NFC. NFC hereby makes the following representations and warranties to the Investors and the Agent as of the Closing Date, and the Investors and the Agent shall be deemed to have relied on such representations and warranties in purchasing the Purchased Note on the Closing Date: (i) NFC repeats and reaffirms the representations, warranties and covenants of the Servicer set forth in Section 5.01 of the Servicing Agreement and the representations and warranties of NFC set forth in Sections 3.02 and 5.01 of the Purchase Agreement and represents and warrants that all such representations and warranties are true and correct as of such date; (ii) no Governmental Action which has not been obtained is required by or with respect to NFC in connection with any of the Transaction Documents, except any such failure which would not have a Material Adverse Effect; (iii) each of the Transaction Documents has been duly authorized, executed and delivered by NFC, and is the valid and legally binding obligation of NFC, enforceable against NFC in accordance with its terms, except that the enforcement thereof may be subject to (x) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights generally and (y) general principles of equity and the discretion of the court before which any proceeding therefor may be brought; (iv) the Purchased Note has been duly and validly authorized and, when executed and authenticated in accordance with the terms of the Indenture, and delivered to and paid for in accordance with this Agreement, (x) will be duly and validly issued and outstanding and will constitute the valid and binding obligation of the Issuer enforceable against the Issuer in accordance with its terms, except that the enforcement thereof may be subject to (A) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity and the discretion of the court before which any proceeding therefor may be brought and (y) will be entitled to the benefits of the Indenture; (v) there is no pending or, to NFC’s knowledge, threatened action, suit or proceeding by or against NFC or the Seller before any Governmental Authority or any arbitrator (w) asserting the invalidity of this Agreement, any other Transaction Document or the Purchased Note, (x) seeking to prevent the issuance of the Purchased Note or the consummation of any of the transactions contemplated by this Agreement or any other Transaction Document, (y) that might materially and adversely affect the performance by any of NFC, the Seller or the Issuer of its obligations under, or the validity or enforceability of, this Agreement, any other Transaction Document or the Purchased Note or (z) that if determined adversely as to NFC, the Seller or the Issuer would have a Material Adverse Effect; (vi) except for those caused by the failure of NFC and its affiliates to deliver its financial statements and related financial information for (i) the fiscal years ended October 31, 2005, October 31, 2006 and October 31, 2007, (ii) the fiscal quarters ended January 31, April 30 and July 31 of 2006, (iii) the fiscal quarters ended January 31, April 30 and July 31 of 2007, or (iv) the fiscal quarters ended January 31, April 30 and July 31 of 2008, in each case, prior to the earliest of (1) November 30, 2008, (2) five (5) Business Days after the filing thereof with the Commission and (3) the date on which such financial statements are (or any of them is) required to be delivered pursuant to the Credit Agreement, NFC (x) is not in violation of its Certificate of Incorporation or By-Laws and (y) is not in breach or violation of any of the terms or provisions of, or with the giving of notice or lapse of time, or both, would be in default under, any contract, indenture, mortgage, deed of trust, loan agreement, note, lease, partnership agreement, or other agreement or instrument to which NFC is a party or by which it may be bound or to which any of its properties or assets may be subject, except for such violations or defaults that would not have a Material Adverse Effect; (vii) any taxes, fees and other charges of Governmental Authorities applicable to NFC in connection with the execution, delivery and performance by NFC of the Transaction Documents or otherwise applicable to NFC in connection with the Issuer have been paid or will be paid by NFC at or prior to the Closing Date to the extent then due, except for any such failures to pay which, individually and in the aggregate, would not have a Material Adverse Effect; (viii) the Issuer has been duly created and is validly existing under the laws of the State of Delaware; (ix) on the date hereof, NFC is not insolvent or the subject of any insolvency proceeding; (x) no written information furnished or to be furnished by NFC or its Affiliates, agents or representatives to the Investors or the Agent for purposes of or in connection with this Agreement, including, without limitation, any reports delivered pursuant to Section 5.02 and any information relating to the Receivables and NFC’s retail receivable financing business, is or shall be inaccurate in any material respect, or contains or shall contain any material misstatement of fact, or omits or shall omit to state a material fact or any fact necessary to make the statements contained therein not misleading, in each case as of the date such information was or shall be stated or certified, and such information heretofore furnished remains true and correct in all material respects as of the date such information was delivered by NFC or any of its Affiliates, agents or representatives to the Investors or the Agent. (xi) (x) NFC’s chief executive office and principal place of business is, and has been at all times during the five (5) years preceding the date of this Agreement, located in the State of Illinois and (y) NFC is a “registered organization” (as defined in Section 9-102 of the UCC) incorporated in the State of Delaware and, for purposes of Article 9 of the UCC, NFC is, and has been at all times during the five years preceding the date of this Agreement, located in the State of Delaware.
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NFC. NFC hereby makes the following representations and warranties to the Investors and the Agent as of the Closing DateDate and as of each subsequent Funding Date (or with respect to the Designated Receivables, as of the date such Designated Receivables were sold to the Seller), and the Investors and the Agent shall be deemed to have relied on such representations and warranties in purchasing the Purchased Note on the Closing Date and in making (or committing to make) an Incremental Funding on such Funding Date:
(i) NFC repeats and reaffirms the representations, warranties and covenants of the Servicer set forth in Section 5.01 of the Servicing Agreement and the representations and warranties of NFC set forth in Sections 3.01, 3.02 and 5.01 of the Purchase Agreement and represents and warrants that all such representations and warranties are true and correct as of such date;
(ii) no Governmental Action which has not been obtained is required by or with respect to NFC in connection with any of the Transaction Basic Documents, except any such failure which would not have a Material Adverse Effect;
(iii) each of the Transaction Basic Documents has been duly authorized, executed and delivered by NFC, and is the valid and legally binding obligation of NFC, enforceable against NFC in accordance with its terms, except that the enforcement thereof may be subject to (x) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights generally and (y) general principles of equity and the discretion of the court before which any proceeding therefor may be brought;
(iv) the Purchased Note has been duly and validly authorized and, when executed and authenticated in accordance with the terms of the Indenture, and delivered to and paid for in accordance with this Agreement, (x) will be duly and validly issued and outstanding and will constitute the valid and binding obligation of the Issuer Trust enforceable against the Issuer Trust in accordance with its terms, except that the enforcement thereof may be subject to (A) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity and the discretion of the court before which any proceeding therefor may be brought and (y) will be entitled to the benefits of the Indenture;
(v) there is no pending or, to NFC’s knowledge, threatened action, suit or proceeding by or against NFC or the Seller before any Governmental Authority or any arbitrator (w) asserting the invalidity of this Agreement, any other Transaction Basic Document or the Purchased Note, (x) seeking to prevent the issuance of the Purchased Note or the consummation of any of the transactions contemplated by this Agreement or any other Transaction Basic Document, (y) that might materially and adversely affect the performance by any of NFC, the Seller or the Issuer Trust of its obligations under, or the validity or enforceability of, this Agreement, any other Transaction Basic Document or the Purchased Note or (z) that if determined adversely as to NFC, the Seller or the Issuer Trust would have a Material Adverse Effect;
(vi) except for those caused by the failure of NFC and its affiliates to deliver its financial statements and related financial information for (i) the fiscal years quarter ended October 31, 2005, October 31, 2006 and October 31, 2007, (ii) the fiscal quarters ended January 31, April 30 and July 31 of 2006, (iii) the fiscal quarters ended January 31, April 30 and July 31 of 2007, or (iv) the fiscal quarters ended January 31, April 30 and July 31 of 2008, in each case, 2008 prior to the earliest of (1) November 30, 2008, (2) five (5) Business Days after the filing thereof with the Commission and (3) the date on which such financial statements are (or any of them is) required to be delivered pursuant to the Credit Agreement, NFC (x) is not in violation of its Certificate of Incorporation or By-Laws and (y) is not in breach or violation of any of the terms or provisions of, or with the giving of notice or lapse of time, or both, would be in default under, any contract, indenture, mortgage, deed of trust, loan agreement, note, lease, partnership agreement, or other agreement or instrument to which NFC is a party or by which it may be bound or to which any of its properties or assets may be subject, except for such violations or defaults that would not have a Material Adverse Effect;
(vii) any taxes, fees and other charges of Governmental Authorities applicable to NFC in connection with the execution, delivery and performance by NFC of the Transaction Basic Documents or otherwise applicable to NFC in connection with the Issuer Trust have been paid or will be paid by NFC at or prior to the Closing Date or such subsequent Funding Date, as applicable, to the extent then due, except for any such failures to pay which, individually and in the aggregate, would not have a Material Adverse Effect;
(viii) the Issuer Trust has been duly created and is validly existing under the laws of the State of Delaware;
(ix) on neither the date hereof, Trust nor NFC is not insolvent or the subject of any insolvency proceeding;
(x) no written information furnished or to be furnished by NFC or its Affiliates, agents or representatives to the Investors or the Agent for purposes of or in connection with this Agreement, including, without limitation, any reports delivered pursuant to Section 5.02 and any information relating to the Receivables and NFC’s retail receivable financing business, is or shall be inaccurate in any material respect, or contains or shall contain any material misstatement of fact, or omits or shall omit to state a material fact or any fact necessary to make the statements contained therein not misleading, in each case as of the date such information was or shall be stated or certified, and such information heretofore furnished remains true and correct in all material respects as of the date such information was delivered by NFC or any of its Affiliates, agents or representatives to the Investors or the Agent.; and
(xi) (x) NFC’s chief executive office and principal place of business is, and has been at all times during the five (5) years preceding the date of this Agreement, located in the State of Illinois and (y) NFC is a “registered organization” (as defined in Section 9-102 of the UCC) incorporated in the State of Delaware and, for purposes of Article 9 of the UCC, NFC is, and has been at all times during the five (5) years preceding the date of this Agreement, located in the State of Delaware.
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NFC. NFC hereby makes the following representations and warranties to the Investors and the Agent as of the Closing Date, Date and the Investors and the Agent shall be deemed to have relied on such representations and warranties in purchasing the Purchased Note on the Closing Date:
(i) NFC repeats and reaffirms the its representations, warranties and covenants of the Servicer covenants, in its capacity as Servicer, set forth in Section 5.01 of the Servicing Agreement and the representations and warranties of NFC set forth in Sections 3.01, 3.02 and 5.01 of the Purchase Agreement and represents and warrants that all such representations and warranties are true and correct as of such date;
(ii) no Governmental Action which has not been obtained is required by or with respect to NFC in connection with any of the Transaction Basic Documents, except any such failure which would not have a Material Adverse Effect;
(iii) each of the Transaction Basic Documents has been duly authorized, executed and delivered by NFC, and is the valid and legally binding obligation of NFC, enforceable against NFC in accordance with its terms, except that the enforcement thereof may be subject to (x) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights generally and (y) general principles of equity and the discretion of the court before which any proceeding therefor may be brought;
(iv) the Purchased Note has been duly and validly authorized and, when executed and authenticated in accordance with the terms of the Indenture, and delivered to and paid for in accordance with this Agreement, (x) will be duly and validly issued and outstanding and will constitute the valid and binding obligation of the Issuer Trust enforceable against the Issuer Trust in accordance with its terms, except that the enforcement thereof may be subject to (A) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity and the discretion of the court before which any proceeding therefor may be brought and (y) will be entitled to the benefits of the Indenture;
(v) there is no pending or, to NFC’s knowledge, threatened action, suit or proceeding by or against NFC or the Seller before any Governmental Authority or any arbitrator (w) asserting the invalidity of this Agreement, any other Transaction Basic Document or the Purchased Note, (x) seeking to prevent the issuance of the Purchased Note or the consummation of any of the transactions contemplated by this Agreement or any other Transaction Basic Document, (y) that might materially and adversely affect the performance by any of NFC, the Seller or the Issuer Trust of its obligations under, or the validity or enforceability of, this Agreement, any other Transaction Basic Document or the Purchased Note or (z) that if determined adversely as to NFC, the Seller or the Issuer Trust would have a Material Adverse Effect;
(vi) except for those caused by the failure of NFC and its affiliates to deliver its financial statements and related financial information for (i) the fiscal years ended October 31, 2005, October 31, 2006 and October 31, 2007, (ii) the fiscal quarters ended January 31, April 30 and July 31 of 2006, (iii) the fiscal quarters ended January 31, April 30 and July 31 of 2007, or (iv) the fiscal quarters ended January 31, April 30 and July 31 of 2008, in each case, prior to the earliest of (1) November 30, 2008, (2) five (5) Business Days after the filing thereof with the Commission and (3) the date on which such financial statements are (or any of them is) required to be delivered pursuant to the Credit Agreement, NFC (x) is not in violation of its Certificate of Incorporation or By-Laws and (y) is not in breach or violation of any of the terms or provisions of, or with the giving of notice or lapse of time, or both, would be in default under, any contract, indenture, mortgage, deed of trust, loan agreement, note, lease, partnership agreement, or other agreement or instrument to which NFC is a party or by which it may be bound or to which any of its properties or assets may be subject, except for such violations or defaults that would not have a Material Adverse Effect;
(vii) any taxes, fees and other charges of Governmental Authorities applicable to NFC in connection with the execution, delivery and performance by NFC of the Transaction Basic Documents or otherwise applicable to NFC in connection with the Issuer Trust have been paid or will be paid by NFC at or prior to the Closing Date Date, to the extent then due, except for any such failures to pay which, individually and in the aggregate, would not have a Material Adverse Effect;
(viii) the Issuer Trust has been duly created and is validly existing under the laws of the State of Delaware;
(ix) on neither the date hereof, Trust nor NFC is not insolvent or the subject of any insolvency proceeding;
(x) no written information furnished or to be furnished by NFC or its Affiliates, agents or representatives to the Investors or the Agent for purposes of or in connection with this Agreement, including, without limitation, any reports delivered pursuant to Section 5.02 and any information relating to the Receivables and NFC’s retail receivable financing business, is or shall be inaccurate in any material respect, or contains or shall contain any material misstatement of fact, or omits or shall omit to state a material fact or any fact necessary to make the statements contained therein not misleading, in each case as of the date such information was or shall be stated or certified, and such information heretofore furnished remains true and correct in all material respects as of the date such information was delivered by NFC or any of its Affiliates, agents or representatives to the Investors or the Agent.; and
(xi) (x) NFC’s chief executive office and principal place of business is, and has been at all times during the five (5) years preceding the date of this Agreement, located in the State of Illinois and (y) NFC is a “registered organization” (as defined in Section 9-102 of the UCC) incorporated in the State of Delaware and, for purposes of Article 9 of the UCC, NFC is, and has been at all times during the five (5) years preceding the date of this Agreement, located in the State of Delaware.
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