAS NOT REVIEWED OR APPROVED THIS AGREEMENT.
